The Supreme Court on Wednesday referred to a five-judge Constitution Bench petitions challenging the law that replaced the Chief Justice of India with a Union Cabinet Minister in the three-member selection panel for appointment of the Chief Election Commissioner and Election Commissioners even as it delivered a split verdict on the issue.A Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma, which had on July 30 reserved its order, requested Chief Justice of India Surya Kant to constitute a five-judge Constitution Bench for an authoritative pronouncement on the contentious issues raised by the petitioners.“Inclusion of a Cabinet Minister (in the selection panel) fails to provide an independent counterweight that a neutral selector would. It becomes largely ornamental,” Justice Datta noted. If free and fair elections were to be ensured, it’s axiomatic that the Election Commission must not only be an independent body but also be seen to act independently, Justice Datta said.However, disagreeing with Justice Datta, Justice Sharma held that the issue needed to be authoritatively determined by a Constitution Bench in terms of Article 145(3) of the Constitution.The petitioners–Association for Democratic Reforms, Jaya Thakur, Lok Prahari and others–have challenged the Chief Election Commissioner and the other Election Commissioners (Appointment, Condition of Service and Term of Office) Act, 2023 that replaced the CJI with a Union Cabinet Minister in the selection panel.The Act continues to hold the field after the top court on March 21, 2024, refused to stay its operation. Interestingly, the two judges delivered a split verdict on the need to refer the petitions to a larger Bench.While Justice Datta rejected the demand, Justice Sharma concluded that the petitions raised substantial questions of law which were required to be decided by a five-judge Constitution Bench.However, despite delivering a split verdict, the two judges unanimously requested CJI Kant to constitute a five-judge Constitution Bench at the earliest to adjudicate on the issues raised in the petitions.On behalf of the Centre, Attorney General R Venkataramani and Solicitor General Tushar Mehta had urged the top court to refer the matter to a Constitution Bench, contending the petitions raised substantial questions relating to the interpretation of Article 324 of the Constitution and the extent of Parliament’s legislative power to prescribe the mechanism for the appointment of CEC and ECs.The Centre had contended that the 2023 Constitution Bench verdict in Anoop Baranwal’s case, which had directed that the CEC and ECs had to be appointed by a panel of the Prime Minister, the Leader of Opposition and the CJI until Parliament enacted a law, only prescribed an interim arrangement and did not lay down a binding constitutional requirement that the CJI should be part of the selection committee.However, on behalf of the petitioners, senior advocates Vijay Hansaria, Gopal Sankaranarayanan, Sanjay Parikh and Shadan Farasat and advocate Prashant Bhushan had opposed the Centre’s demand for referring the issue to a Constitution Bench, contending the issue had already been decided by a Constitution Bench.Ending the 73-year-old system of the government appointing the CEC and ECs, the Supreme Court had on March 2, 2023, in the Anoop Baranwal case ordered creation of a three-member panel comprising the PM, Leader of Opposition in the Lok Sabha or leader of largest opposition party and the CJI to select them. In a unanimous verdict, a five-judge Constitution Bench led by Justice KM Joseph (since retired) had, however, said, “This norm will continue to hold good till a law is made by Parliament.”In December 2023, Parliament enacted the Chief Election Commissioner and the other Election Commissioners (Appointment, Condition of Service and Term of Office) Act, 2023, that replaced the CJI with a Union Cabinet Minister in the three-member selection panel.The petitioners have challenged the validity of the law.