New Delhi, September 23, 2026 (Yes Punjab News)
The Supreme Court on Wednesday delivered a split verdict on whether petitions challenging the constitutional validity of the law governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) should be referred to a Constitution Bench.
Justice Dipankar Datta rejected the plea for reference to a larger Bench, while Justice Satish Chandra Sharma held that the challenge raises a substantial question of constitutional interpretation that has not been conclusively settled by an earlier judgment and favoured reference to a Constitution Bench.
In view of the difference of opinion, the two-judge Bench directed that the papers be placed before Chief Justice of India (CJI) Surya Kant to consider the desirability of constituting a Constitution Bench of appropriate strength to decide the constitutional validity of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
Under the 2023 law, the selection committee comprises the Prime Minister, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister. The law replaced the CJI with the nominated Union Cabinet Minister on the selection panel.
Justice Datta held that the Constitution Bench judgment in Anoop Baranwal vs. Union of India had already settled the constitutional principles concerning free and fair elections and the need to insulate the Election Commission of India (ECI) from exclusive executive control in matters relating to appointments.
He said the Anoop Baranwal judgment had made clear that the arrangement comprising the Prime Minister, Leader of Opposition and CJI was “transient in nature” and would operate until Parliament enacted a law.
“If the Constitution Bench intended for the inclusion of the Chief Justice of India (CJI) in the selection committee to be binding, it would have said so,” Justice Datta observed.
Justice Datta also noted that the Union Cabinet Minister nominated by the Prime Minister could not reasonably be expected to oppose the person who nominated the minister. He held that the doctrine of collective responsibility would ordinarily preclude such opposition.
According to Justice Datta, the Supreme Court had already laid down that free and fair elections are a basic feature of the Constitution and that the ECI should be insulated from exclusive executive control in matters relating to appointments. He therefore held that the remaining issue involved applying settled legal principles to the facts and rejected the plea for reference to a larger Bench.
Justice Sharma disagreed, holding that whether Parliament was justified in excluding a neutral selector from the selection committee was an important constitutional question arising before the Supreme Court for the first time.
He observed that while the law declared by an earlier Constitution Bench under Article 141 was binding, the specific question raised by the present challenge had not been conclusively addressed by any precedent.
Justice Sharma held that Article 145, read with Order 38 of the Supreme Court Rules, did not permit the two-judge Bench to finally decide such a question and favoured placing the matter before the CJI for appropriate orders on constitution of a Constitution Bench.
Despite their difference of opinion, both judges agreed that referring the reference issue to another three-judge Bench would serve little purpose and could cause further delay in deciding the substantive constitutional questions.
The Bench also flagged the prolonged pendency of references before Constitution Benches, noting that some remain unresolved for years. The order observed that such prolonged pendency “does not reflect well on the institution” and described the delay as a matter of institutional concern.
The judges recorded that the petitioners were justified in expressing concern over delays in deciding references and requested the CJI to explore the necessity of constituting a permanent five-judge Bench to decide constitutional questions.
The petitions challenge the 2023 Act, which replaced the CJI with a Union Cabinet Minister nominated by the Prime Minister on the selection committee for appointing the CEC and ECs.
In March 2023, a Constitution Bench in Anoop Baranwal had directed that appointments to the poll body be made by the President on the recommendation of a three-member committee comprising the Prime Minister, the Leader of Opposition in the Lok Sabha and the CJI, as an interim arrangement until Parliament enacted a law. Parliament subsequently enacted the 2023 legislation providing for the present selection panel.
The petitions have challenged the exclusion of the CJI and contended that the present mechanism affects the independence and transparency of appointments to the ECI.
The matter will now be placed before CJI Surya Kant for appropriate orders on the constitution of a Constitution Bench.
FOLLOW NOW
