Shouldn't selection panel on CEC, ECs have a show of fairness? SC asks Centre
Hearing petitions challenging the law governing appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs), the Supreme Court asked whether the current selection panel carries a visible "show of fairness."
The Centre defended the panel's composition, arguing that the process should not be viewed on the presumption of bad faith on the part of the Prime Minister.
The bench pointed out that the Chief Justice of India (CJI) is included in the selection process for several other high-level appointments, questioning why the CEC/EC panel omits this safeguard.
The bench reserved its order on whether to refer the matter to a larger (Constitution) bench for final adjudication.
Article 324 and the constitutional basis of the Election Commission
Article 324 of the Constitution vests the "superintendence, direction and control" of elections in the Election Commission of India (ECI), and Article 324(2) provides that the CEC and other ECs are to be appointed by the President "subject to the provisions of any law made in that behalf by Parliament." For nearly seven decades after 1950, Parliament did not enact any such law, leaving appointments entirely to the executive on the aid and advice of the Council of Ministers.
Key Details
- Article 324 also covers the ECI's composition (CEC plus such other ECs as the President may fix), conditions of service, and tenure, subject to parliamentary law.
- The absence of a parliamentary law for decades was the specific gap the Supreme Court addressed in 2023.
- The ECI is a permanent constitutional body (not a statutory one), distinguishing it from bodies like the CBI or CVC, which are statutory.
The current litigation concerns exactly this Article 324(2) space — whether the law Parliament eventually enacted to fill the gap adequately safeguards the Commission's independence.
Anoop Baranwal v. Union of India (2023) and the CEC/EC Act, 2023
In Anoop Baranwal v. Union of India (2 March 2023), a Constitution Bench of the Supreme Court held that, in the absence of a parliamentary law under Article 324(2), the CEC and ECs would be appointed by the President on the recommendation of a three-member committee comprising the Prime Minister, the Leader of Opposition in the Lok Sabha (or the leader of the largest opposition party), and the Chief Justice of India. This was intended as a stop-gap arrangement "until Parliament makes a law." Parliament subsequently enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which replaced the CJI in this three-member committee with a Union Cabinet Minister nominated by the Prime Minister.
Key Details
- The 2023 Act was passed by the Rajya Sabha on 12 December 2023 and the Lok Sabha on 21 December 2023, and received presidential assent on 28 December 2023, coming into force from 2 January 2024.
- It replaced the earlier Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 on appointment-related matters.
- Under the Act, the Selection Committee consists of: (i) the Prime Minister (Chairperson), (ii) a Union Cabinet Minister nominated by the Prime Minister, and (iii) the Leader of Opposition in the Lok Sabha (or leader of the largest opposition party where no LoP is recognised).
- A separate Search Committee, headed by the Union Law Minister, shortlists candidates for the Selection Committee's consideration.
- Petitioners argue that swapping out the CJI for a Cabinet Minister gives the executive two votes out of three, diluting the independence the 2023 judgment sought to protect; this is the constitutional validity question currently before the Court.
The Court's "show of fairness" remark and its comparison with other appointment panels stem directly from this substitution of the CJI with a Cabinet Minister, which is the central issue in the pending challenge to the 2023 Act.
Comparable high-level selection committees with judicial representation
Several other statutory appointments in India retain the CJI or a serving/former judge on their selection panels, which the Court cited as points of comparison. The Central Bureau of Investigation (CBI) Director, for instance, is appointed on the recommendation of a committee comprising the Prime Minister, the CJI (or a Supreme Court judge nominated by the CJI), and the Leader of Opposition in the Lok Sabha, under Section 4A of the Delhi Special Police Establishment Act, 1946.
Key Details
- CBI Director selection committee: Prime Minister (Chairperson), CJI or a nominee Supreme Court judge, and the Leader of Opposition/largest opposition party leader in the Lok Sabha.
- This composition retains an unambiguous judicial presence, unlike the post-2023 CEC/EC Selection Committee.
- The National Human Rights Commission (NHRC) Chairperson selection committee similarly includes constitutional functionaries beyond the executive, such as the Speaker of the Lok Sabha and the Leader of Opposition in both Houses.
The bench's question about a "show of fairness" draws force from this contrast — other sensitive appointments retain a judicial or cross-institutional check, while the CEC/EC panel currently does not.
- Anoop Baranwal v. Union of India decided on 2 March 2023 by a Constitution Bench of the Supreme Court.
- CEC and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 in force from 2 January 2024.
- Selection Committee under the 2023 Act: Prime Minister, one Union Cabinet Minister nominated by the PM, and the Leader of Opposition in the Lok Sabha.
- CBI Director selection committee (for comparison): Prime Minister, CJI (or nominee SC judge), and Leader of Opposition in the Lok Sabha.
- The Supreme Court bench hearing the challenge comprised two judges; it has reserved its order on referring the matter to a larger bench.