A split verdict, faltering remedies and people’s power

(Appointment of the CEC and ECs: Dr. Jaya Thakur vs Union of India, 2026)

Sourcing note: Two searches were allowed. The second one (Indian journalism sites) was blocked by the sites and returned nothing. Facts here come from India Code and PRS Legislative Research search results, plus the newspaper excerpt you supplied. The excerpt is cut off mid-article. Bullets marked [unverified] are standard background knowledge that the retrieved sources did not confirm. Check those against the original texts before you rely on them.

1. At a Glance

• Core issue: who should choose India's election "umpires", the Chief Election Commissioner (CEC) and the Election Commissioners (ECs), and whether a selection panel dominated by the government can produce independent appointees [4].
• Trigger: on 23 September 2026 a two-judge Supreme Court Bench gave a split verdict on the challenge to the 2023 law on CEC/EC appointments. The judges then jointly asked for an early hearing by a Constitution Bench [4].
• Underlying conflict: the Anoop Baranwal (2023) Constitution Bench principle (no executive predominance in selection) against the 2023 Act, whose selection committee has 2 of 3 members from the government [1][4].
• UPSC relevance: GS-II topics of constitutional bodies, separation of powers, judicial review and electoral integrity. The headline also raises the limits of what courts can fix and the role of people's movements [4].

2. Why in the News

• 23 Sep 2026: split verdict in Dr. Jaya Thakur vs Union of India, heard by a two-judge Bench of the Supreme Court [4].
• Justice Dipankar Datta held that the Constitution Bench in Anoop Baranwal (2023) had already settled the constitutional position. The 2023 Act must therefore be tested against Baranwal's principles [4].
• Justice Satish Chandra Sharma held that, because the issues are so important, the case should go to a larger Constitution Bench [4].

• Both judges also passed a common order asking for the case to be heard quickly by a Constitution Bench [4].

• 15 Oct 2026: The Hindu (Chennai edition, page 14) ran an opinion piece by Kaleeswaram Raj. He is a lawyer who argued for the petitioners in both Anoop Baranwal and Jaya Thakur. The piece argues that courts can only do so much and that people's movements remain a lasting defence of the Constitution [4].

3. Background & Evolution

• Before 2023 [unverified]: Article 324 gave the power to appoint to the President, "subject to any law made by Parliament". No law on the selection process existed, so appointments were in practice made on executive advice.
• 1991: the earlier law on ECs' service conditions set their salary equal to a Supreme Court judge's [2].
• 2023, Anoop Baranwal: a Constitution Bench held that a committee in which the executive dominates cannot be trusted to select impartial umpires like the CEC and ECs [4].

• [unverified]: the judgment was delivered on 2 March 2023. Until Parliament legislated, it set an interim panel of the PM, the Leader of Opposition (LoP) and the Chief Justice of India (CJI).

• 10 Aug 2023: the CEC and Other ECs Bill was introduced in the Rajya Sabha [2].

• 12 Dec 2023: passed by the Rajya Sabha [2].
• 21 Dec 2023: passed by the Lok Sabha [2].
• 28 Dec 2023: enacted as Act No. 49 of 2023 [1].
• 2026: the challenge in Jaya Thakur ended in a split verdict on 23 Sep 2026 [4].

4. Core Static Facts

5. Multi-Dimensional Analysis

Legal / Constitutional

• The basic question is whether a Constitution Bench ruling (Baranwal) binds Parliament's later law, or whether a valid law displaces the court's interim arrangement [4].
• Justice Datta: the Act must meet Baranwal's tests [4].
• Justice Sharma: a larger Bench should decide [4].
• Because of the split, the 2023 Act stays in force until a larger Bench rules. This is the "faltering remedies" in the headline [4].

Governance / Ethical

• The Selection Committee has a 2:1 government majority (the PM plus a minister the PM nominates). PRS flags the risk this poses to the ECI's independence [1][3].
• The Search Committee is headed by the Law Minister, so the government controls the shortlist as well [1].

Institutional / Administrative

• Uneven protection from removal: only the CEC has the same safeguard as a Supreme Court judge. ECs can be removed on the CEC's recommendation [1].
• Pool of candidates: eligibility is limited to people of Secretary-level rank, so the field is in effect limited to civil servants [1].

Democratic / Social

• The article argues that judicial remedies have limits. It sees people's movements and civic vigilance as the lasting defence of constitutional institutions [4].
• Public trust in the "umpire" underpins the legitimacy of elections [4].

Comparative / Historical

• Debates on the CEC's pay (Cabinet Secretary vs Supreme Court judge) are about the institution's status and perceived independence. The 1991 law used the Supreme Court judge benchmark [2].

