The Hon’ble Supreme Court vide judgement dated 23rd September 2026 [Dr. Jaya Thakur and Ors. vs Union of India and Ors.], passed a split verdict in the Writ Petitions challenging the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The Hon’ble Supreme Court referred it to the Constitution Bench to decide on constitutional debate over the independence of India’s election machinery.

ISSUE
The core issue before the two judge bench comprising of Justice Dipankar Dutta and Justice Satish Chandra Sharma: Whether several provisions of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 are ultra vires Article 14 read with Article 324 of the Constitution. While the primary challenge is directed against Section 7 of the 2023 Act, the subsidiary challenges have also been raised against Sections 6 and 8(2) thereof.

IN BRIEF
The Hon’ble Judges disagreed on the above issue; Justice Dipankar Dutta held that the justification for a reference cannot be sustained merely by repackaging an existing constitutional principle in a seemingly new factual or legislative setting and accordingly the reference to a larger bench was not necessary, whereas Justice Satish Chandra Sharma opined that 2023 Act has been enacted pursuant to the decision of the Constitution Bench in Anoop Baranwal v. Union of India [Election Commission Appointments] (2023) 6 SCC 161. There is no authoritative decision of this Court till date pronouncing on the constitutional validity of the said Act. A judicial decision in light of what the Constitution provides has to be given by this Court while it is seized of the issue of vires of Section 7 of the said Act and its other provisions. The decision on these writ petitions would be the first of its kind and it is all the more necessary that a reference is made.

Despite the above mentioned difference of opinion, the Judges, jointly directed that the papers be placed before the Hon’ble the Chief Justice for considering the desirability of constituting a Constitution Bench of such number of Judges to decide the question of vires of Section 7 and the other provisions of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

THE CONTROVERSY: SECTION 7 OF THE CHIEF ELECTION COMMISSIONER’S LAW 2023
Prima facie, the Section 7 of the 2023 Act, raises eyebrows especially over the unjustified control of the executive in the composition of Selection Committee. It is pertinent to mention here the basic principle observed by Justice Dipankar Dutta in Para 72

“...It is not enough for the Election Commission of India to be independent; it must also appear to be independent....”

As per Section 7(1) of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, The Chief Election Commissioner and other Election Commissioners shall be appointed by the President on the recommendation of a Selection Committee consisting of-

1. the Prime Minister-Chairperson;
2. the Leader of Opposition in the House of the People-Member;
3. a Union Cabinet Minister to be nominated by the Prime Minister-Member.

The above arrangement/composition of the Selection Committee modified the composition indicated by the Hon’ble Supreme Court in Anoop Baranwal v. Union of India [Election Commission Appointments] (2023) 6 SCC 161. The enactment of 2023 Act, replaced the Chief Justice of India on the selection committee with a Union Cabinet Minister nominated by the Prime Minister-Member.

In Anoop Baranwal, the Hon’ble Supreme Court passed a guideline that until Parliament makes a law in consonance with Article 324(2) of the Constitution, the appointment of the Chief Election Commissioner and the Election Commissioners shall be made on the recommendations made by a three-member Committee comprising of the Prime Minister, Leader of the Opposition of the Lok Sabha and in case no Leader of Opposition is available, the Leader of the largest opposition party in the Lok Sabha in terms of numerical strength and the Chief Justice of India.

The Writ Petitions herein, challenged the Chief Commissioner’s Law 2023 [Section 7 alongside Section 6 and 8(2) of the 2023 Act] under Article 14 and 324 of the Constitution to raise a fundamental question i.e. how should the independence of the Election Commission be protected especially when the Executive being the principal participant in the electoral process?

LANDMARK JUDGMENT: ANOOP BARANWAL V. UNION OF INDIA [ELECTION COMMISSION APPOINTMENTS] (2023) 6 SCC 161
Herein, the Hon’ble Supreme Court considered the appointment of Election Commissioners in the absence of any kind of legislation on the said subject. The only legislation/law in place before the decision in Anoop Baranwal’s decision, in regard to the composition and appointment of Election Commissioner(s) was Article 324 (2) of the Constitution, which reads as follows:

(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.

Henceforth, the Hon’ble Supreme Court observed a constitutional vacuum, and accordingly, vide its decision dated 2nd March 2023, the Hon’ble Supreme Court passed the following directions:

463. Until Parliament makes a law in consonance with Article 324(2) of the Constitution, the following guidelines shall be in effect:
463.1. We declare that the appointment of the Chief Election Commissioner and the Election Commissioners shall be made on the recommendations made by a three-member Committee comprising of the Prime Minister, Leader of the Opposition of the Lok Sabha and in case no Leader of Opposition is available, the Leader of the largest opposition party in the Lok Sabha in terms of numerical strength and the Chief Justice of India.
463.2. It is desirable that the grounds of removal of the Election Commissioners shall be the same as that of the Chief Election Commissioner, that is, on the like grounds as a Judge of the Supreme Court subject to the "recommendation of the Chief Election Commissioner" as provided under the second proviso to Article 324(5) of the Constitution of India.
463.3. The conditions of service of the Election Commissioners shall not be varied to his disadvantage after appointment.

AUTHOR’S VIEW
One of the most significant phrase in the Anoop Baranwal decision was “... Until Parliament makes a law in consonance with Article 324(2) of the Constitution...” (Para 463). If we comprehend the literal meaning of this phrase, then the guidelines laid down by the Hon’ble Supreme Court pursuant to this phrase, operates only till the time Parliament makes a law in consonance with Article 324(2) and not beyond it.

It is very crucial to note that replacement of Chief Justice of India with Union Cabinet Minister nominated by the Prime Minister as one of members of the Selection Committee shows the intent of the law makers which prima facie does not appear to be bona fide.

If we compare the compositions of the committee as suggested by the Hon’ble Supreme Court and the one as per the Chief Election Commissioner’s Law 2023, the members of the former committee appear to be independent of each other, where they can have their impartial opinion whereas in the latter committee the Union Cabinet Minister is nominated by the Prime Minister, which means that such member would likely to infer with the opinion of the Prime Minister; such influential power dynamics render the 3rd member i.e. Leader of the Opposition as mere cosmetic voting identity. The whole idea behind Article 324 was to have an independent Election Commission. The Chief Election Commissioner’s Law 2023 diverged from the basic structure of the Article 324 and provided undue advantage to the acting Prime Minister to influence the Election Commission as the 3rd member being the Union Cabinet Minister won’t be able to provide a neutral opinion as he/she is likely to be on a risky wicket.

REFERENCE HEARING
The Writ Petition in Anoop Baranwal’s case was filed in 2015, reference to the Constitution Bench was made in 2018 by a two judge bench. The same got decided finally in 2023. Through the current set of petitions, it is an attempt to

While passing the Joint Procedural Order, the two judge bench rightly observed that “...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. Undisputedly, this is an area of grave concern and the inordinate delay in resolution of the references is itself a source of institutional embarrassment which all stakeholders ought to strive to avoid. Self-introspection, indeed, is required...” (Para 4)

CONCLUSION
As per the decision dated 23.09.2026 by the two judge bench of the Hon’ble Supreme Court directed that papers be placed before the Hon’ble the Chief Justice for considering the desirability of constituting a Constitution Bench of such number of Judges to decide the question of vires of Section 7 and the other provisions of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

Until the decision in the reference hearing by the Hon’ble Supreme Court, the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 stands valid in eyes of law.

By - C. George Thomas and Dhananjay Kataria