SC to examine plea on CEC appointment law split verdict

1. At a Glance

• On 7 Oct 2026 the Supreme Court agreed to consider hearing an application that asks it to recall a split verdict of 23 Sept 2026. That verdict was given in the challenge to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 [1][5].
• The main dispute: the 2023 Act removed the Chief Justice of India (CJI) from the panel that selects the CEC and ECs. A Union Cabinet Minister nominated by the PM now takes that seat. The Anoop Baranwal (2023) Constitution Bench had put the CJI on the panel as an interim arrangement [2][3].
• For UPSC, this ties together Election Commission independence, free and fair elections as basic structure, separation of powers, and judicial recusal and ethics. It is relevant to GS-II and GS-IV [1][7].

2. Why in the News

• 23 Sept 2026: A two-judge Division Bench gave a split opinion on whether to send the challenge to the 2023 Act to a five-judge Constitution Bench [1][5][6].
• Justice Dipankar Datta (lead judge) declined to refer it [1].
• Justice Satish Chandra Sharma (puisne judge) favoured referring it [1].

• Both judges then passed a common order asking the CJI to allocate the case to a Constitution Bench [1].

• 7 Oct 2026: Senior advocate Gopal Sankaranarayanan orally mentioned an application before CJI Surya Kant. The application was filed by Naman Sherstra [1].

• It asks why Justice Sharma did not disclose, during several hearings, that his son was a standing counsel for the ECI [1].

• It seeks recall of Justice Sharma's opinion and objects to the common order. It does not specifically challenge Justice Datta's separate opinion [1].

• Justice Datta's opinion said the 2023 law was prima facie wrong to ignore the earlier Constitution Bench judgment in Anoop Baranwal. Coverage of his opinion reported that the reconstituted panel left "no independent counterweight" to the executive [1][6].

3. Background & Evolution

• Constitutional base: The President appoints the CEC and ECs, subject to any law made by Parliament. No such law existed for over 70 years [2].
• 2015: Anoop Baranwal v. Union of India, Writ Petition (Civil) No. 104 of 2015, was filed [2].
• 2 March 2023: The Constitution Bench ordered an interim three-member Selection Committee: PM + Leader of Opposition (LoP) + CJI. This was to apply until Parliament enacted a law [2].
• 2023: Parliament passed the CEC & ECs Bill, 2023. The Selection Committee became PM (Chairperson) + LoP in Lok Sabha + a Union Cabinet Minister nominated by the PM. The CJI was dropped [2][3][4].
• March 2024: A Congress leader moved the SC to stop the government from appointing new ECs under the 2023 Act [9]. The SC declined to interfere and said stopping the appointments would lead to "chaos" [10].
• 6 May 2026: During hearings, the SC asked whether a court can direct Parliament to include the CJI on the panel [8].
• 14 May 2026: The SC observed that the EC must be independent, because free and fair elections are part of the basic structure [7].
• 23 Sept 2026: Split opinion on referral, followed by a common order for the CJI to allocate the case to a Constitution Bench. The ruling is reported as 2026 INSC 1040 [5][6][1].
• 7 Oct 2026: The application to recall the verdict was mentioned before the CJI [1].

4. Core Static Facts

• Key terms:
• Puisne judge: the junior judge on a Bench, as opposed to the presiding judge [1].
• Recall application: asks the court to withdraw an order. Here the ground is undisclosed conflict of interest [1].
• Reference to a Constitution Bench: sending a case to a larger Bench of at least five judges for substantial questions of constitutional interpretation [1].

5. Multi-Dimensional Analysis

Legal / Constitutional

• The central question is whether Parliament can legislate around a Constitution Bench's interim arrangement. Anoop Baranwal said its arrangement applied only "until Parliament enacted a law" [2].
• Justice Datta's prima facie view was that the Act wrongly ignored Anoop Baranwal [1]. The Bench had earlier asked whether courts can direct Parliament on the composition of the panel [8].
• The two judges could not agree on whether to refer the case. Their common order sent the choice of Bench to the CJI as master of the roster [1].

Ethical / Governance

• Judicial recusal: the application says Justice Sharma did not disclose that his son was a standing counsel for the ECI, the institution whose leadership appointments are under challenge [1]. The principle at stake is nemo judex in causa sua (no one should judge their own cause), applied to apparent bias.
• Executive dominance: under the 2023 Act, the PM and a minister nominated by the PM form a 2:1 majority on a three-member panel. Critics say this leaves "no independent counterweight" [2][6].

Polity / Electoral Integrity

• The SC has said the EC must be independent because free and fair elections are part of the basic structure [7].
• How the CEC and ECs are appointed affects how credible the conduct of elections looks, especially in disputes over the voter roll and the model code of conduct.

Administrative

• In March 2024 the SC refused to stop appointments made under the 2023 Act, saying interference would cause "chaos" [10]. The Act therefore remains in force while the challenge is pending [9][10].

Comparative / Institutional

• The CBI Director and the Lokpal are selected by panels that include the CJI or a judge nominated by the CJI. Anoop Baranwal used similar logic for the ECI [2]. The 2023 Act moves away from that model.

