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Informist, Wednesday, Sept. 23, 2026

 

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--SC delivers split verdict on plea vs new law on poll panel appointments 
--CONTEXT: Pleas vs Cabinet minister in panel to appoint poll panel members 
--CONTEXT: SC order if poll panel case be referred to Constitution Bench 
--SC Judge Datta refuses referring poll panel law issue to larger bench
--SC Judge Datta: Inclusion of Cabinet member fails to provide neutral voice 
--SC Judge Datta: Free, fair elections depend on truly independent poll panel 
--SC Judge Datta: New poll panel law doesn't ensure independent selection 
--SC Judge Sharma seeks forming Constitution Bench over new poll panel law 
--SC: No need to send new poll panel law to 3-judge Bench, it may cause delay 
--SC: New poll panel law case be referred to CJI to form Constitution bench 
--SC to CJI:Explore forming permanent 5-judge Bench on constitutional issues 

 

NEW DELHI – The Supreme Court Wednesday said the petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, on inclusion of a Union cabinet minister to a panel to appoint members of the Election Commission of India be placed before the Chief Justice of India Surya Kant. He will consider the desirability of forming a Constitution Bench and the number of judges for the case. The apex court also requested Chief Justice Kant to also explore the necessity of constituting a permanent five-judge Constitution Bench to decide Constitutional issues. 

 

The top court noted the anxiety of petitioners that references to a five-judge Constitution benches remain unresolved for years. This is an area of great concern and the inordinate delay in resolution of the references is a source of institutional embarrassment which all stakeholders should strive to avoid, the court said.

 

Initially, the apex court's division bench had delivered a split verdict on whether the case should be referred to the Constitution Bench. While Justice Dipankar Datta had refused reference to a larger bench, Justice Satish Chandra Sharma had favoured a Constitution Bench for deciding the issues. In this situation, ideally a three-judge bench had to be formed to resolve the impasse and opine whether a Constitution Bench was needed or not. However, a decision by a three-judge bench on which of the two opinions is correct would be of little worth and only delay the decision on the significant issues on the law on appointment of election commission members, the top court said. 

 

Justice Datta in his prima facie observation said the 2023 Act on the appointment of Election Commissioners does not appear to ensure an independent selection process. The Union cabinet minister nominated by the Prime Minister to function as the third member of the selection committee cannot be expected to defy his own nominator and risk his continuation, he said. Even otherwise, the collective responsibility doctrine would preclude the cabinet minister to oppose his prime minister, he added. 

 

The inclusion of the cabinet minister fails to provide an independent counterweight that a neutral selector would, Justice Datta said, adding that it becomes largely ornamental. Free and fair elections depend on a truly independent election commission, Justice Datta said. It is not enough for the poll panel to be independent; it must appear to be independent, he said. 

 

Justice Sharma said whether or not Parliament was justified in not including a neutral selector in the selection committee is an important question arising for the first time before the apex court. Since it is a substantial question and relates to the interpretation of the Constitution which has not been dealt with in any precedent, it does not leave any room for a discussion of whether the issue has to be decided by the present combination, he said.

 

In 2023, the top court quashed the process for selection of Election Commission members, who were earlier appointed by the President. It had ordered that members be appointed by the President on the advice of a committee consisting of the prime minister, the leader of the Opposition in the Lok Sabha, or the leader of the largest Opposition party in the House, and the Chief Justice of India. The apex court had said this practice would remain in place until Parliament makes a law governing the appointments.

 

However, there was a tweak to this recommendation when the new legislation came. The 2023 Act removed the provision of having the Chief Justice of India on the advisory panel for the appointment process. The committee now comprised the prime minister, a Union cabinet minister and the leader of the Opposition, or the leader of the largest Opposition party in the Lok Sabha.  

 

Indian National Congress leader Jaya Thakur and the Association for Democratic Reforms moved the apex court challenging the 2023 Act. The petitioners argued that the new legislation compromises the independence of the Election Commission of India by giving the executive a permanent two-to-one majority on the selection panel. The 2023 Act replaces the Chief Justice of India with a Union cabinet minister on the high-powered selection committee, removing independent judicial oversight from the appointment process, they said.  End

 

Reported by Surya Tripathi

Edited by Shubhayan Bhattacharya

 

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