A Minister cannot defy the Prime Minister who named him — and now five judges may decide the point

Two judges who heard the challenge to the 2023 Election Commission appointments law for five days could not agree on whether five more are needed. Between them they wrote 66 pages, and the papers now go to the Chief Justice.

Six petitions have been pending in the Supreme Court since 2024 asking whether Parliament may staff the committee that picks India’s Election Commissioners with two members of the executive and one member of the Opposition. On 23 September 2026, after five days of hearing spread across four months, a Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma delivered two separate opinions and a joint order in Dr. Jaya Thakur and Ors. v. Union of India and Anr. It did not answer that question. It could not agree on who should.

Justice Datta held that the point is settled enough for two judges to decide and refused to send it upstairs. Justice Sharma held that no court has ever ruled on this statute, that the question is therefore open, and that Article 145(3) leaves no discretion. Faced with a split on the narrow issue of whether a Constitution Bench is required, the two judges agreed that sending that disagreement to three judges would achieve nothing, and directed that the papers go to the Chief Justice of India.

Along the way, Justice Datta recorded a prima facie view on the merits that the Union will not welcome, and delivered an unusually direct answer to a submission the Solicitor General had made about judicial appointments.

What the 2023 Act changed

Article 324(2) of the Constitution says the Chief Election Commissioner and other Election Commissioners shall be appointed by the President, “subject to the provisions of any law made in that behalf by Parliament”. For seventy-three years Parliament made no such law, and appointments were made by the President on executive advice under the Rules of Business.

In Anoop Baranwal v. Union of India (2023) 6 SCC 161, a Constitution Bench treated that as a constitutional vacuum. Justice K.M. Joseph, speaking for himself and three of the five judges, held that the words in Article 324(2) were deliberate and distinguished them from the comparable language in Articles 145, 148 and 243-K. Declining to issue a mandamus compelling Parliament to legislate, the Court instead used Articles 32 and 142 to lay down an interim norm: until Parliament acted, the CEC and the Election Commissioners would be appointed on the advice of a committee of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India. The direction was expressly made subject to any law Parliament might enact.

The same judgment declined to read into Article 324(5) the same protection against removal for Election Commissioners that the CEC enjoys, following T.N. Seshan v. Union of India (1995) 4 SCC 611, though it recommended that Parliament consider it. Justice Ajay Rastogi dissented on that point alone. Prayers for an independent Secretariat and for charging the Commission’s expenditure on the Consolidated Fund were refused as matters of policy.

Parliament then enacted the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. Section 7 constitutes the Selection Committee as the Prime Minister (chairperson), the Leader of the Opposition in the House of the People, and a Union Cabinet Minister nominated by the Prime Minister. The Chief Justice is not on it. Section 6 puts a Search Committee headed by the Minister of Law and Justice, with two members not below the rank of Secretary, in charge of preparing a panel of five names. Section 8(2) permits the Selection Committee to look beyond that panel altogether.

Six writ petitions under Article 32 challenge Sections 7, 6 and 8(2) as ultra vires Article 14 read with Article 324 — filed by Dr. Jaya Thakur, Gopal Singh, Naman Shrestha, the Association for Democratic Reforms, the People’s Union for Civil Liberties, and Lok Prahari. Five applications for intervention support them; one opposes.

A request for reference, made two years in

Hearing began on 6 May 2026 and continued on 7 May, 14 May, 27 May and 30 July. Counsel for the petitioners concluded on the merits, and the Attorney General for India, Mr. R. Venkataramani, was called on to reply. He began by opposing the challenge on merits. In the course of his arguments he moved to a different position: that the petitions raise a substantial question of law as to the interpretation of the Constitution, and that a Bench of two judges should refer them to the Chief Justice for a Bench of at least five under Article 145(3). The Solicitor General, Mr. Tushar Mehta, adopted that stance and added Order XXXVIII of the Supreme Court Rules, 2013.

The petitioners objected in unison. Neither the counter-affidavit nor the opening of the hearing had suggested a reference; raising it after two years of pendency, they said, was a device to delay. On the substance, they argued that Anoop Baranwal had already interpreted Article 324 authoritatively, so what remained was application, not interpretation — and that a reference would let the Union reopen a binding precedent without following the procedure for reconsidering one. Mr. Vijay Hansaria, Mr. Sanjay Parikh, Mr. Gopal Sankaranarayanan and Mr. Shadan Farasat appeared as senior counsel, with Mr. Prashant Bhushan, Mr. Kaleeshwaram Raj and Mr. S.N. Shukla.

