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.
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. In his opinion, Datta, J., emphasised that, “There can be no gainsaying that free and fair elections, to a large extent, depend on a truly independent ECI. It is not enough for the ECI to be independent, it must also appear to be independent.”
Per contra, 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.
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:
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the Prime Minister as the Chairperson,
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the Leader of Opposition in Lok Sabha as Member,
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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 Dipankar Datta’s Opinion
Collegium system
While perusing the arguments forwarded by the parties, Datta, J., took note of the oral argument made by the Solicitor drawing a parallel with the Collegium system and stated that this argument has a bearing on the on the integrity of the institution. “Though not too relevant for the purpose of giving an opinion on the question of whether a reference is called for, which is presently under consideration, his reference to ‘Judges appointing Judges’ seeks to revive an old criticism and, unwittingly, travels beyond the present lis.”
Even though the issue of judicial appointment was not connected to the context of the present matter, however, Datta, J., deemed it fit to address the issue stating that, “The first instinct too, while writing this opinion, was to be reticent and let such criticism pass. But, on a second thought, it is realised that the judiciary cannot always be at the receiving end.”
Referring to Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 and Special Reference No.1 of 1998, In re, (1998) 7 SCC 739, Datta, J., pointed out that the collegium system has faced criticism from various quarters principally on the ground that it functions without any external participation and is entirely Judge-driven, in matters concerning selection and appointment to other conditions of service like transfer. However, vociferous criticism, by itself, does not offer an alternative. While the absence of an outsider in the process may invite scrutiny, executive supremacy cannot be the cure.
It was pointed out that the Parliament’s initiative to introduce the National Judicial Appointments Commission to replace the Collegium system was not successful as the relevant constitutional amendment and the statutory provisions were found to be in breach of the basic feature of judicial independence and, thus, were declared ultra vires in Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1.
Datta, J., stated that despite all its opacity and imperfections, the Collegium system still remains the most viable option for safeguarding independence, as envisioned under Article 50 of the Constitution. He agreed that like every other system, the Collegium must evolve to subserve the interests of all the stakeholders and must constantly reform its working to address the criticism levelled against it. “Criticism may be abundant, but a viable substitute being conspicuously absent, the deficiencies cannot be used as a justification to usher in participation of the executive in the Collegium deliberations.”
Datta, J., further went on to address the often cited “Judges appoint Judges” remark and stated that the phrase is a myth which people have been fed by vested interests through motivated narratives, often drawing sustenance from certain controversial decisions taken in this century in relation to appointment of Judges. A sweeping generalisation that the Collegium acts as a law unto itself overlooks the detailed consultative process envisaged under the Constitution, and the intrinsic role of the executive as well as intelligence and other agencies in the appointment process including vetting of credentials, and the fact that every appointment bears the imprimatur of the President. “It has become fashionable nowadays to blame the Collegium for every infelicitous choice, conveniently forgetting that aberrations are exceptions and not the norm, and that no system can guarantee infallibility of human choice.”
Datta, J., further clarified that the role of the Collegium, insofar as selection is concerned, is nothing more than recommendatory. At every stage prior to the recommendations taking shape, the executive is involved. Furthermore, acceptance of the recommendations is within the exclusive domain of the executive; it may or may not, accept the recommendations. The final say, rests with the executive.
He pointed out that the system is so calibrated that the executive can override the recommendation of the CJI led Collegium, notwithstanding the precedents mandating that primacy has to be given to the opinion of the CJI. On multiple occasions, recommendations have not been acted upon by the executive without reasons being disclosed and available in the public domain; and a few of them, even after reiteration, have been left to gather dust for years. “If the recommendations of the Collegium of the Supreme Court were binding in nature, the same would certainly have been implemented in their entirety. Unfortunately, the records tell a different story.” Datta, J., further pointed out that sanctity of a Collegium resolution is lost each time the executive implements it selectively, albeit approving majority of those recommended while withholding at least one.
He concluded his observations on this issue stating that since it is the executive that wields decisive control and holds the reins over appointments of Judges at every stratum, the argument in favour of sustaining the impugned legislation by seeking to draw a parallel with the Collegium system of not having an outsider is rather disingenuous, evasive and disquieting.
Vires of the 2023 Act provisions: Analysis of Anoop Baranwal and Need for reference to Larger Bench?
Datta, J., noted that it must be considered whether the scholarly opinion in Anoop Baranwal, within the meaning of Article 141 of the Constitution, declares a law which is binding or is it a decision which must be understood as an authority for the question it answered?
Referring to Manoj Narula v. Union of India, (2014) 9 SCC 1, where Dr B.R. Ambedkar’s views on the role of the Prime Minister and the doctrine of constitutional trust were discussed, Datta, J., noted that even in the nascent years of Indian independence, Dr Ambedkar expressed a fear of institutional capture of the electoral process which could contribute to the failure of parliamentary democracy in India. Datta, J., also noted that in Manoj Narula, the Constitution Bench therein had reposed trust in the office of Prime Minister. Invoking Dr Ambedkar who had said that, “(…) however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot.” Datta, J., stated that experience gained over the years bears testimony to the fault lying in working of the Constitution and not in its text.
“Over seven decades, every dispensation wresting power found it convenient to keep institutions, which the Constitution envisioned to be independent, under their control.”
Delving into the legislative scene prior to the enactment of the 2023 Act, Datta, J., said that to enact a law on the lines empowered by Article 324(2) of the Constitution would have meant freeing the ECI from exclusive executive control and inviting trouble for the ruling regime. “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.” He further noted that even after independence, not a single party in power, took the initiative of enacting a law of the nature which Article 324(2) left to the Parliament, to legislate. “Placing its own electoral fortunes in the hands of a truly independent arbiter was not favoured by any political party, for obvious reasons.”
