On 23 September, two Supreme Court judges sat down to answer the same question and came back with different answers. What they were asked to decide sounds procedural. What actually sits behind it is the question of who controls who runs India's elections.
Every once in a while, the Supreme Court produces a judgment that is, on its face, about procedure and is, in reality, about something much larger. The split verdict of 23 September is one of those.
The question on the surface was whether a set of petitions challenging a 2023 law should go to a Constitution Bench of five or more judges, or whether a two-judge bench could deal with it. The two judges who had been hearing the matter, Justice Dipankar Datta and Justice Satish Chandra Sharma, disagreed. In Justice Datta's own words, "speaking in one voice would have served the voice of institutional cohesion. Unfortunately, we are divided in our opinion." The papers now sit with Chief Justice of India Surya Kant, who must decide whether to constitute a Constitution Bench and of what size.
The question underneath, the one that will eventually come before whatever bench the Chief Justice constitutes, is this: when Parliament was told by the Supreme Court in 2023 to make a law protecting the independence of the Election Commission, did it do so? Or did it do the opposite?
How the Court Got Here
In March 2023, a five-judge Constitution Bench in Anoop Baranwal v. Union of India held that the process of appointing the Chief Election Commissioner and Election Commissioners had to be taken out of purely executive hands. The Court's reasoning was grounded in first principles: free and fair elections are a basic feature of India's Constitution, and a body responsible for running them cannot owe its existence entirely to the government it is meant to hold accountable at the polls. Until Parliament legislated an alternative, the Court directed that appointments be made on the recommendation of a three-member panel comprising the Prime Minister, the Leader of the Opposition, and the Chief Justice of India.
Parliament moved quickly. By December 2023, the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act was notified. It created a Selection Committee with three members: the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister, and the Leader of the Opposition.
The Chief Justice of India was not on it.
Petitioners, including Congress leader Dr. Jaya Thakur and the Association for Democratic Reforms, went back to court. Their argument was compact: the Supreme Court had said the process must not be left to executive control alone. The 2023 Act left two of the three seats on the selection panel to the government. The opposition has a seat at the table, but it cannot outvote a two-to-one majority. The law, on this reading, did not insulate the Election Commission from the executive. It recalibrated how the executive exercised its dominance.
The government's response was equally direct. The Solicitor General, Tushar Mehta, argued that the Commission's independence does not depend on having a judge on the appointment committee. Executive power exercised under constitutional trust, with an opposition voice present, is a legitimate check. The Law Ministry had put the same point in an affidavit: a Minister's presence on a selection panel cannot, by itself, be presumed to imply bias.
What the Two Judges Said
The Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma had been hearing the petitions for over five days by the time they reserved judgment on 30 July on the threshold question of reference. On 23 September, they came back with irreconcilable conclusions.
Justice Datta did not think a Constitution Bench was needed. The principles, he said, had already been settled. The Supreme Court had established clearly that the Election Commission must be insulated from exclusive executive control over appointments. Applying those settled principles to the 2023 Act, in his view, did not require five judges. He rejected the demand for reference.
But he did not stop there. He went on to record prima facie observations on the merits of the challenge itself. The Solicitor General had asked the Court to trust that the constitutional obligation placed on the Prime Minister would be honoured. Justice Datta answered that trust cannot simply be presumed. "The Court must also look at how those in power have actually exercised their constitutional responsibilities," he wrote, adding that he was "forced to ask" whether the trust placed in the Prime Minister "has been betrayed in practice." He was careful to say the central question remains open for the merits: whether the 2023 Act actually protects the Commission from government control, or merely "recalibrates executive control," is not settled by his opinion. But the direction of his thinking is plainly on the record.
Justice Sharma read the same case and reached the opposite procedural conclusion. The challenge, he held, raises a substantial question of constitutional interpretation that no earlier judgment has resolved. A two-judge bench should not decide it. The matter belongs before a Constitution Bench.
That disagreement is now the Chief Justice's to resolve.
What a Constitution Bench Will Have to Answer
Whenever the Constitution Bench is constituted, it will face questions that go well beyond this one law.
The first is interpretive. Does the basic-structure protection for free and fair elections require that appointment committees be insulated from executive control from the start, or is it enough that the commissioners, once appointed, function independently? Anoop Baranwal proceeded on the assumption that the front end mattered. The 2023 Act took the view that robust protections after appointment were sufficient.
The second is structural. The Leader of the Opposition is on the 2023 Act's selection panel. But the petitioners' point is that presence and power are not the same thing. A voice that cannot block an appointment is a witness to a decision, not a check on it. Whether the Constitution requires a genuine veto, or merely a non-executive presence, is a question Anoop Baranwal did not fully answer.
The third question runs further. If the Court upholds the 2023 Act, it will have endorsed a model for designing statutory and constitutional bodies: executive majority on the selection panel, opposition presence, no judicial member. That model can be applied to other independent bodies, and once a Constitution Bench endorses it, the template travels. If the Court strikes it down or reads it narrowly, Parliament will need to go back to the drawing board.
None of these questions will be resolved quickly. Constitution Benches form slowly and hear matters over months. The 2023 Act continues in force in the interim, and any elections conducted during that period will be run under the law whose constitutional validity is pending.
That is not a comfortable position for a democracy to be in. It is, however, the honest one. A significant constitutional question deserves careful handling rather than a rushed answer, and the fact that two judges of the Supreme Court reached opposite conclusions after five days of argument is itself a signal of how genuinely contested this terrain is.
Justice Datta ended his opinion by acknowledging that institutional cohesion would have been better served by agreement. He disagreed anyway. That willingness to put a difficult, inconvenient judgment on the record, even when agreement would have been easier, is what courts are for.
Key facts: The 2023 Act's Selection Committee comprises the Prime Minister, a Cabinet Minister nominated by the Prime Minister, and the Leader of the Opposition. The Chief Justice of India is not included. Petitioners: Dr. Jaya Thakur, Association for Democratic Reforms, and others. Split verdict: 23 September 2026. Next step: Papers before Chief Justice Surya Kant to consider constituting a Constitution Bench.