Case Analysis;
Dr. Jaya Thakur & Ors. v. Union of India & Anr.
Supreme Court of India | 2026 INSC 1040 | Decided on 23 September 2026
Dr. Jaya Thakur & Ors. v. Union of India & Anr. — Supreme Court refers challenge to Election Commissioners Appointment Act, 2023 to a Constitution Bench
Jurisdiction; Civil Original Jurisdiction under Article 32 of the Constitution of India
Case Numbers; Writ Petition (Civil) Nos. 14, 13, 11, 87, 191 and 272 of 2024
Bench; Justice Dipankar Datta and Justice Satish Chandra Sharma
Date of Decision; 23 September 2026
Statute Involved; Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023
Constitutional Provisions Involved; Articles 14, 19, 32, 141, 142, 145(3) and 324 of the Constitution of India.
Facts of the Case;
The Supreme Court was dealing with a batch of writ petitions filed under Article 32 challenging provisions of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
The petitions were filed by, among others, Dr. Jaya Thakur, Gopal Singh, Naman Sherstra, Association for Democratic Reforms, People's Union for Civil Liberties and Lok Prahari. The principal challenge was directed against Section 7 of the 2023 Act, while Sections 6 and 8(2) were also challenged. The petitioners questioned these provisions mainly on the ground that they were inconsistent with Articles 14 and 324 of the Constitution.
Section 7 of the 2023 Act provides for a Selection Committee consisting of:
The Act also provides for a Search Committee headed by the Minister of Law and Justice, which is required to prepare a panel of persons for consideration by the Selection Committee. Section 8 permits the Selection Committee to consider a person other than those included in the Search Committee's panel.
The challenge took on particular constitutional significance because the Election Commission of India is entrusted with superintendence, direction and control of elections, and Article 324(2) contemplates parliamentary legislation regulating the appointment of the Chief Election Commissioner and other Election Commissioners.
The petitions came before the two-Judge Bench after extensive arguments. During the hearing, the Attorney General for India and Solicitor General submitted that the constitutional questions raised by the petitions should be considered by a Constitution Bench of at least five Judges under Article 145(3).
The petitioners opposed the proposed reference and urged the Court to decide the constitutional challenge themselves.
Issue Involved
The immediate issue before the two-Judge Bench was:
Whether the challenge to Sections 7, 6 and 8(2) of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 raises a substantial question of law as to the interpretation of the Constitution requiring reference to a Constitution Bench under Article 145(3).
The constitutional controversy underlying this procedural issue concerned:
- the independence of the Election Commission of India;
- the constitutional significance of free and fair elections;
- the permissible role of the executive in the appointment of Election Commissioners;
- the effect of the 2023 Act upon the principles discussed in Anoop Baranwal v. Union of India;
- whether the mechanism prescribed by Parliament can deviate from the interim mechanism formulated by the Supreme Court in Anoop Baranwal; and
- whether such questions could be finally determined by the existing two-Judge Bench or required consideration by a Constitution Bench.
Submissions of the Petitioners
The petitioners mainly opposed the request for reference to a larger Bench.
1. Reliance on Anoop Baranwal
The petitioners relied heavily upon the Constitution Bench decision in Anoop Baranwal v. Union of India, contending that the constituent position concerning the independence of the Election Commission had been substantially settled.
According to them, Anoop Baranwal had acknowledged the constitutional requirement that the Election Commission has to be insulated from exclusive executive control in the appointment of Election Commissioners. Therefore, the petitioners considered that the present case, essentially involved the application of an already settled constitutional principle to the 2023 legislation, rather than a fresh interpretation of the Constitution.
2. Executive Dominance
The petitioners argued that the main constitutional defect in Section 7 was the predominance of the executive in the Selection Committee.
They submitted that the Prime Minister and a Union Cabinet Minister together constituted two members of the three-member Selection Committee, while the Leader of Opposition formed the third member.
Their objection therefore mainly targeted executive dominance in the appointment mechanism, rather than merely the absence of the Chief Justice of India from the Committee.
3. Independence of the Election Commission
The petitioners contended that independence of the Election Commission is closely connected with the constitutional requirement of free and fair elections.
According to their submission, the executive is itself a participant in the electoral process. Giving the executive great control over the appointment of the body supervising elections could therefore create a constitutional imbalance.
4. Reference Should not be used merely because a constitutional challenge exists
The petitioners relied upon several decisions to submit that the mere fact that the constitutional validity of legislation is challenged does not automatically require a Constitution Bench.
