Supreme Court split verdict sends EC appointment law to CJI

The brief in 7 cards

1. Context1 / 7
   • On 23 September 2026, a two-judge Supreme Court bench gave a split verdict on the Union government's request to send petitions against the 2023 Election Commissioner appointment law to a larger bench.
   • Justices Dipankar Datta and Satish Chandra Sharma disagreed on this specific question, though they agreed the matter should now be placed before the Chief Justice of India (CJI).
   • The dispute traces back to Anoop Baranwal v. Union of India (2023), where a five-judge Constitution Bench set an interim rule: appointments would be made by a committee of the Prime Minister, the Leader of Opposition and the CJI, until Parliament passed a law.
   • Parliament then passed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which replaced the CJI on this panel with a Union Cabinet Minister chosen by the Prime Minister.
   • This 2023 Act is now under challenge before the Court.
2. Key highlights2 / 7

   What split, and how: Justice Datta rejected the Centre's request to refer the case to a larger bench. Justice Sharma disagreed, and held that the case raises a substantial constitutional question needing a larger bench.

   A shared outcome despite disagreement: Both judges ordered that the matter go before the CJI, so a bench of the right strength can be formed to decide it authoritatively.

   Justice Datta's observation on independence: He said the Election Commission must not only be independent, but must also be seen to act independently.

   The panel's composition, according to Justice Datta: With the Prime Minister and a Cabinet Minister chosen by the Prime Minister both on the panel, he found it "highly unlikely" the minister would ever disagree with the Prime Minister. He called the Leader of Opposition's role "ornamental" in this setup.

   The government's argument: Solicitor General Tushar Mehta argued that the Court's 2023 ruling had only filled a legislative gap, and that once Parliament legislated, its law should prevail over the earlier judicial arrangement.

   Long-pending case: The two judges had heard the matter for more than five days and reserved their order on 30 July 2026, before delivering the split verdict on 23 September.

3. Key concepts3 / 7
   1. Article 324 and appointment of Election Commissioners

   • Article 324(1) vests the Election Commission of India with the power to superintend, direct and control elections to Parliament, State Legislatures, and the offices of President and Vice-President.
   • Article 324(2) provides that the Chief Election Commissioner and other Election Commissioners are appointed by the President, subject to any law Parliament may make on the matter.
   • For 73 years after the Constitution came into force, Parliament passed no such law. Appointments were made purely through executive practice.
   • This gap is what led to litigation, culminating in the 2023 Anoop Baranwal judgment.

   News connection: The 2023 Act was Parliament's first use of its Article 324(2) power to actually legislate on this appointment process.

   2. Anoop Baranwal v. Union of India (2023)

   • A five-judge Constitution Bench decided this case in March 2023, eight years after a writ petition was first filed in 2015.
   • It held that, until Parliament enacted a law, appointments should be made on the advice of a three-member committee: the Prime Minister, the Leader of Opposition in the Lok Sabha, and the CJI.
   • This was an interim, judge-made arrangement, meant to fill the gap left by Parliament's inaction, not a permanent constitutional rule.
   • Including the CJI was meant to add a member outside the political executive, to balance the panel.

   News connection: The 2023 Act removed exactly this neutral element by replacing the CJI with a Cabinet Minister nominated by the Prime Minister.

   3. Basic structure and independence of constitutional bodies

   • The basic structure doctrine, from Kesavananda Bharati (1973), holds that Parliament cannot amend the Constitution in a way that destroys its core features, even through a validly passed law.
   • Free and fair elections have been recognised by courts as part of India's democratic basic structure.
   • An institution's independence has two aspects: being independent in fact, and being seen to be independent in the eyes of the public. Justice Datta's opinion stressed the second aspect specifically.
   • Analogy: a referee who is a personal friend of one team's captain may be entirely fair in every decision, but the perception of bias alone can undermine trust in the game.

   News connection: The core question before the Court is whether a selection panel weighted two-to-one toward the government meets this standard of both real and perceived independence.

   4. Reference to a larger bench — Article 145(3)

   • Article 145(3) requires that any case involving a "substantial question of law as to the interpretation of the Constitution" be decided by a bench of at least five judges.
   • A smaller bench can decide whether such a question exists and needs referring; here, the two judges disagreed on exactly that preliminary question.
   • When judges on a bench differ, the matter is placed before the CJI, who decides, on the administrative side, how to constitute an appropriate bench.
   • Distinction: This procedural question, whether a five-judge bench is needed, is different from the substantive question, whether the 2023 Act itself is constitutional. The Court has so far only split on the first.

   News connection: The CJI must now decide whether a Constitution Bench should finally examine the 2023 Act's validity.

4. Way forward4 / 7

   Consider dedicated Constitution Benches: Set up standing five-judge benches for major constitutional questions, reducing delays caused by procedural references.

   Set transparent selection criteria: Establish clear, objective and publicly defensible standards for eligibility and assessment in appointments to constitutional posts.

   Balance institutional participation: Ensure meaningful participation of non-executive stakeholders in the selection process, while respecting Parliament's law-making authority under Article 324(2).

   Strengthen the ECI's autonomy in other ways: Even independent of who appoints Commissioners, strengthen the Commission's administrative, financial and personnel independence.

   Build wider consultation into electoral lawmaking: Involve political parties, constitutional experts and other stakeholders before enacting laws affecting electoral institutions.

5. Note5 / 7

   Timeline of the dispute

   2015: A writ petition is filed under Article 32, challenging the absence of any law governing appointments to the Election Commission.

   2018: The matter is referred to a Constitution Bench.

   March 2023: A five-judge Bench decides Anoop Baranwal, setting the interim PM–LoP–CJI committee, to hold until Parliament legislates.

   December 2023: Parliament passes the Chief Election Commissioner and Other Election Commissioners Act, 2023, replacing the CJI with a PM-nominated Union Cabinet Minister.

   March 2024: The Supreme Court declines to stay the law or the appointments made under it, days before the Lok Sabha election, but agrees to examine the Act's validity later.

   30 July 2026: A two-judge bench reserves its order on whether the challenge needs a larger bench.

   23 September 2026: The bench delivers a split verdict on that question, and refers the matter to the CJI.

6. Note6 / 7

   The selection panel, before and after

   Interim arrangement under Anoop Baranwal (2023): Prime Minister, Leader of Opposition in the Lok Sabha, and the Chief Justice of India.

   Panel under the 2023 Act: Prime Minister, Leader of Opposition in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister.

   What changed: The CJI, seen as independent of the political executive, was replaced by a Cabinet Minister who serves at the Prime Minister's pleasure.

   The arithmetic Justice Datta flagged: Two of the panel's three members, the Prime Minister and the Minister nominated by the Prime Minister, are effectively aligned with the government. Only the Leader of Opposition represents a different political voice.

   Why this matters: A committee that is two-thirds government-aligned raises the question of whether the selection process can be, and be seen to be, free of executive influence.

7. Note7 / 7

   

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