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

Polity & Governance · 24 September 2026 · Based on The Hindu (original report)

2-minute summary

The Supreme Court of India delivered a split verdict on whether the constitutional challenge to the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023 should be referred to a five-judge Constitution Bench. Justice Dipankar Datta observed that replacing the Chief Justice of India (CJI) with a Union Cabinet Minister in the selection panel gives the executive dominant control, failing the 'perception test' of independence. He argued that because of 'collective responsibility' under Article 75(3), a Cabinet Minister cannot be expected to oppose the Prime Minister, reducing the Leader of the Opposition's role to an 'ornamental' one. Justice Satish Chandra Sharma favored referring the matter to a Constitution Bench under Article 145(3) due to the substantial constitutional questions involved. Both judges ultimately agreed to refer the matter to the CJI for constituting an appropriate Constitution Bench to deliver an authoritative ruling.

Why it's in the news

On September 23, 2026, a two-judge Bench of the Supreme Court delivered a split verdict on referring the challenge against the 2023 CEC and ECs appointment law to a Constitution Bench, with notable observations by Justice Datta on the 'perception test' of institutional independence.

Facts to remember

• The Supreme Court delivered a split verdict on whether the challenge to the 2023 CEC and other Election Commissioners appointment Act should be referred to a five-judge Constitution Bench.
• Justice Dipankar Datta observed that replacing the CJI with a Union Cabinet Minister in the selection panel gives the executive dominant control and fails the perception test of independence.
• Under Article 324(2), the appointment of the CEC and ECs is made by the President subject to any law made by Parliament.

Background and context

Under Article 324(2) of the Constitution, the appointment of the CEC and ECs is to be made by the President, subject to any law made by Parliament. For over seven decades, no such law was enacted, leaving appointments to the sole discretion of the Executive. In March 2023, a five-judge Constitution Bench in the 'Anoop Baranwal v. Union of India' case ruled that to ensure independence, appointments must be made on the advice of a committee comprising the Prime Minister, the Leader of the Opposition, and the Chief Justice of India, until Parliament enacted a law. In response, Parliament passed the 2023 Act, replacing the CJI with a Union Cabinet Minister nominated by the Prime Minister. This effectively gave the executive a 2:1 majority in the selection panel, leading to fresh legal challenges.

Constitutional provisions

• Article 324(2) — Provides for the appointment of the Chief Election Commissioner and other Election Commissioners by the President, subject to provisions of any law made by Parliament.
• Article 75(3) — Establishes the principle of collective responsibility of the Council of Ministers to the House of the People (Lok Sabha), cited by Justice Datta to highlight why a Cabinet Minister cannot act independently of the Prime Minister.
• Article 145(3) — Mandates that any case involving a substantial question of law as to the interpretation of the Constitution must be heard by a minimum of five judges (Constitution Bench).

Committees and reports

• Dinesh Goswami Committee on Electoral Reforms — Recommended that the selection of the CEC should be done in consultation with the Chief Justice of India and the Leader of the Opposition.
• Law Commission of India (244th Report) — Recommended a three-member collegium consisting of the Prime Minister, the Leader of the Opposition, and the Chief Justice of India for appointing members of the Election Commission.

Previous UPSC questions on this theme

• Mains GS-2 2018 — In the light of recent controversy regarding the use of Electronic Voting Machines (EVM), what are the challenges before the Election Commission of India to ensure the trustworthiness of elections in India?

Mains practice: The independence of the Election Commission of India (ECI) must not only be preserved but must also 'appear to be' preserved. In light of this statement and recent judicial observations, critically evaluate the composition of the selection committee under the CEC and other ECs (Appointment, Conditions of Service, and Term of Office) Act, 2023.

The Election Commission of India (ECI) is the bulwark of India's democratic framework, responsible for conducting free and fair elections, which has been recognized as part of the Basic Structure of the Constitution. The recent Supreme Court split verdict on the 2023 Act has brought the debate on the independence of the ECI back to the forefront.

• **Issues with the 2023 Act's Selection Committee:**

1. **Executive Dominance:** The Act replaces the Chief Justice of India (CJI) with a Union Cabinet Minister in the three-member selection panel (comprising the PM, a Cabinet Minister, and the Leader of the Opposition). This gives the Executive a decisive 2:1 majority, effectively granting it absolute control over appointments.

