The 2023 Law on CEC Appointment
Context:
The Supreme Court is currently hearing petitions challenging the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
The Court recently noted that this legislation was enacted by Parliament to fill a "legislative vacuum" regarding the appointment mechanism for Election Commissioners.
Historical Process & The Anoop Baranwal Case:
Article 324(2) of the Constitution states that the President shall appoint Election Commissioners in a manner "as Parliament may by law provide."
However, since Independence, no such law existed.
Appointments were traditionally made by the President entirely on the advice of the Prime Minister and the Council of Ministers.
In March 2023, the Supreme Court delivered a landmark judgment in the Anoop Baranwal vs Union of India case.
To ensure the institution's independence, the Constitution Bench ruled that appointments must be made by a three-member committee comprising the Prime Minister, the Leader of the Opposition (LoP), and the Chief Justice of India (CJI).
Crucially, the Court stated this arrangement would operate only until Parliament enacted a formal law.
The 2023 Act and the New Selection Panel:
Parliament subsequently passed the 2023 Act, which fundamentally altered the Supreme Court's temporary arrangement.
The new law explicitly excluded the CJI from the selection panel, replacing the position with a Union Cabinet Minister nominated by the Prime Minister.
The selection committee now consists of the PM, the LoP, and a Union Cabinet Minister.
This structure effectively ensures a 2-1 majority for the ruling government, granting the Executive overwhelming control over the selection process.
The Current Legal Challenge:
Petitioners argue that the 2023 Act defeats the purpose of the Anoop Baranwal judgment and violates the independence of the Election Commission.
They contend that free and fair elections form a part of the Constitution's basic structure, demanding institutional neutrality.
While the Bench (including Justice Dipankar Datta) questioned if courts can compel Parliament to legislate in a specific manner, petitioners maintain that Parliament's legislative powers remain subject to strict constitutional limitations, particularly regarding the separation of powers and the independence of constitutional bodies.