Supreme Court: While considering the challenge to various provisions of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 (2023 Act), especially Section 7 of the 2023 Act which deals with composition of Selection Committee for the appointment of Chief Election Commissioner (CEC), the Division Bench of Dipankar Datta and Satish Chandra Sharma, JJ., delivered a split verdict over referring this matter to a larger Bench for consideration.
Sharma, J., opined that the present petitions are eligible to be placed before the Chief Justice of India for constitution of a Constitution Bench to adjudicate the constitutional validity of Sections 7, 6 and 8 of the 2023 Act. He opined that the primary contention of the petitioners to the validity of Sections 7, 6 and 8 of the 2023 Act does raise a substantial question of law as to interpretation of the Constitution, which has not been decided before, and hence should and must be decided by a Constitution Bench now.
Per contra, Datta, J., opined that it has been clearly laid down by judicial precedents that free and fair elections are a basic feature of the Constitution and that the Election Commission of India (ECI) should be insulated from exclusive executive control in relation to appointments of the CEC and the Election Commissioners (ECs). Hence, Datta, J., rejected the plea for referring the matter before a larger Bench.
Given the split opinion over whether the present petitions and the applications should be heard by a Constitution Bench of 5 Judges, the present Division Bench thus directed papers to be placed before the CJI for considering the desirability of constituting a Constitution Bench of such number of Judges as may be considered appropriate, to decide the question of vires of Section 7 of the 2023 Act. Furthermore, taking grim note of the time taken to decide references, the Court requested the Chief Justice to explore the necessity of constituting a permanent five-Judge Bench to decide pure constitutional issues.
Background
The petitions challenged the vires of Sections 7, 6 and 8(2) of the 2023 Act. The petitions predominantly challenged the executive dominance in the appointment mechanism under Section 7 of the 2023 Act.
Section 7 of the 2023 Act deals with the composition of Selection Committee which oversees appointment of the CEC and ECs. As per the existing provision, the Selection Committee comprises of the following:
-
the Prime Minister as the Chairperson,
-
the Leader of Opposition in Lok Sabha as Member,
-
Union Cabinet Minister to be nominated by the Prime Minister as Member.
Section 7 notably excludes the Chief Justice of India as part of the Selection Committee.
Section 7(2) states that the appointment of CEC and other ECs shall not be invalid merely by reason of any vacancy in or any defect in the constitution of the Selection Committee.
Section 6 deals with the Search Committee that shall prepare a panel of 5 persons for consideration of the Selection Committee.
Section 8 deals with power of Selection Committee to regulate its own procedure and Section 8(2) mandates that the Selection Committee may also consider any other person than those included in the panel by the Search Committee.
Contentions
The petitioners relied on Anoop Baranwal v. Union of India, (2023) 6 SCC 161, where the Constitution Bench not only addressed the constitutional vacuum under Article 324(2) of the Constitution, but also held that the ECI must be insulated from exclusive executive control in appointments. It was contended that placing the appointment of ECs substantially under executive control compromises the constitutional balance, particularly because the executive itself is a participant in the electoral process. The petitions characterised the issue as whether the legislature has validly removed the basis of Anoop Baranwal, rather than whether Article 324 itself requires fresh interpretation. It was thus contended that issue in these petitions, therefore, is an exercise in applying settled law.
They further contended that the Prime Minister’s nominee can never be expected to oppose the Prime Minister and take the side of the Leader of Opposition; and, if the said Selection Committee were to function, the decision would invariably be 2:1, on paper, in favour of the executive and, in practice, of whoever is the ruling party. With 2 members from the executive being part of the Selection Committee, the executive has an effective veto.
