Embracing a bipartisan and neutral collegium-based appointment system, drawing from global best practices would fortify the autonomy of the Election Commission of India

As the world’s largest democracy, India has long prided itself on conducting free and fair elections. The Election Commission of India (ECI) has been the cornerstone of this democratic process, ensuring electoral integrity. However, the appointment process of election commissioners (ECs) has been questioned for years, raising serious concerns about the autonomy and impartiality of this vital institution.

In India, several civil society organisations (CSOs), besides the BJP’s senior leader L K Advani, have been advocating for a transparent and bipartisan appointment process to the Election Commission to ensure its independence and impartiality. Notable among these organisations are: Association for Democratic Reforms, Internet Freedom Foundation, Common Cause, Lok Satta Movement, and India Rejuvenation Initiative, among others.

The Association for Democratic Reforms (ADR) has been at the forefront of this demand. However, despite multiple legal challenges, the Supreme Court has not demonstrated the urgency required to address this critical issue that is directly related to India’s democratic process and the perception of the ECI in the public mind.

The ADR’s first petition for this reform was filed in 2015 when it challenged the exclusive executive control over appointing election commissioners, arguing that it compromised the independence of the ECI. After a long wait, it was referred to a Constitution Bench in 2018, but despite the critical nature of the case, the Supreme Court did not expedite hearings, allowing, in the meanwhile, multiple EC appointments under the existing framework.

On March 2, 2023, the Supreme Court, in the case of Anoop Baranwal vs Union of India, observed that despite the constitutional provision under Article 324(2), which expected that Parliament would enact a law detailing the appointment procedure for these positions, no such legislation had been passed in over seven decades. The Court directed that until Parliament enacted a relevant law, the appointment of the CEC and ECs should be made by the President based on the recommendations of a committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India.

In December 2023, Parliament passed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023, excluding the CJI from the selection panel (although it was included in the first Bill which was later withdrawn) and instead vested the power with a committee consisting of the Prime Minister, a Union cabinet minister (nominated by the PM), and the Leader of the Opposition.

In effect, the executive overturned the spirit of the SC ruling through the 2023 Act, effectively creating/perpetuating a partisan collegium with the PM and a cabinet minister (instead of the CJI) making the third member — the LoP — irrelevant. To say the least, it’s bad optics.

The ADR, along with other petitioners, challenged the constitutionality of the Act in January 2024, arguing that it effectively killed the transparent and bipartisan process that was the spirit of the order and allowed the ruling party to dominate the selection process. The government took advantage of the fact that the Court had prescribed the collegium, which was to include the CJI, only till the law was passed.

The Supreme Court refused to grant an interim stay on the Act, allowing the executive to proceed with fresh appointments under the new law. In March 2024, the government appointed two ECs under the new selection process, despite the case being under judicial review, presenting a fait accompli. The Court did not act.

The ADR and other petitioners sought urgent intervention to prevent appointments under the contested law, as the incumbent CEC was scheduled to retire on February 18, 2025, but the Supreme Court scheduled the next hearing for February 19, 2025.The SC refused to advance the hearing by just a couple of days, before the retirement of the current CEC. The government went ahead with the appointment by a midnight order.

On February 19, 2025, the new CEC and an EC joined the Commission who, by the way, are brilliant officers with excellent records. But that is beside the point. The hearing initially scheduled for February 19 was adjourned without a new date, prolonging the uncertainty surrounding the legitimacy of the current appointment process. It will be interesting to see any “consequences”, as the court had promised.

I have often said that the most powerful Election Commission in the world has the most flawed system of appointment. All democracies have a transparent and bipartisan appointment process. Let’s have a look at some.

In the US, commissioners are appointed by the president with the advice and consent of the Senate. In South Africa, they are appointed by the president on the recommendation of the National Assembly. In Brazil, they are appointed by the Federal Supreme Court. In the UK, the appointment is made by the Speaker’s Committee on the Electoral Commission with cross-party membership. In France, the appointment is done jointly by the president, legislature and judiciary. In Nepal, the president appoints the CEC and ECs on the recommendation of the constitutional council followed by a parliamentary hearing.

The integrity of India’s electoral process hinges on the independence and impartiality of the Election Commission, real and visible. Optics are important for public perception. The recent appointments, made under a contentious legal framework and amidst pending judicial review, have left the issue unresolved. Embracing a bipartisan and neutral collegium-based appointment system, drawing from global best practices, would not only fortify the ECI’s autonomy but also bolster public confidence in the democratic process.

If the government just brings the CJI back into the collegium, the litigation would collapse. We need to wait and see whether the executive has the will to do the right thing.