DR. JAYA THAKUR AND ORS v. UNION OF INDIA AND ANR
2026 INSC 1040 · WRIT PETITION (CIVIL) NO. 14 OF 2024
Coram: Justice Dipankar Datta · Justice Satish Chandra Sharma
The Election Commission of India must not only be independent but also be seen to act independently.
Yes, as a prima facie observation. Free and fair elections depend to a large extent on a truly independent ECI, and it is not enough for the ECI to be independent; it must also appear to be independent, which the challengers say a Selection Committee with two members from the executive does not assure. No conclusive response was expressed on the 2023 Act.
Headnote
Constitution of India — Art.145(3) — Art.324(2) — Art.141 — Art.142 — Supreme Court Rules, 2013 — Order XXXVIII — Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 — s.7 — Reference To Larger Bench — Unsettled Question Of Constitutional Interpretation —
(Interim order — the two Judges differ on the reference; the papers are placed before the Chief Justice of India.)
Constitution of India — Art.145(3) — Reference To Larger Bench — Unsettled Question Of Constitutional Interpretation —
Held: In one Judge's opinion, a reference under Article 145(3) needs a question of law, substantial in nature, as to interpretation of the Constitution which remains unsettled. Applying settled principles to a new statute does not amount to such a question. (¶79, 85, 86)
Constitution of India — Art.324(2) — Art.142 — Anoop Baranwal — Interim Arrangement Worked Itself Out —
Held further: On that Judge's purely prima facie view, independence of the ECI from exclusive executive control is binding. The three-member committee was an interim arrangement under Article 142 that worked itself out once the 2023 Act was enacted. (¶61, 64)
Constitution of India — Art.145(3) — Difference Of Opinion — Papers Before Chief Justice —
Held further: The other Judge would refer the petitions to a Constitution Bench of not less than five Judges. Given the difference, the papers go before the Chief Justice of India, and the petitions may be placed for hearing subject to his order. (¶89)
In the Court's own words
Paragraph 71These are very emphatic and appealing submissions. If free and fair elections are to be ensured, it is axiomatic that the ECI must not only be an independent body but also be seen to act independently. Though the 2023 Act may possibly survive the frontal challenge of not including the CJI in the selection committee, it also has to succeed on the perception test which this Court has repeatedly said is essential. Can it be argued with conviction that the selection committee envisioned in Section 7 looks as independent as the pro tem committee that Anoop Baranwal (supra) suggested? Is the mechanism constitutionally credible? It cannot be assumed that the incumbents appointed or to be appointed under the 2023 Act would not be individuals of character and integrity, or, who do not value their independence, or, that the working of the 2023 Act would result only in a subservient CEC and ECs being appointed; nonetheless, does the mechanism generate the same public confidence that presence of a neutral third member would?
Paragraph 72While this Court does not express any conclusive response to the questions posed above since they deal with the legitimacy of the 2023 Act, some prima facie observations would be necessary in the present context. There can be no gainsaying that free and fair elections, to a large extent, depend on a truly independent ECI. It is not enough for the ECI to be independent, it must also appear to be independent. The Minister nominated by the Prime Minister, to function as the third member on the Selection Committee chaired by the Prime Minister, cannot be expected to defy his own nominator and risk his continuation as such nominated member on the committee, for all practical purposes. Even otherwise, the collective responsibility doctrine would preclude the Minister to oppose his Prime Minister. As observed in Manoj Narula (supra), the Constitution reposes faith in the Prime Minister; and the entire nation has expectations of good governance being carried on by the Ministers of his choice. Since it is the Council of Ministers who has the collective responsibility to sustain the integrity and purity of the constitutional structure, it is far-fetched to expect that a Minister, who is part of the Council of Ministers and bound by the collective responsibility under Article 75(3), would adopt a stand in the matter of appointment to a sensitive constitutional office disagreeing with the leader of the Government. In such a circumstance, the inclusion of a Cabinet Minister in the Selection Committee fails to provide the independent counterweight that a neutral selector could and he (Cabinet Minister) would merely echo the voice of his leader; and, consequently, the presence of the Leader of Opposition in the Selection Committee becomes largely ornamental, without furthering the purpose of his inclusion. The point urged by the challengers that since the 2023 Act vests overwhelming selection power in the executive and thereby undermines the appearance of independence essential to Article 324 and the basic structure, prima facie, does appear to have substance.
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