Minister in CEC-EC selection panel fails ‘perception test’, says

The Supreme Court has sent the challenge to the 2023 law on appointments of the Chief Election Commissioner and Election Commissioners to the Chief Justice of India for the constitution of an appropriate Constitution Bench, after two judges differed on whether the matter required such a reference but agreed that an authoritative ruling was needed.

Justice Dipankar Datta, in a separate opinion delivered 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 prima facie amounted to an “effective veto” in favour of the Union government.

He also said the change failed the “perception test” and sent wrong signals to the public.

Split verdict, common route to Chief Justice

The observations came in a separate opinion after a split judgment on whether the challenge to provisions of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act of 2023 should be referred to a Constitution Bench.

Justice Satish Chandra Sharma, the puisne judge on the Division Bench, held in favour of sending the case to a Constitution Bench because, in his view, several questions of substantial importance were involved.

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.

Although the two judges differed on the question of reference, they concurred in forwarding the case to the Chief Justice of India.

The Chief Justice of India will now have to constitute a Constitution Bench of appropriate strength to pronounce an authoritative ruling on the legality of the provisions.

The case therefore moves from a split view on the need for reference to a shared institutional step towards a larger Bench ruling.

Why the selection panel is under challenge

The petitioners had argued that the 2023 Act “defeated” a Constitution Bench judgment in the Anoop Baranwal case.

That judgment had created a selection panel chaired by the Prime Minister and including the Leader of Opposition in the Lok Sabha and the Chief Justice of India.

The 2023 Act, passed within months of that judgment, replaced the Chief Justice with a Cabinet Minister nominated by the Prime Minister.

The petitioners said this change statutorily gave the Executive “dominant control” and an “effective veto” over the appointment process for the CEC and the ECs.

They were represented by senior advocates Gopal Sankaranarayanan and Shadan Farasat, and advocates Prashant Bhushan, Kaleeswaram Raj and Neha Rathi.

Justice Datta said the petitioners’ apprehension “prima facie appears to have substance”.

He added that the apprehension could not, at least at this stage, be dismissed as “fallacious metaphors”.

Justice Datta’s concern over independence

Justice Datta reminded that it is well-settled in law that independence in the appointment and functioning of Election Commissioners is integral to free and fair elections.

He said such independence is an essential part of the Basic Structure of the Constitution.

Against that constitutional backdrop, he found the omission of the Chief Justice from the selection panel and the inclusion of a Cabinet Minister legally troubling.

Justice Datta held the new rules omitting the Chief Justice to be “bad in law”.

He said the inclusion of a Cabinet Minister did not pass the perception test.

“The Minister cannot be expected to defy the Prime Minister,” Justice Datta observed in his opinion.

He noted that the Prime Minister and the Cabinet Minister share “collective responsibility” under Article 75(3) of the Constitution.

He also noted that they work together in the government.

“Inclusion of a Minister fails to provide an independent countenance,” Justice Datta observed.

The judge said the Minister’s place in the selection panel would largely be “ornamental”.

His reasoning therefore focused not merely on the formal presence of three members, but on whether the composition could be seen as independent in a process involving appointments to the highest poll body.

‘Umpire selected by a batting team’

Justice Datta used a cricket analogy to explain the perception problem he saw in the appointment structure.

“An umpire selected by a batting team, even if he gives the correct decision, will always be under a shadow of doubt, as he will be perceived to be loyal to the team,” he said.

During the hearings, the apex court had questioned the absence of even “one absolutely neutral person” on the Prime Minister’s committee.

The court had also said such an absence would send wrong signals to the public.

Justice Datta’s separate opinion connected that concern to the principle that the process for choosing Election Commissioners must inspire confidence in independence.

He framed the issue as one of appearance and constitutional assurance, not simply one of whether an individual decision-maker would act improperly.

Government’s defence of the Prime Minister-led panel

Solicitor General Tushar Mehta, appearing for the government, argued that the Prime Minister ought to be the last authority to distrust.

“If the Prime Minister’s decision is not to be trusted, why not have someone from outside or a former judge to select the Ministers also,” Mr. Mehta asked.

Mr. Mehta quoted from a 2014 apex court judgment in the Manoj Narula case.

He cited that judgment to say the Prime Minister’s office held the highest constitutional trust and sanctity.

The law officer also asked whether a constitutional court, while deciding the composition of a committee in a statute, could presume abuse of power, bad faith and mala fide intention on the part of constitutional functionaries.

Justice Datta responded that the issue was not about “lack of faith” in the Prime Minister.

He said the question concerned the principle of “justice not only being done, but shown to be done”.

That distinction was central to Justice Datta’s view that the selection mechanism had to satisfy not just legal form, but also public perception of neutrality.

The Anoop Baranwal backdrop

The Anoop Baranwal judgment was delivered by a Constitution Bench in March 2023.

It had declared that the CEC should be a person of “fierce independence, neutrality and honesty”.

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

Before that 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 petitioners’ case was that the 2023 Act, passed within months of the Anoop Baranwal judgment, undid the safeguards that the Constitution Bench had put in place.

Their challenge therefore goes to whether Parliament’s replacement of the Chief Justice with a Prime Minister-nominated Cabinet Minister is compatible with the constitutional principles identified in Anoop Baranwal.

Justice Datta’s opinion treated that replacement as prima facie creating Executive dominance in a process where independence is tied to free and fair elections.

Justice Sharma’s opinion, while taking a different position on the reference issue, recognised that the case raised substantial constitutional questions requiring a larger Bench.

The two opinions have now placed the legality of the 2023 provisions before the Chief Justice of India for the next procedural step towards an authoritative Constitution Bench ruling.

The judgment was published on September 23, 2026 at 04:10 pm IST.

Source: The Hindu