Can’t PM be trusted on appointing CEC, government asks Supreme Court
The Supreme Court continued hearing petitions challenging the constitutional validity of the law governing appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs).
The government defended the composition of the Selection Committee under the 2023 law, arguing that presuming bad faith on the part of the Prime Minister and other members merely because they hold a numerical majority in the panel would be an unwarranted assumption.
The Court clarified that its scrutiny is not rooted in "lack of faith" in any individual holding office, but in the constitutional principle that selection processes must be structured so that fairness is institutionally guaranteed and "seen to be done," independent of who occupies the post.
The matter concerns whether Parliament's 2023 law, which altered the composition of the selection panel prescribed by the Supreme Court's own 2023 judgment, is constitutionally valid.
Article 324 and the Election Commission's Appointment Process
Article 324 of the Constitution vests the "superintendence, direction and control" of elections in the Election Commission of India (ECI), and empowers Parliament to make law regulating the appointment of the CEC and ECs. For over seven decades after 1950, Parliament did not enact any such law, leaving appointments entirely to the executive (President, acting on Cabinet advice).
Key Details
- In Anoop Baranwal v. Union of India (2 March 2023), a Constitution Bench (Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, C.T. Ravikumar) held this legislative vacuum unconstitutional and, invoking Article 142, directed that until Parliament enacted a law, the CEC and ECs would be selected by a committee of the Prime Minister, the Leader of the Opposition (or leader of the largest opposition party) in the Lok Sabha, and the Chief Justice of India.
- Parliament subsequently passed the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which replaced the CJI in the three-member Selection Committee with a Union Cabinet Minister nominated by the Prime Minister — meaning the executive holds two of three seats, alongside the Leader of Opposition.
- The Act also created a Search Committee, headed by the Cabinet Secretary along with two members not below the rank of Secretary to the Government of India, to shortlist a panel of five names for the Selection Committee to choose from.
- Petitioners argue the 2023 Act effectively negates the Anoop Baranwal judgment's intent of insulating the selection process from executive dominance; the government contends Parliament has plenary power under Article 324 to legislate the mechanism, and that the current pending matter raises questions substantial enough to potentially warrant reference to a larger Constitution Bench.
The government's "can the PM be trusted" framing is a direct response to petitioners' argument that a 2:1 executive-majority Selection Committee compromises institutional independence; the Court's reply reframes the issue as one of structural safeguards rather than trust in any individual.
Election Commission of India — Independence Safeguards
The ECI is a permanent constitutional body under Part XV (Articles 324–329) of the Constitution, tasked with conducting free and fair elections to Parliament, state legislatures, and the offices of President and Vice-President.
Key Details
- The CEC's removal is protected in the same manner as a Supreme Court judge (impeachment-like process) under Article 324(5), giving the CEC security of tenure; other ECs can be removed only on the CEC's recommendation, offering them relatively weaker protection.
- Free and fair elections have been held to be part of the Basic Structure of the Constitution (affirmed in Indira Nehru Gandhi v. Raj Narain, 1975, and reiterated in Anoop Baranwal, 2023).
- Comparable independent-appointment mechanisms exist for other constitutional posts — e.g., judges via the Collegium system, and the CVC/CBI Director via a committee of the PM, Leader of Opposition, and CJI/a Supreme Court judge under the CVC Act, 2003 and Lokpal Act, 2013 — which petitioners cite as the appropriate template for CEC/EC appointments too.
The pending case tests whether the 2023 Act's committee composition meets the same institutional-independence bar that Parliament itself has applied to comparable bodies like the CVC and CBI Director selection panels.
- Anoop Baranwal v. Union of India was decided on 2 March 2023 by a five-judge Constitution Bench.
- The Chief Election Commissioner and other Election Commissioners Act, 2023 replaced the CJI with a Union Cabinet Minister in the three-member Selection Committee (Prime Minister, Union Cabinet Minister, Leader of Opposition).
- The Search Committee under the 2023 Act is chaired by the Cabinet Secretary and proposes a panel of five names.
- Article 324(5) gives the CEC removal protection equivalent to a Supreme Court judge.