Should petitions challenging the law regulating appointment of the Chief Election Commissioner (CEC) and Election Commissioners be referred to a larger five-judge Bench?A bench of Justice Dipankar Datta and Justice Satish Chandra Sharma on Thursday reserved its order on the issue. It asked the petitioners and the Centre to file their written submissions on the issue.The top court was hearing PILs filed by Association for Democratic Reforms, Jaya Thakur, Lok Prahari and others, challenging a 2023 law on appointment of the CEC and ECs that replaced the CJI with a Union Cabinet Minister in the three-member selection panel.On behalf of the Centre, Attorney General R Venkataramani and Solicitor General Tushar Mehta 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 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.Venkataramani said 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, itself gave rise to constitutional issues requiring authoritative determination by a larger bench.Mehta said it would be wrong to assume that the Prime Minister and other ministers would act in “bad faith” and against “democracy” because they have a numerical majority in the selection procedure.Maintaining that the office of the Prime Minister has a sanctity attached to it, he said doubting the decision of the selection committee headed by the PM would undermine the constitutional trust reposed in elected institutions.“If his decision is not to be trusted and is to be seen as necessarily a bad-faith exercise, then why not have a provision that even while selecting his Cabinet, he must consult some former judge or outsider?” the Solicitor General wondered.The bench, however, said it was not about distrusting the Prime Minister but of institutional fairness.On behalf of the petitioners, senior advocates Vijay Hansaria, Gopal Sankaranarayanan, Sanjay Parikh and Shadan Farasat and advocate Prashant Bhushan opposed the Centre’s demand for referring the issue to a Constitution Bench. They contended that the issue had already been decided by a Constitution Bench.Mehta said it would be wrong to assume that the PM and other ministers would act in “bad faith” and against “democracy” because they have a numerical majority in the selection procedure.Maintaining that the office of the Prime Minister has a sanctity attached to it, he said doubting the decision of the selection committee, headed by the PM, would undermine the constitutional trust reposed in elected institutions.“If his decision is not to be trusted and is to be seen as necessarily a bad-faith exercise, then why not have a provision that even while selecting his Cabinet, he must consult some former judge or outsider?” the Solicitor General wondered.The Bench, however, said it was not about distrusting the Prime Minister, but of institutional fairness.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 top court had on March 21, 2024 refused to stay the 2023 Act.