Context:

• India, as the world’s largest democracy, relies on the Election Commission of India (ECI) to conduct free and fair elections.
• Concerns have been raised regarding the appointment process of Election Commissioners (ECs) and its impact on the independence of the ECI.
• Civil society organizations (CSOs) and political leaders have long demanded a transparent and bipartisan appointment process.

The Role of Civil Society Organizations in Electoral Reforms:

• Several CSOs, including Association for Democratic Reforms (ADR), Internet Freedom Foundation, etc. have been advocating for electoral reforms.
• ADR has been at the forefront, filing legal challenges to reform the EC appointment process.

Legal Battle for a Transparent Appointment Process:

• 2015: ADR filed a petition challenging the executive’s exclusive control over EC appointments, citing concerns over independence.
• 2018: The case was referred to a Constitution Bench, but hearings were delayed.
• March 2, 2023:
  • In Anoop Baranwal vs Union of India, the Supreme Court (SC) noted that no legislation outlining the appointment process for these positions had been passed in more than 70 years.
  • This is in spite of the constitutional provision under Article 324(2) that required Parliament to pass a law.
  • It ruled that, until Parliament enacts a law, the Chief Election Commissioner (CEC) and ECs should be appointed by a committee comprising:
    • The Prime Minister
    • The Leader of the Opposition (LoP) in the Lok Sabha
    • The Chief Justice of India (CJI)
  • The ruling aimed to reduce executive dominance and ensure transparency.

The 2023 Legislation and Its Controversies:

• The government passed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023, modifying the SC’s ruling.
• The Act excluded the CJI from the selection panel. Instead, it created a new selection committee comprising:
  • The Prime Minister
  • A Union Cabinet Minister (nominated by the PM)
  • The Leader of the Opposition
• Critics argue that this change undermines impartiality, as the executive holds a majority in the selection panel.

Judicial Review and Government Action:

• January 2024: ADR and other petitioners challenged the 2023 Act in the SC, arguing it allowed the ruling party to dominate the selection process.
• March 2024: Despite the pending judicial review, the government appointed two new ECs under the new selection framework.
• February 18, 2025: The incumbent CEC retired, and the government made new appointments via a midnight order.
• February 19, 2025: The SC was scheduled to hear the case but adjourned it without a new date, prolonging uncertainty.

Global Best Practices in EC Appointments:

• United States: Commissioners appointed by the President with Senate approval.
• South Africa: President appoints on the recommendation of the National Assembly.
• Brazil: Appointments made by the Federal Supreme Court.
• United Kingdom: The Speaker’s Committee on the Electoral Commission (cross-party) makes appointments.
• France: Joint appointments by the President, Legislature, and Judiciary.
• Nepal: President appoints CEC and ECs based on recommendations from the Constitutional Council, followed by a parliamentary hearing.

Way Forward:

• The integrity of India’s electoral process hinges on the independence and impartiality of the Election Commission, real and visible.
• The need of the hour is to embrace a bipartisan and neutral collegium-based appointment system, drawing from global best practices.
• This would not only fortify the ECI’s autonomy but also bolster public confidence in the democratic process.

Conclusion:

• The 2023 Act has been criticized for reintroducing executive control over EC appointments, despite the SC’s attempt to ensure impartiality.
• If the government reinstates the CJI in the selection panel, legal challenges could be resolved.
• The issue remains unresolved, with the judiciary’s role in safeguarding democratic institutions under scrutiny.