The Supreme Court on Thursday (May 7) described Parliament’s decades-long delay in enacting a law for appointments to the Election Commission, until it was directed to do so in 2023, as “tyranny of the elected”.
A bench of Justices Dipankar Datta and Satish Chandra Sharma was hearing challenges to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
This law, introduced to address the legislative gap, came under legal challenge in 2024 as it removed the Chief Justice of India (CJI) from the selection panel for Election Commissioners, replacing the CJI with a Union Cabinet minister appointed by the Prime Minister.
In fact, when Prime Minister Narendra Modi, Home Minister Amit Shah and Leader of Opposition Rahul Gandhi met in February 2025 to appoint current CEC Gyanesh Kumar, Gandhi gave a dissent note, asking the government to defer appointments until the SC decided on the petitions challenging the new appointment process.
How are Election Commissioners appointed?
Article 324(2) of the Constitution states that Election Commissioners should be appointed in a manner “subject to the provisions of any law made in that behalf by Parliament.”
While the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, regulated salaries, tenure and the commission’s functioning, it did not cover appointments.
In the absence of such a law, appointments remained under the executive’s domain. The Union Law Ministry would prepare a panel, suggesting names to the PM, whose recommendation would go to the President. Over time, ECs were almost always drawn from the bureaucracy, and the senior-most EC would usually become the CEC.
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In 2022, petitioners argued before the Supreme Court (Anoop Baranwal vs Union of India) that this effectively left appointments in the hands of the government of the day, compromising the independence of the body tasked with conducting elections.
During the hearing of the case in November 2022, former IAS officer Arun Goel was appointed as an Election Commissioner — the post had been vacant since May that year. The court said Goel’s appointment left it “mystified”, given that the entire process was completed in a day. It also questioned the legislature’s silence on the selection of the CEC and ECs.
What was the Supreme Court’s 2023 Anoop Baranwal ruling?
In its March 2023 ruling in Anoop Baranwal vs Union of India, the Supreme Court laid down an interim process for appointing Election Commissioners until Parliament enacted a law on the issue.
It said that the President shall make CEC and EC appointments on the advice of a three-member committee “consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and in case no leader of the Opposition is available, the leader of the largest opposition party in the Lok Sabha in terms of numerical strength and the Chief Justice of India.”
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The decision was rooted in the need to ensure that elections are conducted fairly and legally, with an independent body essential to insulate the democratic process from executive interference. The bench referred to Constituent Assembly debates for the drafting of the Constitution, recalling B R Ambedkar’s warning that those in charge of elections should not come “under the thumb of the executive.”
The court held that the EC is like a “guardian of democracy”, and that the individuals overseeing elections must act impartially and honestly.
The Anoop Baranwal judgment also expanded the understanding of voting rights. The bench held that the right to vote flows from the Constitution and that casting a vote is a part of freedom of expression guaranteed under Article 19(1)(a).
The court then made what it called a “fervent appeal” to Parliament to strengthen the Election Commission institutionally and financially. It asked the government to consider creating an independent secretariat and charging the commission’s expenditure to the Consolidated Fund of India, warning against situations where the executive could indirectly influence the poll body by “starving it” of its resources.
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What the 2023 law on EC appointments said
After the Anoop Baranwal judgment, Parliament enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act in 2023. The new law replaced the CJI with a Union Cabinet minister nominated by the PM under Section 7(1). This gave the executive representation in all three seats of the selection panel, with government ministers in two of the three seats.
Further, under Section 7(2), the Act ensures that an appointment “shall not be invalid merely by reason of any vacancy in or any defect in the constitution of the Selection Committee.”
In 2024, petitioners such as the NGO Association for Democratic Reforms (ADR) challenged this law. The plea argues that the law restores the executive’s power and dominance over appointments and defeats the principle held in Anoop Baranwal — that the EC must be insulated from executive interference.
The 2023 Act also creates a two-pronged process involving a search committee headed by the Law Minister under Section 6, which prepares a panel of names for the selection committee. But under Section 8(2), the selection committee is not bound by that shortlist and can consider “any other person” meeting the eligibility criteria. This gives the panel wide discretion to bypass the formal search process altogether.
What did Supreme Court say now?
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On Thursday, Justice Datta observed during arguments that the Anoop Baranwal judgment was only meant to “fill the vacuum till the law is made” and did not say Parliament had to frame the law “in a particular manner.”
The court asked Advocate Prashant Bhushan, who was representing the petitioner ADR, “What happened before Baranwal? Why did Parliament not make a law?”
Bhushan said, “Every time that a government came to power, they felt that now they can misuse this power of appointment. And that is noted in this judgement in Baranwal also, that while in opposition, people were clamouring that there should be an independent body, (but) as soon as they came to power, they stopped bothering about that… that is why the court had to step in.”
Justice Datta said he is “reminded of a parliamentarian saying tyranny of the unelected” and added, “This should be equated with tyranny of the elected.”
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During the hearing, Justice Datta also said: “But was there a proper debate in the Parliament about the Anoop Baranwal judgment? Is the ethos voiced in the judgment reflected in the Parliamentary debates… That is not clear.
Senior Advocate Shadan Farasat responded that there had been no proper debate in Parliament. And Bhushan said: “There was virtually no debate because a number of MPs were suspended.”
