Appointment of Election Commissioners: Why the Supreme Court Referred the Issue to the CJI

25 Sep 2026

Tags: Polity & Constitution   Electoral System   Key electoral mechanisms

Source: The Indian Express

Context: The Supreme Court is examining challenges to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which changed the composition of the selection committee for the Chief Election Commissioner (CEC) and Election Commissioners (ECs).

• On 23 September 2026, a two-judge Bench of Justices Dipankar Datta and Satish Chandra Sharma gave differing views on whether the challenge should be heard by a Constitution Bench. They nevertheless agreed that the matter should be placed before the Chief Justice of India (CJI) to consider constituting a larger Bench, avoiding another procedural delay.

Article 324 and the Appointment Process

• Article 324(2) provides that the President appoints the CEC and ECs, subject to any law made by Parliament on the matter.
• For decades, Parliament did not enact a specific law governing the appointment process, and appointments operated through the executive framework.
• A writ petition challenging the absence of a statutory appointment mechanism was filed in 2015; in 2018, the matter was referred to a Constitution Bench.
• In Anoop Baranwal v. Union of India (2023), the Supreme Court held that an independent Election Commission is essential for free and fair elections.

Anoop Baranwal Judgment, 2023

• Until Parliament enacted a law, the Court prescribed a selection committee comprising the Prime Minister, Leader of Opposition in the Lok Sabha and Chief Justice of India.
• The arrangement was intended to reduce the possibility of exclusive executive control over appointments.
• The Court's direction was an interim mechanism operating until Parliament exercised its legislative power under Article 324(2).

The 2023 Law and the Change in Selection Committee

• Parliament enacted the Chief Election Commissioner and Other Election Commissioners Act, 2023.
• The Act replaced the CJI on the selection committee with a Union Cabinet Minister nominated by the Prime Minister.
• The resulting three-member committee comprises the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister and the Leader of Opposition in the Lok Sabha, giving the government two members on the three-member panel.
• The constitutional challenge essentially raises the question of whether Parliament's law-making power under Article 324(2) permits such a composition while maintaining the constitutionally required independence of the Election Commission.

Why Did the Two-Judge Bench Differ?

Justice Dipankar Datta's View

• Justice Datta considered that the constitutional principle had already been settled in Anoop Baranwal: appointments to the ECI cannot remain under exclusive executive control.
• Therefore, according to him, the present Bench could examine whether the 2023 Act conforms to that established principle without requiring a Constitution Bench.
• He nevertheless expressed prima facie concerns about the new selection committee and the extent of executive influence.
• He emphasised the “perception test”: institutional independence is important not only in substance but also in how that independence is perceived.
• He questioned whether a Cabinet Minister nominated by the Prime Minister could provide a genuinely independent check on the executive.
• He also rejected the government's comparison between the ECI appointment process and the judicial collegium, observing that the two systems involve different constitutional arrangements and purposes.

Justice Satish Chandra Sharma's View

• Justice Sharma held that the matter should go to a Constitution Bench because the Supreme Court had not previously adjudicated the constitutional validity of the 2023 Act.
• He considered the question of whether Parliament was constitutionally justified in replacing the CJI with a Cabinet Minister nominated by the Prime Minister to be a new and substantial constitutional question.
• According to this approach, Article 145(3) requires a minimum five-judge Bench when a case involves a substantial question regarding interpretation of the Constitution.
• He also considered issues involving separation of powers and comparison with the collegium system appropriate for consideration by a larger Bench.

Why Was the Matter Placed Directly Before the CJI?

• Ordinarily, a disagreement over the need for a larger Bench can generate further procedural steps.
• The two judges agreed that sending the matter first to a three-judge Bench would have limited value and could unnecessarily delay a final determination.
• They therefore agreed that the papers should be placed before the CJI for considering a Constitution Bench of appropriate strength.
• The Bench also highlighted the problem of prolonged delays in deciding constitutional references and suggested that the CJI consider a permanent five-judge Bench for constitutional matters.

What is a Constitution Bench?

• Under Article 145(3), a Constitution Bench of at least five judges hears cases involving a substantial question of law concerning interpretation of the Constitution.
• Merely involving a constitutional provision does not automatically require a Constitution Bench; the issue must ordinarily involve a substantial constitutional question requiring authoritative determination.
• Judgments of larger Benches carry greater precedential weight and help settle questions of constitutional interpretation.

Split Verdicts and Larger Benches

• A split verdict occurs when judges on a Bench disagree on the decision or a material legal issue.
• Such disagreement may lead to the matter being placed before the CJI for determining the appropriate Bench.
• However, a split verdict does not by itself automatically establish that a Constitution Bench is required; the nature of the underlying constitutional question remains relevant.
• The Supreme Court has faced similar situations in other cases, including the Karnataka hijab case and a case concerning Section 17A of the Prevention of Corruption Act, where matters were subsequently placed before larger Benches.

Key Constitutional Issues Involved

• Independence of ECI: Whether the appointment mechanism adequately insulates the Election Commission from executive influence.
• Parliamentary power: The extent of Parliament's authority under Article 324(2) to determine the appointment mechanism.
• Checks and balances: Whether the selection committee contains sufficient institutional diversity to prevent concentration of executive influence.
• Separation of powers: The appropriate balance between Parliament's legislative authority and judicial review of electoral institutions.
• Institutional legitimacy: The importance of both actual independence and public perception of independence in institutions responsible for conducting elections.

Significance

• The case brings together three important constitutional principles: electoral independence, separation of powers and Parliament's authority to legislate.
• The eventual Constitution Bench will have to examine how the statutory appointment mechanism interacts with the constitutional requirement of an independent and credible Election Commission.