They argued that Article 145(3) requires the existence of a substantial question of law as to the interpretation of the Constitution, and not merely a constitutional challenge to legislation.
5. Alleged Belated Request for Reference
Another important objection was that the request for reference had been made only after the hearing had substantially progressed.
The petitioners pointed out that the proceedings had been pending for about two years and that the Union's pleadings had not originally sought a reference to a Constitution Bench.
They therefore argued that the request was belated and would delay adjudication of the petitions.
6. Legislative Overruling of Judicial Decision
The petitioners further argued that Parliament cannot simply legislate contrary to the binding constitutional principles declared by the Supreme Court.
They relied upon the doctrine concerning legislative overruling and contended that Anoop Baranwal was binding under Article 141 of the Constitution.
Submissions of the Respondents
The Union of India defended the request for reference to a larger Bench.
1. A Fresh Constitutional Question
The Attorney General submitted that the petitioners were proceeding upon an incorrect assumption that Anoop Baranwal had entirely occupied the constitutional field.
According to the Union, the questions arising in the present challenge had not been conclusively decided by Anoop Baranwal and required fresh constitutional interpretation.
2. Nature of the Directions in Anoop Baranwal
A central argument of the Union was that the mechanism prescribed in Anoop Baranwal was an interim arrangement intended to operate only until Parliament enacted legislation under Article 324(2).
The respondents therefore distinguished between:
- the law declared by the Court under Article 141; and
- directions issued under Article 142 to address the constitutional vacuum.
According to the Union, once Parliament enacted the 2023 Act, the interim mechanism prescribed in Anoop Baranwal could not automatically invalidate the legislative scheme.
3. Presumption in Favour of Constitutional Functionaries
The respondents also argued that the composition of the Selection Committee could not by itself establish bias or institutional unfairness.
They submitted that constitutional functionaries including the Prime Minister and other members of the Committee are presumed to act objectively, fairly and in accordance with constitutional responsibilities.
The numerical presence of executive members according to the respondents did not automatically constitute unconstitutional executive domination.
4. Separation of Powers
The respondents argued that the case raised important questions concerning the separation of powers.
The legislature according to this submission possesses constitutional authorities to create the statutory framework governing appointments under Article 324(2), and the Court should consider the extent to which a judicially evolved mechanism can restrict Parliament's legislative choices.
The respondents therefore contended that the questions were sufficiently substantial to attract Article 145(3).
Court's Analysis
The Court's consideration was complicated by a difference of opinion between Justice Dipankar Datta and Justice Satish Chandra Sharma.
Importantly the Bench did not finally determine the constitutional validity of the 2023 Act. The immediate question was whether the matter should be decided by the existing two-Judge Bench or referred to a Constitution Bench.
A. Importance of Anoop Baranwal
The Court undertook a detailed examination of Anoop Baranwal v. Union of India.
In Anoop Baranwal, the Constitution Bench considered the appointment mechanism for the Chief Election Commissioner and Election Commissioners in the absence of legislation by Parliament under Article 324(2).
The Constitution Bench held that Article 324(2) contemplated parliamentary legislation concerning the appointment process. In view of the legislative vacuum, the Court formulated an interim mechanism involving the Prime Minister, the Leader of the Opposition and the Chief Justice of India.
The present case therefore required the Court to determine the legal significance of that earlier arrangement after Parliament enacted the 2023 Act.
B. Justice Dipankar Datta's View
Justice Dipankar Datta took the view that the petition did not necessarily require reference to a Constitution Bench.
His analysis proceeded on the distinction between:
- a genuinely unsettled constitutional question requiring interpretation; and
- the application of settled constitutional principles to a new statute.
In his view, constitutional principles relating to free and fair elections and the independence of the Election Commission had already been recognised in earlier decisions.
Accordingly, the fact that the 2023 Act presented a new legislative setting did not automatically mean that a new constitutional question existed.
Justice Datta emphasized that the mere invocation of constitutional provisions is insufficient to trigger Article 145(3). What must exist is a substantial question of constitutional interpretation that is unsettled and whose determination is necessary for disposal of the case.
On that reasoning, he rejected the prayer for reference and considered that the existing Bench could proceed to hear the challenge.
His opinion explicitly clarified that this conclusion concerning reference was not a decision on the ultimate merits of the constitutional challenge.
