There is a debate on the procedure for appointment of the Chief Election Commissioner and Election Commissioners to the Election Commission of India. Analyse its various aspects. (2025, 15 Marks)
Article 324(2) vests the appointment of the CEC and Election Commissioners (ECs) in the President, “subject to the provisions of any law made in that behalf by Parliament”. B. R. Ambedkar conceded in the Constituent Assembly that the draft did not guard against nominating an unfit person, and left the safeguard to a future law. For 73 years no law came, and that gap is where the debate begins.
Constitutional and historical aspect
- H. N. Kunzru warned that a party loyalist chosen on the PM’s advice would poison democracy “at the source”; Shibban Lal Saksena wanted two-thirds parliamentary approval.
- In practice the President acted on the PM’s advice, with no criteria or committee and only a seniority convention.
Judicial aspect: Anoop Baranwal (2023)
A Constitution Bench led by Justice K. M. Joseph warned that a “pliable” Commission is the surest route to capturing power. It ordered that, until Parliament legislated, a committee of the PM, the Leader of Opposition (LoP) and the CJI would advise appointments.
Legislative aspect: the 2023 Act
- Selection committee: PM, LoP and a Cabinet Minister nominated by the PM. A search committee under the Law Minister shortlists five names, but the committee may look beyond them.
- Recommendations stay valid despite a vacancy on the committee, and eligibility is confined to Secretary-rank officers.
- For: it codifies an ad hoc practice, the Court’s panel was expressly interim, and appointment is an executive function answerable to Parliament.
- Against: a 2:1 government majority reproduces the defect the Court identified; the CJI’s exclusion removes the neutral tie-breaker used for the CBI Director; and the civil-service monopoly shuts out jurists and scholars.
Practice and litigation
- Gyanesh Kumar and Sukhbir Singh Sandhu were appointed in March 2024, days before the general election was announced, and the Supreme Court refused a stay.
- Kumar became CEC in February 2025 over the dissent of LoP Rahul Gandhi.
- On 23 September 2026 a two-judge bench split on referring the challenge to a Constitution Bench. Justice Dipankar Datta: “It is not enough for the ECI to be independent; it must also appear to be independent.” Justice Satish Chandra Sharma favoured a reference, and the CJI must now decide.
Removal asymmetry
Only the CEC enjoys judge-like removal protection. ECs can be removed on the CEC’s recommendation, so a dissenting Commissioner depends on the colleague he disagrees with.
Comparative practice and reform proposals
| Source | Model |
|---|---|
| Goswami Committee (1990) | Appointment in consultation with CJI and LoP |
| 2nd ARC (2007) | Collegium of PM, Speaker, LoP, Law Minister, RS Deputy Chairman |
| Law Commission, 255th Report (2015) | PM, LoP, CJI; equal removal protection for ECs |
| UK | Commons address, overseen by the Speaker’s Committee |
| USA (FEC) | Presidential nomination, Senate confirmation, party balance |
Conclusion
The core of the debate is whether one side in the contest should choose the umpire. Codification was overdue. Credible independence, however, needs a neutral counterweight: the CJI, the Speaker or a parliamentary supermajority, along with equal removal protection and wider eligibility. Appearance of independence is part of the ECI’s function, because the losing side must accept the result.