“It is a foundational principle of our constitutional scheme that ours is a government of laws, not of men, where the rulers are bound by the law; they can never be above the law.”
With these words, Justice Dipankar Datta opened an important constitutional opinion concerning the manner in which the Chief Election Commissioner (CEC) and other Election Commissioners (ECs) are appointed in India. The observations came in Dr. Jaya Thakur & Ors. v. Union of India & Anr., 2026 INSC 1040, decided on 23 September 2026 by a Division Bench comprising Justice Dipankar Datta and Justice Satish Chandra Sharma.
The case concerns a batch of petitions challenging provisions of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, principally Section 7, which provides for a Selection Committee comprising the Prime Minister, the Leader of Opposition in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister. Sections 6 and 8(2) have also been questioned. The petitioners contend, among other things, that this arrangement creates executive dominance over appointments to an institution constitutionally entrusted with conducting elections.
Significantly, however, the Supreme Court has not yet decided whether the 2023 Act is constitutionally valid or invalid. The immediate controversy before the two-Judge Bench was whether the challenge could be determined by it or should be placed before a Constitution Bench. The two Judges differed on that question and ultimately directed that the papers be placed before the Chief Justice of India to consider constituting a Constitution Bench of appropriate strength.
The Appointment Mechanism Under the 2023 Act
Section 7 of the 2023 Act provides that the CEC and other ECs are appointed by the President on the recommendation of a three-member Selection Committee consisting of:
- the Prime Minister as Chairperson;
- the Leader of Opposition in the Lok Sabha as Member; and
- a Union Cabinet Minister nominated by the Prime Minister as Member.
Where no Leader of Opposition has formally been recognised, the leader of the single largest opposition party in the Lok Sabha is treated as the Leader of Opposition for this purpose.
Section 6 establishes a Search Committee headed by the Union Minister for Law and Justice, along with two other members not below the rank of Secretary to the Government of India. This Committee prepares a panel of five persons for consideration by the Selection Committee. Under Section 8(2), however, the Selection Committee may also consider a person who is not included in the Search Committee’s panel.
It is the constitutional implications of this framework, not merely the presence or absence of the Chief Justice of India, that lie at the centre of the pending challenge.
Background: Anoop Baranwal and the Constitutional Vacuum
The controversy cannot be understood without the Constitution Bench decision in Anoop Baranwal v. Union of India, (2023) 6 SCC 161.
Article 324(2) provides that the Election Commission shall consist of the CEC and such number of other ECs as the President may determine, and that their appointments shall, “subject to the provisions of any law made in that behalf by Parliament,” be made by the President.
For more than seven decades, Parliament had not enacted the law contemplated by Article 324(2). In Anoop Baranwal, the Constitution Bench addressed this legislative vacuum and the implications of an executive-controlled appointment process for the institutional independence of the Election Commission.
Pending parliamentary legislation, the Court prescribed an interim arrangement under which appointments would be made by the President on the advice of a committee comprising the Prime Minister, the Leader of Opposition in the Lok Sabha and the Chief Justice of India. Importantly, that arrangement was expressly temporary and was to operate until Parliament enacted a law.
Parliament thereafter enacted the 2023 Act. The new statute retained the Prime Minister and Leader of Opposition but replaced the CJI with a Union Cabinet Minister nominated by the Prime Minister. The present petitions challenge, among other provisions, that statutory arrangement.
Petitioners’ Case: The Concern Is Executive Dominance
The challengers emphasised before the Supreme Court that their case should not be reduced to a demand that the Chief Justice of India must necessarily sit on the Selection Committee.
Their principal objection was to what they described as executive dominance in the appointment mechanism under Section 7. They relied upon Anoop Baranwal to argue that the Election Commission must be insulated from exclusive executive control and that this constitutional principle had already been authoritatively recognised.
According to the petitioners, therefore, no fresh interpretation of Article 324 was necessary. What remained was to apply the constitutional principles already declared in Anoop Baranwal to the framework created by Parliament in 2023.
They further contended that placing appointments substantially under executive control could affect constitutional balance because the executive is itself a participant in the electoral process.
The petitioners also argued that free and fair elections, institutional independence and constitutional equality principles provide standards against which the legislation can be judicially tested.
Union Government’s Defence
The Union took a materially different position. It argued that Anoop Baranwal did not permanently prescribe the composition of the Selection Committee. According to the Attorney General’s submissions recorded by the Court, the directions in that case were interim measures under Article 142 designed to operate only until Parliament enacted a law under Article 324(2).
The Government also disputed the proposition that the mere presence of two executive members on a three-member Selection Committee establishes bias, partisanship or institutional unfairness. It relied on the constitutional position and responsibility of the functionaries forming the Committee and the presumption that high constitutional authorities would discharge their functions objectively and fairly.
This led to broader questions: Can judicially evolved interim norms constrain Parliament when it eventually legislates? Can legislation be invalidated merely because its mechanism differs from an earlier judicial arrangement? And what is the proper relationship between institutional independence, parliamentary legislative authority and separation of powers?
The Union argued that these were substantial questions concerning interpretation of the Constitution and therefore attracted Article 145(3), requiring consideration by at least five Judges.
Justice Dipankar Datta: Settled Constitutional Principles Can Be Applied by the Two-Judge Bench
Justice Dipankar Datta rejected the Union’s request for a reference to a Constitution Bench. His opinion drew an important distinction between interpreting an unsettled constitutional question and applying an already settled constitutional principle to a new statute.
