A split verdict, faltering remedies and people’s power

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In Dr. Jaya Thakur vs Union of India, a two-judge Bench of the Supreme Court of India was faced with a challenge to the 2023 law governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs). On September 23, 2026, the Court delivered a split verdict.

Justice Dipankar Datta held that, since a Constitution Bench in Anoop Baranwal (2023) had settled the constitutional position on the mechanism for selecting the CEC and the ECs, the challenge to the 2023 Act needed to be examined in light of the principles laid down in that judgment. The Baranwal approach is simple and straightforward: a committee with executive predominance cannot be entrusted with selecting impartial umpires such as the CEC and the ECs. A three-member committee comprising the Prime Minister and another Union Minister clearly demonstrates such executive predominance.

Therefore, the law governing the selection and appointment of the CEC and the ECs must consciously avoid these vices. Justice Satish Chandra Sharma, however, held that, given the importance of the issues involved, the case should be referred to a larger Constitution Bench. After delivering separate and divergent opinions, the judges also passed a common order expressing their desire for an expeditious hearing of the case by a Constitution Bench.

The net result of the present order is that a decision on the validity of the legislation governing the appointment of the CEC and the ECs will take further time. A statute that is, on the face of it, illegitimate and unconstitutional will have an extended lifespan solely because of the reference ordered on the basis of Justice Satish Chandra Sharma’s opinion. This law, as it is now evident, envisages a Prime Minister’s Committee to select the CEC and the ECs, with the Prime Minister and the Cabinet Minister chosen by him forming two-thirds of the Committee, making the Opposition leader’s presence merely ornamental.

Had this Bench struck down the controversial law on its own, it would have radically altered India’s electoral and judicial history, particularly at a time when people at large are sceptical of electoral institutions and the electoral process. That did not happen. The legitimacy of the 2023 law and the decisions of the Commission are now being questioned by Opposition parties and others, including the Cockroach Janta Party (CJP). Protests are mounting across the country, with many people calling for the resignation of the Chief Election Commissioner, Gyanesh Kumar.

This demand has a strong moral basis. However, replacing an individual alone cannot provide a permanent solution to systemic flaws. The Court has failed to take up the issue in time, and the present order referring the matter to a larger Bench in Dr. Jaya Thakur will, in effect, amount to an institutional confession of this failure. The statute that overturns the Baranwal principle and grants the CEC and the ECs lifelong immunity for their acts and words while in the office, needs to be repealed.