Tyranny of the Elected’: Election Commission Appointment Procedure

Constitutional Provision: Article 324(2)

Article 324(2) provides that the Chief Election Commissioner and Election Commissioners shall be appointed by the President, subject to any law made by Parliament.

This means:

• Parliament can make a law for the appointment process.
• Until such a law is made, appointments follow the existing executive process.
• For many decades, no specific law existed for appointments.

Position Before the 2023 Law

Before the 2023 Act, there was no law specifically dealing with appointment of the CEC and ECs.

The Election Commission Act, 1991 dealt with:

• Salaries
• Tenure
• Conditions of service
• Transaction of business

But it did not deal with the appointment procedure.

Earlier Appointment Process

Earlier, the process was largely controlled by the executive:

1. The Union Law Ministry prepared a panel of names.
2. The names were sent to the Prime Minister.
3. The Prime Minister recommended a name to the President.
4. The President made the appointment.

Usually, Election Commissioners were selected from the bureaucracy, and the senior-most Election Commissioner became the Chief Election Commissioner.

Election Commission as a Three-Member Body

The Election Commission consists of:

• One Chief Election Commissioner
• Two Election Commissioners

All three are equal in status, but the CEC is considered first among equals.

Why the Earlier System Was Questioned

In Anoop Baranwal vs Union of India, petitioners argued that the executive had too much control over Election Commission appointments.

They said this could affect the independence of the Election Commission, which is essential for free and fair elections.

Arun Goel Appointment Issue

• During the Anoop Baranwal case, former IAS officer Arun Goel was appointed as Election Commissioner in November 2022.
• The Supreme Court questioned the appointment because the entire process was completed in one day.
• The Court also questioned why Parliament had not made a law for appointments for so many decades.

Supreme Court’s 2023 Anoop Baranwal Judgment

In March 2023, the Supreme Court laid down an interim appointment process until Parliament made a law.

The Court said appointments should be made on the advice of a committee consisting of:

If there was no Leader of Opposition, the leader of the largest opposition party in the Lok Sabha would be included.

Supreme Court’s Reasoning

The Court said that the Election Commission must be protected from executive interference.

It described the Election Commission as a “guardian of democracy.”

The Court also referred to B. R. Ambedkar’s warning that election authorities should not come “under the thumb of the executive.”

Persons overseeing elections must act:

• Impartially
• Honestly
• Independently
• Without executive pressure

Voting Rights and Article 19(1)(a)

The Court also held that:

• The right to vote flows from the Constitution.
• Casting a vote is part of freedom of expression under Article 19(1)(a).

Thus, the case was important for both Election Commission independence and democratic rights.

Supreme Court’s Appeal to Parliament

The Court asked Parliament to strengthen the Election Commission by considering:

• An independent secretariat
• Expenditure charged to the Consolidated Fund of India

The Court warned that the executive could influence the Election Commission by controlling its resources.

Chief Election Commissioner and Other Election Commissioners Act, 2023

After the judgment, Parliament enacted the Chief Election Commissioner and Other Election Commissioners Act, 2023.

The Act laid down the appointment procedure for:

• Chief Election Commissioner
• Election Commissioners

For the first time, a statutory process was used for appointments.

Selection Committee Under the 2023 Act

The Selection Committee consists of:

The Act replaced the Chief Justice of India with a Union Cabinet Minister.

This became the main point of legal challenge.

Why the 2023 Act Became Controversial

The Act gives the executive a strong position in the committee.

Out of three members:

• Prime Minister belongs to the executive.
• Cabinet Minister also belongs to the executive.
• Leader of Opposition is the only non-government member.

Petitioners argue that this gives the government effective control over appointments.

Search Committee Under the 2023 Act

The Act also creates a Search Committee.

It is headed by the Law Minister and includes two senior bureaucrats.

Its function is to prepare a shortlist of five candidates for the Selection Committee.

Power to Go Beyond Shortlist

Under Section 8, the Selection Committee can consider names beyond the shortlisted candidates.

This gives the Selection Committee wide discretion.

Eligibility Conditions

The CEC and ECs must be persons who:

• Hold or have held a post equivalent to Secretary to the Government of India
• Are persons of integrity
• Have knowledge and experience in management and conduct of elections

Tenure and Reappointment

The Act provides that:

• CEC and ECs are not eligible for reappointment.
• If an EC becomes CEC, the total term as EC and CEC cannot exceed six years.

Section 7(2)

Section 7(2) says an appointment shall not become invalid merely due to:

• Vacancy in the Selection Committee
• Defect in constitution of the Selection Committee

Legal Challenge

In 2024, petitioners including Association for Democratic Reforms challenged the 2023 Act.

Their main argument is that the law restores executive dominance and goes against the principle of insulating the Election Commission from executive interference.

Key Constitutional Question

The main question is:

Can Parliament override or modify a Constitution Bench judgment through legislation or ordinance?

This question arose because the Supreme Court had included the CJI in the interim panel, but the 2023 law replaced the CJI with a Cabinet Minister.

Appointment of Gyanesh Kumar as CEC

In February 2025, the Selection Committee met to appoint the new CEC.

The committee consisted of:

Former IAS officer Gyanesh Kumar was appointed as the Chief Election Commissioner.

He succeeded Rajiv Kumar, who retired on February 18, 2025.

Gyanesh Kumar’s appointment took effect from February 19, 2025.

Appointment of Vivek Joshi

Along with Gyanesh Kumar’s appointment as CEC, Vivek Joshi, an IAS officer of the 1989 batch, was appointed as an Election Commissioner.

Seniority Issue

• Under the earlier convention, the senior-most EC usually became CEC.
• Gyanesh Kumar and Sukhbir Singh Sandhu were appointed as ECs on the same day, March 14, 2024.
• Gyanesh Kumar was treated as senior because his name appeared first in the appointment notification.
• Thus, under the old convention also, he would likely have become CEC.

Why the Appointment Did Not Settle the Issue

The legal challenge to the 2023 Act is still pending.

The Supreme Court had said that the consequences of its final decision would apply even if appointments were made in the meantime.

Supreme Court’s Recent Observations

Justice Dipankar Datta observed that the Anoop Baranwal judgment was only meant to “fill the vacuum till the law is made.”

He also said that the judgment did not say Parliament must make the law in a particular manner.

However, the Court questioned why Parliament had not made such a law earlier.

Meaning of “Tyranny of the Elected”

Prashant Bhushan argued that governments avoided creating an independent appointment process because they wanted to retain control once in power.

Justice Datta responded that this could be called “tyranny of the elected.”

It means elected governments may misuse or neglect their power when they fail to protect constitutional institutions.

Parliamentary Debate Issue

The Supreme Court also asked whether Parliament properly debated the spirit of the Anoop Baranwal judgment.

Senior Advocate Shadan Farasat said there was no proper debate.

Prashant Bhushan said there was virtually no debate because many MPs were suspended.