Why in news?

The Supreme Court of India has criticised Parliament’s long delay in enacting a law governing appointments to the Election Commission of India, describing it as a “tyranny of the elected.”

The SC bench was hearing petitions challenging the Chief Election Commissioner(CEC) and Other Election Commissioners Act, 2023. The law replaced the Chief Justice of India with a Union Cabinet minister in the selection panel for appointing Election Commissioners.

The issue gained further attention when Leader of Opposition formally dissented during the appointment process of current Chief Election Commissioner Gyanesh Kumar, urging the government to wait for the Court’s decision on the legality of the new system.

What’s in Today’s Article?

• How Election Commissioners Are Appointed
• Supreme Court’s 2023 Anoop Baranwal Ruling
• What the 2023 Law on Election Commission Appointments Provides

How Election Commissioners Are Appointed?

• Article 324(2) of the Constitution states that the appointment of Election Commissioners(ECs) should be made according to a law enacted by Parliament.
• Although the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 regulated salaries, tenure, and functioning of the Commission, it did not prescribe any appointment procedure.
• Executive-Controlled Appointment Process
  • In the absence of a parliamentary law, appointments remained effectively under the control of the executive. Traditionally:
    • the Union Law Ministry prepared a panel of names,
    • the Prime Minister recommended candidates, and
    • the President formally made the appointments.
  • Most Election Commissioners were senior bureaucrats, and the senior-most Election Commissioner usually became the Chief Election Commissioner (CEC).
• Challenge Before the Supreme Court
  • In Anoop Baranwal v. Union of India (2022), petitioners argued that the existing system gave excessive control to the government of the day, threatening the independence of the Election Commission of India.
  • During the hearings, former IAS officer Arun Goel was appointed as Election Commissioner in a process reportedly completed within a single day.
  • The apex court expressed surprise over the speed of the appointment and questioned Parliament’s prolonged silence on establishing a transparent appointment mechanism.

Supreme Court’s 2023 Anoop Baranwal Ruling

• In this case, the Supreme Court of India established an interim procedure for appointing the CEC and ECs until Parliament enacted a dedicated law.
• The Court directed that appointments should be made by the President on the advice of a three-member committee comprising:
  • the Prime Minister,
  • the Leader of Opposition in the Lok Sabha (or leader of the largest opposition party), and
  • the Chief Justice of India (CJI).
• The judgment also broadened the understanding of voting rights, holding that the right to vote flows from the Constitution and that casting a vote forms part of freedom of expression under Article 19(1)(a).
• Ensuring Independence of the Election Commission
  • The ruling emphasised that free and fair elections require an independent Election Commission of India insulated from executive influence.
  • The Court referred to Constituent Assembly debates and Dr. B. R. Ambedkar’s warning that election authorities should not come “under the thumb of the executive.”
  • The Court described the Election Commission as a “guardian of democracy” and stressed that those supervising elections must function impartially, independently, and honestly.
• Call for Institutional Reforms
  • The Supreme Court urged Parliament to strengthen the Election Commission institutionally and financially by:
    • creating an independent secretariat, and
    • charging its expenditure to the Consolidated Fund of India.
  • The Court warned that financial dependence on the executive could indirectly compromise the Commission’s independence.

What the 2023 Law on Election Commission Appointments Provides?

• Following the Anoop Baranwal v. Union of India judgment, Parliament enacted the Chief Election Commissioner and Other Election Commissioners Act, 2023.
• The law replaced the Chief Justice of India in the selection committee with a Union Cabinet minister nominated by the Prime Minister.
• Executive Dominance in the Panel
  • Under the new arrangement, the three-member selection committee consists of:
    • the Prime Minister,
    • a Union Cabinet minister nominated by the PM, and
    • the Leader of Opposition.
  • This effectively gives the executive representation in two out of three seats.
  • Further, under Section 7(2), the Act ensures that an appointment “shall not be invalid merely by reason of any vacancy in or any defect in the constitution of the Selection Committee.”
  • The Act creates a two-stage appointment process:
    • a search committee headed by the Law Minister prepares a panel of names, and
    • the selection committee makes the final choice.
  • However, the law allows the selection committee to choose “any other person” meeting eligibility conditions, even outside the search committee’s shortlist.
  • Critics argue this grants broad discretion and reduces the significance of the formal search process.
• Legal Challenge to the 2023 Law
  • The law was challenged in 2024 by petitioners including Association for Democratic Reforms (ADR).
  • The petitions argue that the law restores executive dominance over appointments and weakens the independence of the Election Commission of India.