A Split Bench Gives the Election Commission Law a Constitution Bench
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack
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By Sunil Garodia
First publised on 2026-09-24 05:06:02
About the Author
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack
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The Supreme Court has not yet decided whether the 2023 law on appointing Election Commissioners is valid. It has directed that the matter be placed before the Chief Justice for constitution of a Constitution Bench. The order followed a division between two judges on whether a reference was needed. That division reflects a real difference in how the law should be read. Justice Datta and Justice Sharma differed on what Anoop Baranwal requires and on whether the question is already settled. Until a Constitution Bench rules, the 2023 Act remains in operation.
What the Court did
On September 23, a bench of Justices Dipankar Datta and Satish Chandra Sharma delivered a split verdict on the Union government's request to refer the challenge to a larger bench. Justice Datta rejected the request, while Justice Sharma accepted it. The judges nevertheless agreed that sending the matter through another procedural stage before a three-judge bench would only add to the delay. They therefore placed it before Chief Justice Surya Kant for constitution of a Constitution Bench.
That is a practical decision. It is also an acknowledgment of a problem the Court itself has now put on record. A two-judge bench heard the petitions for over five days and could not speak in one voice on a threshold question.
The law under challenge
The 2023 Act governs how the Chief Election Commissioner and Election Commissioners are chosen. It provides for a selection committee of the Prime Minister, a Union Cabinet minister and the Leader of Opposition in the Lok Sabha. The Chief Justice of India is not on it. That is at the heart of the dispute.
It matters because of what came before. In Anoop Baranwal, a five-judge Constitution Bench directed that appointments to the Election Commission be made by a committee of the Prime Minister, the Leader of Opposition and the CJI. Parliament then legislated and replaced the CJI with a minister nominated by the Prime Minister. The petitioners, including the Association for Democratic Reforms and Jaya Thakur, argue that this defeats the independence of the Commission.
Two judges, two readings
The two opinions take fundamentally different approaches to the constitutional question. Justice Datta was not deciding the validity of the Act. He was rejecting the Centre's request for a reference, and in doing so he gave a prima facie view. He treated the CJI-inclusive committee as a temporary arrangement under Article 142 that ended once Parliament legislated. He also held that the principle of an Election Commission insulated from exclusive executive control remains binding. He said that it is not enough for the ECI to be independent, it must appear to be independent. At the May hearing he had already asked whether the Opposition leader's role was reduced to an "ornamental" one, given that the Prime Minister and a Cabinet minister hold a 2:1 majority.
Justice Sharma read the matter differently. He said a substantial question of law was involved. In his view, the validity of the new legislative mechanism is a constitutional question that has never been authoritatively decided. Article 145(3) requires a bench of at least five judges for a substantial question on the interpretation of the Constitution, and it was under that provision that the Union sought the reference.
The cost of waiting
In 2024, the Court declined to stay appointments under the new law while the constitutional challenge remained pending. Those appointments therefore continue under legislation whose constitutional validity has yet to be decided.
The more consequential problem may now be what happens after the reference. The bench itself recorded its concern over delay in the hearing of Constitution Bench matters. It asked the Chief Justice to consider a permanent five-judge bench to address delays in cases that need larger benches. That request is a reasonable reform. It is also the Court's own acknowledgement of the problem.
What the Constitution Bench must decide
The larger bench will face a consequential set of constitutional questions. Did Anoop Baranwal's directions continue to bind after Parliament enacted a law governing appointments, or did they operate only until Parliament filled the legislative gap? Can Parliament design a committee in which the executive holds the majority? What does independence under Article 324 require in structure, and not merely in rhetoric? The bench will have to examine the scope of Parliament's power under Article 324(2) to legislate on appointments alongside the constitutional requirement of an independent Election Commission.
Those questions have no easy answers. What the Court should now avoid is another open-ended constitutional wait. A Constitution Bench should be constituted without unnecessary delay and the matter listed early. Every month of drift lets an unresolved law govern the body that guards the ballot.
The Court has resolved the procedural question. It has not resolved the problem of time. The Chief Justice now holds the next move.
