Supreme Court of India. File. | Photo credit: SUSHIL KUMAR VERMA
The Supreme Court on Thursday (7 May 2026) asked whether there was a “proper debate” in Parliament on the “ethos” of its 2023 judgment that took the appointment of Election Commission of India members out of the exclusive hands of the political executive, namely “a party not unnaturally interested in holding on to power”.
In the 2023 judgment in Anoop Baranwal v. Union of India, the Constitutional Court replaced the mechanism of the President appointing the Chief Election Commissioner and the Election Commissioner on the recommendation of the Prime Minister with a participatory appointment process involving a three-member selection committee of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India. The court said the committee would continue to function until Parliament passed a law to replace it.
The Union government responded to this judgment within months by introducing a law that reverted to the executive’s dominant role in appointing the CEC and EC. Under the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Tenure) Act, 2023, the CJI was replaced in the Selection Committee by a Union Cabinet Minister appointed by the Prime Minister.
Opposition representatives suspended before the debate
“But was there a proper debate in Parliament on the Anoop Baranwal judgment? Is the ethos expressed in the judgment reflected in the parliamentary debates… That is not clear,” said Justice Dipankar Datta, who headed a bench comprising himself and Justice Satish Chandra Sharma.
Senior advocate Shadan Farasat, who appeared as an intervener, said the passage of the bill was preceded by a mass expulsion of opposition MPs. “There was no proper debate in parliament,” he said.
“Most of the opposition was suspended. (AIMIM MP Asaduddin) Owaisi was the only dissenter. He made substantive submissions that the proposed law was inconsistent with the Anoop Baranwal judgment. The law minister replied that ‘the court asked us to make a law, we did so’,” said advocate Prashant Bhushan for the Association for Democratic Reforms.
Inadequate protective measures
Mr. Bhushan said that the possibility of removing the CEC by impeachment was not a sufficient guarantee to protect the independence of the Election Commission. Appointments to the highest electoral body should also be independent and transparent, he added.
Advocate Kaleeswaram Raj, appearing for activist CR Neelakandan, pointed out that long before the Anoop Baranwal judgment, the Supreme Court had emphasized the “principle of free and fair elections” in 1975 in the landmark case of Indira Nehru Gandhi versus Raj Narain, a decision that triggered the Emergency.
He said that in a 1975 jurisprudence, the Supreme Court held fair and free elections as “a basic postulate of democracy, which is, on the contrary, part of the basic structure of the Constitution”.
“Other states have affirmed the independence of the Election Commission as a fourth branch institution or an autonomous democracy-promoting institution,” said Mr. Raj.
Senior advocate Vijay Hansaria, for petitioner-activist Jaya Thakur, said, “Executive dominance in Election Commission appointments creates a chilling and real impact on electoral integrity and fairness… A compromised EC sets a dangerous precedent for the erosion of other independent institutions.”
Published – 07 May 2026 21:39 IST
