The Supreme Court on 23 September referred the petitions challenging the 2023 law governing the appointment process for the Chief Election Commissioners and Election Commissioners to a larger bench, legal news website LiveLaw reported.
The development came amid a political row after an Indian Express report highlighted objections raised by two over several decisions during the rollout of the Special Intensive Revision (SIR) of electoral rolls.
Two of the three Election Commission’s members, Sukhbir Singh Sandhu and Vivek Joshi, objected at least 14 times in 10 months on decisions related to the rollout of the SIR, as per an Indian Express report.
During the SC hearing on Wednesday, even though a two-judge bench of Justice Dipankar Datta and disagreed on whether the matter should be referred, they ultimately ordered that it be placed before the CJI to constitute a Constitution Bench of appropriate strength to avoid further delay.
The Court had, in July, reserved its judgment on whether the issue of constitutional validity of the law governing the appointment of the Chief Election Commissioner and Election Commissioners should be referred to a Constitution Bench.
The pleas challenge Section 7 of the Act, under which the Selection Committee comprises the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister and the Leader of Opposition.
The Indian Express report triggered a political row with the Congress party saying that Gyanesh Kumar has no right to stay in office and must resign. Many of the leaders also called for Kumar’s removal and impeachment.
The in its response to Indian Express report defended its decision-making process, saying that differing views and observations within an institution are a normal part of deliberation before a final decision is taken.
Both the Indian Express report and the Supreme Court hearing have revived questions about the division of power between the Chief Election Commissioner (CEC), currently Gyanesh Kumar, and the other two members of the Election Commission of India (ECI). This also brings into focus on how the commission takes decisions when there is disagreement
The is a permanent Constitutional Body. The panel was established in accordance with the Constitution on 25 January 1950.
Originally, the commission had only a Chief Election Commissioner. It currently consists of the Chief Election Commissioner and two Election Commissioners.
For the first time, two additional Commissioners were appointed on 16 October 1989, but they served only a short tenure until 1 January 1990. Later, on 1 October 1993, two additional Election Commissioners were appointed. The concept of a multi-member Commission has been in operation since then, with decision-making power by majority vote.
Until 2023, the President appointed the chief election commissioner (CEC) and the election commissioners on the advice of the Union Council of Ministers. This arrangement was challenged by petitioners, who argued that the process allowed the government to handpick commissioners.
In Anoop Baranwal v Union of India, a five-judge Constitution bench held in 2023 that the commission must be insulated from executive influence. The bench directed that until Parliament legislated on the matter, a committee comprising the Prime Minister, the Leader of the Opposition, and the Chief Justice of India would select the CEC and the election commissioners.
Parliament legislated within months. The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) , was passed in December that year.
The law thus replaced the CJI on the selection committee with a Union Cabinet minister nominated by the Prime Minister. The government, therefore, got two representatives on the three-member panel, alongside the Leader of the Opposition.
Section 7 of the Act establishes a selection committee comprising the Prime Minister as chairperson, the Leader of the Opposition in the Lok Sabha, and a Union Cabinet minister nominated by the .
The Chief Justice is no longer a member of the panel, as was the case before 2023.
Petitions by The (ADR) and others have challenged the Act before the Supreme Court, arguing that it runs counter to the spirit of the Anoop Baranwal judgment.
The court has so far declined to stay the Act or the appointments made under it, including those of Kumar and Sandhu, both of whom were named election commissioners in March 2024. (Kumar became CEC in February 2025).
In Anoop Baranwal V Union of Indiaruling, the Constitution Bench had noted that Parliament had not enacted a law governing appointments to the Election Commission despite Article 324 of the Constitution contemplating one.
deals with superintendence, direction and control of elections to be vested in an Election Commission
Article 324(1) of the Constitution vests in the Election Commission “the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections” to Parliament, the state legislatures and the offices of President and Vice-President.
The commission conducts roll revisions, such as (SIR), under this provision, read with sections of the Representation of the People Act, 1950.
The Supreme Court, in Mohinder Singh Gill v Chief Election Commissioner case (1977), interpreted Article 324 as conferring on the commission the authority to act even when Parliament had not enacted specific laws on the subject. The commission could decide as long as its actions did not conflict with existing laws. The Election Commission enforces the (MCC) under this power.
Article 324(2) says that the commission “shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix”.
The commission had a single member from 1950 to 1989. It became a multi-member body in October 1989, reverted to a single CEC in January 1990. It has comprised one CEC and two election commissioners since October 1993.
The election commission is meant to function as a collegiate, multi-member body in which the two election commissioners share decision-making with the CEC as colleagues.
In 1995, then then challenged the 1993 law. The court rejected the challenge, holding that once election commissioners were appointed, the commission functions as a multi-member body in which the CEC has no primacy or veto.
The procedure was laid down in a 1993 amendment to the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. Under that law, the commission transacted business unanimously as far as possible.
Disagreements between the CEC and the election commissioners were decided by majority. The commission could allocate business among its members by unanimous decision.
The repealed the 1991 law, but retained the majority rule.
