CJI's Inclusion in Selection Committee Under Anoop Barnwal Was Only Pro Tem Measure: Justice Datta On CEC-EC Law

The Supreme Court on Wednesday differed over the constitutional validity of the 2023 law governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs), with Justice Dipankar Datta holding that the exclusion of the Chief Justice of India (CJI) from the selection committee may not, by itself, invalidate the law.

Justice Datta, however, expressed serious reservations about the independence of the selection process under the new law and observed that the mechanism may fail the “perception test” required to ensure public confidence in the Election Commission of India (ECI).

Justice Datta and Justice Satish Chandra Sharma differed on whether the challenge to the validity of the law should be referred to a Constitution bench. Both judges, however, directed that the matter be placed before the Chief Justice of India for considering the setting up of a Constitution bench, observing that a reference to a three-judge bench would only delay the adjudication of the significant issues involved.

Did Parliament have to retain the CJI in the selection committee?

Justice Datta said the argument that Parliament, while enacting the 2023 law, ignored a judicial norm requiring the CJI’s presence in the selection committee may prima facie not be correct.

He said the Constitution bench in the Anoop Baranwal judgment had included the CJI in the selection process only as an interim arrangement under Article 142 of the Constitution.

“The constitution of the pro tem committee (by including the CJI as suggested by the SC in Anoop Barnwal judgment) as an interim arrangement has to be seen as an exercise of this court’s power under Article 142 of the Constitution as a pro tem measure. Once the 2023 Act was enacted, the interim arrangement of including the CJI in the process of selection of the CEC and the ECs worked itself out,” he said.

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 provides for a selection committee comprising the Prime Minister, a Union Cabinet Minister and the Leader of Opposition in the Lok Sabha. The law was primarily challenged on the ground that it excluded the CJI, whose presence had been directed by the Supreme Court in Anoop Baranwal as an interim measure.

Why did Justice Datta question the independence of the selection process?

While rejecting the argument that the CJI’s exclusion alone made the law unconstitutional, Justice Datta questioned whether the selection mechanism under Section 7 of the 2023 Act could provide an independent counterweight to the executive.

He said the Union Cabinet Minister nominated by the Prime Minister to the selection committee, which is chaired by the Prime Minister, cannot be expected to defy his own nominator and risk his continuation as the nominated member.

“Even otherwise, the collective responsibility doctrine would preclude the Minister to oppose his Prime Minister,” Justice Datta wrote.

According to him, the inclusion of a Cabinet Minister does not provide the independent counterweight that a neutral selector could. Instead, the Minister would, for all practical purposes, merely echo the voice of his leader.

Consequently, he said, the presence of the Leader of Opposition in the selection committee becomes “largely ornamental”, without furthering the purpose of his inclusion.

“The point urged by the challengers that since the 2023 Act vests overwhelming selection power in the executive and thereby undermines the appearance of independence essential to Article 324 and the basic structure, prima facie, does appear to have substance,” he observed.

Why is the perception of independence important for the Election Commission?

Justice Datta said free and fair elections depend, to a large extent, on a truly independent ECI.

“There can be no gainsaying that free and fair elections, to a large extent, depend on a truly independent ECI. It is not enough for the ECI to be independent, it must also appear to be independent,” he said.

The challengers argued that even if persons appointed under the 2023 Act are meritorious, the process itself may fail the perception test.

Justice Datta found the submission “very emphatic and appealing” and said that if free and fair elections are to be ensured, the ECI must not only be an independent body but also be seen to act independently.

He said the 2023 Act may possibly survive the direct challenge based on the exclusion of the CJI, but it would also have to satisfy the perception test, which the Supreme Court has repeatedly held to be essential.

“Can it be argued with conviction that the selection committee envisioned in Section 7 looks as independent as the pro tem committee that Anoop Baranwal judgment suggested? Is the mechanism constitutionally credible,” he asked.

Justice Datta also made it clear that it cannot be assumed that persons appointed under the 2023 Act would lack character or integrity, or that they would not value their independence.

However, he questioned whether the mechanism itself would generate the same public confidence as the presence of a neutral third member.

What did Justice Datta say about the Centre’s reliance on constitutional trust?

The Centre had relied on the constitutional trust attached to the office of the Prime Minister to argue that decisions taken by the Prime Minister should not be doubted.

Justice Datta, however, expressed reservations about relying solely on constitutional trust.

“The misfortune of the people of India is that, the lofty ideals that the Constitution envisaged have remained largely unaccomplished owing to a lack of intent and non-abidance with constitutional morality by the ruling regime, past and present, resulting in substantial institutional erosion,” he said.

He also observed that political parties, year after year, appeared more inclined to promote individuals who had been accused of various crimes, including moral turpitude, rather than persons with spotless records and unimpeachable integrity.

“That a large number of parliamentarians, legislators and even ministers, both at the Centre and in the States, have criminal antecedents is a fact borne out by data in the public domain,” he said.

Justice Datta, however, also acknowledged that false cases are instituted in large numbers against public figures to malign them, but said that the available figures, if believed, remain a matter of grave concern.

What was the ‘cricket umpire’ argument?

The challengers argued that even where appointments made under the 2023 Act are meritorious, the manner in which they are made could undermine public confidence.

They compared the situation to a cricket match where the umpire is chosen by the captain of one side and that team eventually wins. Even if the umpire’s decisions are correct, they argued, the decisions would carry a “patina of suspicion” because the umpire had effectively been chosen by the winning captain.

Justice Datta said the submission was “very emphatic and appealing”.

He reiterated that the ECI must not only function independently but must also be seen to function independently if free and fair elections are to be ensured.

What did Justice Sharma say about referring the law to a Constitution bench?

Justice Satish Chandra Sharma took a different view from Justice Datta on the question of whether the challenge should be referred to a Constitution bench.

He said there was no authoritative decision of the Supreme Court so far pronouncing on the constitutional validity of the 2023 Act. Therefore, according to him, the matter should be heard by a Constitution bench of at least five judges.

Following the divergent views, the judges directed that the matter be placed before the Chief Justice of India for considering the desirability of constituting a Constitution bench to decide the validity of Section 7 and other provisions of the 2023 Act.

The judges said that, ordinarily, a difference of opinion between two judges would call for reference to a three-judge bench. However, since the immediate issue was whether the petitions should be heard by a five-judge Constitution bench, sending the matter to a three-judge bench to decide which of the two opinions was correct would itself delay the adjudication of the significant constitutional issues.

Case Title: Dr Jaya Thakur & Ors Vs Union of India & Anr

Bench: Justices Dipankar Datta and Satish Chandra Sharma 

Date of Judgment: September 23, 2026