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.
There will be a further delay
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.
The impact
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. A fresh law that incorporates the principle of a neutral body selecting the CEC and the ECs, thereby ensuring neutral umpires in the Commission, should be put in place. It is equally important to revisit the controversial revision of electoral rolls and undo its consequences.
The order in Dr. Jaya Thakur contains certain political and moral lessons. Although it does not decide the challenge, some of Justice Datta’s observations are significant. The judge quoted Dr. B.R. Ambedkar’s speech of October 28, 1951: “We also find that the Government servants are influencing the elections in favour of the party which is feeding them and their dependents. No less a personality than Dr. Shyama Prasad Mukherjee, at the inaugural session of the Bhartiya Jan Sangh at Delhi recently, openly charged the Government servants of helping the Congress and thereby nullifying the elections from being free and fair. ….. If Parliamentary Democracy fails in this country and it is bound to fail for the reasons mentioned by me, the only result will be rebellion, anarchy and Communism”.
History magnifies and inverts reality, inviting the ruling dispensation, which claims the legacy of Shyama Prasad Mukherjee, to confront its own mirror image. Today, amid institutional capture and what is described as centrally orchestrated mass disenfranchisement, Dr. Ambedkar’s warning is all the more relevant.
The split judgment has become controversial for another reason as well. The fact that Justice Satish Chandra Sharma’s son has served as an empanelled standing counsel for the Election Commission before the Madhya Pradesh High Court raises the possibility of a conflict of interest.
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The judge’s failure to disclose this association at any point has invited speculation about the impartiality of the adjudicative process. This shatters the moral and even legal foundation of Justice Sharma’s order referring the matter to a Constitution Bench, thereby further delaying a decision on the case. Recently, petitions have been filed in the Court for recalling and nullifying Justice Sharma’s order. In Rupa Ashok Hurra vs Ashok Hurra (2002), a Constitution Bench had indicated that failure on the part of a judge to disclose his connection with the subject-matter or the parties would vitiate the judgment, warranting a revisit.
The Bangalore Principles of Judicial Conduct state that “a judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities”. They also stipulate that “a judge shall not participate in the determination of a case in which any member of the judge’s family represents a litigant or is associated in any manner with the case”. The Restatement of Values of Judicial Life, adopted by the Court in May 1997, contains similar prohibitions.
Beyond the courts
Now, back to the 2023 law. As the country’s history has shown, political struggles can have a larger dimension than judicial proceedings. As regarding the draconian laws, the Terrorist and Disruptive Activities (Prevention) Act (TADA) was allowed to lapse and the Prevention of Terrorism Act (POTA) was repealed by the Centre, even though they had earlier received the Court’s endorsement.
The National Emergency (1975-77) was upheld by the Court in judgments, including the infamous ADM Jabalpur case (1976), which upheld the suspension of fundamental rights. Ultimately, the people voted Mrs. Gandhi’s regime out of power in the subsequent election. Likewise, the controversial farm laws were repealed by Parliament in 2021 following massive protests.
In short, a political and moral reading of the split verdict in Dr. Jaya Thakur takes us beyond the Court to recognise the Constitution’s potential for survival through peaceful people’s movements.
Kaleeswaram Raj is a lawyer who argued in support of the Petitioners in Anoop Baranwal (2023) and Dr. Jaya Thakur (2026)