Representative image | Photo credit: The Hindu
The Supreme Court on Wednesday (May 6, 2026) interpreted that the involvement of the Chief Justice of India (CJI) in the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) was to last only until Parliament came up with a law.
The court’s observation was in response to numerous petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Tenure) Act, 2023.
The petitioners, which include the NGO Association for Democratic Reforms and activist Jaya Thakur, said the 2023 Act vested the then Political Executive with dominant, if not “exclusive” control over CEC and EC appointments.
The 2023 law was introduced in December 2023, ostensibly to challenge the Constitutional Court ruling in March of that year. This judgment declared that the appointment of the CEC and EC should be made on the recommendation of a committee of the Prime Minister, the Leader of the Opposition in the Lok Sabha or the leader of the largest opposition party in the Lok Sabha and the Chief Justice of India (CJI).
The court ordered that its judgment would remain in force until “Parliament enacts a law in accordance with Article 324(2) of the Constitution”.
As a result, the government brought the Bill 2023 to replace the CJI with a Union Cabinet Minister in the committee. The current CEC, Gyanesh Kumar, was the first to be appointed to the office under the new law.
On Wednesday, senior advocate Vijay Hansaria, appearing for the petitioners, said the framers of the Constitution and the Supreme Court itself never intended the CEC to be the “prime minister’s man”.
Mr Hansaria said both the framers of the constitution and the Supreme Court had warned against leaving the appointment of election commissioners solely in the hands of the executive.
He referred to the Supreme Court’s own observations in the March 2023 Constitutional Court judgment (Anoop Baranwal v Union of India) that the “fierce independence, neutrality and probity” envisaged in the institution of the Election Commission of India required an end to government monopoly and “exclusive control” over appointments to the highest electoral body.
Prior to the judgment, the CEC and EC were appointed by the President on the advice of the Prime Minister. The judgment brought the appointment process on par with that of the CBI director.
However, Justice Dipankar Datta emphasized that even the Supreme Court intended the judgment to be valid only until Parliament passed the law.
“Are you saying that Parliament had no power to legislate? Or can Parliament be given a mandate to only make law in a certain way?” Justice Datta asked.
Senior advocate Gopal Sankaranarayanan, also appearing for the petitioners, said their case was not just about replacing the CJI with a cabinet minister in the committee. The challenge also challenged the constitutionality of the law, which effectively returned control of CEC and EC appointments to the executive.
“The point is that the appointment of the electoral commission cannot be under the control of the executive,” he said.
Mr. Sankaranarayan said the Anoop Baranwal judgment addressed a “legislative vacuum”. Before March 2023, the President, on the advice of the Prime Minister, made the appointment of the CEC and the EC. The judgment called it a “transitional or temporary arrangement” that lasted seven decades. The “arrangement” ensured that the power to appoint rested with the political executive.
“This mechanism was supposed to stop in the 1950s, but whichever party came to power found the arrangement convenient and continued,” Mr. Sankaranarayanan said.
Arguments will continue on Thursday (May 7, 2026).
Published – 06 May 2026 17:33 IST
