On 23 September, a two-judge Bench of the Supreme Court split on whether the challenge to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 needs a Constitution Bench. Justice Dipankar Datta held that Anoop Baranwal v. Union of India, had already settled the governing principles and that the Court needed only to test the 2023 law against them. Justice Satish Chandra Sharma held that the question of whether Parliament could exclude a neutral selector from the appointment committee was a substantial question of constitutional interpretation arising for the first time, and that Article 145(3) reserves such questions for a larger Bench. Both judges agreed that the papers should go to Chief Justice Surya Kant. The question before the larger Bench is narrower than the political debate suggests, and harder.

It is not a question of whether Parliament could legislate. Article 324(2) makes appointments by the President “subject to the provisions of any law made in that behalf by Parliament”, and the 2023 Constitution Bench said its own committee of the Prime Minister, the Leader of Opposition, and the Chief Justice would hold good only until such a law was made. At the hearing on reference, the Solicitor General argued that Anoop Baranwal prescribed an interim arrangement, not a constitutional requirement that the Chief Justice sit on the committee. Justice Datta appears to accept part of that: had the Constitution Bench meant the Chief Justice's presence to be binding, he observed, it would have said so. The live question is different. It is whether the law Parliament actually made meets the standard of independence that Article 324 carries within it, and that Anoop Baranwal articulated.

Article 324 was debated in the Constituent Assembly as draft Article 289. During the framing of the constitution, Dr. B.R. Ambedkar told the House that there was no dispute on the fundamental point that the election machinery should be outside the control of the executive government. Another member of the constituent assembly, Pandit Hirday Nath Kunzru, warned that leaving so much power with the President could invite political influence over appointments. The phrase “subject to any law made by Parliament” was the Assembly's answer to that worry: a promise that Parliament would supply a neutral procedure.

For more than seventy years, it did not. The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, dealt with salary, tenure, and the conduct of business, and said nothing about appointment. In practice, the Chief Election Commissioner and Election Commissioners were appointed by the Union government, with the President acting on the advice of the Union Cabinet under Article 74. During the Anoop Baranwal hearings, the Constitution Bench remarked that successive governments had exploited the Constitution's silence. It noted that no Chief Election Commissioner since 2004 had completed a full six-year term.

Expert bodies had been saying the same thing for half a century. The Tarkunde Committee (1975) recommended appointment on the advice of a committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India. The Dinesh Goswami Committee (1990) recommended consultation with the Chief Justice and the Leader of Opposition; a Bill introduced that year was withdrawn. The Second Administrative Reforms Commission (2009) proposed a collegium. The Law Commission's 255th Report (2015) returned to the Prime Minister, Leader of the Opposition, and Chief Justice. Anoop Baranwal did not invent the formula; he adopted the one that every serious review had already recommended.

The five-judge Bench led by Justice K.M. Joseph ruled unanimously on 2 March 2023. It treated free and fair elections as part of the basic structure. It reasoned that a body entrusted with the superintendence, direction, and control of elections cannot be independent in function if it is dependent in origin. It rejected the Union's separation-of-powers objection, holding that filling a constitutional vacuum to protect the electoral process was not an intrusion into executive territory. It then established a three-member committee as a stop-gap.

The judgment, therefore, contained two things of different durability. The committee's composition was a temporary norm, expressly yielding to legislation. The principle behind it, that appointments must be insulated from exclusive executive control, flows from the Constitution's own structure. Parliament was free to replace the norm. The question is whether, in doing so, it was also free to discard the principle.

The Act, notified on 28 December 2023, establishes a Selection Committee with the Prime Minister as chairperson, the Leader of the Opposition (or the leader of the largest opposition party) in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister. A Search Committee, headed by the Law Minister and comprising two officers of at least Secretary rank, prepares a panel of five names. However, the Selection Committee may consider persons outside that panel. Recommendations are not invalid merely because there is a vacancy on the committee. Eligibility is confined to serving or retired Secretary-rank officers with experience in managing elections.

Some concerns were addressed in the passage. The Bill, as introduced, tied salary and service conditions to those of the Cabinet Secretary, thereby giving the executive power to fix them, unlike a Supreme Court judge's salary, which Parliament sets. After objections from former Chief Election Commissioners, the government restored parity with Supreme Court judges. It replaced the Cabinet Secretary with the Law Minister at the head of the Search Committee. The second change, though, moves shortlisting from a senior bureaucrat to a Union Minister. It does not move it away from the executive.

The arithmetic is the core of the challenge. A Minister and two government secretaries draw up the shortlist. The selection is made by a committee in which the government holds two of the three votes, one of them cast by a Minister whom the Prime Minister himself chooses. The committee need not confine itself to the shortlist, and a vacancy does not prevent it from acting; so if the office of Leader of the Opposition is vacant, the two government members may recommend on their own. Justice Datta asked during the hearings whether a Cabinet member would go against the Prime Minister. The Leader of the Opposition's presence secures a dissent on record, not a check. In substance, the government of the day still chooses the referee. The eligibility clause compounds the problem: the Commission performs quasi-judicial functions, yet the pool is closed to anyone who is not a senior civil servant.

The concern is not abstract. The Court declined to stay the Act in March 2024, and the present Commissioners, including the Chief Election Commissioner appointed in February 2025, were chosen under it. Every contested decision of the Commission now carries a question about how its members were chosen. A durable appointment process would draw on all three organs of the State rather than one. The Candidates should be assessed on integrity, independence, and their record in public administration, not seniority alone. Eligibility should be extended beyond the civil service, since the Commission's functions are both quasi-judicial and administrative.

This is more urgent than it may seem. International democracy indices have downgraded India over the past decade, and much of that assessment rests on the independence of institutions like the Election Commission. As Justice Datta put it, “It is not enough for the ECI to be independent; it must appear to be independent.” A committee built so that the ruling party always prevails cannot meet that test, however upright its members may be.

Parliament does not need to wait for a Constitution Bench. A short amendment adding a genuinely neutral member would cost little and lift the cloud over the Commission. The Constituent Assembly settled the question in 1949: election machinery must stand outside executive control. A consensus among the legislature, the executive, and the judiciary on who picks the referee is the least that a democracy of this size should expect.

Views are personal.