Election Commissioners Law: SC Judge Says PM’s Cabinet Pick, Not CJI’s Exclusion, Is Sticking Point

Last Updated:September 24, 2026, 10:04 IST

A cabinet member is bound by collective responsibility under Article 75(3), the judge said, and is unlikely to cross the PM who put him on the panel, Justice Dipankar Datta said

Justice Datta (left) also drew on Dr BR Ambedkar’s 1951 and 1952 speeches on institutional capture and constitutional morality.

Two Supreme Court judges could not agree on Wednesday on whether the challenge to the 2023 law on appointing Election Commissioners deserves a Constitution Bench. But in his opinion, Justice Dipankar Datta, who wanted the two-judge Bench to keep the case, said something the petitioners may take heart from.

The Chief Justice’s absence from the selection panel, he indicated, may not be the law’s weakest point. The cabinet minister sitting on it could be.

Section 7 of the Act says the panel has three members: the prime minister, the leader of opposition, and a Union cabinet minister the PM himself nominates. In Anoop Baranwal (2023), the Constitution Bench had put the CJI in that third seat, but only until Parliament made a law. Justice Datta read that as a stop-gap under Article 142, not a rule Parliament had to copy. The Centre’s view that it was free to legislate differently has “considerable, prima facie, merit”, he said, and the Act “may possibly survive” a challenge on the CJI question alone.

The minister’s seat was another matter. A cabinet member is bound by collective responsibility under Article 75(3), the judge said, and is unlikely to cross the prime minister who put him on the panel. The vote would then be 2:1 for the government, leaving the leader of opposition’s presence “largely ornamental”.

The Bench had put the same question to Attorney General R Venkataramani, Justice Datta recorded. His answer was “probably no”. The petitioners say it would be “certainly no”.

The judge also took up the petitioners’ cricket analogy. An umpire chosen by one captain may get every call right and still attract suspicion. The Election Commission has to look independent as well as be independent, he said, and the law must pass that “perception test”. He was careful to add that nobody can assume those appointed under the Act lack integrity. He left the question open for the final hearing.

Justice Datta also looked back at seven decades of governments. No party in power, he said, chose to hand its electoral fortunes to a truly independent arbiter, and he called this a “consistent trait of political power” and not one party’s failing. He drew on Dr BR Ambedkar’s 1951 and 1952 speeches on institutional capture and constitutional morality. Whether the 2023 Act finally answers those fears or “merely recalibrates executive control” will be decided on merits, he said.

Why then refuse a reference? Because, in his view, the law is already settled that the Election Commission must be free of exclusive executive control. What remains is applying it to the new Act, which does not need five judges.

Justice Satish Chandra Sharma saw it differently. Whether Parliament was right to leave out a neutral selector has never come before the court, he said, and Article 145(3) read with Order 38 of the Supreme Court Rules leaves the present Bench no room to decide it alone.

With the judges divided, their joint order sends the papers to the CJI to consider a Constitution Bench. A three-judge Bench to settle the differenc, they said, would only add delay. They pointed out that the Anoop Baranwal case took eight years from petition to verdict, and asked the CJI to look at a permanent five-judge Bench for constitutional questions.

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Why did Supreme Court Justice Dipankar Datta question the 2023 Election Commissioners Law?

Justice Datta indicated that while excluding the Chief Justice might survive legal challenge, having a Union cabinet minister on the panel creates a 2:1 government majority due to collective responsibility, rendering the opposition leader’s presence ornamental.

What did the Supreme Court do after the two judges disagreed on referring the case?

Because the judges were divided on whether the challenge requires a Constitution Bench, their joint order sends the papers directly to the Chief Justice to consider forming a Constitution Bench.

How was the selection panel originally structured in the 2023 Anoop Baranwal ruling?

In the 2023 Anoop Baranwal case, the Constitution Bench had placed the Chief Justice in the third seat of the selection panel as a stop-gap measure until Parliament enacted its own law.

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Ananya BhatnagarPrincipal Correspondent

Ananya Bhatnagar, Principal Correspondent at CNN-News18, reports on various legal issues and cases in lower courts and the Delhi High Court. He has covered the hanging of the Nirbhaya gang-rape convic…Read More

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