The Chief Election Commissioner and Other Election Commissioners Act, 2023 & the Split Verdict of Jaya Thakur | CCAL Explainer

Introduction

On 23rd September 2026, a two-judge Bench of the Supreme Court comprising Justices Dipankar Datta and Satish Chandra Sharma delivered a split verdict in Jaya Thakur v. Union of India, the batch of petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 (“the 2023 Act”).

The Bench was split on the question of whether the challenge must be heard by a constitutional bench of at least five judges under Article 145(3). The pertinence of the decision is three-fold:

First, Justice Datta rejected the Union’s request to refer the challenge to a larger Constitution Bench, holding that the Constitution Bench already settled the governing principles in Anoop Baranwal v. Union of India (2023);

Second, Justice Sharma held that the challenge raised a substantial question of constitutional interpretation that only a larger Bench could decide;

Third, despite the disagreement, both judges jointly directed that the papers be placed before the Chief Justice of India to consider constituting a Constitution Bench.

This leaves the 2023 Act in force and the challenge pending since 2024 undecided.

What is the core of the 2023 Act?

Article 324(2) of the Constitution provides that the Chief Election Commissioner (CEC) and Election Commissioners (ECs) shall be appointed by the President, subject to the provisions of any law made in that behalf by Parliament. For over seven decades, no such law existed, and appointments were made by the President on the advice of the Union government.

The 2023 Act, which replaced the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, created a two-stage process:

• Section 6 sets up a Search Committee, headed by the Union Law Minister, to prepare a panel of names for each vacancy;

• Section 7 vests the final choice in a Selection Committee comprising (i) the Prime Minister as Chairperson, (ii) the Leader of Opposition in the Lok Sabha (or the leader of the largest opposition party), and (iii) a Union Cabinet Minister nominated by the Prime Minister;

• Section 8 allows the Selection Committee to regulate its own procedure.

  
  

The petitions principally target Sections 7 and 8. The core grievance is arithmetical: with the Prime Minister and his own Cabinet nominee on a three-member panel, the executive holds a permanent 2:1 majority.

Examining the precedent of Anoop Baranwal

In March 2023, a five-judge Constitution Bench led by Justice K.M. Joseph held in Anoop Baranwal that leaving the appointment of the CEC and ECs exclusively to the executive was detrimental to free and fair elections. Invoking the legislative vacuum under Article 324(2), it directed that appointments be made on the advice of a committee comprising the Prime Minister, the Leader of Opposition and the CJI, a norm that would hold good till a law is made by Parliament.

Parliament made that law in December 2023 and replaced the CJI with a Cabinet Minister. The entire dispute turns on how to read the Constitution Bench’s qualifier:

• The petitioners’ reading: Anoop Baranwal laid down a constitutional requirement of an independent, non-executive-dominated selection body. Any law Parliament makes must meet that standard; the CJI was the Court’s chosen means of meeting it.

• The Union’s reading: The CJI arrangement was expressly a stop-gap. Article 324(2) gives Parliament the power to legislate, and Parliament has done so; nothing in the judgment binds Parliament to retain the CJI.

  
  

Developments after the 2023 Act and the Petition in Jaya Thakur

The 2023 Act was notified on 28 December 2023 and brought into force on 2 January 2024. The same day, Dr Jaya Thakur filed a petition under Article 32 challenging Sections 7 and 8. She argued that excluding the CJI from the Selection Committee guaranteed the Prime Minister and his nominee a majority in every appointment, defeating the independent mechanism that Anoop Baranwal had called for. Petitions by the Association for Democratic Reforms (ADR), PUCL, Lok Prahari and others were later tagged with hers.

The Court issued notice in January 2024 but declined to stay the Act. The question became urgent in March 2024, when the retirement of Election Commissioner Anup Chandra Pandey and the sudden resignation of Election Commissioner Arun Goel left the CEC as the Commission’s only member, weeks before the General Elections. Gyanesh Kumar and Sukhbir Singh Sandhu were appointed under the Act on 14 March 2024. In its reasoned order, the Court described the haste of the process as “unnecessary and avoidable” but refused a stay, holding that staying the law would only lead to “chaos and uncertainty”.

The hearing then stalled for over two years. CJI Sanjiv Khanna recused himself, and in March 2026 CJI Surya Kant did the same, both citing the conflict that arises when the law under challenge removes the CJI from the panel. In the interim, Gyanesh Kumar was elevated to CEC in February 2025, and Vivek Joshi was appointed an Election Commissioner, both under the 2023 Act.

A Bench of Justices Datta and Sharma finally heard the matter on five dates between May and July 2026. After the petitioners had concluded their arguments, the Attorney General, and later the Solicitor General, objected that a two-judge Bench could not decide the challenge and sought a reference to a larger Bench. The Bench reserved orders on that question on 30 July 2026 and delivered its split verdict on 23 September 2026.

