SC: Present set-up lets govt pick CEC, ECs of its choice

The Supreme Court, while hearing challenges to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term ...

What Happened

The Supreme Court, while hearing challenges to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, made significant observations that the current setup enables the government to appoint the Chief Election Commissioner and Election Commissioners of its choice.
The Court noted the structural imbalance in the selection committee under the 2023 Act — which comprises the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister, and the Leader of the Opposition — giving the executive a 2:1 majority.
This observation directly contrasts with the court's own 2023 ruling in Anoop Baranwal v. Union of India, where it directed that a selection committee comprising the Prime Minister, the Leader of the Opposition, and the Chief Justice of India must oversee such appointments.
The case is being heard as a constitutional challenge to the 2023 Act for replacing the CJI in the committee with a Cabinet Minister.
The observations raise fundamental questions about the institutional independence of the Election Commission of India from the executive.

Static Topic Bridges

Article 324 — Constitutional Status of the Election Commission

Article 324 of the Constitution vests superintendence, direction, and control of elections to Parliament, State Legislatures, the office of President, and Vice-President in the Election Commission of India (ECI). The ECI is a constitutional body — it derives its existence and mandate directly from the Constitution, not from ordinary legislation.

Article 324(1): Superintendence, direction, and control of preparation of electoral rolls and conduct of all elections to be vested in ECI.
Article 324(2): ECI consists of the Chief Election Commissioner and, when appointed, other Election Commissioners, whose number is determined by the President. Currently there are two Election Commissioners in addition to the CEC.
Article 324(5): The CEC cannot be removed except in the same manner as a Supreme Court judge (address by both Houses of Parliament by special majority on grounds of proved misbehaviour or incapacity). Other ECs can only be removed on the recommendation of the CEC.
Article 324(6): President can appoint Regional Election Commissioners after consulting the ECI.
Critical gap: Article 324(2) provides that the appointment of the CEC and ECs "shall be made by the President" but adds "subject to the provisions of any law made in that behalf by Parliament" — meaning Parliament can prescribe a process, but the Constitution itself does not mandate one. This gap was filled by convention (executive discretion) until the Anoop Baranwal judgment in 2023.

Connection to this news: The Supreme Court's observations about executive influence over appointments go to the heart of Article 324 — the Constitution envisioned an independent ECI but left the appointment mechanism to Parliament, and the current debate is about whether Parliament's 2023 law adequately secures that independence.

Anoop Baranwal v. Union of India (2023) — Supreme Court's Landmark Direction

In Anoop Baranwal v. Union of India (2023 SCC OnLine SC 216, decided 2 March 2023), a 5-judge Constitution Bench (Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and C.T. Ravikumar) addressed the absence of any law governing CEC/EC appointments — a constitutional vacuum that had existed since 1950.

Issue: Article 324(2) requires appointments "subject to any law made by Parliament" — but Parliament had never enacted such a law. Appointments were made by the President on the Prime Minister's recommendation alone, with no institutional safeguard.
PIL filed in 2015 by Advocate Anoop Baranwal challenging the appointment process as unconstitutional.
Judgment (2 March 2023): The court held this vacuum was unconstitutional and directed that, until Parliament enacts a law, CEC and ECs shall be appointed by the President on the advice of a three-member committee comprising: (i) the Prime Minister, (ii) the Leader of the Opposition in Lok Sabha (or leader of the largest opposition party), and (iii) the Chief Justice of India.
The court explicitly included the CJI to provide a non-political, independent element and to insulate appointments from executive dominance.
The committee was conceived as having no single institutional bloc in majority.

Connection to this news: The current Supreme Court observations specifically invoke the Anoop Baranwal standard — the CJI's presence in the committee was the court's chosen safeguard for independence, and its removal by the 2023 Act is the central question before the bench now.

CEC Appointment Act, 2023 — Parliament's Response

Parliament responded to the Anoop Baranwal judgment by enacting the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, notified in December 2023. The Act creates a statutory framework for appointments, but with a significant modification from the court's direction.