Per contra, it was contended that prior to the enactment of the 2023 Act, directions in Anoop Baranwal intended to operate only until the Parliament enacted an appropriate law. Consequently, with the field now occupied by legislation, the directions in Anoop Baranwal cease to have any independent relevance and cannot furnish a basis for assailing the constitutional validity of the impugned enactment. It was argued that the questions that the Court must answer here have not been dealt with in any prior decision including Anoop Baranwal. Such questions mandatorily require an interpretation of the Constitution and not mere application. It was further argued that impugned enactment represents a considered exercise of legislative wisdom by the Parliament and rests on the well-settled constitutional presumption that high constitutional functionaries, particularly the Prime Minister, would discharge their duties with objectivity, fairness and due regard to the larger public interest.
Additionally, the Solicitor presented an oral argument which drew parallels with judicial appointments and stated that if participation of outsiders is not envisaged in the appointment of Judges of the Supreme Court and the High Courts under the Collegium system of appointment of Judges, a similar objection cannot be raised in the context of appointments of the Election Commissioners comprising the ECI. While acknowledging that independence of the judiciary is important; it was argued that the independence of the other 2 organs is also crucial and equally important and should be respected. Further, it was argued that the Parliament, being directly accountable to the people, is competent to prescribe the composition of the Selection Committee and the 2023 Act cannot be questioned merely because it excludes the CJI or any other neutral selector from the appointment process.
Justice Satish Chandra Sharma’s opinion
Perusing the contentions raised by the parties, S.C. Sharma, J., while disagreeing with Dipankar Datta, J., explained that the 2023 Act was enacted pursuant to the decision of the Constitution Bench in Anoop Baranwal. There is no authoritative decision of the Court till date pronouncing on the constitutional validity of the 2023 Act and a judicial decision in light of what the Constitution provides, must be given by the Court while it is seized of the issue of vires of Section 7 of the 2023 Act and its other provisions.
S.C. Sharma, J., opined that decision on these writ petitions would be the first of its kind and hence, it will be even more necessary that a reference is made.
As regards to oral arguments presented in the context of parallel between Collegium system and the appointment mechanism in the 2023 Act, S.C. Sharma, J., opined that the submissions were to the effect that if the Constitution Bench has held that the presence of outsiders in the Collegium as violative of doctrine of separation of powers, a similar independence should be read in the executive also, and the rules framed under Article 324 be not declared void on the ground either that it does not have any outsider in the committee of selection or there is pre-dominance of only executive in the committee of selection. S.C. Sharma, J., further opined that the submissions were neither a criticism of the Collegium system nor initiating any debate regarding the manner in which the system of selection has worked and were merely confined to the abovementioned constitutional principle and its application to the issue arising in the present case.
Qua Anoop Baranwal, S.C. Sharma, J., opined that the case was dealing with the constitutional vacuum and noticing that no law had been enacted and while leaving it to the Parliament to enact the law, the Constitution Bench proposed an ad hoc arrangement with Prime Minister, CJI and Leader of Opposition as part of the Selection Committee. However, he pointed out that to the extent law has been declared under Article 141 of the Constitution is to be applied but whether Parliament was justified in not including a neutral selector in the Selection Committee is an important question arising for the first time before the Court. Since it is a substantial question of law as to interpretation of the Constitution, which has not been dealt by any precedent, the plain language of Article 145(3) of the Constitution read with Order 38 of the Supreme Court Rules, 2013 does not leave any room for a decision on such question finally by the present Bench.
S.C. Sharma, J., further explained that old or new, whatever be the character of the statute, if validity of such statute or a part thereof is questioned on valid grounds as failing the constitutional test and if the Court previously did not have the occasion to deal with and pronounce on such grounds, a reference to the larger Bench would seem to be the appropriate step. He stated that free and fair elections being a part of the basic structure has been acknowledged by precedents and no Court can or would, possibly, doubt it now; but whether the 2023 Act fails the test of free and fair elections must be independently examined.
Conclusions drawn by Justice Satish Chandra Sharma
With the aforestated assessment, S.C. Sharma, J., was of the view that the petitions in accordance with Article 145(3) of the Constitution and Order 38 of the Supreme Court Rules can be placed before the CJI for an appropriate order of constitution of a Constitution Bench to adjudicate the constitutional validity of Sections 7, 6 and 8 of the 2023 Act.
