Breaking: Apex Court Delivers Split Verdict On Referring Pleas Challenging Election Commissioners' Appointment Act; But Finally Refers To Constitution Bench

The Supreme Court has delivered a split verdict in the matter concerning the challenge to the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

Despite their difference of opinion, both judges issued a concurring procedural order directing the case papers to be placed before the Chief Justice of India to consider constituting a Constitution Bench directly, avoiding the procedural delay of a three-judge bench, while also highlighting the urgent institutional need to address long-pending references.

The Court heard the matter challenging the validity of the appointment of new Election Commissioners under the new law, which excludes the Chief Justice of India from the selection panel.

Justice Dipankar Datta opined, "Precedents having laid down in unmistakable terms that free and fair elections are a basic feature of the Constitution and that the ECI should be insulated from exclusive executive control in relation to appointments of the CEC and the ECs, what remains is no more than the application of the settled principles of law to the facts of the case and a decision on the challenge as laid...Thus, neither any constitutional bar nor a precedent precludes hearing of these petitions by the present bench. Accordingly, the defenders' prayer for a reference to a larger bench is rejected for the foregoing reasons."

Per Contra, Justice Satish Chandra Sharma said, "Having regard to the aforesaid discussion, in my opinion, all the petitions in accordance with Article 145(3) of the Constitution and Order 38 of the Supreme Court Rules may now be placed before honorable the Honourable Chief Justice of India for an appropriate order of a Constitution Bench to adjudicate the constitutional validity of Sections 6, 7, and 8 of the said Act."

The Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma also passed a concurring procedural order, "In view of the difference of opinion between the two of us, ideally, a reference to a three-judge bench is called for...However, having regard to the question on which such difference has arisen—that is, whether the petitions and the applications should be heard by a Constitution Bench of five judges—a decision by a three-judge bench to resolve which of the two opinions is correct would be of little worth and only delay adjudication of the significant issues that these writ petitions raise. Thus, we direct that the papers be placed before the Honourable CJI for considering the desirability of constituting a Constitution Bench of such number of judges to decide the question of vires of Section 7 and the other provisions of the 2023 Act."

Senior Advocates Gopal Sankaranarayanan, Shadan Farasat and Advocate Prashant Bhushan appeared for the Petitioners, while Attorney General R Venkataramani and Solicitor General Tushar Mehta appeared for the Respondents.

Justice Datta's Opinion

He observed, "It is considered necessary to address a misconception that has been allowed to proliferate. The oft-repeated phrase that 'judges appoint judges' is a myth which people have been fed by vested interests through motivated narratives, often drawing sustenance from certain controversial decisions taken in this century in relation to the appointment of judges."

It was opined that the uninitiated and the unwary unknowingly have thus been made to believe that the Collegium of the Supreme Court and the Collegia of the High Courts comprise judges who appoint judges, and it became fashionable nowadays to blame the Collegium for every infelicitous choice, conveniently forgetting that aberrations are exceptions and not the norm, and that no system can guarantee infallibility of human choice.

He observed, "What is most worrying and needs attention for a remedy is that the sanctity of a Collegium resolution is lost each time the Executive implements it selectively, albeit approving the majority of those recommended while withholding at least one...Undeterred by such piecemeal 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 is left with a Hobson's choice to keep the institution running."

It was observed that to enact a law on the lines empowered by Article 324(2) would have meant freeing the ECI from exclusive executive control and inviting trouble for the ruling regime. He added that this has not been the failing of any one party or one period; 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.

"While this Court does not express any conclusive response to the questions posed above, since they deal with the legitimacy of the 2023 Act, some prima facie observations would be necessary in the present context...There can be no gainsaying that free and fair elections to a large extent depend on a truly independent ECI. It is not enough for the ECI to be independent; it must also appear to be independent", Justice Datta opined.

Justice Datta also said that since it is the Council of Ministers who has the collective responsibility to sustain the integrity and purity of the constitutional structure, it is far-fetched to expect that a minister who is part of the Council of Ministers and bound by the collective responsibility under Article 75(3) would adopt a stand in the matter of appointment to a sensitive constitutional office disagreeing with the leader of the government.

"In such a circumstance, the inclusion of a Cabinet Minister in the Selection Committee fails to provide the independent counterweight that a neutral selector could, and the Cabinet Minister would merely echo the voice of his leader. And consequently, the presence of the Leader of Opposition in the Selection Committee becomes largely ornamental, without furthering the purpose of his inclusion", he said.

He also said that 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 added.

Regarding the reference, Justice Datta observed, "The present case involves propositions relating to the constitutional imperative of free and fair elections and the necessity of the institutional independence of the ECI. The constitutional conspectus of Article 324 cannot be examined in silos, dehors the binding principles enunciated in the precedents. The .2023 Act undoubtedly adds a new element to the canvas that must be tested against the settled principles occupying the field thus far. Such an exercise, however, is materially different from saying that the constitutional principles themselves remain unsettled. The former is an application of settled constitutional standards to a subsequent legislative measure; the latter alone would warrant a reference to a larger bench."

Justice Sharma's Opinion

Justice Sharma observed, "Having regard to the decision in Anoop Baranwal, my understanding is that it was dealing with a constitutional vacuum and, noticing that no law had been enacted, and while leaving it to the Parliament to enact the law, the Constitution Bench proposed an ad-hoc arrangement whereby the honourable Prime Minister, honorable the Chief Justice, and the Leader of Opposition were to form an interim committee to select Election Commissioners."

He added that it's a substantial question of law as to interpretation of the Constitution which has not been dealt with in any precedent; the plain language of Article 145(3) read with Order 38 of the Supreme Court Rules does not leave any room for a discussion on such question finally by the present combination.

He observed, "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."

Background

On July 30, 2026, the Court reserved the matter for judgment/order regarding the issue of whether the question of law must be referred to a Five-Judge Bench.

Chief Justice Surya Kant had also recused himself from hearing the petitions and had directed that a bench consisting of judges who are not in line to become the Chief Justice of India (CJI) would hear the challenge.

The Court previously refused to stay the appointment of new Election Commissions under the new law.

On March 13, 2024, Advocate Prashant Bhushan mentioned an application before the Court, challenging the Act, 2023 as violative of Article 14 and seeking to overrule the Constitution Bench decision of the Court in Anoop Baranwal v. Union of India without altering the basis.

It was the case of the Petitioner that on February 14, 2024, Anup Kumar Pandey, Election Commissioner, demitted his post as he had completed his term, leading to a vacancy. Without any reason or explanation, on 10th March 2024, the Government of India issued a notification stating that Arun Goel, Election Commissioner,r has resigned from his post and the same has been accepted by the President of India. Therefore, there are two posts of Election Commissioners lying vacant, and the Election Commission is functioning at less than the envisioned capacity of three official posts.

Earlier, the Court had refused to stay the law while issuing notice in a batch of petitions, where the lead case was preferred by Congress Leader Jaya Thakur.

Cause Title: Association For Democratic Reforms v. Union of India (W.P.(C) No. 87 of 2024) and Dr Jaya Thakur Vs Union Of India (W.P. (C) No. 14 of 2024)