Supreme Court sends the Election Commissioners' appointment law to a Constitution Bench

On 23 September 2026 a two-judge bench of the Supreme Court, Justices Dipankar Datta and S.C. Sharma, gave a split verdict on one question: should the challenges to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 go to a larger bench? The bench had reserved its decision on 30 July.

Justice Datta rejected the Union government's plea for a reference. Justice Sharma held that Article 145(3) of the Constitution requires a bench of at least five judges when a case raises a substantial question of law on interpreting the Constitution. Despite the difference, the two judges passed a common order placing the petitions before Chief Justice of India Surya Kant to constitute a Constitution Bench. They said a reference to a three-judge bench would only add delay.

The Act came after the Constitution Bench judgment in Anoop Baranwal v Union of India (2023). That judgment directed that a committee of the Prime Minister, the Leader of Opposition and the CJI would select the Election Commissioners until Parliament made a law. The 2023 Act replaced the CJI on the committee with a Union Cabinet Minister nominated by the Prime Minister.

Why it matters for the exam

The case belongs to UPSC Prelims (polity) and UPSC GS Paper 2, under the Election Commission, constitutional bodies and the separation of powers. For BPSC it fits Prelims and Mains GS Paper 2 (Indian polity). Revise Article 324 on the Election Commission, Article 145(3) on the size of a bench that hears constitutional questions, and the Anoop Baranwal judgment.

Keep the order of events clear: the 2023 judgment, then the 2023 Act, then this reference. For Mains, be ready to set out both positions on who should select the Election Commissioners.

Points for Prelims

• The law under challenge: the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
• The bench: Justices Dipankar Datta and S.C. Sharma. Split verdict on 23 September 2026.
• Article 145(3): a bench of at least five judges for a substantial question of law on interpreting the Constitution.
• Anoop Baranwal v Union of India (2023): a committee of the Prime Minister, the Leader of Opposition and the CJI, until Parliament made a law.
• Under the 2023 Act, a Union Cabinet Minister nominated by the Prime Minister sits on the committee in place of the CJI.
• The petitions now go to Chief Justice of India Surya Kant.

Source: Supreme Court Observer, 23 September 2026.

Also reported by: Hindustan Times, 23 September 2026.