CASE NAME: Dr. Jaya Thakur v. Union of India and connected cases
CASE NUMBER: W.P.(C) No. 14 of 2024 with W.P.(C) Nos. 13, 11, 87, 191 and 272 of 2024 (2026 INSC 1040)
COURT: Supreme Court of India
DATE: 23 September, 2026
QUORUM: Justice Dipankar Datta and Justice Satish Chandra Sharma
FACTS
Six writ petitions under Article 32 were filed challenging the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The main attack is on Section 7, which makes appointments on the recommendation of a Selection Committee of the Prime Minister, the Leader of Opposition and a Union Cabinet Minister nominated by the Prime Minister. Sections 6 (Search Committee headed by the Law Minister) and 8(2) (names outside the panel) are also challenged.
The petitioners argued that the composition of the Committee gave the political executive an effective majority and weakened the institutional independence of the Election Commission of India. They relied on Anoop Baranwal v. Union of India in which the Apex Court had said that appointments be made on the advice of a committee consisting of the Prime Minister, Leader of Opposition and the Chief Justice of India till Parliament enacted a law under Article 324(2) of the Constitution.
The Union of India defended the legislation which sought reference of the petitions to a Constitution Bench of five judges under Article 145(3). It argued that the case raised new and substantial questions of interpretation of Articles 14 and 324, the basic structure doctrine, the separation of powers and the constitutional authority of Parliament to prescribe the appointment mechanism.
ISSUES
- Whether the petitions raise a substantial question of law on the interpretation of the Constitution requiring a Bench of at least five Judges.
- Whether Anoop Baranwal laid down binding law under Article 141 or gave interim directions under Article 142.
- Whether a reference sought late in the hearing, and not in the counter affidavit, should be accepted.
LEGAL PROVISIONS
- Article 145(3), Constitution – fixes five Judges as the minimum for cases involving a substantial question of law on interpreting the Constitution.
- Order XXXVIII Rule 1, Supreme Court Rules, 2013 – requires Article 32 petitions raising such a question to be heard by five or more Judges.
- Article 324(2) – makes appointment of Election Commissioners subject to any law made by Parliament.
- Articles 141 and 142 – govern binding precedent and the power to do complete justice.
- Sections 7, 6 and 8(2), Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 Section 7 provides for a Selection Committee of the Prime Minister, the Leader of Opposition and a Union Cabinet Minister nominated by the Prime Minister. Section 6 provides for a Search Committee headed by the Law Minister to prepare a panel of five names. Section 8(2) allows the Selection Committee to consider persons outside that panel.
- Case laws relied upon: Anoop Baranwal v Union of India, (2023) 6 SCC 161; State of J&K v Thakur Ganga Singh AIR 1960 SC 356; PUCL v Union of India (2003) 4 SCC 399; Shrimanth Balasaheb Patil v Karnataka Legislative Assembly (2020) 2 SCC 595; Madras Bar Association v Union of India (2026) 2 SCC 1.
ARGUMENTS
Petitioners: The petitioners pointed out that the Election Commission is supposed to be protected from “exclusive executive control” as had been made clear by the Anoop Baranwal case earlier. The present case, according to them, only required application of that settled principle to the 2023 Act. They argued that the matter did not raise a fresh question of constitutional interpretation merely because Parliament had enacted a new statute.
The petitioners further contended that the request for reference was made belatedly, after the hearing on merits had substantially progressed. They alleged that the reference was intended to delay the final adjudication. They also argued that the executive’s numerical majority in the Selection Committee undermined both actual and perceived independence of the Election Commission.
Respondents: The Union of India argued that the committee in Anoop Baranwal was an interim arrangement under Article 142, not law declared under Article 141, and was meant to operate only until Parliament enacted legislation. Parliament was therefore competent to adopt a different mechanism under Article 324(2). The validity of the 2023 Act had never been decided, and its provisions raised new questions on separation of powers, executive accountability and the limits of judicial intervention, including whether a law can fall merely for departing from a judicial view. The presence of the Prime Minister, the Leader of Opposition and a Cabinet Minister did not by itself establish bias or institutional unfairness, and the legislature was entitled to rely on the constitutional responsibility and good faith of high public officials. The Solicitor General added that the Committee was no different from the Collegium system, which has no outsider.
ANALYSIS
Justice Datta held that Anoop Baranwal binds to the extent that it declares the Election Commission’s independence integral to free and fair elections and bars exclusive executive control over appointments. The three-member committee, however, was a pro tem Article 142 arrangement that lapsed with the 2023 Act. What remains is testing the Act against settled principles, which is application and not fresh interpretation.
Prima facie, and only for the reference, he noted that a Cabinet Minister bound by collective responsibility under Article 75(3) is unlikely to differ from the Prime Minister, leaving the Leader of Opposition’s role largely ornamental. He also called the Solicitor General’s Collegium comparison disingenuous, and described the “Judges appoint Judges” criticism as a myth, since the executive holds the final say.
Justice Sharma held that no authoritative ruling exists on the validity of the Act. Whether Parliament could omit a neutral selector arises for the first time and is a substantial question under Article 145(3) and Order XXXVIII. He rejected the fear that a reference would reopen Anoop Baranwal. He read the Collegium point as a separation of powers argument, not criticism.
JUDGMENT
The Bench delivered a split verdict on whether the petitions should be referred to a Constitution Bench. Justice Datta rejected the reference, holding that the independence of the Election Commission from exclusive executive control is already settled and that the Court must now apply that principle to the 2023 Act. He directed that the petitions be listed for hearing, subject to an order from the CJI. Justice Sharma allowed the reference, holding that the validity of Sections 7, 6 and 8 raises a substantial question of constitutional interpretation not previously decided, and directed that the papers go before the CJI for constituting a Constitution Bench.
CONCLUSION
The order decides nothing on the validity of the 2023 Act and leaves the forum open. Both Judges treat the Anoop Baranwal committee as interim; they part ways on whether the remaining question is application or interpretation. Justice Datta’s remarks regarding Section 7 hint at the concerns ahead, while the next step rests with the CJI.
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