Supreme Court Split On Election Commissioner Appointment Law, CJI To Consider Constitution Bench

New Delhi, September 23, 2026: The Supreme Court on Wednesday delivered a split verdict on the Union government’s request to refer petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, to a larger bench. The difference between the two judges has now put the question of constituting a Constitution Bench before the Chief Justice of India.

A Bench of Justices Dipankar Datta and Satish Chandra Sharma had reserved its decision on July 30. The Centre sought a reference to a larger bench under Article 145(3) of the Constitution. The law is under challenge over the replacement of the Chief Justice of India (CJI) with a Union Cabinet Minister on the panel that selects the Chief Election Commissioner and other Election Commissioners, Bar & Bench reports.

Two Judges, Two Views

Justice Datta rejected the government’s request for a reference and also gave a prima facie opinion on the challenge to the 2023 Act. Justice Sharma disagreed and held that the matter involved a substantial question of law that should be decided by a larger bench.

Justice Datta noted that the judges had heard the petitions for more than five days and said a unanimous decision would have served “institutional cohesion”. He stressed that a foundational principle of the constitutional system was that rulers were bound by law and were not above it.

With the judges divided, the Bench ordered that the matter be placed before the Chief Justice of India to consider the constitution of a Constitution Bench to decide the issue.

Independence Must Also Be Visible

Justice Datta’s opinion went beyond whether the Election Commission of India (ECI) was independent in practice. He observed that the institution must also appear independent, bringing public perception of institutional autonomy into focus.

Under the 2023 Act, the selection panel comprises the Prime Minister, the Leader of Opposition and a Union Cabinet Minister. Justice Datta observed that a minister nominated by the Prime Minister could not realistically be expected to oppose the Prime Minister because of the principle of collective responsibility. In his view, including a Cabinet Minister failed to provide the independent counterweight that a neutral selector could offer.

The petitions contend that excluding the Chief Justice of India from the selection process violates the constitutional requirement of an independent Election Commission.

The 2023 Verdict Behind The Dispute

The challenge has its roots in the Supreme Court’s 2023 Constitution Bench judgment in Anoop Baranwal v. Union of India. The court had directed that appointments to the Election Commission be made by a committee comprising the Prime Minister, the Leader of Opposition and the CJI until Parliament enacted a law governing the process.

The 2023 Act subsequently replaced the CJI on the panel with a Union Cabinet Minister.

During the hearing, Solicitor General Tushar Mehta argued that the Supreme Court’s ruling in Anoop Baranwal had merely filled a legislative vacuum. Once Parliament enacted a law, legislative wisdom should prevail over what he described as the temporary judicial arrangement.

The court had also raised concerns during the proceedings about successive governments failing to enact a law earlier to ensure the Election Commission’s independent functioning. It observed that two members of the present selection panel were on the government’s side, leaving only one member on the other side.

Court Flags Long Wait In Constitution Cases

The split verdict also prompted the Supreme Court to turn the spotlight on delays within the judiciary itself. The Bench acknowledged that constitutional matters referred to larger benches can remain pending for years and described the situation as an area of “great concern”.

The petitioners had opposed the Centre’s demand for a larger bench partly on the ground that such references often face long delays. The court acknowledged that the concern was not unfounded and said “self-introspection” was required.

The Bench urged the Chief Justice of India to consider constituting a permanent five-judge bench to decide constitutional cases. The suggestion reflects the court’s concern that important constitutional questions should not remain unresolved merely because they have been referred to a larger bench.

A Question Of Institutional Confidence

The case now raises two connected institutional questions: how Election Commissioners should be selected to preserve the independence, as well as the appearance of independence, of the Election Commission, and how the Supreme Court should ensure timely decisions in major constitutional disputes.

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Justice Datta’s observations place particular emphasis on public confidence in institutions, while Justice Sharma’s differing view underscores his position that the substantial constitutional question involved requires consideration by a larger bench. The split means the challenge to the 2023 law remains unresolved.

The next step rests with the Chief Justice of India, who will consider the constitution of a Constitution Bench to take the matter forward.

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