Split Verdict on the Election Commissioners Act, 2023: Supreme Court Sends the Case to the CJI

🗞️ Why in News A two-judge Bench of the Supreme Court, Justices Dipankar Datta and Satish Chandra Sharma, delivered a split verdict on 23 September 2026 on the Union government’s plea to refer the challenge to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 to a larger Bench. Both judges agreed that the papers should go to the Chief Justice of India to consider a Constitution Bench of appropriate strength.

The Question Before the Bench

The petitions challenge the law Parliament passed in December 2023 to govern how the Chief Election Commissioner (CEC) and the Election Commissioners (ECs) are appointed. The central objection is the composition of the Selection Committee: the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister, and the Leader of Opposition in the Lok Sabha. The petitioners argue that this gives the executive a built-in 2:1 majority and defeats the principle laid down by a Constitution Bench in Anoop Baranwal v. Union of India (March 2023), that appointments to the Election Commission cannot remain under “exclusive executive control”.

The Union government asked that the matter be referred to a larger Bench. That preliminary question, and not the validity of the Act itself, is what divided the two judges.

What Each Judge Held

Justice Datta’s prima facie observations on the merits drew most attention. A Cabinet Minister bound by collective responsibility “cannot be expected to defy his own nominator”, he said, which makes the Leader of Opposition’s presence “largely ornamental”. Applying a perception test, he said: “it is not enough for the ECI to be independent, it must also appear to be independent.” He found that the petitioners’ argument about overwhelming executive influence “does appear to have substance”, while stressing that these were only prima facie views. He rejected the government’s comparison with the collegium system for judges, calling the notion that “judges appoint judges” a “myth” and the comparison “disingenuous, evasive and disquieting”.

Justice Sharma treated the government’s arguments on separation of powers and the collegium comparison as questions that themselves need a larger Bench.

Where the Two Judges Agreed

• Straight to the CJI, not a three-judge Bench. Sending the case first to a three-judge Bench would be of “little worth” and would only delay a final answer.
• A permanent Constitution Bench. They urged the Chief Justice to consider a permanent five-judge Bench for constitutional cases, calling long delays in deciding references “a source of institutional embarrassment”. They noted that Anoop Baranwal itself took eight years to decide.

The Chief Justice of India is Surya Kant. What happens next, including the size of the Bench, is for him to decide.

The Law Under Challenge

How it replaced the court’s interim scheme. In Anoop Baranwal, the Constitution Bench held that until Parliament made a law, the CEC and ECs would be appointed on the advice of a committee of the Prime Minister, the Leader of Opposition and the Chief Justice of India. The 2023 Act replaced the CJI with a Cabinet Minister. Article 324(2) itself contemplates such a law: the President appoints “subject to the provisions of any law made in that behalf by Parliament”.

A trap on the Search Committee. The Bill as introduced proposed a Search Committee headed by the Cabinet Secretary; the Act as passed is headed by the Law Minister.

The Constitutional Frame

Article 324. Clause (1) vests the superintendence, direction and control of elections to Parliament, the State legislatures and the offices of President and Vice-President, and of the preparation of electoral rolls, in the Election Commission. Clause (2) provides that the Commission consists of the CEC and such number of ECs as the President may fix. Clause (5) gives the CEC the same removal protection as a Supreme Court judge, but an EC may be removed on the recommendation of the CEC.

Article 145(3). A Bench of at least five judges must decide any case involving a substantial question of law as to the interpretation of the Constitution, and any reference under Article 143. A split between two judges does not by itself require a Constitution Bench; the question must be one the court has not authoritatively settled.

Split verdicts and larger Benches. When a two-judge Bench divides, the matter goes to the Chief Justice, who decides how it will be heard. The Karnataka hijab case (split in October 2022) and the challenge to Section 17A of the Prevention of Corruption Act (split earlier in 2026) were both sent to larger Benches; the hijab reference is still pending.

Reform history. As background, the Dinesh Goswami Committee on Electoral Reforms (1990) and the Law Commission’s 255th Report (2015) both proposed involving a neutral authority such as the Chief Justice in selecting election commissioners. Anoop Baranwal itself was triggered by petitions filed in 2015.