2. **Failure of the 'Perception Test':** As observed by Justice Dipankar Datta, institutional independence must not only exist but must also be visible to the public. A panel dominated by the executive fails to inspire public confidence in the neutrality of the poll body.

3. **Dilution of Opposition's Role:** Under Article 75(3), the Cabinet Minister shares collective responsibility with the Prime Minister. Expecting a Minister to dissent against the Prime Minister is unrealistic, reducing the Leader of the Opposition's role to a mere formality.

4. **Departure from Judicial Precedent:** The Act dilutes the spirit of the *Anoop Baranwal (2023)* judgment, which sought to end executive monopoly by including the CJI to ensure a neutral balance.

• **The Counter-Perspective (Government's Stand):**

1. **Legislative Competence:** Article 324(2) explicitly empowers Parliament to make laws governing ECI appointments. The Supreme Court's arrangement in *Anoop Baranwal* was explicitly a stop-gap measure 'until Parliament makes a law'.

2. **Executive Accountability:** In a parliamentary democracy, the executive is accountable to Parliament and the electorate, whereas the judiciary is not. Thus, executive participation in appointments is argued to be democratically legitimate.

**Conclusion:**

To ensure that the ECI remains 'fiercely independent' and commands unquestioned public trust, the selection process should be broad-based. Incorporating a neutral, non-political member (such as the CJI or a nominee of the judicial branch) would satisfy the 'perception test' and safeguard the democratic credentials of the nation.

Prelims practice questions

Q1. With reference to the Constitution of India, consider the following statements: 1. Article 324(2) mandates that the appointment of the Chief Election Commissioner shall be made by the President, subject to any law made by Parliament. 2. The Constitution of India prescribes a minimum strength of five judges for any Bench hearing a case involving a substantial question of law as to the interpretation of the Constitution. Which of the statements given above is/are correct?

1. 1 only
2. 2 only
3. Both 1 and 2
4. Neither 1 nor 2

Answer: C. Statement 1 is correct under Article 324(2). Statement 2 is correct under Article 145(3), which mandates a minimum of five judges (Constitution Bench) for cases involving substantial questions of constitutional interpretation.

Q2. The principle of 'collective responsibility' of the Council of Ministers, which was recently cited by the Supreme Court in the context of the CEC selection panel, is explicitly enshrined in which Article of the Constitution of India?

1. Article 74(1)
2. Article 75(3)
3. Article 324(5)
4. Article 78

Answer: B. Article 75(3) of the Constitution of India explicitly states that the Council of Ministers shall be collectively responsible to the House of the People (Lok Sabha).

Q3. Which of the following committees/commissions recommended the establishment of a selection committee consisting of the Prime Minister, the Leader of the Opposition, and the Chief Justice of India for the appointment of the Chief Election Commissioner?

1. Punchhi Commission
2. Law Commission of India (244th Report)
3. Sarkaria Commission
4. 2nd Administrative Reforms Commission (ARC)

Answer: B. The Law Commission of India in its 244th Report (2014) recommended a three-member collegium consisting of the Prime Minister, the Leader of the Opposition, and the Chief Justice of India for ECI appointments.

Revision flashcards

• What was the landmark Supreme Court judgment of March 2023 regarding ECI appointments? Anoop Baranwal v. Union of India, which ruled that the CEC and ECs should be appointed by the President on the advice of a committee comprising the PM, Leader of the Opposition, and the CJI.
• Who are the members of the selection committee for CEC and ECs under the 2023 Act? 1. The Prime Minister (Chairperson) 2. The Leader of the Opposition in Lok Sabha (Member) 3. A Union Cabinet Minister nominated by the Prime Minister (Member)
• What is the 'perception test' of institutional independence? The principle that an institution must not only act independently in practice but must also visually appear independent to the public to maintain institutional trust and credibility.
• Which constitutional article mandates a minimum of five judges for a Constitution Bench? Article 145(3) of the Constitution of India.
• Why did Justice Datta argue that a Cabinet Minister cannot act as an independent counterweight to the PM in the selection panel? Because under Article 75(3), the Cabinet Minister shares 'collective responsibility' with the PM and works as part of the same government, making dissent highly unlikely.