[Jaya Thakur v. Union of India, 2026 SCC OnLine SC 1980, decided on 23-9-2026]
Advocates who appeared in this case:
For Petitioner(s): Mr. Prashant Bhushan, AOR Ms. Alice Raj, Adv. Mr. Rahul Gupta, Adv. Ms. Neha Rathi, Adv. Ms. Suroor Mander, Adv. Mr. Gopal Sankaranarayanan, Sr. Adv. Mr. Gaurav Kumar, Adv. Mr. Vishal Sinha, Adv. Mr. Pawan Reley, AOR Mr. Akshay Lodhi, Adv. Mr. Naman Sherstra, Adv. Mr. Sanjiv Mishara, Adv. Mr. Adit Jayeshbhai Shah, Adv. Mr. Mukesh Kumar Thalour, Adv. Ms. Simran Singh, Adv. Mr. Tanish Rawat, Adv. Mr. Prakhar Agarwal, Adv. Mr. Vijay Hansariya, Sr. Adv. Mr. Varun Thakur, Adv. Mr. Ramkaran, Adv. Mrs. Shraddha Saran, Adv. Ms. Tanuj Bagga Sharma, Adv. Dr. M K Ravi, Adv. Mr. S P Singh, Adv. M/S. Varun Thakur & Associates, AOR Mr. Sanjeev Malhotra, AOR, Petitioner-in-person, Mr. Sanjay Parikh, Sr. Adv. Ms. Maulshree Pathak, AOR
For Respondent(s): Mr. R. Venkataramani, A.G. Mr. Tushar Mehta, S.G. Mr. Raghvendra P. Shankar, Adv. Mr. Gurmeet Singh Makker, AOR Mr. Gaurang Bhushan, Adv. Mr. Aman Mehta, Adv. Mr. Kartikeya Agarwal, Adv. Dr. N. Visakamurthy, AOR Mr. Prateek Kumar, AOR Mr. Devansh Rai, Adv. Mr. Vishvajit Goyal, Adv. Mr. Birjesh Kumar Gupta, Adv. Mr. Dinesh Kumar Mudgal, Adv. Mr. Anupam Kumar, Adv. Mr. R. P. Gupta, AOR Mr. Prashant Padmanabhan, AOR Mr. Kaleeswaram Raj, Adv. Mrs. Thulasi K Raj, Adv. Ms. Chinnu Maria Antony, Adv. Ms. Athira Nandakumar, Adv. Ms. Smita Amratlal Vora, AOR Mr. Kaleeswaram Raj, Adv. Mr. Mohammed Sadique T.A., AOR Ms. Thulasi K Raj, Adv. Ms. Chinnu Maria Antony, Adv. Ms. Athira Nandakumar, Adv. Mr. Aman Prasad, Adv. Mr. Sadashiv, AOR Mr. Gautam Barnwal, Adv. Ms. Vandana, Adv. Mr. Devendra Kumar Gupta, Adv. Mr. Mohd Shafat Ahamad, Adv. Mr. Mr Arafat Ahmad, Adv. Ms. Mumtaz Jawed Shaikh, Adv. Ms. Sakshi Singh, Adv. Mr. Ashish Kumar Pandey, Adv. Mr. Manoj Pandey, Adv. Mr. Pradeep Kr. Rai, Sr. Adv. Ms. Modoyia Kayima, Adv. Mr. Vinay Kumar Rai, Adv. Mrs. Rajshree Rai, Adv. Mr. Saif Rizvi, Adv. Mr. Shivam Tyagi, Adv. Mr. Paras Chauhan, Adv. M/S. R And R Law Associates, AOR Mr. Shadan Farasat, Sr. Adv. Mr. Talha Abdul Rahman, AOR Mr. Harshit Anand, Adv. Mr. Kaustubh Chaturvedi, Adv. Mr. Abhishek Babbar, Adv. Mr. Sudhanshu Tewari, Adv. Mr. Faizan Ahmed, Adv. Ms. Vibha Swaminathan, Adv.
