Supreme Court Split Verdict on Election Commissioners Act Referred to Constitution Bench

In a significant development for India's electoral framework, a two-judge bench of the Supreme Court delivered a split verdict on the constitutional challenge to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. While Justice Dipankar Datta authored a detailed opinion rejecting the Union government's plea to refer the matter to a larger bench, Justice Satish Chandra Sharma disagreed, holding that the Act's validity raises substantial constitutional questions requiring adjudication by a five-judge bench. Consequently, the case has been directed to the Chief Justice of India for consideration of constituting a Constitution Bench.

Split Verdict: A Tale of Two Opinions

The batch of writ petitions, led by Dr. Jaya Thakur and others, challenged Sections 7, 6, and 8(2) of the 2023 Act as ultra vires Article 14 read with Article 324 of the Constitution. The primary grievance centered on Section 7, which establishes a Selection Committee comprising the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister, and the Leader of Opposition—a composition that petitioners argued ensures executive dominance over appointments to the Election Commission of India (ECI).

The Union government, through Attorney General R. Venkataramani and Solicitor General Tushar Mehta, argued that the petitions raised substantial questions of law regarding constitutional interpretation, warranting reference under Article 145(3). They contended that the interim directions in Anoop Baranwal v. Union of India (2023) were merely temporary measures under Article 142, and that the Parliament was free to legislate differently once it enacted the 2023 Act.

Justice Datta's Rebuke: 'Constitutional Trust Betrayed'

Justice Datta, writing the main opinion, firmly rejected the reference plea. He observed that the principle that free and fair elections are part of the basic structure and that the ECI must be insulated from exclusive executive control is already settled by the Constitution Bench in Anoop Baranwal . What remains, he held, is merely the application of these settled principles to the 2023 Act—not a fresh interpretation of the Constitution.

In a stinging critique of political practice, Justice Datta quoted Dr. B.R. Ambedkar's 1951 address warning of institutional capture and lamented that "the misfortune of the people of India is that the lofty ideals that the Constitution envisaged have remained largely unaccomplished owing to a lack of intent and non-abidance with constitutional morality by the ruling regime, past and present, resulting in substantial institutional erosion." He noted that "a consistent trait of political power, discernible over the decades, has been to preserve leverage over the very body that is meant to judge its claim to power."

The judge also addressed the government's reliance on " constitutional trust " in the Prime Minister, stating: "Any reference made to the constitutional trust doctrine, having regard to the criminal background of members of the elected bodies, must extend to the constitutional morality of the appointing process itself."

The Cricket Metaphor: Perception of Bias

Justice Datta deployed a vivid cricket analogy to explain why the 2023 Act fails the " perception test " essential for institutional independence. "It would not be a fallacious metaphor if it is said that since the umpire is picked by the captain of one side in a cricket match and his team wins, even if the decisions taken by such umpire are correct, it has the patina of suspicion, for, at the end of the day, the umpire has effectively been chosen by the winning captain," he observed.

He further noted that the presence of a Cabinet Minister nominated by the Prime Minister on the Selection Committee makes the Leader of Opposition's role "largely ornamental," as the Minister is bound by collective responsibility under Article 75(3) and cannot be expected to oppose the Prime Minister.

Justice Sharma's Counter: A Fresh Question for a Larger Bench

Dissenting, Justice Satish Chandra Sharma held that the constitutional validity of the 2023 Act had never been authoritatively decided and therefore raised substantial questions requiring a Constitution Bench. He rejected the argument that Anoop Baranwal had settled the matter, noting that the earlier decision dealt with a legislative vacuum , whereas the present challenge concerns a law enacted by Parliament. "Whether Parliament was justified in not including a neutral selector in the selection committee is an important question arising for the first time before this Court," he wrote.

A Rare Plea: Request for a Permanent Constitution Bench

In a joint order, both judges expressed concern over the inordinate delay in resolving constitutional references, citing examples where matters took 8 to 24 years. They urged the Chief Justice to explore the establishment of a permanent five-judge Constitution Bench "to decide pure constitutional issues ," noting that "pendency of references for far too long does not reflect well on the institution."

The reference is now placed before the Chief Justice of India for the constitution of an appropriate bench to adjudicate the vires of the 2023 Act. The split verdict ensures that the case will now be heard by a larger bench, with the core question of executive dominance over election appointments set for definitive resolution.