Split Verdict on the Election Commissioners' Appointment Law: CEC Act Challenge Heads to a Constitution Bench

In March 2023, a Constitution Bench in Anoop Baranwal v. Union of India held that, until Parliament legislated, Election Commissioners would be selected by a committee of the Prime Minister, the Leader of the Opposition and the Chief Justice of India. Parliament legislated within the year: the 2023 Act constituted a selection committee of the Prime Minister, the Leader of the Opposition and a Union Cabinet Minister nominated by the Prime Minister — replacing the Chief Justice.

Petitions by Dr. Jaya Thakur and others challenged the Act — primarily Section 7, with subsidiary challenges to Sections 6 and 8(2) — as a device to restore executive dominance over the Election Commission, ultra vires Article 14 read with Article 324. The two-judge bench pronounced its verdict on 23 September 2026 — and disagreed.

The Key Question Before the Court

Does replacing the Chief Justice with a government nominee on the selection committee defeat the independence that Anoop Baranwal secured — and must a Constitution Bench answer that?

Two Judges, Two Routes

Justice Dipankar Datta reasoned that the constitutional questions stand settled by Anoop Baranwal itself, so the challenge could be decided without constituting a larger bench. Justice Satish Chandra Sharma took the opposite view: the validity of the 2023 Act involves a substantial question as to the interpretation of the Constitution, which Article 145(3) commits to a bench of at least five judges. With the bench evenly divided on the route, the judges agreed on the destination — the papers now go to the Chief Justice of India for the constitution of a larger bench.

What Remains Undecided — and What Comes Next

The split verdict decides nothing about the Act's validity: Sections 7, 6 and 8(2) survive for now, and the Constitution Bench will determine whether a selection committee without the Chief Justice satisfies the independence that Articles 324 and the basic-structure jurisprudence demand of the Election Commission. As reported at the end of September 2026, a plea was also filed seeking recall of the verdict, alleging a conflict of interest in the bench's composition — a question that, like the merits, now awaits the larger bench's attention.

What the Court Actually Held

• Justice Datta: the questions raised stand covered by Anoop Baranwal; no reference to a larger bench was needed.
• Justice Sharma: the challenge raises a substantial question of constitutional interpretation requiring a Constitution Bench under Article 145(3).
• Jointly: the papers are to be placed before the Chief Justice of India for considering the desirability of constituting a Constitution Bench to decide the vires of Section 7 and the other provisions.
• The validity of Sections 7, 6 and 8(2) of the 2023 Act remains undecided in the meanwhile.

Why This Judgment Matters

• The composition of the body that appoints India's election referees — and whether the judiciary belongs in it — will now be settled at Constitution Bench strength.
• The split illustrates a recurring institutional question: when does a challenge to a post-judgment statute require five judges rather than two?
• Until the larger bench rules, every appointment to the Election Commission under the 2023 Act carries a question mark over the framework that produced it.

What Should Advocates Take Away From the Judgment?

For Petitioners' Counsel

• Frame post-Baranwal challenges as Article 145(3) questions from the outset; the reference debate consumed this round.

For Government Counsel

• The Act operates until struck down — but build the defence for a Constitution Bench, where Anoop Baranwal's reasoning on institutional independence will be the benchmark.

Key Takeaways

Frequently Asked Questions

It replaces the Anoop Baranwal interim committee (PM, Leader of the Opposition, CJI) with a committee of the PM, the Leader of the Opposition and a Union Cabinet Minister nominated by the PM — removing the judicial member.

The matter is placed before the Chief Justice of India, who constitutes a larger bench; here both judges jointly sent the papers to the CJI to consider constituting a Constitution Bench.

Yes — the split decides nothing on validity, so the Act continues to operate until the Constitution Bench rules.

Conclusion