However, the Parliament attempted to the fill the constitutional vacuum via the 2023 Act. “Whether the 2023 Act fully answers the apprehension of the early days of our Constitution of insulating the ECI from the Government of the day or merely recalibrates executive control, is the question that would arise for examination when the writ petitions are decided on their own merits.”
Taking note of Anoop Baranwal wherein it was held that Article 324(2) unmistakably contemplates parliamentary legislation regulating the appointment process of the CEC and the ECs. Following the view expressed in T.N. Seshan v. Union of India, (1995) 4 SCC 611, it was held in Anoop Baranwal that the constitutional text did not permit such parity to be read into the provision. At the same time, considering the importance of institutional independence in a multi-member Commission, it was strongly recommended that the Parliament may consider conferring similar safeguards upon the ECs and protect their conditions of service from adverse variation after appointment.
Applauding decision in Anoop Baranwal, which as per Datta, J., was a classic example of judicial statesmanship, exemplifying the concept of judicial restraint by intervening to fill the vacuum but, with due deference to the constitutional feature of separation of powers, refraining from embarking on judicial legislation; he pointed out that the Constitution Bench brought the curtains down on the 7-decade old legislative inertia, bordering on tyranny of the elected majority, in not enacting a law which the Constitution expressly and mandatorily required, and the prevailing executive dominance of keeping appointments of the CEC and the ECs in its hands, by delivering 2 major and significant outcomes while at the same time insulating itself from the charge of law-making. However, Datta, J., also pointed out that the Constitution Bench, indicated a mechanism to be evolved; it did not specify one to be followed to the tee. The Court therein avoided permanent judicial legislation, while still securing a constitutional balance. To safeguard independence, it included the CJI as a neutral arbiter; and to secure legitimacy, by keeping it within the political process, included the Prime Minister and the Leader of Opposition by ensuring their participation. “Seemingly alive to the Laxman Rekha of restraint to be exercised in matters of judicial legislation, the Constitution Bench consciously did not step into territory reserved by the Constitution for the Parliament, thereby avoiding a possible transgression of law.” Thus, instead of a constitutional norm, the Court provided an interim arrangement.
As regards the 2023 Act, Datta, J., pointed out that the legislation is within the constitutional text and cannot be challenged on the ground of legislative incompetence. He observed the petitioners’ contention that the 2023 Act dilutes the independence of the ECI and thereby violates the basic structure doctrine. Therefore, in the light thereof, the question of constitutional validity of Section 7 of the 2023 Act appeared at the forefront. Datta, J., further pointed out that the Court in Anoop Baranwal explains why independence demands a neutral appointment mechanism but the very language the Constitution Bench used makes it explicit that it was transient in nature and not a binding norm that Parliament was constitutionally obliged to follow. “If, indeed, the Constitution Bench intended that inclusion of the CJI in the Selection Committee were binding on the Parliament, it would have said so but at the risk of being legislatively overruled.” However, constitution of a committee as an interim arrangement must be seen as an exercise of the Court’s power under Article 142 of the Constitution as a pro tem measure. Therefore, Datta, J., opined that the petitioners’ contention that Parliament ignored a judicial norm it was meant to follow, may not be correct.
Moving onto the vires of Sections 7, 6 and 8 and especially Section 7, Datta, J., considered whether the appointment process contemplated by Sections 7, 6 and 8(2), evinces a major executive control, passes the muster of Article 14, and whether, Section 7 in particular, meets the constitutional standard of independence required by Article 324 and the basic structure.
Perusing the petitioners’ contention that Union Minister who is nominated by the Prime Minister can never be expected to oppose the Prime Minister and take side of the Leader of Opposition; and with two members from the executive being part of the Selection Committee, the executive has an effective veto; Datta, J., found this argument to be “not without valid reason”.
“Significantly, when queried by this Court as to whether the Prime Minister’s nominee would take a stand against the Prime Minister in case of a difference of opinion between the Prime Minister and the Leader of Opposition, “probably no” was the answer of the learned Attorney although “certainly no” is what the challengers say would be the ultimate outcome.”
Datta, J., observed that 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, the 2023 Act also has to succeed on the perception test which is equally essential.
Datta, J., further considered that for the extant purpose of reference under Article 145(3) of the Constitution, is whether the challenge raises a substantial question of law as to the interpretation of the Constitution and the determination of which is necessary for disposal of the lis? The constitutional character of the controversy, per se, cannot be the determinative test. He observed that present case involves propositions relating to the constitutional imperative of free and fair elections and the necessity of the institutional independence of the ECI. The 2023 Act undoubtedly adds a new element to the canvas that must be tested against the settled principles occupying the field thus far. Such an exercise, however, is materially different from saying that the constitutional principles themselves remain unsettled.
Conclusions formed by Dipankar Datta, J.
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With the aforestated analysis, Datta, J., concluded that Precedents having laid down in unmistakable terms that free and fair elections are a basic feature of the Constitution and that the ECI should be insulated from exclusive executive control in relation to appointments of the CEC and the ECs, what remains is no more than the application of the settled principles of law to the facts of the case.
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Neither any constitutional bar nor a precedent precludes hearing of these petitions by the present Bench
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Prima facie opinion expressed hereinabove is confined to consideration of the prayer for a reference and does not entail any expression qua the merits of the final challenge laid in the petitions before the Court.
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Thus, the prayer by the respondents to refer the matter to a larger bench was rejected.
[Dr. 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.