Minister in CEC-EC selection panel fails ‘perception test’, says Justice Datta in split verdict

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Supreme Court Justice Dipankar Datta on Wednesday (September 23, 2026) agreed that the replacement of the Chief Justice of India with a Union Cabinet Minister in the Prime Minister-led selection panel for Chief Election Commissioner (CEC) and Election Commissioners (ECs) prima facie amounts to an “effective veto” in favour of the Union government and fails the “perception test”, sending wrong signals to the public.

Justice Datta reminded that it is well-settled in law that independence in the appointment and functioning of the Election Commissioners was integral to free and fair elections and an essential part of the Basic Structure of the Constitution.

The judge’s observations came in a separate opinion following a split judgment over the question whether a challenge to provisions of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act of 2023 ought to be referred to a Constitution Bench or not.

Justice Satish Chandra Sharma, the puisne judge on the Division Bench, held in favour of sending the case to a Constitution Bench, reasoning that several questions of substantial importance were at stake. The judge invoked Article 145(3) of the Constitution, which mandates a minimum Bench strength of five judges for cases involving substantial questions of constitutional interpretation.

Though the two judges had different opinions on the question of reference, they concurred to forward the case to the Chief Justice of India to ultimately constitute a Constitution Bench of appropriate strength to pronounce an authoritative ruling on the legality of the provisions.

The petitioners had contended that the 2023 Act “defeated” a Constitution Bench judgment in the Anoop Baranwal case, which had constituted a selection panel chaired by the Prime Minister and including the Leader of Opposition in the Lok Sabha and the Chief Justice of India. The 2023 Act, passed within months of the judgment, had replaced the Chief Justice with a Cabinet Minister nominated by the Prime Minister.

The petitioners, represented by senior advocates Gopal Sankaranarayanan, Shadan Farasat, advocates Prashant Bhushan, Kaleeswaram Raj and Neha Rathi, said the Act has statutorily bestowed the Executive “dominant control” and an “effective veto” over the appointment process of the CEC and the ECs.

Justice Datta said the petitioners’ apprehension “prima facie appears to have substance” and at least cannot be dismissed as “fallacious metaphors”. The inclusion of a Cabinet Minister did indeed not pass the perception test.

“The Minister cannot be expected to defy the Prime Minister,” Justice Datta observed in his opinion.

After all, Justice Datta said, the Prime Minister and his Cabinet Minister shared a “collective responsibility” under Article 75(3) of the Constitution, and worked together in the government.