Two judges differed on whether the challenge to the 2023 law governing Election Commission appointments needs a Constitution Bench, leaving the decision to the Chief Justice of India.

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• A two-judge Supreme Court Bench delivered a split verdict on September 23, 2026, on whether to refer the challenge to the 2023 appointment law to a Constitution Bench.
• Justice Dipankar Datta rejected the plea for a reference, while Justice Satish Chandra Sharma favoured referring the matter to a Constitution Bench.
• Because of the difference of opinion, the papers were directed to be placed before CJI Surya Kant to consider constituting a Constitution Bench of appropriate strength.
• The petitions challenge the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
• The Act replaced the Chief Justice of India with a Union Cabinet Minister nominated by the Prime Minister on the selection committee.
• The committee now comprises the Prime Minister, the Leader of Opposition in the Lok Sabha and the nominated Union Cabinet Minister.
• Justice Datta held that the Constitution Bench judgment in the Anoop Baranwal case had already settled the principles on free and fair elections and insulating the Election Commission from executive control.
• He observed that the Baranwal arrangement including the CJI was meant to be transient, operating only until Parliament enacted a law.
• Justice Datta also noted that a minister nominated by the Prime Minister could not reasonably be expected to oppose his nominator, given collective responsibility.
• Justice Sharma held that whether Parliament could exclude a neutral selector is an important question arising for the first time before the Supreme Court.
• He said Article 145, read with Order 38 of the Supreme Court Rules, does not allow a two-judge Bench to finally decide such a question.
• Both judges agreed that sending the reference question to a three-judge Bench would only cause delay, and flagged the long pendency of Constitution Bench references.