The Union’s answer turned on a distinction between Article 141 and Article 142. The directions in Anoop Baranwal, the Attorney General submitted, were not a declaration of law binding under Article 141 but interim measures fashioned under Article 142 to fill a vacuum, intended to operate only until Parliament legislated. With the field now occupied, they ceased to have independent relevance. Whether judicially evolved norms can preclude Parliament from legislating differently, whether a law may be invalidated for departing from a judicial view, and whether separation of powers preserves Parliament’s authority here — these, he said, are questions for five judges.

“Judges appoint Judges”, and a Court that declined to stay silent

In defending the exclusion of the Chief Justice from the Selection Committee, the Solicitor General drew a parallel with judicial appointments. If outsiders are not admitted to the collegium that appoints judges, he argued orally, the same objection cannot be raised about a committee that appoints Election Commissioners. He referred to the criticism that judges appoint judges, and to retired judges who have since said they were wrong to uphold the collegium.

Justice Datta recorded that the Court had preferred not to react during the hearing, and that his first instinct in writing was to let it pass. He decided otherwise, lest silence be mistaken for acceptance.

The resulting eight paragraphs are the most striking in the opinion. The phrase Judges appoint Judges, Justice Datta wrote, is a myth. The collegium’s role in selection is recommendatory; the executive is involved at every stage before a recommendation takes shape, including vetting of credentials by intelligence and other agencies, and every appointment bears the President’s imprimatur. Acceptance of a recommendation lies in the exclusive domain of the executive, which may or may not accept it.

The opinion then sets out what that means in practice. Names recommended by the collegium are held back without reasons being made public. Some, even after reiteration, have been left to gather dust for years. Recommendations for transfer of judges made in the interest of administration of justice are not acted upon. The sanctity of a collegium resolution is lost, the judgment records, each time the executive implements it selectively — approving most of a list while withholding one — and the collegium carries on regardless, to avoid a head-on conflict and keep the institution running. What that averts is arguably a constitutional crisis; the question the opinion leaves hanging is how long it can continue.

Justice Datta accepted that the collegium has faltered and that its opacity invites scrutiny, but held that executive supremacy is not the cure, and that after the National Judicial Appointments Commission was struck down no demonstrably superior model has been proposed. Since it is the executive that holds the reins at every stratum, the opinion concludes, defending the 2023 Act by pointing to the collegium’s want of an outsider is disingenuous, evasive and disquieting.

A prima facie view the Union will not like

Because no opinion on whether to refer could be given without examining what is actually at stake, Justice Datta went on to record a prima facie view on the merits, expressly confined to the reference question.

He accepted that the 2023 Act is within legislative competence, and that the challenge based on the omission of the Chief Justice may well fail: if the Constitution Bench had meant its three-member committee to bind Parliament, it would have had to delete the words “subject to the provisions of any law” from Article 324(2), which would have been to rewrite the Constitution. The pro tem committee was an Article 142 measure, and once the 2023 Act was passed it worked itself out. On that, the opinion says, the Union’s argument has considerable prima facie merit.

The composition of the committee is a different matter. Of its three members, two are the Prime Minister and his own nominee. Asked during the hearing whether that nominee would take a stand against the Prime Minister if the Prime Minister and the Leader of the Opposition differed, the Attorney General answered that he probably would not. The petitioners said he certainly would not.

Justice Datta held that the mere likelihood of that answer is enough to colour the perception of the committee. A Minister bound by collective responsibility under Article 75(3) cannot be expected to oppose the leader of the government on an appointment to a sensitive constitutional office, and cannot risk his own continuation as the nominated member. He therefore fails to provide the independent counterweight a neutral selector would, and the Leader of the Opposition’s presence becomes largely ornamental. The petitioners’ case that the Act vests overwhelming selection power in the executive and undermines the appearance of independence essential to Article 324, the opinion records, prima facie appears to have substance.

The petitioners had put it as a cricketing metaphor, which the judgment repeats: when the umpire is chosen by the captain of one side and that side wins, even correct decisions carry a patina of suspicion.

