The Supreme Court of India expressed concern over successive governments failing to enact legislation ensuring the independent functioning of the Election Commission of India during hearings challenging the validity of the 2023 appointment law.
The Supreme Court of India voiced concern about the repeated failure of successive governments to pass legislation that would ensure the independent functioning of the Election Commission of India. The remarks were made while the Court heard petitions questioning the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
A Bench led by Justices Dipankar Datta and Satish Chandra Sharma asked why Parliament had not framed, for decades, a law for regulating appointments to the Election Commission despite constitutional expectations. During the hearing, Justice Datta asked advocate Prashant Bhushan, who appeared for the Association for Democratic Reforms:
“Why did parliament not make a law before Baranwal (judgment)?”
The Court referred to the landmark 2023 Constitution Bench decision in Anoop Baranwal v. Union of India. In that ruling, the Supreme Court held that until Parliament makes a law, Election Commissioners would be appointed through a committee consisting of the Prime Minister, the Leader of Opposition, and the Chief Justice of India.
Replying to the Bench, Bhushan argued that governments across political parties had benefited from the lack of a statutory mechanism, which he said strengthened executive influence over appointments.
He submitted,
“Because every government took advantage of it. So they can misuse the appointment. When people were in opposition, they were clamouring that there should be an independent body, but when they came to power, they stopped bothering about it,”
Justice Datta then remarked,
“I am reminded of a parliamentarian saying tyranny of the unelected. This should be equated with tyranny of the elected. Tyranny of the majority.”
The Bench also observed that governments of different political persuasions appeared to adopt a similar approach after coming to power.
Justice Datta noted,
“Whoever comes to power is doing the same thing. It is unfortunate for the country. I saw a video of the BBC on Dr. Ambedkar. Within 3 years of the Constitution, he said that democracy is not working in this country,”
Bhushan argued that despite repeated judicial efforts to strengthen democratic institutions, political parties often abandoned their earlier calls for institutional independence after taking office. The Court agreed, stating that the situation was very unfortunate.
The petitions challenge the 2023 law that governs Election Commission appointments. Under the Act, the Selection Committee comprises the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister, and the Leader of Opposition in the Lok Sabha. Petitioners contend that the law undermines the Election Commission’s independence by excluding the Chief Justice of India and by giving the executive an overwhelming role in the appointment process.
They further claim the law weakens the approach set out in the Anoop Baranwal judgment. They argued that since both the Prime Minister and a minister nominated by him would be part of the selection panel, the executive would effectively have decisive control over appointments to the constitutional authority responsible for conducting free and fair elections.
At the start of the hearing, the Bench clarified that the Anoop Baranwal arrangement was meant to be temporary operating only until Parliament enacted legislation.
The Court observed,
“Anoop Baranwal was to operate in the interregnum. Till parliament frames the law. Is there any observation in the judgment that when parliament frames the law, our observations must be kept in mind? They could have said so. The CJI being in the committee was operational only when there was a vacuum…”
Senior Advocate Vijay Hansaria, appearing for some petitioners, said that although Parliament has the power to legislate, any law passed must still meet constitutional requirements regarding institutional independence.
He submitted,
“But that is the constitutional scheme…I am not saying that Lordships should frame a law. But when a law is framed, Your Lordships checks whether it follows constitutional norms. Baranwal doesn’t just speak about composition. It said this is what the constitutional requirement is,”
Senior Advocate Shadan Farasat also pointed out that many Opposition MPs were suspended during the passage of the legislation in Parliament. The Bench then reviewed the pleadings and noted that certain challenges to Sections 7 and 8 of the Act had not been properly presented.
The Court also criticised shortcomings in some of the petitions. While referring to Bhushan’s submission, the Bench stated,
“This is how petitions are filed? One petition in Mr. Hansaria there are no pleadings. This is not the way. This we have seen only in the Supreme Court. This has to be cured. We are not saying we will not entertain based on this but you will have to cure.”
Bhushan assured the Court that the defects would be corrected immediately.
During the hearing, the Bench considered allegations that the government fast-tracked the appointment process for Election Commissioners in March 2024. Hansaria suggested the appointments were rushed because the government anticipated the Supreme Court would hear a plea seeking a stay on the following day.
The Court, however, questioned whether such motives could be assumed without specific evidence.
The Bench observed,
“Can you attribute any motive without saying that the Union knew that 15th would be when the matter would come up? You are suggesting that they had knowledge that 15th, the stay application would come up, to frustrate that they conducted it on 14th March,”
Bhushan further argued that the law was passed without meaningful debate in Parliament because many Opposition MPs were suspended at the time. Referring to objections raised by Lok Sabha MP Asaduddin Owaisi during the discussion, Bhushan said the government failed to address key constitutional concerns. He argued that It was a farce and there was no meaningful debate. The minister did not answer the substantive objection raised by Mr. Owaisi.
He also maintained that institutional independence cannot be guaranteed merely by shielding officials from arbitrary removal. Bhushan argued that independence is not ensured only because removal can be done by impeachment. But to ensure independence, you also have to ensure that the appointment is not controlled by the ruling party.
Bhushan compared the issue to the Supreme Court’s decision striking down the National Judicial Appointments Commission (NJAC). He argued that even a constitutional amendment that undermines institutional independence could be invalidated if it violates the basic structure of the Constitution. He submitted that this case was squarely covered by at least 5 Constitution Bench judgments.
The hearing is part of an ongoing constitutional challenge focused on the balance between executive power and institutional independence in appointments to one of India’s most important constitutional bodies. The Supreme Court is expected to continue hearing arguments on the 2023 law’s validity in the coming days.
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