Supreme Court Refers Challenge to Election Commissioners’ Appointment Law to Constitution Bench
1. Background of the Constitutional Challenge
The Supreme Court of India, in Dr. Jaya Thakur And Ors. Vs Union of India And Anr. (Writ Petition (Civil) No. 14 of 2024), by order dated 23/09/2026, has directed that the batch of petitions assailing the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 be placed before the Chief Justice of India. The purpose is to consider constituting an appropriate Constitution Bench to examine the vires of the legislation, particularly Section 7, along with Section 6 and Section 8(2) of the 2023 Act.
The matter was heard by a two‑Judge Bench comprising Justice Dipankar Datta and Justice Satish Chandra Sharma. Both Judges agreed that the issue is of great constitutional significance but delivered divergent opinions on whether the present Bench of two Judges could decide the constitutional validity or whether a reference to a Bench of at least five Judges under Article 145(3) of the Constitution was mandatory.
- Justice Dipankar Datta took the view that no reference was required and that the existing Bench was competent to decide the challenge.
- Justice Satish Chandra Sharma disagreed, holding that the case involves substantial constitutional questions not previously determined, thereby invoking the requirement of a five‑Judge Bench under
Article 145(3).
Because of the difference of opinion on the threshold issue of reference, the Bench jointly ordered that the matter be placed before the Chief Justice of India to decide on the constitution of a suitable Constitution Bench. The Court has, therefore, not yet decided the constitutional validity of the 2023 Act; the statute continues to operate until any future interim or final order is passed by a larger Bench.
2. Framework of the 2023 Act: Executive Majority in the Selection Mechanism
2.1 Composition of the Selection Committee (Section 7)
The core challenge is aimed at Section 7 of the **Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023`. This provision stipulates that:
- The Chief Election Commissioner and other Election Commissioners shall be appointed by the President,
- Acting on the recommendation of a Selection Committee comprising:
- the Prime Minister (Chairperson),
- the Leader of Opposition in the Lok Sabha, and
- a Union Cabinet Minister nominated by the Prime Minister.
Given that two of the three members (Prime Minister and nominated Cabinet Minister) belong to the political executive, the petitioners argue that this confers a decisive executive majority over appointments to the Election Commission.
2.2 Role of the Search Committee (Section 6) and Power to Go Beyond Its Panel (Section 8(2))
In addition to Section 7, the petitioners have challenged:
Section 6: which creates a Search Committee headed by the Union Law Minister to prepare a panel of five names for consideration.Section 8(2): which authorises the Selection Committee to recommend candidates even outside the panel suggested by the Search Committee.
The petitioners contend that these features, taken together, allow the executive to dominate every stage of the selection process, from pre‑screening to final choice.
2.3 Alleged Undermining of Election Commission’s Independence
The plank of the challenge is that the Election Commission of India is the constitutional body charged with supervising elections in which the ruling executive itself is a direct contestant. According to the petitioners:
- If the Government of the day holds a two‑to‑one majority in the Selection Committee, the appointment process lacks the required institutional neutrality.
- This, they submit, is inconsistent with the settled principle that the Election Commission must be insulated from exclusive executive control, a dimension of the basic structure doctrine tied to free and fair elections.
The petitioners place heavy reliance on the Constitution Bench decision in Anoop Baranwal v. Union of India, (2023) 6 SCC 161, where the Supreme Court, in the absence of a parliamentary enactment under Article 324(2), mandated an interim selection committee consisting of:
- the Prime Minister,
- the Leader of Opposition, and
- the Chief Justice of India (CJI).
They argue that the 2023 Act abandons the neutral presence of the CJI, restoring an executive‑led structure that the Court had found constitutionally problematic in Anoop Baranwal.
3. Justice Dipankar Datta’s Opinion: No Need for Constitution Bench Reference
3.1 Distinction Between Applying Settled Law and Interpreting the Constitution Anew
Justice Dipankar Datta held that the matters raised, though important, did not trigger the necessity of a reference under Article 145(3). His reasoning proceeds on the basis that:
Principles such as:
- free and fair elections being part of the basic structure and
- the need for the Election Commission to be protected against exclusive executive domination
have already been considered and clarified in earlier decisions, including
Anoop Baranwal v. Union of Indiaand allied precedents.The 2023 Act sets up a new statutory scheme, but that does not by itself generate new or unsettled questions of constitutional interpretation.