6. Recent Developments (last 12–18 months)

• 23 Sep 2026: split verdict in Dr. Jaya Thakur vs UoI. Justice Datta applied the Baranwal test; Justice Sharma referred the case onward. Both issued a common order seeking an early Constitution Bench hearing [4].
• 15 Oct 2026: The Hindu op-ed by Kaleeswaram Raj analysed the split verdict [4].
• Pending: reference to a larger Constitution Bench. The article text is truncated here, so the next steps are not confirmed [4].

7. Prelims Hooks

• The CEC/EC appointment law is Act No. 49 of 2023, dated 28 Dec 2023 [1].
• The Bill was introduced in the Rajya Sabha (not the Lok Sabha) on 10 Aug 2023 [2].
• It passed the Rajya Sabha on 12 Dec 2023 and the Lok Sabha on 21 Dec 2023 [2].
• Selection Committee: PM (Chair), LoP in the Lok Sabha, and a Union Cabinet Minister nominated by the PM. The CJI is not a member [1].
• The Search Committee is headed by the Union Law Minister and shortlists 5 names [1].
• Term: 6 years or until age 65, whichever is earlier. No reappointment [1].
• Eligibility: holds or has held a post equivalent to Secretary, GoI [1].
• The CEC can be removed only like a Supreme Court judge. ECs can be removed only on the CEC's recommendation [1].
• The President appoints the CEC and ECs on the Selection Committee's recommendation [1].
• Anoop Baranwal (2023) was decided by a Constitution Bench [4].
• Jaya Thakur vs UoI was heard by a two-judge Bench. The split verdict came on 23 Sep 2026 [4].
• The judges in the split verdict were Justice Dipankar Datta and Justice Satish Chandra Sharma [4].

8. Why the Court Would Not Pause the 2023 Act

• The case was filed early, but the Court refused to pause the law
• Petitions challenging the 2023 Act were already in the Supreme Court in January 2024. Petitioners asked for a stay (an order that stops a law from working while the case is heard) [5].
• On 22 March 2024, a Bench of Justices Sanjiv Khanna and Dipankar Datta refused it [5].

• So the Act stayed in force, and appointments under it continued, while its validity was still undecided.

• Reason 1: courts assume a law is valid until it is proved otherwise

• This is called the presumption of constitutionality. A court stops a law only if it is ex facie unconstitutional (clearly invalid on a first reading) [5].

• The Court said that pausing a law before the case is decided is "an exception and not the rule" [5].

• Reason 2: the Court said it cannot write the law itself

• Petitioners asked for a fresh selection with the CJI back on the panel [5].
• The Court said that would mean rewriting Section 7(1). It cannot do that without first declaring the section unconstitutional [5].

• It also noted that Anoop Baranwal had set up its panel only as a pro-tem (temporary) measure, "till a law is made by the Parliament" [5].

• Reason 3: a general election was about to start

• The 18th Lok Sabha election was fixed for 19 April to 1 June 2024 [5].

• The Court weighed the balance of convenience (which side would suffer more from the order). It said a stay could cause "chaos and virtual constitutional breakdown" [5].

• Why this is the "faltering remedy" in the headline

• The Commissioners chosen under the challenged law ran a full general election before any court ruled on that law.
• Now the split verdict sends the case to yet another Bench [4].

• Even if the Act is struck down later, the appointments already made and the elections already held cannot easily be undone.

• The 2024 refusal was not a ruling on the main question

• The Court said its observations were "tentative" (not final) [5].
• Justice Datta was on that 2024 Bench. In 2026 he held that the Act must meet the Baranwal tests [4][5]. Refusing a stay and upholding a law are two different things.

9. What the March 2024 Appointments Revealed

• The Opposition member had almost no time to judge the candidates
• The Leader of Opposition (LoP) on the panel asked for the shortlisted names on 12 March 2024 [5].
• On 13 March he received a list of more than 200 eligible people, because the Search Committee had not yet shortlisted anyone [5].
• The shortlist of six names was ready only on 14 March, the same day the Selection Committee met and chose two ECs [5].

• The President approved the two names on the same day [5].

• The Court itself said the shortlist was too small

• Section 6 asks for 5 names. The Court said this prima facie (on a first look) means 10 names were needed for two posts. Only six were given [5].

• It said selection needs "fair deliberation" on each candidate's background and merit. It still did not cancel the appointments [5].

• The meeting was brought forward by a day

• It was first set for 15 March 2024, the same day the Court was to hear the stay applications. On 9 March it was moved to 14 March [5].

• The Government said it moved the date before the hearing had been listed. The stay applications had still been filed by 12 and 14 March [5].

• Every step was in government hands except one seat

• The Search Committee was chaired by the Minister of State for Law. Its other members were the Home Secretary and the DoPT Secretary, all government officers [5].
• The Selection Committee was the PM, the Home Minister and the LoP [5].

