In December 2023, Parliament passed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, creating a statutory framework for appointments

The Supreme Court on Thursday questioned the exclusion of the Chief Justice of India (CJI) from the committee that appoints the chief election commissioner (CEC) and election commissioners (ECs), saying the Election Commission must not only act independently but must also be seen to act independently.

Hearing a batch of petitions challenging the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, a bench of Justices Dipankar Datta and Satish Chandra Sharma asked why Parliament had removed the CJI from the selection panel despite the top judge being part of the selection committees for the CBI Director and the Lokpal.

"Election Commissioner has to be an independent person. Should there not be a show of fairness? We are not saying fairness has not been achieved by this committee. Just like justice is not only to be done, it has to be shown to be done, we are on the second part," the bench observed, as per a report by Live Law.

The court has reserved its order on the Centre's request to refer the matter to a larger Constitution Bench.

How were Election Commissioners appointed before 2023?

Before the Supreme Court's landmark 2023 judgment, the appointment of the CEC and Election Commissioners was effectively controlled by the executive.

Article 324 of the Constitution empowers the President to appoint the CEC and ECs. In practice, however, appointments were made on the advice of the Union Council of Ministers. There was no statutory selection committee, formal search process or parliamentary law governing how candidates were chosen.

What changed after the Supreme Court's 2023 verdict?

On March 2, 2023, a five-judge Constitution Bench, in the Anoop Baranwal vs Union of India case, held that appointments made solely by the executive could undermine the independence of the Election Commission.

As an interim measure, the court directed that, until Parliament enacted a law, the President should appoint the CEC and ECs based on the recommendation 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)

-The Chief Justice of India

The court described the arrangement as temporary and clarified that it would remain in force only until Parliament enacted a law.

What did the 2023 law change?

In December 2023, Parliament passed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, creating a statutory framework for appointments.

Under the new law, a search committee headed by the union law minister prepares a panel of names. The appointment is to be made by the President on the recommendation of a selection

committee consisting of:

-The Prime Minister

-The Leader of the Opposition in the Lok Sabha (or the leader of the largest opposition party)

-A union cabinet minister nominated by the Prime Minister

The law replaced the Chief Justice of India with a union cabinet minister, giving the executive a two-to-one majority in the selection committee.

“The Chief Election Commissioner and other Election Commissioners shall be appointed from amongst persons who are holding or have held a post equivalent to the rank of Secretary to the Government of India and shall be persons of integrity, who have knowledge of and experience in management and conduct of elections,” the rule says.

Why has the law been challenged?

Several petitions filed by organisations and individuals, including the Association for Democratic Reforms, argue that replacing the CJI with a cabinet minister weakens the independence of the Election Commission.

The petitioners contend that the 2023 law defeats the purpose of the Supreme Court's Anoop Baranwal judgment by restoring executive dominance in the appointment process.

What has the Supreme Court said?

During Thursday's hearing, the bench repeatedly questioned the government's decision to create a selection committee with a two-to-one executive majority.

It observed that while the Prime Minister's integrity was not under question, appointments to an institution as important as the Election Commission must inspire public confidence.

"Why wouldn't we trust the Prime Minister? Of course we would trust the Prime Minister," the Court said.

What is the Centre's stand?

The Centre on Thursday told the Supreme Court that the mere numerical majority of the Prime Minister and union minister on the selection committee should not lead to the presumption that they would act in "bad faith" or undermine democracy.

"If his decision is not to be trusted and is to be seen as necessarily a bad-faith exercise, then why not have a provision that even while selecting his cabinet, he must consult some former judge or outsider?" Solicitor General Tushar Mehta told the bench.

Mehta also urged the matter to be referred to a larger bench under Article 145(3) of the Constitution as the matter involves a substantial question of law on constitutional interpretation.