Who chooses India’s election commissioners — and why is the Supreme Court divided?
Papers on constitutional battle over Election Commission to be placed before Chief Justice
Who should choose the officials entrusted with overseeing elections in the world’s largest democracy?
That question is at the heart of an important constitutional battle before India’s Supreme Court, where two judges on Wednesday differed over whether challenges to a 2023 law governing the appointment of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs) needed to be heard by a five-judge Constitution Bench.
Justice Dipankar Datta rejected the Union government’s request to refer the case to a Constitution Bench, saying existing Supreme Court decisions had already settled the relevant constitutional principles and that the law could be tested against them, according to the Indian Express.
Justice Satish Chandra Sharma disagreed, holding that the case raised a substantial question of constitutional law that should be decided by a larger bench.
Despite that difference, the two judges agreed that sending the procedural question through another bench would only cause further delay. They directed that the papers be placed before Chief Justice of India Surya Kant to consider constituting a Constitution Bench to decide the validity of the 2023 law, the Indian Express and Bar & Bench reported.
Why is the appointment law controversial?
The dispute has its roots in a landmark Supreme Court ruling delivered in March 2023.
In Anoop Baranwal v Union of India, a five-judge Constitution Bench noted that Parliament had not enacted a law governing appointments to the Election Commission despite Article 324 of the Constitution contemplating legislation on the subject.
The court therefore established an interim arrangement: until Parliament passed a law, the President would appoint the CEC and ECs on the advice of a committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India.
The judgment emphasised the need for an Election Commission capable of functioning independently of executive influence.
Parliament subsequently enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
But the law changed the composition of the selection committee.
Instead of the Chief Justice of India, the panel comprises the Prime Minister, the Leader of the Opposition and a Union Cabinet minister nominated by the Prime Minister.
That means two of its three members are from the government.
Petitioners, including the Association for Democratic Reforms and Congress leader Jaya Thakur, challenged the law, arguing that excluding the CJI and giving the executive two places on the panel undermines the Election Commission’s independence.
Why did the judges differ?
Justice Datta held that a five-judge reference was not necessary because the Supreme Court had already laid down principles concerning free and fair elections and the institutional independence of the Election Commission. The question, in his view, was whether the 2023 law complied with those principles.
He also expressed prima facie concerns about the new selection mechanism.
Justice Datta said it was not enough for the Election Commission to be independent — it must also appear to be independent.
He questioned whether a Cabinet minister nominated by the Prime Minister could provide an independent counterweight on a committee where the Prime Minister is also a member. He observed that it would be “far-fetched” to expect such a minister to take a position contrary to the head of the government.
Justice Sharma disagreed with referring to the merits at this stage and concluded that the challenge raised a substantial constitutional question requiring consideration by a Constitution Bench.
What about ‘judges appoint judges’?
A second debate emerged from the case after Solicitor General Tushar Mehta referred to criticism of India’s Collegium system of judicial appointments.
Justice Datta rejected the frequently used description that the system amounted simply to “judges appointing judges”, calling it a “myth”.
He pointed out that judicial appointments involve consultation and vetting in which the executive, state governments and intelligence agencies have roles, with appointments ultimately made by the President.
Justice Datta also criticised what he described as the government’s practice of selectively clearing Collegium recommendations rather than dealing with them together.
The exchange arose in the context of the broader argument over whether executive dominance in an appointments process necessarily compromises institutional independence.
What happens next?
The most important point is what Wednesday’s ruling did not do.
The Supreme Court has not struck down the 2023 law, nor has it upheld it.
The disagreement before Justices Datta and Sharma centred on whether the challenge should be decided by the two-judge bench or referred to a Constitution Bench.
The papers will now go before the Chief Justice of India, with the judges asking him to consider constituting a Constitution Bench to decide the validity of the law and expressing hope that the matter will not face an “inordinate delay”.
