The Supreme Court on Wednesday directed that the challenge to the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 be placed before the Chief Justice of India for considering the constitution of a Constitution Bench to examine its constitutional validity.

A two-Judge Bench comprising Justice Dipankar Datta and Justice Satish Chandra Sharma was hearing a batch of petitions challenging, among other provisions, Sections 7, 6 and 8 of the 2023 Act. The principal challenge concerns the composition of the Selection Committee for appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs).

Challenge to Selection Committee

Under Section 7 of the 2023 Act, the Selection Committee comprises:

• The Prime Minister – Chairperson;

• The Leader of Opposition in the Lok Sabha – Member; and

• A Union Cabinet Minister nominated by the Prime Minister – Member.

The provision does not include the Chief Justice of India (CJI) in the Selection Committee.

The petitions challenge the statutory arrangement principally on the ground that it allegedly permits excessive executive influence in appointments to the Election Commission of India.

Dispute Over Constitution Bench Reference

During the hearing, the Attorney General and Solicitor General argued that the challenge raises a substantial question of law concerning the interpretation of the Constitution and therefore ought to be considered by a Bench of at least five Judges under Article 145(3).

The petitioners opposed the reference, arguing that the constitutional principles governing the independence of the Election Commission had already been settled by the Constitution Bench judgment in Anoop Baranwal v. Union of India and that the present case primarily involved applying those principles to the 2023 legislation.

Anoop Baranwal Judgment Examined

The Court extensively examined the 2023 Constitution Bench judgment in Anoop Baranwal, in which the Supreme Court had directed, in the absence of parliamentary legislation, that appointments to the CEC and ECs be made on the advice of a committee comprising the Prime Minister, Leader of Opposition and CJI.

The present opinion notes that the arrangement in Anoop Baranwal was expressly intended to operate until Parliament enacted a law governing appointments under Article 324(2).

Justice Satish Chandra Sharma's opinion held that the question whether Parliament was justified in excluding a neutral selector from the Selection Committee had not previously been decided by the Supreme Court and therefore constituted a substantial question concerning constitutional interpretation.

He consequently opined that the petitions should be placed before the CJI for constitution of a Constitution Bench to adjudicate the validity of Sections 7, 6 and 8 of the 2023 Act.

Two-Judge Bench Divided

The two Judges ultimately differed on whether the matter should be heard by a Constitution Bench. The final order records that, because the disagreement itself concerned whether a five-Judge Constitution Bench should be constituted, referring the matter to a three-Judge Bench would only delay consideration of the larger constitutional issue.

Accordingly, the papers have been directed to be placed before the Chief Justice of India for considering the desirability of constituting a Constitution Bench to decide the constitutional validity of Section 7 and the other challenged provisions of the 2023 Act.

Court Flags Delay in Constitution Bench References

The Bench also expressed concern over delays in deciding constitutional references. Referring to Anoop Baranwal, the Court noted that the proceedings took several years from the original filing and reference to final disposal. It also referred to the nine-Judge decision in State of Uttar Pradesh v. Jai Bir Singh, noting the prolonged period taken for the reference to reach the larger Bench.

The Court therefore requested the CJI to explore the necessity of constituting a permanent five-Judge Bench for deciding pure constitutional issues, observing that prolonged pendency of constitutional references is a matter requiring institutional attention.

Case: Dr. Jaya Thakur & Ors. v. Union of India & Anr. & connected matters
Citation: 2026 INSC 1040
Date: 23 September 2026
Bench: Justice Dipankar Datta and Justice Satish Chandra Sharma.

Representation:-

Petitioner(s) :Mr. Prashant Bhushan, AOR Ms. Alice Raj, Adv. Ms. Cheryl D'Souza, Adv. Mr. Gopal Sankaranarayanan, Sr. Adv. Mr. Gaurav Kumar, Adv. Mr. Vishal Sinha, Adv. Mr. Pawan Reley, AOR Mr. Akshay Lodhi, Adv. Mr. Naman Sherstra, Adv. Mr. Sanjiv Mishara, Adv. Mr. Adit Jayeshbhai Shah, Adv. Mr. Mukesh Kumar Thalour, Adv. Ms. Simran Singh, Adv. Mr. Tanish Rawat, Adv. Mr. Vijay Hansariya, Sr. Adv. Mr. Varun Thakur, Adv. Mr. Ramkaran, Adv. Mr. Deepak Goel, Adv. Mr. Tanuj Bagga Sharma, Adv. Dr. M K Ravi, Adv. Mrs. Shraddha Saran, Adv. Mr. S P Singh, Adv. Ms. Kavya Jhawar, Adv. Ms. Nandini Rai, Adv. Mr. Aashay Shukla, Adv. M/S. Varun Thakur & Associates, AOR Mr. Pradeep Kumar Yadav, Adv. Ms. Anjale Kumari, Adv. Mr. Vishal Thakre, Adv. Mr. Taiyyab Khan Salmani, Adv. Ms. Purva Kumari, Adv. Mr. Tota Ram, Adv. Ms. Prakriti Pandey, Adv. Ms. Khushboo, Adv. Mr. Sanjeev Malhotra, AOR Petitioner-in-person Mr. Sanjay Parikh, Sr. Adv. Ms. Maulshree Pathak, AOR

For Respondent(s) :Mr. R Venkataramani, Attorney General for India Mr. Tushar Mehta, Solicitor General Mr. Raghvendra P Shankar, A.S.G. Mr. Gurmeet Singh Makker, AOR Mr. Aaditya Dixit, Adv. Mr. Gaurang Bhushan, Adv. Mr. Kanu Agrawal, Adv. Mr. Devashish Bharukha, Adv. Mrs. Sansriti Pathak, Adv. Mr. Kartikay Agarwal, Adv. Mr. Abhishek Kumar Pandey, Adv. Mr. Raman Yadav, Adv. Mr. Chitvan Singhal, Adv Mrs. Ameyavikrama Thanvi, Adv. Mr. Aman Mehta, Adv. Dr. N. Visakamurthy, AOR Mr. Prateek Kumar, AOR Mr. Devansh Rai, Adv. Mr. R. P. Gupta, AOR Mr. Prashant Padmanabhan, AOR Mr. Kaleeswaram Raj, Adv. Mrs. Thulasi K Raj, Adv. Ms. Chinnu Maria Antony, Adv. Ms. Athira Nandakumar, Adv. Ms. Smita Amratlal Vora, AOR Mr. Mohammed Sadique T.A., AOR Mr. Pradeep Kumar Rai, Sr. Adv. Ms. Farhat Naim, Adv. Ms. Modoyia Kayina, Adv. Mr. Vinay Kumar Rai, Adv. Mrs. Rajshree Rai, Adv. Mr. Devi Prasad Semwal, Adv. Mr. Sumit Gehlot, Adv. Mr. Anil Agarwal, Adv. Mr. Mohnish Nirwan, Adv. Mr. Ashok Kumar, Adv. Ms. Kajri Gupta, Adv. Mr. Shreyansh Singh, Adv. Mr. Jitendra Singh Tanwar, Adv. M/S R And R Law Associates, AOR Mr. Shadan Farasat, Sr. Adv. Mr. Talha Abdul Rahman, AOR Mr. Harshit Anand, Adv. Mr. Kaustubh Chaturvedi, Adv. Mr. Sudhanshu Tewari, Adv. Mr. Faizan Ahmed, Adv. Mr. Sudipto Sircar, AOR Mr. Preet Oberoi, Adv. Mr. Abhishek Sharma, Adv. Mr. Nalin Talwar, Adv. Ms. Mahima Pandey, Adv.