TODAY, the special bench of Justices Dipankar Datta and Satish Chandra Sharma pronounced a split decision on whether the petitions challenging the 2023 law on Election Commissioners’ appointment must be referred to a larger bench. While Justice Datta opposed the reference, Justice Sharma favoured it.
Ultimately, acknowledging that a decision by a three-judge bench to determine which of the two divergent opinions is correct would be of little worth and would only delay adjudication of the significant issues raised in these petitions, the Bench directed that the papers be placed before the Chief Justice of India (‘CJI’) for consideration of the desirability of constituting a Constitution Bench (of such strength as the CJI considers appropriate) to decide the question of the vires of Section 7 and the other provisions of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 (‘2023 Act’).
Background of the case
In December 2023, the Parliament passed the 2023 Act which substituted the CJI with a Union Cabinet Minister nominated by the Prime Minister (‘PM’) in the Selection Committee for the post of the Chief Election Commissioner (‘CEC’) and the Election Commissioners (‘ECs’). The selection committee therefore consists of the PM, a Union Cabinet Minister, and the Leader of the Opposition (‘LoP’).
Applications were filed challenging the vires of Section 7(1) of the 2023 Act on two grounds. First, the Section dilutes Anoop Baranwal (2023) in which a five judge constitutional bench of the Court held that a committee comprising the PM, the LoP and the CJI will advise the President on appointments to the Election Commission of India (‘ECI’) until Parliament enacts a law on the subject. Second, the provision has a direct and potential impact on the conduct of transparent, free and fair elections, one of the foundational requirements of democracy.
The petitioners also cited procedural irregularity alleging that the LoP*, Adhir Ranjan Chowdhury, was not given the shortlisted candidates’ details far enough in advance to meaningfully participate.
On March 2024, vide an order, Justices Dipankar Datta and Sanjiv Khanna declined to go into the depth of the vires challenge at that stage and noted that Anoop Baranwal had only stepped in because Parliament had not legislated under Article 324(2). According to the bench, the Court’s earlier directions were meant to be a stopgap “pro-tem” measure until a law was made and that it would not dictate to the legislature how to legislate.
That said, the Court affirmed it retained full power of judicial review to strike down a law that violates fundamental rights and expressed concern over how the selection was conducted.
The Court clarified that its observations were tentative, since the main matter remained sub judice and the core constitutional challenge to Section 7(1) was left open for final determination.
On July 30, 2026, the Court reserved its order on the question as to whether the writ petitions ought to be referred to a Bench of five-Judges.
‘Justification for a reference cannot be sustained merely by repackaging an existing constitutional principle’: Justice Datta
“A consistent trait of political power discernible over the decades has been to preserve leverage over the very body that is meant to judge its claim to power,” said Justice Datta while pronouncing his opinion.
While turning to Article 145(3) and Order 38 of the Supreme Court Rules, for adjudicating on the question of reference, he opined that a reference to a larger bench is warranted only where there is a substantial, unsettled question of constitutional interpretation. The underlying principle (that ECI must be independent of exclusive executive control, as part of the basic structure), according to him, is already settled by precedent and is a task the present two-judge bench is fully competent to perform.
The Constitution Bench in Anoop Baranwal, he reiterated, set up the CJI-inclusive selection panel only as a pro-tem, Article 142 arrangement and the 2023 Act doesn’t, on its face, defy a binding judicial norm. What is binding, per him however, is the broader principle that the ECI’s independence from exclusive executive control is part of the basic structure.
He found substance in the submissions of the petitioners that the minister, bound by collective responsibility under Article 75(3), realistically cannot be expected to vote against the Prime Minister who nominated him.
“If free and fair elections are to be ensured, it is axiomatic that the ECI must not only be an independent body, but also be seen to act independently. Though the 2023 Act may possibly survive the frontal challenge of not including the CJI in the selection committee, it also has to succeed on the perception test, which this court has repeatedly said is essential,” he said.
Separately, he also responded to an argument made by the Solicitor General regarding “judges appointing judges” and called that framing a myth fed by vested interests and stressed the executive’s substantial, often decisive role in the Collegium process (including selective implementation, where the executive approves some recommended names while indefinitely withholding others, which the judge calls a troubling erosion of institutional norms that risks becoming an “accepted practice.”)
Justice Datta found substance in the submissions of the petitioners that the minister, bound by collective responsibility under Article 75(3), realistically cannot be expected to vote against the Prime Minister who nominated him.
“Undeterred by such peaceful approvals and regardless of the fate of those not cleared by the executive, the Collegium chooses to proceed seemingly to avoid a head-on conflict with the executive and left with the options choice to keep the institution running. What it thereby averts arguably is a constitutional crisis, but the larger question which looms is how long can this state of affairs continue if such selective implementation is allowed to acquire the character of an accepted practice? Dr. Ambedkar's vision was that the judiciary must both be independent of the executive and be competent in itself. However, given the present situation, that vision appears blurred and under serious strain,” he said.
‘Whether or not Parliament were justified in not including a neutral selector in the selection committee is an important question arising for the first time before this court’: Justice Sharma
Justice Sharma pronounced a short divergent opinion holding that the issues raised in the petitions deserve consideration by a Constitution Bench. Anoop Baranwal, per him, established an ad hoc selection committee as an interim arrangement to fill a constitutional vacuum until Parliament enacted a law, however, whether Parliament is constitutionally justified in excluding a neutral selector from the Selection Committee under the new enactment is an important question arising before the Court for the first time and because the petitions raise a substantial question regarding the interpretation of the Constitution that has not been addressed by existing precedent, the current bench combination cannot finally decide the issue under the governing constitutional rules.
“Fair and free elections being a part of the basic structure has to be acknowledged in the precedents relied on, and no court can or would possibly doubt it, but whether the said act fails the test of free and fair elections has to be independently examined,” he said.
Formulation of a permanent 5-judge bench
Faced with this genuine split, and noting a concern raised by the petitioners that the Court has historically taken to decide references to larger benches, the Bench asked the papers to be placed before the CJI to decide, in his discretion, the strength of bench needed to decide the vires question.
The Bench recalled that in Anoop Baranwal, the Court took eight years in all to render its decision and dispose of the writ petition. In Jai Bir Singh (2026), it took nine years for the reference made by the seven-judge bench to reach the nine-judge bench, and a further five months for that bench to decide it. Even before that, the reference itself had remained pending for fifteen years, since 2002.
Accordingly, the judges took the opportunity to request the CJI to also explore the necessity of constituting a permanent Constitution Bench to decide pure constitutional issues. Justice Datta noted that this was not a novel suggestion, and since resolving constitutional questions is a primary task of the Court, it must remain a core priority. Keeping references pending for anywhere between five and twenty years or more, the Bench said, does not reflect well on the institution, and it is time the institution addressed this with urgency.
*As per Explanation to Section 7(1) of the 2023 Act the leader of the single largest party in opposition of the Government in the House of the People shall be deemed to be the LoP, in case where the LoP has not been recognized.