Two-judge Bench differs on whether challenge to 2023 Election Commissioners appointment law requires a larger Bench
New Delhi, September 23, 2026: The Supreme Court on Wednesday delivered a split verdict on petitions challenging the constitutional validity of the 2023 law governing the appointment of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs).
The matter was heard by a Bench comprising Justice Dipankar Datta and Justice Satish Chandra Sharma, who differed on whether the petitions should be referred to a larger Constitution Bench.
Justice Datta rejected the request for reference to a larger Bench, while Justice Sharma held that the issues raised involved substantial questions of constitutional interpretation and should be considered by a Constitution Bench.
Despite the difference of opinion, both judges agreed that the matter should be placed before the Chief Justice of India for consideration of a Constitution Bench. The Bench observed that sending the issue first to a three-judge Bench could cause unnecessary delay in deciding the larger constitutional questions.
What is the dispute over the 2023 law?
The petitions challenge provisions of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
The law changed the composition of the selection committee for appointing the CEC and Election Commissioners. Under the current framework, the committee consists of the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister and the Leader of Opposition in the Lok Sabha.
This replaced the mechanism laid down by the Supreme Court in its March 2023 judgment in Anoop Baranwal v. Union of India, under which the selection committee included the Prime Minister, the Leader of Opposition and the Chief Justice of India until Parliament enacted a law on the subject.
Petitioners challenge exclusion of CJI
The petitioners have argued that removing the CJI from the selection committee affects the independence of the Election Commission and raises concerns regarding the constitutional requirement of free and fair elections.
The Union government, on the other hand, argued that Parliament had the authority to enact legislation governing the appointment process and that the arrangement prescribed by the Supreme Court in 2023 was intended to operate only until Parliament made a law.
During the proceedings, Justice Datta also examined concerns surrounding the independence of the Election Commission and whether the existing selection mechanism provides an independent counterweight within the committee.
Matter now before the Chief Justice
With the judges differing on the question of reference, the case will now be placed before the Chief Justice of India for consideration of an appropriate Constitution Bench.
The eventual larger Bench will examine the constitutional questions surrounding the 2023 appointment law and the composition of the selection committee. The Supreme Court’s latest order does not itself finally decide the constitutional validity of the law.
