ECI Appointments Act, 2023 | Order summary

Justice Dipankar Datta’s opinion 

Justice Datta’s 54-page opinion starts with the Attorney General’s argument about the writ petitions raising a substantial question of law on constitutional interpretation requiring a reference to a Constitution Bench of five-judges as per Article 145(3). The provision requires that any substantial question of law on the interpretation of the Constitution should be heard by a Bench of at least five judges. It notes the petitioners’ “vehement” objections to the reference, which they described  as a “ploy to delay the final decision” on the writ petitions. The opinion specifically refers to the Solicitor General Tushar Mehta’s argument comparing ECI appointments to judicial appointments, including his submissions that “judges appoint judges”. Since Parliament is directly accountable to its people, it is competent to prescribe the composition of the Selection Committee under Section 7 of the Act. 

The opinion states that while the Bench had withheld any reaction to the comparison during arguments, the submission required a “couple of relevant observations” in response. Justice Datta wrote that the “judiciary cannot always be at the receiving end” of such criticism. He rejected the suggestion that criticism of the Collegium, by itself, supplied a basis for executive control over judicial appointments.In his view, the alternative to the Collegium cannot simply be executive supremacy. Institutional independence requires checks and balances. The opinion suggests that despite the opacity in appointments the Collegium system is the most viable option for safeguarding independence. The misconception regarding judges appointing judges cannot be “allowed to proliferate” as it is a “myth”. There are detailed consultative processes involving the executive at the Centre and the State, intelligence agencies vet credentials and the President appoints the judges. 

“Perhaps, none else other than the Government knows better how the Collegium system works” 

The Union has exclusive domain over accepting the Collegium recommendations, where names are infrequently held back, ultimately overriding the recommendation despite primacy of the CJI in appointments. Justice Datta added that even names reiterated by Collegium gather “dust”. He described the comparison of judicial appointments with the ECI appointments as “disingenuous, evasive and disquieting”.

Justice Datta then moves to the reference question. He cites Anoop Baranwal which prescribed an interim arrangement for appointments in exercise of the Court’s powers under Article 32 and 142. The Constitution had stated that the appointment should be as per a law enacted by Parliament. In seven decades, however, no such law was enacted. This compelled the Constitution Bench to fill that vacuum until Parliament enacts legislation by recommending a temporary composition of the Selection Committee. The opinion states that the mechanism was not meant to be “followed to the tee”. The Act, according to the petitioners, restored executive dominance in appointments as there is a lack of an independent selector in the Selection Committee. The opinion acknowledges that the Constitution Bench exercised restraint and recommended a transient arrangement. However, its observations on the ECI being independent of exclusive executive control was binding. The pro tem committee was not. 

On the aspect of the LoP being in the minority, the opinion notes Attorney General R. Venkataramani’s submissions that a Union cabinet minister would “probably” not take a stand against the Prime Minister in case of a difference of opinion. The petitioners believe that this will certainly occur. The presence of a ‘no’ was striking enough, writes Justice Datta. It would not be expected for a nominated Minister to defy “his own nominator”

“It is not enough for the ECI to be independent, it must also appear to be independent”

Justice Datta clarifies that these observations are purely prima facie and relevant for the discussion on the need of a reference to a larger bench. He writes that there is no substantial question concerning the constitutional standard governing independence of the ECI. According to him, existing precedent has already established the constitutional importance of an independent ECI, insulated from executive control. The challenge now only concerns the application of the settled principles of law. 

Justice S.C. Sharma’s opinion 

Justice Sharma’s 13-page opinion found the Union’s argument on a larger bench reference “well-founded”. The challenge, he said, was first of its kind which required an authoritative pronouncement by a Constitution Bench of not less than five judges. He also addressed Mehta’s comparison of the ECI appointment scheme with the Collegium, saying it was “neither a criticism of the Collegium system nor initiating any debate regarding the manner in which the system of selection has worked”. According to the opinion, Mehta’s argument was that ECI appointments should have a corresponding degree of independence as enjoyed by the judiciary.

According to Justice Sharma, the need to appoint an independent selector in the Selection Committee was an important question arising for the first time in the Supreme Court. As this is a substantial question which has not been dealt with by any precedent, it cannot be determined by a combination of two judges. 

Petitioners had relied on Madras Bar Association v Union of India (2025) to argue that a reference under Article 145(3) cannot be sought belatedly. While a belated approach is not welcome, the opinion says, the Court cannot be oblivious to the fact that earlier decisions had already considered the underlying questions at length. A Constitution Bench need not convene when there is nothing further to be said. Moreover, he states that the petitioners’ concern about the Union seeking a review of Anoop Baranwal through a larger bench reference was misapprehended. 

Combined order referring to larger bench 

After the ‘split’ verdict on the reference, the Bench passed an Order directing the matter to be placed before the Chief Justice of India for constituting a Constitution Bench to decide the questions on the constitutionality of the Act. 

Typically, a three-judge bench takes over the challenge in the event of a split opinion by a two-judge bench. The Order notes that this route would only delay adjudication of the issue. The Bench acknowledged that Anoop Baranwal itself had eight years to be decided since it was first challenged in the Supreme Court in 2015. Moreover, the Bench stated that a nine-judge bench that they were a part of for determining the definition of “industry” had taken 15 years to reach a final decision. Therefore, the anxiety of the petitioners over delay in final adjudication was justified. 

“If statistics are any guide, none can say with any reasonable degree of certainty when long pending references will get resolved”

After pointing this out, the bench requested the CJI to explore the necessity of constituting a permanent five-judge bench to decide pure constitutional issues. Pendency of such issues for five to 20 years does not “reflect well on the institution” the order stated.