Ans. A five-judge bench of the Supreme Court (SC) unanimously ruled that the appointment of the Chief Election Commissioner and the Election Commissioners shall be made by the President on the advice of a Committee consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha and Chief Justice of India (CJI).

Constitutional Framework for Appointment

The appointment of Election Commissioners is governed by Article 324 of the Indian Constitution, which vests the power of superintendence, direction, and control of elections in the ECI. The Chief Election Commissioner (CEC) and Election Commissioners (ECs) are appointed by the President of India. Historically, this process has been under the exclusive purview of the executive, but recent developments have sought to make the process more inclusive and transparent.

The Appointment Process

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, outlines the current procedure for appointments.

The President appoints the CEC and ECs based on the recommendations of a Selection Committee, which includes the Prime Minister, a Union Cabinet Minister, and the Leader of the Opposition or leader of the largest opposition party in the Lok Sabha.

A Search Committee, headed by the Law Minister, proposes a panel of names to the Selection Committee, ensuring a thorough and rigorous selection process.

Highlight of the verdict

The Court’s verdict is based on a reading of the debates of the Constituent Assembly to ascertain what the founding members of the Constitution envisaged the process to be and an interpretation of similar provisions in the Constitution
The verdict states that a “golden thread runs through” the proceedings of the Constituent Assembly debates on the provision. “All the Members were of the clear view that elections must be conducted by an independent Commission. It was a radical departure from the regime prevailing under the Government of India Act, 1935
The deliberate addition of the words “subject to the provisions of any law made in that behalf by Parliament” after prolonged discussions
The ruling examined a number of provisions in the Constitution, including the ones relating to the powers of the Supreme Court and High Court; establishing the SC, ST and Backward Classes Commissions, etc. where the Constitution uses the phrase “subject to the provisions of any law made by Parliament”.
The Court finds that while a legislation has been supplemented for those provisions, there is no law on appointment of the CEC even 70 years after independence.
On the issue of whether the process of removal of Election Commissioners must be the same as it is for the CEC, the Court ruled that it cannot be the same.
The Constitution states that the CEC can be removed in a process similar to a judge through a majority in both houses of Parliament on grounds of proven incapacity or misbehaviour
On the issue of funding the EC, the Court left it to the government “We would only make an appeal on the basis that there is an urgent need to provide for a permanent Secretariat and also to provide that the expenditure be charged on the Consolidated Fund of India and it is for the Union of India to seriously consider bringing in the much-needed changes,” the ruling stated.

Supreme Court’s Observations

In Anoop Baranwal versus Union of India, a five-member Constitution Bench ruled that it was the intention of the makers of the Constitution that the power to appoint the CEC and other ECs was not meant to be given exclusively to the executive and that the power was to be exercised “subject to any law made by Parliament.
Recently, the Supreme Court dismissed the application seeking a stay on the new procedure for appointing new election commissioners while asking the Centre to file a response within six weeks on the petitions that challenged constitutional validity of the Chief Election Commissioner and Other Election Commissioners Act, 2023.
The Court’s emphasis was on the ECI’s independence from the executive so that the elections the panel conducts are truly free and fair.

Existing Challenge

As the constitution places the power to make any law on appointment of ECI in the hands of Parliament, SC ruling on this issue poses a question of Separation of Power.
However, SC has stated that this ruling will be subject to any law made by parliament, which means parliament can bring a law to undo it.
Another view is that since there is no law made by parliament on this issue, the Court must step in to fill the “constitutional vacuum.”

Conclusion: In moving forward, it's imperative to restore balance in election commissioner appointments, ensuring judicial oversight, transperancy and inclusivity. Legislative reforms should reflect constitutional principles, safeguarding the independence of constitutional bodies and preserving democratic integrity.

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