SC split on CEC law reference, CJI to form Constitution Bench

The Supreme Court on Wednesday, 23 September delivered a split verdict on whether to refer petitions challenging the 2023 law on appointment of the Chief Election Commissioner and Election Commissioners to a five-judge Constitution Bench. Justices Dipankar Datta and Satish Chandra Sharma disagreed, with Justice Datta rejecting the reference and Justice Sharma favouring it. The matter has been placed before Chief Justice Surya Kant to consider constituting a Constitution Bench.

Justice Datta, in his prima facie view, said the law, which replaced the Chief Justice of India with a Union Cabinet minister on the selection panel, does not appear to ensure an independent mechanism. He said the minister cannot be expected to oppose the Prime Minister, leaving the Leader of Opposition 'largely ornamental'. He also termed the argument that 'judges appoint judges' a myth. The bench requested the CJI to consider a permanent five-judge bench for constitutional cases.

Update, 30 September 2026: The Supreme Court on Wednesday, 23 September split on the reference and placed the matter before Chief Justice Surya Kant, as reported by The Assam Tribune and Bar and Bench. Justice Datta detailed his prima facie objections, calling the Leader of Opposition's role 'ornamental', while Justice Sharma favoured a reference. Both judges also asked the CJI to consider a permanent five-judge Constitution Bench, The Federal reports.