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

Supreme Court Justice Dipankar Datta on Wednesday (September 23, 2026) said 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 already a well-settled 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.

CEC, ECs appointment process should be broad-based and transparent, experts say “There can be no gainsaying that free and fair elections, to a large extent, depend on a truly independent Election Commission of India (EC).

It is not enough for the EC to be independent, it must also appear to be independent,” Justice Datta observed.

The judge said it would be far-fetched to expect a Minister to defy the wishes of the Prime Minister, leaving the role of the Leader of Opposition in the three-member selection panel merely “ornamental”.

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.

Can’t PM be trusted on appointing CEC, government asks Supreme Court “The inclusion of a Cabinet Minister in the selection committee fails to provide the independent counterweight that a neutral selector could and he (Cabinet Minister) would merely echo the voice of his leader,” Justice Datta said.

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.

While Justice Datta did not find a reference to a Constitution Bench necessary, 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.

Time and timing: On the CEC selection process Justice Sharma 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 differed 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 of the 2023 Act.

The petitioners had contended that the 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 Opposition Leader in the Lok Sabha and the Chief Justice of India.

Free and fair elections can happen only if there are independent Election Commissioners, SC says The Anoop Baranwal judgment by a Constitution Bench in March 2023 had declared that the CEC should be a person of “fierce independence, neutrality and honesty”.

It had called for an end to government monopoly and “exclusive control” over appointments to the highest poll body.

Prior to the judgment, the CEC and ECs were appointed by the President on the advice of the Prime Minister.

The judgment had brought the appointment process on par with that of the CBI Director.

The 2023 Act was passed within months of this judgment.

CJI was only meant to have a say in CEC/EC appointments till Parliament brought a law: Supreme Court The petitioners, represented by senior advocates Gopal Sankaranarayanan, Shadan Farasat, advocates Prashant Bhushan, Kaleeswaram Raj and Neha Rathi, said the Act had bestowed the Executive “dominant control” over CEC/EC appointments.

Justice Datta concluded the petitioners’ apprehensions “prima facie appears to have substance”.

“The misfortune of the people of India is that the lofty ideals that the Constitution envisaged have remained largely unaccomplished owing to a lack of intent and non-abidance with constitutional morality by the ruling regime, past and present, resulting in substantial institutional erosion,” the judge noted.

A process where free and fair elections will be a casualty He found it disheartening that year on year, instead of promoting persons who have “spotless track records and are known to be persons of unimpeachable integrity and rectitude, the political parties appear keen, instead, to promote individuals who have been accused of various crimes, including even moral turpitude”.