'Judges appoint judges' is a myth: SC split over CEC appointment law, differences over Constitution Bench referral
A two-judge Supreme Court bench delivered a split verdict on whether to refer petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 to a larger Constitution Bench.
One judge held that a reference to a larger bench was not warranted, while the other judge held otherwise, resulting in a split decision on the preliminary question.
Given the split, the matter has been placed before the Chief Justice of India for the constitution of a Constitution Bench of appropriate strength to decide both the reference question and the underlying challenge to the 2023 Act.
During the hearing, one judge observed that the characterization of the judicial appointments process as one where "judges appoint judges" is a myth, made in response to the government's comparison between judicial collegium appointments and the executive-dominated Election Commission selection process.
Article 324(2) and the Anoop Baranwal Interim Formula (2023)
Article 324(2) of the Constitution provides that the Chief Election Commissioner (CEC) and other Election Commissioners shall be appointed by the President, "subject to the provisions of any law made in that behalf by Parliament." For over seven decades, Parliament made no such law, leaving appointments entirely to executive discretion until the Supreme Court intervened.
Key Details
- Anoop Baranwal v. Union of India — decided 2 March 2023 by a five-judge Constitution Bench led by Justice K.M. Joseph
- The Court held that, in the absence of a parliamentary law, CEC and EC appointments would be made by the President on the advice of a three-member committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha (or the leader of the largest opposition party), and the Chief Justice of India
- This arrangement was expressly stated to operate only "until a law is made by Parliament" under Article 324(2)
- The ruling was aimed at insulating the Election Commission, a constitutional body under Part XV, from perceived executive control over its composition
The petitions now before the Supreme Court challenge the law Parliament subsequently enacted to occupy this field, arguing it dilutes the independence the Court sought to secure.
The CEC and Other ECs Act, 2023 — What Changed
Parliament responded to Anoop Baranwal by enacting the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which replaced the Chief Justice of India in the selection committee with a Union Cabinet Minister nominated by the Prime Minister — the core change being challenged.
Key Details
- Selection Committee under the 2023 Act: the Prime Minister (Chairperson), the Leader of the Opposition in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister — the CJI is excluded
- A separate Search Committee, headed by the Union Minister of Law and Justice with two other members not below Secretary rank, prepares a panel of five names for the Selection Committee's consideration
- Appointment is finalized by the President on the Selection Committee's recommendation
- Petitioners argue this configuration gives the executive an effective 2-1 majority on the committee, unlike the Court's interim CJI-inclusive formula, and thereby undermines the "independent Election Commission" standard read into Article 324
This is the specific statute whose constitutional validity is now headed toward a larger Constitution Bench following today's split verdict on the reference question.
The Judicial Collegium System — Context for the "Judges Appoint Judges" Remark
The remark made during the hearing referenced India's judicial Collegium system, which itself has no textual basis in the Constitution and instead emerged from judicial interpretation of the appointment provisions for judges.
Key Details
- The Collegium system evolved through the "Three Judges Cases": S.P. Gupta v. Union of India (1981), Supreme Court Advocates-on-Record Association v. Union of India — the Second Judges Case (1993), and In re Special Reference No. 1 of 1998 — the Third Judges Case
- The 1993 nine-judge Constitution Bench read primacy for the Chief Justice of India into the "consultation" requirement under Articles 124 and 217, without any constitutional amendment
- It is not mentioned anywhere in the constitutional text; it exists purely as a product of judicial interpretation, unlike the Election Commission, whose composition is explicitly left to parliamentary law under Article 324(2)
- A 2014 attempt to replace it — the National Judicial Appointments Commission (99th Amendment Act and NJAC Act, 2014) — was struck down as unconstitutional in Supreme Court Advocates-on-Record Association v. Union of India (2015) for violating judicial independence, part of the basic structure
The government's argument sought to justify greater executive say in EC appointments by pointing to judicial primacy in the Collegium; the remark pushed back on treating the two systems as equivalent, since one is judge-evolved and largely closed while the other is now a parliamentary statute open to constitutional challenge.
- Anoop Baranwal v. Union of India: decided 2 March 2023, five-judge bench led by Justice K.M. Joseph
- Interim committee under the judgment: PM, Leader of Opposition, CJI
- CEC and Other ECs Act, 2023 — Selection Committee: PM, Leader of Opposition, one PM-nominated Union Cabinet Minister (CJI excluded)
- Search Committee headed by the Union Law Minister; prepares a panel of 5 names
- Collegium system's constitutional basis: none in text; evolved via the Second Judges Case (1993) and Third Judges Case (1998) interpreting Articles 124 and 217
- NJAC (99th Amendment, 2014) struck down: 2015, on basic structure/judicial independence grounds