“Appear Independent...” Supreme Court Questions EC Selection Panel With PM, Cabinet Minister On One Side and LoP on Other

The Supreme Court on Thursday expressed serious reservations about the structure of the selection committee for appointing the Chief Election Commissioner (CEC) and Election Commissioners (ECs) under the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The bench observed that the presence of a Union Cabinet Minister, nominated by the Prime Minister, alongside the PM and the Leader of Opposition (LoP), risks undermining public perception of the Election Commission’s independence.

A two-judge bench of Justices Dipankar Datta and Satish Chandra Sharma was hearing a batch of petitions challenging the constitutional validity of the 2023 Act. The law replaced the Chief Justice of India (CJI) - who was part of the interim selection committee mandated by the Supreme Court’s 2023 Constitution Bench judgment in ‘Anoop Baranwal v. Union of India’ matter - with a Cabinet Minister chosen by the Prime Minister.

Justice Datta pointedly asked Attorney General R. Venkataramani: “It is not sufficient to be independent but it has to appear to be independent… The third member should be somebody who is a neutral person. Why should it be a Minister from the Cabinet?” He emphasised that the level of public confidence in the process must be equivalent to having a genuinely neutral third member.

The bench highlighted that if the Cabinet Minister is expected to align with the Prime Minister, any disagreement between the PM and the LoP would almost invariably result in a 2-1 decision favouring the executive. Justice Datta remarked, “Why do you then include the leader of the opposition? He’s ornamental… Why do you put up this show of independence in the body? Will a member of cabinet go against the Prime Minister?”

Petitioners, including organisations like Lok Prahari and individuals such as Dr. Jaya Thakur, argued that the Act gives the executive dominant control over appointments to the institution tasked with conducting free and fair elections - a basic feature of the Constitution under Article 324. They contended that both the Search Committee (headed by the Cabinet Secretary) and the Selection Committee are heavily tilted towards the government, rendering the LoP’s participation largely symbolic.

The Attorney General defended the legislation, submitting that Parliament was competent to enact the law following the ‘Anoop Baranwal’ judgment, which he described as an interim arrangement under Article 142 to address a legislative vacuum. He argued that the independence of the Election Commission should be judged by the functioning of its members rather than the composition of the selection panel alone.

Justice Datta clarified that the court was not examining what the “best” model should be, but whether the enacted law complies with constitutional principles of independence and equality. The hearing, which has touched upon issues like the adequacy of parliamentary debate on the Bill and the broader need to safeguard institutional autonomy, is likely to continue. No immediate stay has been granted on appointments made under the 2023 Act.

The controversy stems from long-standing concerns about ensuring the Election Commission’s insulation from executive influence, especially given its critical role in upholding India’s democratic process. The Election Commission of India (ECI) and Chief Election Commissioner have faced intense criticism from opposition parties, including Congress, AAP, and TMC, over alleged erosion of neutrality and fairness in the electoral process. Opposition leaders have repeatedly accused the poll panel of enabling “vote chori” (vote theft) through irregularities in voter lists and manipulation that allegedly favoured the BJP in the 2024 Lok Sabha polls as well as Assembly elections in Haryana and Maharashtra. They have also strongly criticised the manner in which the Special Intensive Revision (SIR) of electoral rolls was conducted in West Bengal, alleging large scale deletion of genuine voters, harassment during the exercise, and lack of transparency, with claims that deletions in several constituencies exceeded victory margins. The ECI has rejected these allegations, maintaining that its processes are robust and aimed at cleaning electoral rolls.