Procedurally, what was the question?

Article 145(3) of the Constitution requires that any case involving a substantial question of law as to the interpretation of this Constitution be heard by a Bench of at least five judges. The Union invoked this provision to seek a reference. The petitioners opposed it as a delaying tactic, arguing that the question was squarely covered by Anoop Baranwal and could be decided by applying settled law.

Examining the Duality of Opinions in Dr Jaya Thakur

1.     Justice Datta

Justice Datta rejected the Union’s plea, though he clarified that his views were confined to the reference question and were only prima facie. His reasoning ran along four lines:

a.     The CJI’s inclusion was transient. He accepted that Anoop Baranwal did not make the CJI’s presence a permanent requirement. Had the Constitution Bench meant it to bind Parliament, he reasoned, it would have said so.

b.     But the principle of independence is settled. What Anoop Baranwal did settle is that the Election Commission must be insulated from exclusive executive control. A larger Bench cannot be justified merely by re-examining a settled principle in a new legislative setting. The 2023 Act added a new element to the canvas, but it can be tested against existing principles.

c.     The Cabinet Minister is no counterweight. He found it far-fetched to expect a minister to dissent from the Prime Minister who nominated him, particularly given the doctrine of collective responsibility. The Attorney General had conceded that the nominee would probably not take a different position. This leaves the Leader of Opposition’s role largely ornamental and fails the perception test: the Commission must not only be independent but must appear to be independent.

d.     The Collegium comparison is misplaced. Responding to the Union’s argument that judges should not seek a role in appointments when they appoint themselves, he called the claim that judges appoint judges a myth, noting the executive’s extensive role in judicial appointments and its practice of selectively withholding Collegium recommendations.

2.     Justice Sharma

Justice Sharma respectfully disagreed with both the conclusion and the reasoning of Justice Datta. His reasoning ran along three lines:

a.     Whether Parliament can exclude a neutral selector from the Election Commission’s appointment committee is a question arising before the Supreme Court for the first time.

b.     It is therefore a substantial question of law as to the interpretation of the Constitution, which Article 145(3) and the Supreme Court Rules bar a two-judge Bench from finally deciding.

c.     A reference would not reopen what Anoop Baranwal settled. Whether the 2023 Act satisfies the constitutional requirement of free and fair elections is a distinct question that must be examined independently.

The Common Order

Ordinarily, a split between two judges results in the matter being placed before a three-judge Bench. Here, both judges agreed that routing the case to three judges merely to decide whether five should hear it would add needless delay. They jointly directed that the papers be placed before the CJI for constituting a Constitution Bench of appropriate strength.

The Bench also expressed concern over constitutional references remaining pending for years, and Justice Datta requested the CJI to consider a permanent five-judge Constitution Bench.

Why has the split verdict become a subject of litigation?

The split verdict has itself become the subject of litigation for 3 main reasons:

• Curative petition: A curative petition, invoking Rupa Ashok Hurra v. Ashok Hurra, alleges a reasonable apprehension of bias because Justice Sharma’s son is standing counsel for the Election Commission of India before the Madhya Pradesh High Court.

• Recall application: On 7 October 2026, Senior Advocate Gopal Sankaranarayanan mentioned an interlocutory application seeking recall of the verdict before a Bench led by CJI Surya Kant, noting that a curative petition ordinarily must be preceded by a review. The CJI said the Court would examine it and take a call.

• Fresh challenge to appointments: A separate petition filed in October 2026 challenges the appointments of CEC Gyanesh Kumar and ECs Sandhu and Vivek Joshi, alleging non-compliance with Sections 5, 6 and 8(1) of the 2023 Act, including the requirement of a panel of five names per vacancy.

  
  

Until the Chief Justice decides these applications and constitutes a larger Bench, the 2023 Act will continue to govern every appointment to the Election Commission. Whether Anoop Baranwal set a standard that binds Parliament, or merely filled a gap that Parliament has since closed, therefore remains an open question.

For Further Reading:

1. Anoop Baranwal v. Union of India, (2023) 6 SCC 161 

2. Dr. Jaya Thakur v. Union of India, 2024 INSC 246 

3. PRS Legislative Research, ‘Legislative Brief: The CEC and Other Election Commissioners Bill, 2023’

4. Anmol Jain, ‘An Attack on Indian Democracy: On the Bill to Curb the Independence of the Election Commission’ Verfassungsblog (14 August 2023)

5. V. Venkatesan, ‘Why the challenge to the Election Commissioners law must be heard by five judges’ Supreme Court Observer (7 October 2026)

6. Namrata Banerjee, ‘SC delivers split verdict, sends ECI appointments law challenge to larger bench’ Supreme Court Observer (23 September 2026)

Note: This post has been authored by Priyankashri A. as part of the CCAL Blog Explainer Series, in which our editors examine contemporary developments and unpack questions of constitutional significance.