The appointment of election commission question
The challenge was not to a single appointment order. The petitioners asked whether the statutory scheme made by Parliament for choosing members of the Election Commission of India meets the test of the Constitution. That is a wider inquiry. It covers the legal basis on which every future Chief Election Commissioner and Election Commissioner takes office, how long they serve, and under what conditions.
Article 324 of the Constitution establishes the Election Commission and vests in it the superintendence, direction and control of elections. It left aspects including appointments to Parliament to provide by law. Parliament used that power to enact the 2023 Act. The petitioners said the new framework departs from constitutional safeguards for an independent Commission. The Union defended the Act as a valid exercise of legislative power.
Neither judge decided that contest. Justice Datta took the view that the five-judge Constitution Bench in Anoop Baranwal (2023), which had required appointments on advice of a committee including the Chief Justice of India, had settled the principle. Justice Sharma accepted the Union plea that the validity of the 2023 Act had received no authoritative ruling and should be decided by a Constitution Bench under Article 145(3).
Two views from one bench
Justice Datta started from precedent. Anoop Baranwal was decided by five judges. It interpreted constitutional silence on the appointment process and laid down an interim arrangement involving the Chief Justice of India until Parliament made a law. On his reading, that ruling fixed the constitutional test. A two-judge Bench, bound by the larger Bench, could apply that test to the later statute without a fresh reference.
Jurisdiction was Justice Sharma's starting point. Article 145(3) provides that cases involving a substantial question of law as to interpretation of the Constitution shall be heard by at least five judges. The question here, he said, was not how to apply an old interim direction to an administrative order. It was whether a new Act of Parliament survives constitutional scrutiny, a question no Constitution Bench had answered.
In practice both routes ended at the same registry. The Chief Justice of India, as master of the roster, will decide the composition and timing of the larger Bench. Until that Bench hears the matter, the 2023 Act continues to operate. The September 23 order passed no interim invalidation.
Why Anoop Baranwal still matters
Anoop Baranwal (2023) is the backdrop to the reference. The five-judge Bench dealt with prolonged inaction in creating a statutory appointment process. It held that the absence of a law could not leave appointments to unguided executive discretion. It directed appointments on advice of a committee including the Chief Justice of India until Parliament legislated. The direction was expressly interim. It invited legislation.
Then Parliament legislated, and the 2023 Act now occupies the field. The issue is whether that legislation complies with the constitutional guarantee of an independent Election Commission, or dilutes the safeguard identified in Anoop Baranwal. Justice Datta treated Anoop Baranwal as laying down the test, leaving a task of comparison. Justice Sharma treated the enactment as raising a new constitutional question, leaving a task of first impression for a Constitution Bench.
Article 145(3) is central to that divide. The provision ensures that when the Court interprets the Constitution itself, rather than applying settled interpretation to facts, the interpretation comes from a Bench strong enough to bind smaller Benches. A two-judge Bench cannot overrule or dilute a five-judge ruling. It can only follow it. If testing the 2023 Act needs fresh interpretation, a two-judge Bench would exceed its authority by deciding it.
What reference to Constitution Bench means
A split sends the file to the Chief Justice of India for directions. The Chief Justice may constitute a larger Bench, ordinarily three judges for an ordinary split, but at least five judges where Article 145(3) is attracted. Here both judges sought Constitution Bench consideration, which removes doubt about the intended forum.
The new Bench will frame its own questions. On the September 23 order, those questions are likely to cover the standard for judicial review of a statute governing the Election Commission, the effect of Anoop Baranwal after Parliament has legislated, and whether the 2023 Act satisfies that standard. The Bench will also have to decide the consequence of any finding. Invalidity, reading down, or affirmation each carries different effects for appointments already made and for the working of the Commission.
Separately, the Election Commission of India filed an affidavit in October 2026 in related proceedings about its functioning. Sworn by a Deputy Election Commissioner and stated to have been unanimously approved by the Chief Election Commissioner and both Election Commissioners, it relied on the Constitution Bench ruling in T.N. Seshan v. Union of India (1995). That ruling held the Chief Election Commissioner is not superior to other Commissioners and the multi-member Commission decides unanimously where possible, or by majority. The same principle appears in Section 18 of the 2023 Act. The statute thus deals with internal decision-making as well as appointments, though the challenge centres on the appointment scheme.
For now, nothing changes on the ground. The 2023 Act remains in force. Appointments made under it are not annulled by the September 23 order. The split creates no precedent on validity and no competing precedents. It records disagreement on forum and seeks allocation to a larger Bench.
The registry will now place the papers before the Chief Justice of India, a Constitution Bench will be constituted, dates will be fixed, and parties will file written submissions on the framed questions. Appointments continue under the 2023 Act until that Bench decides.