C. Justice Satish Chandra Sharma's View
Justice Satish Chandra Sharma reached the opposite conclusion.
He considered the Union's argument for reference to be well-founded, because the constitutional validity of the 2023 Act had not previously been authoritatively decided by the Supreme Court.
In his view, an important question had arisen for the first time:
- whether Parliament was constitutionally justified in excluding a neutral selector such as the Chief Justice of India from the Selection Committee prescribed by the 2023 Act.
Justice Sharma considered this to be a substantial question of law concerning the interpretation of the Constitution.
He therefore concluded that the requirements of Article 145(3) and the Supreme Court Rules required the matter to be placed before a Constitution Bench of not less than five Judges.
D. Significance of Article 145(3)
Article 145(3) requires a minimum of five Judges when the Court is deciding a case involving a substantial question of law concerning interpretation of the Constitution.
The disagreement between the Judges essentially concerned the application of this constitutional threshold.
Justice Datta viewed the governing constitutional principles as sufficiently settled and the present controversy as an application of those principles.
Justice Sharma considered the constitutional question concerning the statutory appointment mechanism to be sufficiently new and substantial to require consideration by a Constitution Bench.
E. The Court Did Not Finally Decide the Merits
- This is an important aspect of the order.
- The Court did not hold finally that Section 7 is constitutional or unconstitutional.
- Nor did the Court finally determine whether the 2023 Act violates Article 324, Article 14, Article 19 or the constitutional requirement of free and fair elections.
- The immediate question before the Court was the appropriate Bench strength for deciding those substantive questions.
Final Order / Conclusion
Because Justice Datta and Justice Sharma differed on whether the matter should be referred to a Constitution Bench, the Court did not finally adjudicate the constitutional validity of the challenged provisions.
The Judges observed that a conventional reference to a three-Judge Bench to resolve the two-Judge disagreement would itself introduce further delay, because the precise issue in disagreement was whether the matter should be heard by a five-Judge Constitution Bench.
Accordingly the papers were directed to be placed before the Chief Justice of India for consideration of constituting a Constitution Bench to determine the constitutional validity of Section 7 and the other challenged provisions of the 2023 Act.
Thus, the immediate procedural outcome is that the constitutional challenge remains pending for adjudication on merits.
The order also recorded concern regarding the prolonged pendency of Constitution Bench references and suggested consideration of a permanent five-Judge Bench for deciding pure constitutional questions with the object of reducing delays in constitutional adjudication.
Legal Significance of the Decision
The order is significant because it places before a future Constitution Bench a major constitutional question concerning the appointment mechanism of the Election Commission of India.
The central constitutional controversy may ultimately require the Court to examine the relationship between:
- Article 324 and the independence of the Election Commission;
- Parliament's legislative power under Article 324(2);
- the doctrine of separation of powers;
- the constitutional requirement of free and fair elections;
- the binding force of judicial precedent under Article 141;
- interim directions issued under Article 142; and
- the permissible extent of executive participation in the appointment of constitutional authorities.
The decision should therefore be understood primarily as a procedural and jurisdictional development in the larger constitutional challenge, rather than a final ruling on the validity of the Election Commissioners Appointment Act, 2023.
Conclusion
In Dr. Jaya Thakur & Ors. v. Union of India & Anr., 2026 INSC 1040, the Supreme Court was confronted with a challenge to the statutory mechanism for appointment of the Chief Election Commissioner and other Election Commissioners under the 2023 Act.
The petitioners argued that the constitutional principles governing the independence of the Election Commission had already been settled by Anoop Baranwal and that the existing Bench could apply those principles to the 2023 Act.
The Union, on the other hand, maintained that the present challenge raised new and substantial constitutional questions, particularly concerning Parliament's power to prescribe a selection mechanism different from the interim arrangement laid down in Anoop Baranwal.
Justice Dipankar Datta considered the existing constitutional principles sufficiently settled to permit adjudication by the present Bench, whereas Justice Satish Chandra Sharma considered the questions sufficiently substantial and novel to require a Constitution Bench.
The resulting difference of opinion meant that the merits could not be finally decided by the two-Judge Bench. The matter was consequently directed to be placed before the Chief Justice of India for consideration of an appropriate Constitution Bench.
Therefore, the Supreme Court's order dated 23 September 2026 does not finally uphold or strike down the 2023 Act. The substantive constitutional challenge remains to be adjudicated.