6. Recent Developments (last 12–18 months)

• 6 May 2026: The SC asked whether it can direct Parliament to include the CJI on the EC selection panel [8].
• 14 May 2026: The SC said EC independence is essential and that free and fair polls are part of the basic structure [7].
• 23 Sept 2026: Split verdict (2026 INSC 1040). Justice Datta declined referral; Justice Sharma favoured it. A common order asked the CJI to allocate the case to a Constitution Bench [5][6][1].
• 30 Sept 2026: Public debate on the CEC's accountability and immunity under the law [11].
• 7 Oct 2026: The recall application on the non-disclosure of a conflict of interest was mentioned before CJI Surya Kant. The SC agreed to examine whether to hear it [1].

7. Prelims Hooks

• The 2023 Act's Selection Committee is PM (Chair), LoP in Lok Sabha, and a Union Cabinet Minister nominated by the PM [2].
• The CJI is not a member of the CEC/EC selection committee under the 2023 Act [2].
• Anoop Baranwal v. Union of India was decided on 2 March 2023 by a Constitution Bench [2].
• Anoop Baranwal's interim panel was PM + LoP + CJI, valid until Parliament enacted a law [2].
• Anoop Baranwal arose from W.P. (C) No. 104 of 2015 [2].
• The CEC and ECs are formally appointed by the President on the committee's recommendation [2].
• The split verdict on referral is dated 23 Sept 2026 and cited as 2026 INSC 1040 [5].
• Justice Dipankar Datta declined to refer the case to a Constitution Bench; Justice Satish Chandra Sharma favoured referral [1].
• In March 2024 the SC refused to stay appointments of ECs under the new law [10].
• The SC has held that free and fair elections are part of the basic structure [7].
• The CJI in Oct 2026 is Justice Surya Kant [1].

8. The Government's Best Argument, and Where It Runs Out

• The strongest case for the 2023 Act: the Court itself invited Parliament to act
• The Constitution says the President appoints the CEC and ECs "subject to any law made by Parliament". Parliament was given this job from the start [2].
• Anoop Baranwal said its PM + LoP + CJI panel would last only "until Parliament enacted a law" [2]. Parliament then made that law.
• The Court itself has asked whether it can order Parliament to put the CJI on the panel [8]. That doubt helps the government.

• What is right about this: the panel rule was never written into the Constitution. Judges choosing officers of the executive also raises its own separation-of-powers question (each branch of government staying in its own lane).

• Where the argument runs out: Parliament can make a law, but not just any law

• Parliament's power under the Constitution still has to respect the basic structure (the core features of the Constitution that no law can destroy). The SC has said free and fair elections are part of it [7].
• So the real question is not whether Parliament could act. It is whether this particular panel keeps the EC independent.
• Under the Act, the PM and a minister the PM picks always outvote the LoP 2:1 [2]. PRS says a government majority on the panel "may undermine the independence of the ECI" [2].
• Justice Datta's prima facie view (his first-look view, before a full hearing) was that the Act wrongly ignored Anoop Baranwal [1].

9. Small Clauses That Make the 2:1 Problem Bigger

• The panel can work even when the Opposition's seat is empty
• The Act says the Selection Committee's choice is valid even if one of its seats is vacant [2].
• When the Lok Sabha is dissolved before an election, there is no Leader of Opposition.

• Then only government members are left to choose the people who will run that very election [2].

• The shortlist can be ignored

• A Search Committee prepares a shortlist of names first [2].
• But the Selection Committee may pick "any person" who is not on that list [2].
• So the 2:1 majority decides the final name, and not only which name on the shortlist wins.

• PRS notes one point in favour: this also stops civil servants from fully controlling who gets considered [2].

• ECs have weaker job protection than the CEC

• The CEC can be removed only like an SC judge. An EC can be removed on the CEC's recommendation [2].
• An EC who disagrees with the CEC is therefore less secure in the job. A panel that leans towards the government shapes the whole Commission, and not only its head.

10. Why One Judge's Silence Could Change the Case's Path

• The test is how it looks, not whether the judge was actually biased
• Apparent bias (when a fair-minded outsider could doubt a judge's neutrality) is enough to question a ruling. Nobody has to prove the judge was actually unfair.
• Justice Sharma's son was standing counsel for the ECI (a regular lawyer for the institution). The ECI is the body whose leadership is at the centre of this case [1].

• The objection is not only the family link. It is that the link was not disclosed over several hearings [1].

• If the plea succeeds, the referral route becomes unclear

• The plea asks to recall only Justice Sharma's opinion and objects to the common order. It does not attack Justice Datta's opinion [1].
• Justice Sharma's opinion was the one that favoured sending the case to a Constitution Bench [1].

• If it is recalled, the only opinion left is Justice Datta's, which declined referral. The CJI, as master of the roster (the judge who decides which Bench hears which case), may have to decide afresh how the case goes forward [1].

• Every month of delay is a month the Act stays in force

• The SC refused to stop appointments under the 2023 Act in March 2024, saying that would cause "chaos" [10].
• So ECs keep being chosen by the challenged panel while the procedural dispute goes on [9][10].

