The two judges hearing the challenge to the Election Commissioners’ appointment law agreed the case was significant, but split on how to route it. Justice Dipankar Datta held that the Centre’s demand for a reference to a larger Bench was unwarranted and could not be sustained by repackaging a settled precedent; Justice Satish Chandra Sharma held that Article 145(3) made a five-judge Bench mandatory. To avoid delay, they jointly placed the matter before the Chief Justice.
New Delhi: In their opinion on the batch of petitions challenging the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, the two judges of the Supreme Court differed on the threshold question of whether the matter should be referred to a Constitution Bench, before jointly directing that it be placed before the Chief Justice of India [Dr. Jaya Thakur v. Union of India and connected cases].
Justice Dipankar Datta and Justice Satish Chandra Sharma delivered separate opinions in the matter (2026 INSC 1040), agreeing on the outcome, a reference, but for different reasons.
The challenge
The petitions, filed under Article 32 by public-spirited individuals and societies, challenge several provisions of the 2023 Act as ultra vires Article 14 read with Article 324 of the Constitution, the primary challenge being to Section 7, which constitutes the Selection Committee for the appointment of Election Commissioners of the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister, and the Leader of Opposition in the Lok Sabha. The petitioners contend that this composition gives the executive a numerical majority and undermines the independence of the Election Commission, contrary to the Constitution Bench decision in Anoop Baranwal v. Union of India (2023).
Justice Datta: a reference was unwarranted
Justice Datta held that the prayer for a reference to a larger Bench, pressed by the defenders of the legislation, could not be sustained. Drawing a distinction between a case that raises a genuinely new and substantial question of constitutional interpretation and one that seeks merely to reopen settled ground, he held that a reference cannot be sustained by repackaging an existing body of binding precedent as though it called for reconsideration; the two, he observed, ought not to be conflated. On that reasoning, he concluded that the defenders’ prayer for a reference was unwarranted, and would have proceeded to decide the petitions.
In doing so, Justice Datta recorded prima facie observations on the independence of the appointment mechanism, emphasising that an election watchdog must not only be independent but be seen to be so:
“There can be no gainsaying that free and fair elections, to a large extent, depend on a truly independent ECI. It is not enough for the ECI to be independent, it must also appear to be independent.”
Turning to the composition of the Selection Committee, he doubted whether the Minister nominated by the Prime Minister could act as an independent counterweight to the executive:
“The Minister nominated by the Prime Minister, to function as the third member on the Selection Committee chaired by the Prime Minister, cannot be expected to defy his own nominator and risk his continuation as such nominated member on the committee, for all practical purposes.”
It was also in this opinion that Justice Datta, dealing with the Centre’s analogy to the collegium system, observed that the judiciary had been “relegated to playing second fiddle to the executive” in the appointment of judges.
Justice Sharma: a Constitution Bench is mandatory
Justice Satish Chandra Sharma took a different view on the threshold question. He held that the issues raised deserved consideration by a Constitution Bench, and that Article 145(3) of the Constitution, which requires substantial questions as to the interpretation of the Constitution to be decided by a Bench of not less than five judges, made such a reference mandatory. He rejected the petitioners’ plea that the matter should not be referred, holding that the plain language of Article 145(3), read with the nature of the questions raised, left no discretion to avoid a Constitution Bench, and that the questions could not be treated as concluded by Anoop Baranwal.
Justice Sharma reasoned that where a substantial question of constitutional interpretation arises that has not been authoritatively answered, the constitutional mandate of Article 145(3) is attracted, and a five-judge Bench must decide it; the mere fact that a larger Bench had earlier dealt with the field in Anoop Baranwal did not dispense with the requirement where fresh questions on the validity of the 2023 Act fell for determination.
The joint order
Notwithstanding their difference on whether a reference was warranted, the two judges issued a joint order to avoid protracting the proceedings. Recording that, in their considered opinion, no reference to a three-judge Bench was called for, but that, having regard to the questions raised, the petitions and applications should be heard by a Constitution Bench of five judges, they directed that the matter be placed before the Chief Justice of India for considering the desirability of constituting a Constitution Bench.
In the joint order, the Bench also expressed concern about the long pendency of references in the Supreme Court, noting that Anoop Baranwal itself, presented in 2015, had taken years to be decided, and that references to five-judge Benches often remain unresolved for years, a state of affairs it called a source of institutional embarrassment. It earnestly hoped and trusted that the present reference would not meet the same fate, and would be taken up and decided expeditiously.
Why it matters
The split reflects a genuine and recurring question about the mechanics of the reference power: when a substantial constitutional question arises, is a court obliged to refer it to a Constitution Bench, or may it decide the matter itself where it considers the position already settled by precedent? Justice Sharma’s view treats Article 145(3) as a mandatory command wherever a substantial question of interpretation is live; Justice Datta’s view guards against the reference power being used to reopen settled law by dressing up an old question as a new one. Both concerns are well recognised, and the tension between them surfaces whenever the Court weighs a demand for a larger Bench.
The practical result is the same, the matter goes to a Constitution Bench, but the reasoning matters for the future. If the substance of the challenge to the 2023 Act is to be decided by five judges, the questions Justice Datta flagged, the executive’s numerical dominance on the Selection Committee, the “perception of independence” of the Election Commission, and the reach of Anoop Baranwal, will be answered authoritatively rather than at the level of a prima facie view. The Bench’s shared anxiety about the delay in resolving references adds a note of urgency, given how long comparable references have languished.
Nothing has been decided on the validity of the 2023 Act. The opinions resolve only the threshold question of forum, and even on that the judges differed in their reasoning; the constitutional questions, the composition of the Selection Committee, its consistency with Article 14 and Article 324, and the independence of the Election Commission, now await determination by the Constitution Bench that the Chief Justice may constitute. Until then, the 2023 Act remains in force and governs the appointment of Election Commissioners.
Case Title: Dr. Jaya Thakur and Ors. v. Union of India and Anr., with connected petitions [W.P.(C) No. 14 of 2024 and connected matters]
Bench: Justice Dipankar Datta and Justice Satish Chandra Sharma, Supreme Court of India | Neutral Citation: 2026 INSC 1040
Holding: Separate opinions on whether a reference was warranted, Justice Datta holding it unwarranted, Justice Sharma holding a Constitution Bench mandatory under Article 145(3), followed by a joint order placing the matter before the CJI for constitution of a Constitution Bench.
Status: Matter referred to a Constitution Bench; validity of the 2023 Act undecided.