New Delhi, Sep 23 Old or new, whatever be the character of the statute, if the validity of such a law is questioned on valid grounds as failing the constitutional test, then it must be decided by a larger bench, Justice Satish Chandra Sharma said on Wednesday.
Justice Sharma was part of the bench also comprising Justice Dipankar Datta which gave split opinions on whether a batch of pleas challenging the validity of a 2023 law that excludes the CJI from the panel for selecting the chief election commissioner (CEC) and election commissioners (ECs) should be referred to a larger Constitution bench for adjudication.
He said in his separate opinion that the arguments advanced on behalf of the Centre by the Attorney General R Venkataramani and Solicitor General Tushar Mehta for referring the issue to a larger bench are well-founded.
“There is no authoritative decision of this court till date pronouncing on the constitutional validity of the said Act. A judicial decision in light of what the Constitution provides has to be given by this court while it is seized of the issue of vires of Section 7 of the said Act and its other provisions.
“The decision on these writ petitions would be the first of its kind and it is all the more necessary that a reference is made,” Justice Sharma said.
He added that if this court has previously not had the occasion to deal with the constitutional issue and pronounce on such grounds, a reference would seem to be in order.
“Old or new, whatever be the character of the statute, if validity of such statute or a part thereof is questioned on valid grounds as failing the constitutional test and if this Court has previously not had the occasion to deal with and pronounce on such grounds, a reference would seem to be in order,” he said.
He said the challenge to the provisions of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, being a matter of constitutional significance and raising substantial questions of law as to interpretation of the Constitution, these matters must be heard by a Constitution Bench of not less than five judges.
Justice Sharma agreed with the views of Solicitor General Mehta that a corresponding degree of constitutional independence must also be recognised for the executive as well as the legislature and the committee constituted under the Rules framed under Article 324 deserves to be declared legal though dominated by the members of the executive.
He said that Mehta’s submission on the collegium system was not a criticism and only referred to the National Judicial Appointments Commission (NJAC) case in which this court had held that the presence of even the law minister in the collegium for the selection of judges of the high courts and the Supreme Court was violative of the doctrine of separation of powers.
“The submission was not as a criticism of the collegium system or regarding the role of the executive in the appointment of judges. In my opinion, it was a submission to the effect that if the Constitution bench has held that the presence of outsiders in the collegium is violative of the doctrine of separation of powers, a similar independence should be read in the executive also and the rules framed under Article 324 be not declared void on the ground either that it does not have any outsider in the Committee of selection or there is pre-dominance of only executive in the committee of selection,” he said.
Justice Sharma further said, “In my perspective, it was neither a criticism of the collegium system nor initiating any debate regarding the manner in which the system of selection has worked. The submission was confined to the aforesaid constitutional principle and its application to the issue arising in the present case.”
He said in his opinion, as there is no authoritative decision of this court till date pronouncing upon the constitutional validity of the said Act, the matter must be heard by a Constitution bench of not less than five judges.
(PTI News)