The Same Day at the Election Commission

On 23 September the Election Commission also issued a statement responding to a newspaper report that two Election Commissioners had recorded objections to decisions taken during the Special Intensive Revision of electoral rolls. The Commission said that all decisions, including those on the SIR, were unanimous decisions of the full Commission, and that differing views are a normal part of deliberation. The report and the response are discussed in today’s editorial on collective functioning at the ECI.

Why It Matters

Independence and the appearance of independence. The Election Commission decides disputes that affect the government of the day. Justice Datta’s perception test, that the ECI “must also appear to be independent”, restates a principle the court applies to all adjudicating bodies. The question for the Constitution Bench will be whether a selection panel with an executive majority can satisfy it.

Legislative space versus judicial principle. Article 324(2) expressly leaves appointments to a law made by Parliament. The government’s case is that Parliament has now exercised that power and the court’s interim scheme has lapsed. The petitioners’ case is that any law must still meet the constitutional requirement of an independent Commission. How the court balances the two will shape its approach to other appointment laws.

Delay as a constitutional problem. Both judges agreed that pending references harm the institution. A permanent Constitution Bench has been proposed before; the judges’ call puts it back on the Chief Justice’s agenda.

UPSC Relevance

GS Paper 2. Appointment to various constitutional posts, powers, functions and responsibilities of various constitutional bodies; separation of powers; structure, organisation and functioning of the Judiciary.

A question worth preparing. “The independence of the Election Commission depends as much on how its members are chosen as on what powers it holds.” Examine in the light of the Chief Election Commissioner and Other Election Commissioners Act, 2023. (250 words)

The Mains framing. Start with Article 324(2), which leaves appointments to parliamentary law. Trace the path: no law for seven decades, the Goswami and Law Commission proposals, Anoop Baranwal (2023) and its interim committee, and the 2023 Act that replaced the CJI with a Cabinet Minister. Present both sides: parliamentary competence and the separation of powers on one hand, and the perception test and an executive majority on the other. Close with the reform options: a neutral member, equal removal protection for ECs and the CEC, reasons for selection, and a time-bound Constitution Bench decision.

📌 Facts Corner, Knowledgepedia

Prelims, statement-ready facts:

• Split verdict: 23 September 2026, Justices Dipankar Datta (no reference) and Satish Chandra Sharma (refer to a Constitution Bench).
• Both judges placed the case before the Chief Justice of India for a Constitution Bench of appropriate strength.
• Law challenged: CEC and Other ECs (Appointment, Conditions of Service and Term of Office) Act, 2023.
• Selection Committee: Prime Minister, a Union Cabinet Minister nominated by the PM, and the Leader of Opposition in Lok Sabha.
• Search Committee: headed by the Law Minister, with two Secretary-level members; suggests five names.
• Term of the CEC and ECs: six years or age 65, whichever is earlier.
• Anoop Baranwal (March 2023) interim committee: Prime Minister, Leader of Opposition and Chief Justice of India.
• Article 324(2): the President appoints the CEC and ECs subject to any law made by Parliament.
• Article 145(3): at least five judges decide a substantial question of constitutional interpretation.

Prelims, the traps:

• The CJI was on the Anoop Baranwal interim committee, not on the 2023 Act’s Selection Committee.
• The Bill proposed a Search Committee under the Cabinet Secretary; the Act as passed puts the Law Minister at its head.
• Under Article 324(5), only the CEC has removal protection like a Supreme Court judge; ECs are removable on the CEC’s recommendation.
• A two-judge split does not automatically create a Constitution Bench; the CJI decides.

Mains, arguments and keywords:

• Perception test: “it is not enough for the ECI to be independent, it must also appear to be independent”.
• Executive majority: a Cabinet Minister “cannot be expected to defy his own nominator”, making the Leader of Opposition “largely ornamental”.
• Counter-view: Article 324(2) leaves appointments to Parliament; the court’s interim scheme was meant to last only until a law was made.
• Keywords: institutional independence, separation of powers, neutral selector, Article 145(3), permanent Constitution Bench.

Interview, be ready for:

• “Should the CJI sit on the panel that picks election commissioners?” Weigh neutrality against the separation of powers, and name alternatives such as a bipartisan panel.
• “Why did the judges want a permanent Constitution Bench?” Pending references (Anoop Baranwal took eight years) delay answers to questions that shape institutions.

Sources: Indian Express, Bar and Bench, Supreme Court Observer, PIB, PRS India

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