‘ECI must also be seen to act independently’: Supreme Court Judges Split On Referring Election Commissioners’ Law To Larger Bench

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.”)