The Supreme Court on September 23 delivered a split verdict on the Union government's request to refer the constitutional challenge to the 2023 law governing appointments of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) to a larger bench.
A Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma differed on whether such a reference was necessary. With the disagreement, the Bench directed that the matter be placed before the Chief Justice of India for consideration of an appropriate Constitution Bench.
Background
The petitions challenge the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, particularly the mechanism under Section 7 for selecting members of the Election Commission.
Under the law, the Selection Committee consists of the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister and the Leader of Opposition in the Lok Sabha. The petitioners contend that this arrangement gives the executive two members on the three-member panel and raises concerns about the institutional independence of the Election Commission.
The challenge follows the Supreme Court's 2023 Constitution Bench decision in Anoop Baranwal v. Union of India, under which the Prime Minister, Leader of Opposition and Chief Justice of India were directed to form the selection committee until Parliament enacted a law on the subject.
The Union government argued that Anoop Baranwal had only filled a legislative vacuum and that Parliament was constitutionally entitled to prescribe a different mechanism.
Justice Dipankar Datta rejected the Union's request for reference and proceeded to express a prima facie view on the challenge to the 2023 Act.
The judge stressed that institutional independence also involves public confidence in that independence.
"Free and fair elections depend on a truly independent ECI. It is not enough for the ECI to be independent; it must appear to be independent. The member nominated by the Prime Minister cannot be expected to defy the Prime Minister," Justice Datta observed.
He also questioned whether a Cabinet Minister nominated by the Prime Minister could provide a genuinely independent counterweight within the committee.
"Inclusion of Cabinet Ministers fails to provide an independent counterweight that a neutral selector would. It becomes largely ornamental," Justice Datta said.
Justice Datta further observed that the constitutional principle requiring an independent Election Commission remained relevant even after Parliament enacted legislation governing appointments.
Justice Satish Chandra Sharma disagreed with Justice Datta's approach. He held that the petitions raise a substantial question of law requiring authoritative determination by a larger bench under Article 145(3) of the Constitution.
The difference between the two judges resulted in the matter being placed before the Chief Justice of India. The Bench considered that sending the issue first to another smaller bench merely to determine whether a Constitution Bench was required could cause further delay.
The two-judge Bench accordingly directed that the matter be placed before the Chief Justice of India for consideration of the constitution of a Constitution Bench of appropriate strength.
The constitutional challenge to the 2023 Act therefore remains to be determined by the larger bench.
The Report will be Updated
Case Details
Case Title: Dr. Jaya Thakur v. Union of India and connected cases
Case Number: W.P.(C) No. 14/2024 and connected cases
Judges: Justice Dipankar Datta and Justice Satish Chandra Sharma
Decision Date: 23 September 2026