• So the 2:1 majority in the law (Section 5 of the note) decided the actual outcome. One member's objection could not change the result.

• The LoP's seat can be empty

• Under the Act, a recommendation stays valid even when a committee seat is vacant [3].
• If there is no LoP before a general election, the panel can consist only of ruling party members [3].

10. The Government's Strongest Case, and Where It Falls Short

• The case for the 2023 Act
• Article 324(2) itself says appointments are subject to "any law made by Parliament". Parliament has now made that law [5].
• Baranwal said its own panel would last only until Parliament legislated. The Court also said it would not tell Parliament how to write the law [5].
• From the 1950s until 2023, the executive alone chose CECs and ECs. The 2023 Act at least adds the LoP [5][1].

• The panels for the Central Vigilance Commissioner and the Chief Information Commissioner are similar, and nobody calls them unconstitutional [3].

• What this argument gets right

• Courts have no power to choose who sits on a panel when a valid law already exists. The Court accepted this in 2024 [5].

• Putting the CJI on executive appointment panels raises its own separation-of-powers worry. The judge could later have to rule on a case about the person they helped choose.

• Where it falls short

• "Subject to law" does not mean "any law". The 2024 Bench itself said courts can still strike down a law through judicial review [5].
• The ECI is not like the CVC. Its quasi-judicial work (acting like a court) includes deciding party symbols, party registration and disqualification of members [3]. In these disputes, the ruling party is often one of the sides. A panel controlled by that party is choosing the judge in its own case.
• Comparing it with CVC appointments is weak. PRS notes that other constitutional bodies like the UPSC and CAG are appointed directly by the President, and that the ECI sits at a higher constitutional level than statutory bodies [3].
• The 1991 law tied ECs' pay to a Supreme Court judge's pay. The 2023 Bill linked it to the Cabinet Secretary, whose pay the government fixes. PRS warns that this gives the executive more say over the Commissioners' pay [2][3].

11. Thirty-Five Years of Reform Proposals, None Adopted

• Committee after committee asked for a non-government member on the panel
• Goswami Committee (1990): the President should appoint in consultation with the CJI and the LoP [3].
• Constitution (Seventieth Amendment) Bill, 1990: a panel of the Rajya Sabha Chairman, the Lok Sabha Speaker and the LoP. It was withdrawn in 1994 [3].
• National Commission to Review the Working of the Constitution (2002): five members. They were the PM, both Leaders of Opposition and the presiding officers of both Houses [3].

• Law Commission (2015): PM, LoP and CJI. Baranwal adopted this same panel in 2023 [3].

• Each proposal gave the government a minority or an equal share. The 2023 Act gives it a majority.

• Successive governments of different parties let these proposals lapse.

• The 2023 Act is the first law on the subject. It chose a design that none of these bodies recommended [3].

• The independent secretariat promise has also been left out

• The Goswami Committee and the ECI itself asked for an independent secretariat (the Commission's own permanent staff, like the Lok Sabha has). Baranwal also stressed this [3].
• The 2023 Act does not deal with it. The ECI still depends on the government for staff and money [3].

12. How Other Democracies Choose Their Election Umpires

• South Africa: the President appoints on the advice of a committee that includes the President of the Constitutional Court. One of the five commissioners must be a judge [3].
• United Kingdom: a committee of the House of Commons oversees recruitment, and the House approves the candidates [3].
• United States: the President nominates and the Senate must confirm. Members cannot hold any executive, legislative or judicial post at the same time [3].
• Canada: the House of Commons appoints by resolution (a vote of the whole House) [3].
• What India can learn
• Most of these countries place the check in the legislature, not in the courts. The ruling side must win support beyond its own ministers.
• A legislative check could address the government majority without putting the CJI on an executive panel. That would answer both sides of the debate in the section above.

13. What Each Institution Can Do Now

• Supreme Court: hear the reference before the next major election
• In 2024, the coming election was the Court's main reason for not acting [5].

• If the Constitution Bench hears the case only when another national election is near, the same reason will come up again. Both judges asked for an early hearing [4].

• Parliament: amend Section 7 using its own earlier proposals

• It could take the 2015 Law Commission panel (PM, LoP, CJI) or the 2002 NCRWC five-member panel. Either one ends the 2:1 government majority [3].
• It should require a full shortlist of 5 names for every post, sent to all members well before the meeting. This puts in writing the procedure the Court said was missing in 2024 [5].

• It should say what happens when the LoP seat is empty, for example by naming the leader of the largest opposition party. The Act already does this when no LoP has been recognised [5][3].

• Parliament: protect the ECs, not just the CEC

• At present, an EC can be removed on the CEC's recommendation alone [1].