According to Justice Datta, existing precedents had already recognised free and fair elections as a basic feature of the Constitution and had addressed the necessity of insulating the Election Commission from exclusive executive control in appointments. The enactment of the 2023 Act undoubtedly created a new statutory setting, but that did not automatically transform the dispute into a new substantial question of constitutional interpretation.
Justice Datta put the issue sharply:
“The issue does not hinge upon whether the independence of the ECI is a part of basic structure or not. It plainly is!”
His opinion held that the task before the Court was to examine whether the statutory arrangement introduced by the 2023 Act complied with already settled constitutional standards.
The opinion therefore concluded that what remained was essentially the application of established principles to the legislation under challenge and that neither a constitutional bar nor binding precedent prevented the two-Judge Bench from proceeding with the petitions.
Importantly, Justice Datta made clear that his observations at this stage were prima facie and confined to the question of reference. They did not constitute a final ruling on the constitutional validity of Sections 6, 7 or 8(2).
A Strong Observation on Executive Control
Justice Datta’s opinion also contains significant observations about the historical relationship between political power and the independence of the Election Commission.
After referring to constitutional history and Dr. B.R. Ambedkar’s concerns regarding democracy, the opinion observed:
“Over seven decades, every dispensation wresting power found it convenient to keep institutions, which the Constitution envisioned to be independent, under their control.”
The Court’s opinion expressly stated that this was “not the failing of any one party or one period”, but described it as a recurring characteristic of political power across decades.
This qualification is important. The observations were not framed as an allegation directed against a particular present or past political party. Rather, Justice Datta placed the controversy within the broader institutional problem of ensuring independence of an electoral body whose decisions may directly affect those exercising governmental power.
He further observed that the 2023 Act represented Parliament’s first attempt to fill the constitutional vacuum, but left the ultimate question open:
“Whether the 2023 Act fully answers the apprehension of the early days of our Constitution of insulating the ECI from the Government of the day or merely recalibrates executive control, is the question that would arise for examination when the writ petitions are decided on their own merits.”
That formulation captures the central constitutional issue without prejudging its answer.
Justice Satish Chandra Sharma: Constitution Bench Must Decide
Justice Satish Chandra Sharma disagreed with Justice Datta on the reference question. In his view, there was no authoritative Supreme Court decision deciding the constitutional validity of the 2023 Act. The present challenge would therefore require the Court, for the first time, to determine the validity of the statutory mechanism enacted by Parliament pursuant to Article 324(2).
Justice Sharma considered the questions sufficiently substantial to attract Article 145(3). His opinion therefore favoured placing the petitions before a Constitution Bench of at least five Judges. Contemporary reporting of the judgment likewise records his view that Parliament’s law-making authority under Article 324(2), and the constitutional implications of an executive-heavy selection mechanism, raised questions requiring consideration by a larger Bench.
Thus, while Justice Datta characterised the controversy primarily as one involving application of settled principles, Justice Sharma regarded it as involving a substantial and unresolved question of constitutional interpretation.
Split Opinions, but a Common Procedural Direction
The difference between the two Judges created an unusual procedural situation. Justice Datta would have rejected the request for a Constitution Bench and proceeded with the merits before the existing Bench. Justice Sharma considered a Constitution Bench necessary.
The joint order acknowledged this disagreement:
“Speaking in one voice would have better served institutional cohesion. Unfortunately, the Court is divided in its opinion.”
Ordinarily, such a disagreement could necessitate consideration by a three-Judge Bench. But the Judges recognised that sending the matter first to three Judges merely to decide whether it should ultimately go to five Judges could cause further delay.
Accordingly, they jointly directed that the papers be placed before the Chief Justice of India to consider the desirability of constituting a Constitution Bench of appropriate strength to determine the vires of Section 7 and other provisions of the 2023 Act.
Therefore, the decision should not be read as the Supreme Court striking down, upholding, or finally finding constitutional infirmity in the appointment mechanism. The merits remain open.
Court Raises Concern Over Delayed Constitution Bench References
The order went beyond the immediate dispute to raise an institutional concern about the time taken to decide constitutional references.
The joint order referred to the lengthy history of Anoop Baranwal itself and other constitutional references and observed that prolonged pendency of such cases was a matter of serious concern.
The Judges stated that inordinate delay in deciding references was a source of “institutional embarrassment” and called for self-introspection. They requested the Chief Justice of India to explore the necessity of constituting a permanent five-Judge Bench for pure constitutional issues.
Given what the Bench described as the foundational importance of the issues concerning the democratic fabric of the country, it expressed the hope that the present reference would not face similar delay.
The Constitutional Question Ahead
The case presents a constitutional question extending beyond the identity of one member of the Selection Committee. The deeper issue is the degree of institutional insulation that Article 324 requires when Parliament designs the mechanism for appointing those who administer elections.
At the same time, the dispute raises an equally significant separation-of-powers question: Anoop Baranwal expressly contemplated future legislation and made its judicial arrangement temporary. The Constitution Bench will therefore have to examine how far the constitutional principles articulated in that decision constrain Parliament’s eventual legislative choice.
The eventual adjudication will have to reconcile several constitutional considerations: Parliament’s authority under Article 324(2), the independence of the Election Commission, free and fair elections, separation of powers, and the limits of executive participation in appointments to an electoral institution.
For now, Dr. Jaya Thakur v. Union of India does not settle the constitutionality of the 2023 appointment regime. Instead, it places the fundamental constitutional question in sharp focus: when the executive is itself an electoral participant, what degree of independence must the Constitution require in selecting those entrusted with administering the electoral process?
That question now awaits authoritative determination by a larger Bench.