The Supreme Court recently raised concerns regarding the mechanism for appointing the Chief Election Commissioner and other Election Commissioners. The current selection committee comprises the Prime Minister, a Union Cabinet Minister, and the Leader of Opposition in the Lok Sabha. The Court questioned whether this structure ensures the independence required for the Election Commission, as mandated by the Constitution.
According to Bar and Bench, a Bench of Justices Dipankar Datta and Satish Chandra Sharma asked the Central government why the Leader of Opposition’s role in the selection panel is notional, given the executive’s majority in the committee. The Court observed that the inclusion of a Cabinet Minister, alongside the Prime Minister, effectively gives the executive control over appointments.
During the hearing, the Bench compared the process to the appointment of the CBI Director, where the Chief Justice of India is a member of the selection committee. The judges questioned why a similar independent member is not included for Election Commission appointments as highlighted in proceedings. Justice Dipankar Datta remarked, “For a CBI director, CJI is there… But not for maintaining democracy? Not for ensuring pure elections?”
The Court further noted that the presence of the Leader of Opposition does not alter the outcome, as decisions are likely to favour the executive by a 2:1 majority. The Bench questioned the rationale behind this arrangement, stating, “Why do you then include the leader of the opposition? He’s ornamental. It will always be 2:1. Why do you put up this show of independence in the body?” Analysis showed that the Court was not suggesting a specific composition but was examining whether the law meets constitutional standards.
“It is not sufficient that the Commission is independent. It must appear to be independent also,” the Bench stated during the hearing.
The petitions before the Court challenge the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The petitioners argue that excluding the Chief Justice of India from the selection process undermines the constitutional requirement for an independent Election Commission. The challenge is rooted in the Supreme Court’s 2023 Constitution Bench ruling in Anoop Baranwal v. Union of India, which had directed that appointments be made by a committee including the Prime Minister, Leader of Opposition, and the Chief Justice of India, until Parliament enacted a law as coverage revealed.
Arguments during the hearing included concerns about the timeline and neutrality of recent appointments to the Election Commission. Senior advocates contended that the search committee mechanism lacks political neutrality, as the Union Minister heading it nominates the other two members. The Court asked the Union government to keep all records related to the appointments ready for scrutiny at the end of the session.
“Free and fair elections have been held to be part of the basic structure. That can be accomplished by an independent ECI. Now ECI can only be independent if it has independent commissioners,” the Court observed.
The Attorney General argued that the Court should not test the law based on apprehensions about potential lack of independence in appointments. He submitted that the Supreme Court’s earlier ruling was an interim arrangement and that Parliament’s law should be presumed valid unless proven otherwise as reporting indicated.
The Bench clarified that its role was not to dictate legislative policy but to examine whether the law satisfies constitutional requirements under Articles 14 and 324. The matter is scheduled for further hearing next week, with the Court instructing the government to ensure all relevant records are available for review as details emerged.
Note: This article is produced using AI-assisted tools and is based on publicly available information. It has been reviewed by The Quint's editorial team before publishing.