Split Supreme Court bench sends Election Commissioners Appointment Act challenge to larger bench

A batch of writ petitions under Article 32 — led by Dr. Jaya Thakur and including the Association for Democratic Reforms and the People's Union for Civil Liberties — challenge Sections 6, 7 and 8(2) of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 as ultra vires Articles 14 and 324. Section 7 fixes the Selection Committee for the CEC and Election Commissioners as the Prime Minister, the Leader of the Opposition and a Union Cabinet Minister nominated by the Prime Minister — a composition enacted after the Constitution Bench in Anoop Baranwal v. Union of India (2023) 6 SCC 161 had held that the Election Commission must be insulated from exclusive executive control in appointments. A two-judge bench (Dipankar Datta and Satish Chandra Sharma, JJ.) heard the petitions over five days on whether the challenge required reference to a Constitution Bench under Article 145(3).

The judges split: Datta, J. held that only the settled Anoop Baranwal principle needed to be applied to the 2023 Act, so no reference was necessary; Sharma, J. held that the vires of the Act called for independent examination by five judges. Rather than referring this narrower disagreement to a three-judge bench and causing further delay, both judges jointly directed that the papers be placed before the Chief Justice of India to consider constituting a Constitution Bench to decide the validity of Sections 6, 7 and 8 of the 2023 Act.