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.
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 5-Judge Bench to decide pure constitutional issues. The Court emphasised that pendency of references for far too long (any period between 5 and 20 years or more) does not reflect well on the institution.
Background and Contentions
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(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 five 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.
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. It was also contended that the 2023 Act violates Articles 14 and 19 of the Constitution, since independence of the body supervising elections is integral to equality and democratic governance.
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.
Court’s Assessment: Delays in deciding references and need for Permanent 5-Judge Bench
While the Division Bench gave a split opinion on the point of whether these petitions should be heard by a Constitution Bench of 5 Judges, the Court acknowledged that a decision by a 3 Judge Bench to resolve which of the two opinions is correct would be of little worth and only delay adjudication of the significant issue that the petitions have raised.
The Court also acknowledged the concern expressed by the petitioners on the time taken by the Court to decide references. The Court illustrated that Anoop Baranwal case took overall eight years for the Court to decide. The Court also highlighted recent instance in State of Uttar Pradesh v. Jai Bir Singh, 2026 SCC OnLine SC 1684, which took 9 years for the reference made by 7-Judge Bench to reach the 9-Judge Bench and prior thereto, the reference remained pending for 15 years, since 2002.
“The petitioners seem to be justified in expressing their anxiety that references to 5-Judge Benches remain unresolved for years together. If statistics are any guide, none can say with any reasonable degree of certainty when long pending references will get resolved.”
The Court stated that inordinate delay in deciding references is an area of grave concern and is itself a source of institutional embarrassment which all stakeholders ought to strive to avoid. “Self-introspection, indeed, is required.”
Therefore, the Court pitched the suggestion for constitution of a permanent 5-Judge Bench to decide pure constitutional issues. The Court reasoned that resolving constitutional issues is the primary task of Judges of the Supreme Court, that must remain its core priority. Pendency of references for far too long does not reflect well on the institution. “It is time that the institution addresses the issue with the urgency and promptitude it deserves.”
Decision
The Court thus directed that the matter be placed before the Chief Justice for considering the need to constitute a Constitution Bench of such number of Judges as may be considered appropriate, and expressed hope that this reference would not suffer the inordinate delay in its resolution as the issues are of foundational importance to the democratic fabric of the country and its citizens.
[Dr. Jaya Thakur v. Union of India, Writ Petition (Civil) No. 14 of 2024, 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.