Selection Committee under the 2023 Act: (i) Prime Minister (Chairperson), (ii) Leader of the Opposition in Lok Sabha (or leader of the largest opposition party), and (iii) a Union Cabinet Minister nominated by the Prime Minister.
Key departure from Anoop Baranwal direction: The Chief Justice of India was replaced by a Union Cabinet Minister — a person nominated by the Prime Minister — giving the government a 2:1 majority on the committee.
Search Committee: A supporting body chaired by the Cabinet Secretary, with two Secretary-level officials, prepares a panel of five names for the Selection Committee's consideration.
Other provisions: CEC and ECs are appointed for six years or until age 65, whichever is earlier. Their salaries are equivalent to those of Supreme Court judges (charged to Consolidated Fund — ensuring financial independence).
The Act does not change the removal process — the CEC still enjoys the same security of tenure as a Supreme Court judge.

Connection to this news: The Supreme Court's observation that the current setup "lets the government pick" ECs of its choice flows directly from this 2:1 structural imbalance — the Prime Minister's nominated Cabinet Minister ensures the executive bloc can always outvote the opposition member.

Comparison of Appointment Processes — Three Regimes

Understanding the evolution is essential for UPSC Mains:

Feature	Pre-2023 (Convention)	Anoop Baranwal Direction (March 2023)	CEC Act, 2023 (Parliament's Response)
Legal basis	Executive convention only	Supreme Court interim direction	Parliamentary statute
Selection Committee	None (PM recommends to President)	PM + LoP + Chief Justice of India	PM + LoP + Union Cabinet Minister (PM-nominated)
Executive majority	Absolute (PM alone)	No majority (PM, non-executive CJI, LoP)	2:1 government majority
Independence safeguard	None	CJI as independent element	None (both PM + Cabinet Minister are executive)
Current status	Superseded	Superseded by 2023 Act	In force; under challenge in SC

Connection to this news: The Supreme Court's current hearing is evaluating whether the 2023 Act, by replacing the CJI with a Cabinet Minister, has effectively restored the pre-Anoop Baranwal executive dominance in a new statutory form.

Significance of ECI Independence — Constitutional Design

The Election Commission's ability to conduct free and fair elections — the bedrock of parliamentary democracy — depends substantially on whether the commissioners themselves are appointed through a process insulated from the party in power. The Supreme Court in Anoop Baranwal observed that free and fair elections are a basic feature of the Constitution (per Kesavananda Bharati, 1973 and subsequent cases), and that the appointment process must reflect this constitutional imperative.

Basic structure doctrine: Free and fair elections are considered part of the basic structure of the Constitution — Parliament cannot legislate to destroy them.
International comparison: Many democracies use bipartisan or independent bodies for election authority appointments (e.g., UK: non-partisan Electoral Commission; USA: FEC with bipartisan composition by law).
Removal protection: The CEC's removal protection (equivalent to SC judge) was built into the original Constitution; the same protection does not currently apply equally to Election Commissioners (they can only be removed on CEC's recommendation, but not through parliamentary impeachment).

Connection to this news: The Supreme Court's observations suggest it may examine whether the 2023 Act's committee structure — giving the government majority — is consistent with the basic structure requirement of genuinely independent elections.

Key Facts & Data

Article 324: Constitutional basis of ECI; vests superintendence of elections in ECI; appointment by President subject to Parliamentary law.
Article 324(5): CEC removal equivalent to Supreme Court judge — by address of both Houses of Parliament by special majority.
Anoop Baranwal v. Union of India, 2023 SCC OnLine SC 216 (2 March 2023): 5-judge bench directed PM + LoP + CJI as interim selection committee until Parliament legislates.
CEC and Other EC (Appointment, Conditions of Service and Term of Office) Act, 2023: Selection Committee — PM (chair) + LoP + Union Cabinet Minister (PM-nominated); replaces CJI with Cabinet Minister.
Executive majority under 2023 Act: 2:1 (PM and PM-nominated Minister vs LoP).
CEC term: 6 years or age 65, whichever is earlier; salary charged to Consolidated Fund.
Search Committee: Headed by Cabinet Secretary; prepares panel of 5 names for Selection Committee.
Current challenge before SC: Whether the 2023 Act's committee violates Anoop Baranwal's principles and compromises ECI independence.