➔ Constitutional Challenge to the CEC & Other ECs Act, 2023- SC Split Verdict & Reference to CJI (UPSC/RAS/PSI) Current Affairs {Polity}

Constitutional Architecture of Article 324(2)- Framed in 1950, Article 324(2) mandates that the appointment of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs) shall be made by the President, "subject to the provisions of any law made in that behalf by Parliament."
Prolonged Legislative Inaction- For 73 years (1950 to 2023), Parliament enacted no governing statute under Article 324(2), leaving EC appointments to the unfettered, unilateral discretion of the Union Executive.
The 2015 Constitutional Challenge- A batch of public interest writ petitions was filed under Article 32 challenging this prolonged legislative vacuum and seeking an independent appointment mechanism.
The Landmark Anoop Baranwal Judgment (March 2023)- After an eight-year pendency, a five-judge Constitution Bench held that an independent Election Commission is an indispensable facet of the Basic Structure (free and fair elections) and must be insulated from "exclusive executive control."
Judicially Mandated Interim Mechanism- The bench directed an interim selection committee comprising- (1) Prime Minister, (2) Leader of Opposition in the Lok Sabha, and (3) Chief Justice of India, until Parliament enacted a law.
Parliamentary Counter-Legislation (December 2023)- Parliament passed the 2023 Act, removing the CJI and substituting him with a Union Cabinet Minister nominated by the Prime Minister, establishing a 2:1 executive majority.

The Split on Judicial Reference- While the two judges delivered divergent opinions on whether a two-judge bench could decide the vires of the 2023 Act, they arrived at a joint operative order.
Bypassing the Three-Judge Bench- The bench agreed that sending the petitions to a three-judge bench would be of "little worth" and would only cause procedural delay; they directly placed the matter before the CJI to consider constituting a Constitution Bench (minimum five judges).
Flagging Long Judicial Pendency- The judges highlighted that Anoop Baranwal took eight years to be resolved after its initial reference, while other references languished for years before larger benches.
"Institutional Embarrassment"- Described prolonged delays in adjudicating constitutional references as a source of serious institutional embarrassment for the Supreme Court.
Call for a Permanent Constitution Bench- Urged the Chief Justice of India to explore institutional mechanisms, such as a permanent five-judge Constitution Bench, to handle pending constitutional references without disruption.
Precedential Delays Cited- The judges pointed to State of UP v. Jai Bir Singh (which took nearly a decade) and recent split verdicts (e.g., Karnataka Hijab case, Section 17A of the Prevention of Corruption Act) that remain pending before larger benches.

Competence of the Division Bench- Held that the present two-judge bench was fully competent to hear and decide the writ petitions without referring them to a larger bench.
Application of Settled Precedent- Opined that the governing constitutional principle that the Election Commission must be insulated from exclusive executive control was already settled by the 2023 Constitution Bench in Anoop Baranwal.
Absence of a Novel Question- Emphasized that testing whether the 2023 Act complies with Anoop Baranwal constitutes an application of settled law to facts, requiring no fresh constitutional interpretation under Article 145(3).
The Doctrine of Collective Responsibility- Observed that a Cabinet Minister nominated by the Prime Minister is bound by collective responsibility and "cannot be expected to defy his own nominator," giving the executive an effective 2:1 majority.
The "Perception Test" and Ornamental LoP- Noted that the 2:1 executive composition renders the Leader of the Opposition "largely ornamental," stating that the ECI "must not only be independent, but also appear to be independent."
Debunking the "Judges Appointing Judges" Analogy- Strongly rejected the Union's comparison to the judicial Collegium, describing the notion that "judges appoint judges" as a myth given executive primacy in clearances, and dismissed the comparison as "disingenuous, evasive and disquieting."

Mandatory Article 145(3) Reference- Held that the constitutional challenge must be referred to a five-judge Constitution Bench because the Supreme Court is examining the validity of the 2023 Act for the first time.
No Authoritative Precedent- Pointed out that no prior judgment had authoritatively pronounced on the constitutional validity of this specific parliamentary legislation.
Parliament’s Legislative Discretion- Framed the core constitutional question as whether Parliament was justified in choosing not to include a neutral selector (the CJI) in the statutory selection committee.
Unsettled Question of Law- Stated that because this specific question had never been dealt with in any precedent, Article 145(3) left "no room" for a two-judge combination to deliver a final ruling.
Separation of Powers Arguments- Observed that the government's defenses rooted in the constitutional separation of powers and the exclusion of the judiciary from administrative appointments deserve comprehensive evaluation by a larger bench.
Judicial Restraint- Underscored that when a statute enacted by Parliament is challenged on novel constitutional grounds, institutional discipline requires the interpretation to come from a bench of five or more judges.

The Threshold of Article 145(3)- Mandates that any case involving a "substantial question of law as to the interpretation of this Constitution" must be heard by a bench comprising a minimum of five judges.
"Substantial" vs. "Routine" Questions- A question is substantial not merely because it involves a constitutional provision, but when it is unsettled, novel, or open to divergent judicial viewpoints.
Mechanism of Split Verdicts- Under Supreme Court Rules, when a Division Bench is equally divided (1:1), the matter is referred to the Chief Justice of India, who determines the composition of the referral bench.
Hierarchy of Precedents- A ruling by a two-judge bench cannot overturn or dilute a five-judge Constitution Bench ruling (Anoop Baranwal); conversely, Parliament can cure the legal basis of a judgment by enacting fresh legislation.
Tug-of-War Over the Fourth Branch- Centers on whether independent accountability institutions (the "Fourth Branch," such as the ECI, CAG, and CVC) require structural insulation from executive primacy to protect democratic integrity.
Basic Structure Doctrine Ramifications- Puts the doctrine to the test regarding whether free and fair elections require an independent appointment panel with a neutral selector as an unalterable constitutional requirement.