The Supreme Court on September 23 delivered a split verdict on whether the constitutional challenge to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 should be considered by a larger Constitution Bench.
A two-Judge Bench comprising Justice Dipankar Datta and Justice Satish Chandra Sharma differed on the issue. Justice Datta held that the challenge could be examined by the present Bench and rejected the Union government's request for a larger Bench. Justice Sharma, however, held that the challenge raised a substantial question of constitutional interpretation that had not previously been decided and should therefore be considered by a Constitution Bench of at least five judges.
Because of the difference between the two judges, the Bench ultimately directed that the papers be placed before the Chief Justice of India for consideration of an appropriate Constitution Bench.
Background
The batch of petitions challenges provisions of the 2023 Act, principally Section 7, which deals with the Selection Committee for appointing the Chief Election Commissioner and Election Commissioners. The connected challenge also concerns Sections 6 and 8(2).
Under Section 7, the Selection Committee consists of the Prime Minister as Chairperson, the Leader of Opposition in the Lok Sabha as a member, and a Union Cabinet Minister nominated by the Prime Minister as the third member.
The petitioners have questioned the constitutional validity of this arrangement, particularly on the ground that two of the three members are connected with the executive.
The challenge also follows the Supreme Court's 2023 Constitution Bench judgment in Anoop Baranwal v. Union of India, where, in the absence of parliamentary legislation, the Court had directed that the CEC and ECs be selected by a committee comprising the Prime Minister, the Leader of Opposition and the Chief Justice of India.
The Union government argued that the arrangement in Anoop Baranwal was an interim mechanism operating until Parliament enacted a law. According to the Union, Parliament was therefore entitled to create a different statutory framework.
Justice Dipankar Datta held that the request for reference to a larger Bench was not made out. His opinion examined whether Anoop Baranwal had settled the constitutional principles governing the independence of the Election Commission or whether the validity of the 2023 Act raised a fresh substantial question of constitutional interpretation.
Justice Datta observed that free and fair elections require an Election Commission that is not only independent but also perceived to be independent. While examining the Selection Committee under the 2023 Act at a prima facie stage, he questioned whether the Cabinet Minister nominated by the Prime Minister could provide the kind of independent counterweight that a neutral selector would provide.
The judge observed:
"It is not enough for the ECI to be independent, it must also appear to be independent."
Justice Datta further noted that the Minister nominated by the Prime Minister would be part of the Council of Ministers and subject to collective responsibility. In that context, he expressed the prima facie view that the executive's numerical position in the Selection Committee could raise concerns about the appearance of institutional independence.
However, Justice Datta made it clear that these observations were not a final decision on the constitutional validity of the 2023 Act. He held that the established constitutional principles concerning free and fair elections and the independence of the Election Commission could be applied to the new legislation without necessarily requiring a larger Bench.
He accordingly rejected the Union's request for a reference and directed that the petitions could proceed before the existing Bench.
Justice Satish Chandra Sharma disagreed with Justice Datta on the question of reference.
He held that there was no authoritative decision of the Supreme Court deciding the constitutional validity of the 2023 Act. In his view, the question whether Parliament could exclude a neutral selector such as the CJI from the appointment committee, while retaining the constitutional requirement of an independent Election Commission, was an important question arising for the first time.
Justice Sharma therefore concluded that the matter involved a substantial question of law as to the interpretation of the Constitution, attracting Article 145(3) and the relevant Supreme Court Rules.
He also rejected the argument that Anoop Baranwal had already settled the issue. According to his reading, that judgment dealt with the constitutional vacuum existing before Parliament enacted legislation and provided an interim arrangement. Whether Parliament's subsequent legislation satisfies the constitutional requirements remained to be independently examined.
Justice Sharma stated:
"Fair and free elections being a part of the basic structure has been acknowledged in the precedents relied on and no Court can or would, possibly, doubt it now. But whether the said Act fails the test of free and fair elections has to be independently examined."
He accordingly proposed that the petitions be placed before the Chief Justice for constitution of a Constitution Bench to adjudicate the constitutional validity of Sections 7, 6 and 8 of the 2023 Act.
With the two judges taking different views, the Bench noted that ordinarily the disagreement would be placed before a three-Judge Bench. However, the judges observed that the precise issue on which they differed was whether the matter itself required a five-Judge Constitution Bench. Sending that question to another smaller Bench would therefore only delay the proceedings.
The joint order stated:
"Unfortunately, the Court is divided in its opinion."
The Bench consequently directed that the papers be placed before the Chief Justice of India for considering the desirability of constituting a Constitution Bench of an appropriate strength to decide the challenge to Section 7 and the other provisions of the 2023 Act.
The Court also recorded concerns regarding delays in constitutional references and requested the Chief Justice to consider whether a permanent five-Judge Bench should be constituted to decide pure constitutional questions.
The constitutional validity of the challenged provisions of the 2023 Act was therefore not finally decided by the two-Judge Bench.
Case Details:
Case Title: Dr. Jaya Thakur & Ors. v. Union of India & Anr. and connected matters
Case Number: W.P. (C) No. 14 of 2024 and connected petitions
Judges: Justice Dipankar Datta and Justice Satish Chandra Sharma
Decision Date: 23 September 2026