The opinion is also unsparing about the seven decades that preceded the Act. No party in power, it records, ever took the initiative to enact the law Article 324(2) contemplated, because placing its own electoral fortunes in the hands of a truly independent arbiter suited none of them. That, the judgment says, has not been the failing of any one party or period.

Why Justice Datta refused the reference

On the question actually before the Bench, Justice Datta drew a line between a constitutional controversy and a constitutional question. Article 145(3) requires five judges where a case involves a substantial question of law as to the interpretation of the Constitution, the determination of which is necessary for disposal. The constitutional character of the dispute, by itself, is not the test.

He relied on State of J&K v. Thakur Ganga Singh (AIR 1960 SC 356), where the Court held that interpretation arises only when competing constructions of a provision are canvassed, and that applying a settled principle to new facts does not convert a case into one of constitutional interpretation. Abdul Rahim Ismail C. Rahimtoola v. State of Bombay (1959 SCC OnLine SC 60) refused a reference because the very question had already been decided by five judges. People’s Union for Civil Liberties v. Union of India (2003) 4 SCC 399 refused one because Article 19(1)(a) stood concluded. In Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly (2020) 2 SCC 595, the Court observed that Article 145(3) has often received lip service and that unmeritorious references consume judicial time.

Applying those, Justice Datta held that the precedents have settled two things in unmistakable terms: free and fair elections are a basic feature, and the Election Commission must be insulated from exclusive executive control in appointments. The 2023 Act adds a new element to the canvas that must be tested against those settled principles — but testing a subsequent legislative measure against settled standards is not the same as saying the standards themselves are unsettled. A reference cannot be justified by repackaging an existing principle in a new legislative setting. Neither a constitutional bar nor a precedent precluded the present Bench from hearing the petitions, and the prayer for reference was rejected.

Why Justice Sharma disagreed

Justice Satish Chandra Sharma recorded that he had read his brother’s proposed judgment repeatedly and could not persuade himself to accept all of its observations or its reasoning. His opinion runs to twelve pages.

Its core is a single proposition: there is no authoritative decision of the Supreme Court on the constitutional validity of the 2023 Act, and a decision on these petitions would be the first of its kind. Anoop Baranwal dealt with a vacuum and proposed an ad hoc arrangement; whether Parliament was justified in leaving a neutral selector out of the Selection Committee is a question arising for the first time. On that reading, the plain language of Article 145(3) read with Order XXXVIII leaves no room for the present combination to decide it finally.

He answered the petitioners’ objections in turn. Novelty is not the test, but old or new, if the validity of a statute is questioned on grounds this Court has not previously had occasion to pronounce upon, a reference is in order. The belated plea for reference, though not welcome, was distinguishable from Madras Bar Association (2026) 2 SCC 1, where nothing remained except reviewing disobedience of earlier decisions. The argument that the Act legislatively overrules Anoop Baranwal fails because what that judgment created was an interim arrangement — had it not been, the consequence could have been otherwise. And the fear that a reference would let the Union reopen settled questions proceeds on a misapprehension: that free and fair elections are part of the basic structure is beyond doubt, but whether this Act fails that test has to be independently examined.

The joint order, and a request about delay

The two judges then wrote together. Speaking in one voice, the order records, would have better served institutional cohesion; unfortunately the Court is divided.

Ordinarily a difference between two judges goes to three. Here, because the difference is about whether five judges should hear the case, the order holds that a three-judge ruling on which opinion is correct would be of little worth and would only delay adjudication. The papers were therefore directed to be placed before the Chief Justice to consider the desirability of constituting a Constitution Bench of such number of judges as may decide the vires of Section 7 and the other provisions.

The order closes with a concern the petitioners had raised — not on merits, but on time. Anoop Baranwal itself began with a writ petition presented in 2015; the reference to a Constitution Bench was made three years later, and the decision took another five, eight years in all. Both judges sat on the nine-judge Bench in State of Uttar Pradesh v. Jai Bir Singh (2026 INSC 897), where a reference made by seven judges took nine years to reach nine judges and five months more to decide, having already been pending since 2002.

Calling the inordinate delay in resolving references a source of institutional embarrassment requiring self-introspection, the two judges requested the Chief Justice to explore the necessity of constituting a permanent five-judge Bench to decide pure constitutional issues — an idea, they noted, that is not theirs and has been urged by others for years. They ended by expressing the hope that a reference of this importance to the democratic fabric of the country will not suffer the fate of the others.