11. What India's Own Experts and Other Democracies Suggest

• The Law Commission proposed a CJI on the panel back in 2015
• Its 255th Report on Electoral Reforms (2015) recommended a panel of PM + LoP (or leader of the largest Opposition party) + CJI [2][12].
• Anoop Baranwal's interim panel matched this. The 2023 Act did not follow it [2].

• Parliament could amend the Act to bring in this model. It would be acting on its own law panel's advice, not on a court order. That would also settle the Court's own doubt about whether it can direct Parliament [8].

• Former CECs have asked for a collegium

• A former CEC proposed choosing ECs through a collegium (a group of senior office-holders who decide together), as is done for judges, the CIC and the CVC [13].

• Other countries keep politicians off the panel or add a judge

• The USA bars people who currently hold elected or appointed office [2].
• South Africa requires at least one judge among its five electoral commissioners, and prefers people without "high party-political profiles" [2].

• India's Act does the reverse. It adds a sitting minister and drops the judge [2].

• Parliament should fix the vacancy clause even if it keeps the rest

• If the LoP seat is empty, the leader of the largest Opposition party could fill it. The Law Commission's own wording already allows this [2][12].

• Without this change, a government-only panel can choose election officials just before an election [2].

• The Supreme Court needs clear disclosure rules for its judges

• In this case, it is not clear what a judge must reveal about family members' clients. That gap is the whole basis of the recall plea [1].
• A written rule asking judges to declare such links at the first hearing would settle this before a verdict is given, not after.

12. Anchors for Answers

• Data: On a 3-member panel, the PM and a minister picked by the PM hold a permanent 2:1 majority over the LoP [2]
• Report/Committee: Law Commission of India, 255th Report on Electoral Reforms (2015): PM + LoP + CJI panel [12]
• Law/Case: Anoop Baranwal v. Union of India (2 March 2023); CEC & Other ECs Act, 2023, including its vacancy clause; 2026 INSC 1040 (split verdict on referral) [2][5]
• Comparison: South Africa requires at least one judge on its electoral commission; the USA bars sitting officials from it [2]

13. Mains Relevance

• GS-II:
• Appointment to various constitutional posts, and the powers, functions and responsibilities of constitutional bodies.
• Salient features of the Representation of People's Act.
• Separation of powers.

• Structure and functioning of the judiciary.

• GS-IV:

• Probity in governance.
• Conflict of interest.

• Ethical dilemmas in public institutions (judicial recusal).

• Question stems: 1. "The independence of the Election Commission rests as much on its method of appointment as on its constitutional status." Examine this in light of the 2023 Act and the Anoop Baranwal judgment. (15 marks) 2. Can Parliament legislate around an interim arrangement made by a Constitution Bench? Discuss with reference to the separation of powers. (10 marks) 3. "Justice must not only be done but must be seen to be done." Discuss the importance of judicial disclosure and recusal norms, using recent examples. (GS-IV, 10 marks)

14. Related Topics to Study Next

• Article 324 and the structure of the ECI: the constitutional base for appointing the CEC and ECs.
• Removal of the CEC vs. removal of ECs: the CEC is removed like an SC judge, but ECs are removed on the CEC's recommendation, which raises its own independence questions.
• Basic structure doctrine (Kesavananda, Indira Gandhi v. Raj Narain): the source of the principle that free and fair elections are part of the basic structure.
• Master of the roster and Constitution Benches: the CJI's role in allocating the referred case.
• Judicial recusal norms (e.g., NJAC case, 2015): the issue in the recall application.
• Selection panels for the CBI Director, Lokpal and CVC: comparison of panel models with and without a judicial member.
• Special Intensive Revision of electoral rolls / ECI credibility debates: the context in which EC independence is being contested.
• Immunity and accountability of the CEC under the 2023 Act: a related controversy [11].

15. NCERT Concepts to Revise

• Election Commission of India (Polity): The article is about how its top leadership is appointed and whether that protects its independence.
• Chief Election Commissioner (Polity): The 2023 Act sets how the CEC is selected, and the case challenges that process.
• Constitution bench (Polity): The judges split on whether to refer the case to a bench of five or more judges.
• Basic structure doctrine (Polity): The Court has treated free and fair elections, and so an independent EC, as part of the basic structure.
• Separation of powers (Polity): The core question is whether Parliament can legislate around an interim arrangement made by the Court.
• Recusal (Polity): The recall plea says Justice Sharma did not disclose his son's link to the ECI.

16. Common Errors / Trap Areas

• Confusing the two panels: Anoop Baranwal's interim panel had the CJI. The 2023 Act's panel has a Cabinet Minister instead. The LoP is on both [2].
• Misreading the split: the split was only on whether to refer the case to a Constitution Bench, not on the final validity of the Act. Justice Datta, not Justice Sharma, declined referral [1].
• Misreading the recall plea: it targets Justice Sharma's opinion and the common order, not Justice Datta's opinion [1].
• Wrong year: Anoop Baranwal was decided in 2023, although the petition dates from 2015 [2].
• Who appoints: the President appoints the CEC and ECs. The committee only recommends [2].