Analysis: Justice Datta's Opinion on Election Commissioner Act Challenge

Last month, the Supreme Court delivered a split verdict on the challenge to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, specifically on the question of whether the matter should be heard by a Constitution Bench.Justice Dipankar Datta held that the matter did not warrant a reference, whereas Justice Satish Chandra Sharma took the contrary view. The matter has now been placed before the Chief Justice to consider the “desirability of constituting a Constitution Bench”.Of the two opinions, Justice Datta’s adheres more closely to precedent while also adopting a pragmatic approach to the requirements of Article 145(3).Background to the case and clarificationsThe petitions before the Court primarily challenged Section 7 of the 2023 Act, which provides for a Selection Committee to recommend appointments to the offices of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs). The Committee comprises the Prime Minister (PM), the Leader of Opposition in the Lok Sabha (LoP) and a Union Cabinet Minister nominated by the Prime Minister. The petitioners primarily argued that this composition ensured executive dominance in the Selection Committee, contrary to the decision in Anoop Baranwal v. Union of India (2023). The judgment records that the Attorney General initially opposed the petitions on merits, but subsequently argued that they must be heard by a bench of at least five jud