• The Court said in Baranwal that it could not order equal removal protection. Giving ECs the same protection as the CEC would need a constitutional amendment [3].

• Government: give the ECI an independent secretariat and widen who can apply

• The Goswami Committee recommended the secretariat in 1990 [3].

• Only Secretary-rank officers can be appointed today. PRS argues this leaves out other qualified people, which matters because the ECI also does quasi-judicial work [3].

• Citizens and civil society: the "people's power" the article argues for

• One of the stay applications came from the Association for Democratic Reforms, a citizens' group [5]. Public-interest litigation like this is how the issue reached the Court.
• The 2024 Bench quoted Dr. Ambedkar: however good a Constitution is, it "will prove to be bad" if those running it are not good [5].
• That is the article's point. When the courts move slowly, public pressure and constant watchfulness are what keep the people in office honest [4].

14. Anchors for Answers

• Data: On 14 March 2024, a shortlist of 6 names was given to the panel on the same day it chose 2 ECs. The Court said 10 names (5 per post) were needed [5].
• Data: The LoP received a list of more than 200 eligible names only one day before the selection meeting [5].
• Report/Committee: Goswami Committee (1990); NCRWC (2002); Law Commission (2015), which recommended a PM–LoP–CJI panel [3].
• Law/Case: Article 324(2); CEC and Other ECs Act, 2023, Section 7(1) [1]; Anoop Baranwal v. UoI, (2023) 6 SCC 161; Jaya Thakur v. UoI, stay refused on 22 March 2024 [5]; T.N. Seshan v. UoI (1995), which upheld a multi-member ECI [5].
• Comparison: USA: Senate confirmation. UK: Commons committee and House approval. Canada: House of Commons resolution. South Africa: a panel that includes the Constitutional Court President [3].
• Quote: Ambedkar, cited by the Court: "However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad" [5].

15. Mains Relevance

• GS-II: appointment to various constitutional posts; powers, functions and responsibilities of constitutional bodies; structure, organisation and functioning of the Judiciary; separation of powers.
• GS-IV (secondary): institutional integrity and probity in governance.
• Possible questions: 1. "Independence of the Election Commission depends less on its constitutional status than on the method of appointment." Critically examine this in light of the CEC and Other ECs Act, 2023. 2. Discuss the constitutional significance of Anoop Baranwal (2023). Is Parliament bound by judicially framed interim mechanisms once it legislates? 3. "Judicial remedies alone cannot protect constitutional institutions." Examine this with reference to recent debates on electoral integrity.

16. Related Topics to Study Next

• Article 324 and the structure of the ECI: the constitutional basis of the body whose appointments are disputed.
• Anoop Baranwal vs UoI (2023): the precedent the split verdict turned on.
• Collegium system and the NJAC judgment (2015): a parallel clash between court and Parliament over appointments.
• Appointment panels for the CBI Director, CVC and Lokpal: comparable selection committees that include the LoP or CJI.
• Article 145(3) and Constitution Benches: why the case was referred to a larger Bench.
• Electoral reforms (Model Code of Conduct, EVMs/VVPAT, delimitation): the wider debate on electoral integrity.
• Separation of powers and the basic structure doctrine: the framework for judging whether the law is valid.

17. NCERT Concepts to Revise

• Election Commission of India (Polity): The body whose top appointments are disputed; its independence and Article 324 powers are the case's core.
• Constitution bench (Polity): Baranwal was decided by one, and the split two-judge verdict was sent to a larger one.
• Chief Election Commissioner (Polity): Covers the CEC's appointment, six-year term and Supreme Court-judge-style removal protection that the 2023 Act sets out.
• Election Commissioners (Polity): Explains why ECs have weaker removal protection, removable only on the CEC's recommendation.
• Separation of powers (Polity): The dispute asks whether a government-dominated panel and a court-set interim mechanism respect the balance between organs.
• Judicial review (Polity): The courts' power to test the 2023 Act against constitutional principles is what the Datta–Sharma split is about.

18. Common Errors / Trap Areas

• Committee membership: the 2023 Act dropped the CJI. Baranwal's interim panel included the CJI [unverified]. Do not mix up the two panels [1].
• The Selection Committee includes the LoP, so it is not entirely executive. However, the government holds a 2:1 majority [1][3].
• Removal safeguards differ: only the CEC has removal protection on par with a Supreme Court judge. ECs do not [1].
• House of introduction: the Bill was introduced in the Rajya Sabha, not the Lok Sabha [2].
• Bench strength: Baranwal was a Constitution Bench. Jaya Thakur was a two-judge Bench, and a split there leaves the matter unresolved [4].
• Salary benchmark: the Bill said Cabinet Secretary, while the enacted Act is reported to say Supreme Court judge. Verify this before the exam [1][2].