Supreme Court Constitution Bench Directs Formation of Collegium for Appointment of Election Commissioners Amid Legislative Vacuum

After 73 years without parliamentary legislation on Election Commission appointments, SC under Article 142 mandates a selection committee including PM, Leader of Opposition, and CJI to ensure independence and fairness in electoral oversight.

In a landmark judgment delivered on March 2, 2023, a Constitution Bench of the Supreme Court of India headed by Justice K.M. Joseph has addressed a long-standing constitutional gap concerning the appointment of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs). The court acknowledged that despite Article 324(2) of the Constitution mandating that such appointments shall be made by the President “subject to any law made in that behalf by Parliament,” no law has been enacted by Parliament in the 73 years since the Constitution’s adoption.

The petitions before the court raised concerns about the current appointment process, which rests exclusively with the executive, specifically the Prime Minister’s advice to the President. Petitioners argued that this exclusive executive control compromises the independence of the Election Commission, the constitutional body entrusted with the superintendence, direction, and control of elections to Parliament and State Legislatures, and elections to the offices of President and Vice-President. The court was urged to lay down guidelines to fill the legislative vacuum and to provide for a transparent, fair, and impartial selection process.

Drawing extensively from the Constituent Assembly debates, the court highlighted the framers’ vision that the Election Commission should be independent and free from interference by the executive of the day. Dr. B.R. Ambedkar and other members had repeatedly expressed concern that leaving appointments solely to the Prime Minister’s discretion risked politicization of this vital institution. The court noted the Founding Fathers inserted the phrase “subject to the provisions of any law made in that behalf by Parliament” precisely to ensure that Parliament would enact legislation prescribing the selection process. The absence of such legislation has resulted in a constitutional lacuna.

The court also reviewed the statutory framework under the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, which regulates service conditions and terms but remains silent on the appointment procedure. The current practice of appointing mainly senior bureaucrats, often close to retirement, was scrutinized. The court observed that the statutory six-year term for CEC and ECs is frequently truncated due to appointees’ ages, undermining their ability to function independently and effectively.

In addressing whether ECs should enjoy the same removal protections as the CEC, the court noted that while Article 324(5) accords the CEC removal only “in like manner and on like grounds as a Judge of the Supreme Court,” the protection for ECs is limited to removal only on the CEC’s recommendation. Given the evolving role of ECs as full members of a multi-member Election Commission since 1993, the court found it desirable to extend similar protections to ECs until Parliament legislates otherwise.

Recognizing the critical role the Election Commission plays in sustaining democracy — including the conduct of free and fair elections, enforcement of the model code of conduct, and adjudication of party symbol disputes — the court emphasized that impartiality and independence are indispensable.

In the absence of parliamentary action, the court invoked its extraordinary jurisdiction under Article 142 of the Constitution to issue binding guidelines and directed that until Parliament enacts a law, appointments to the CEC and ECs shall be made by the President on the recommendation of a collegium comprising:

1. The Prime Minister of India (Chairperson),

2. The Leader of the Opposition in the Lok Sabha (or, if no recognized Leader of Opposition exists, the leader of the largest opposition party in the Lok Sabha by numerical strength), and

3. The Chief Justice of India.

The court also urged the government and Parliament to consider reforms for an independent secretariat to the Election Commission and to charge the Commission’s expenses on the Consolidated Fund of India, thereby strengthening its autonomy.

The judgment reflects a judicial recognition of the constitutional imperative for an independent Election Commission and an institutional check on executive dominance in appointments crucial for democratic legitimacy. It also affirms that the right to vote is a constitutional right intrinsic to democracy, supported by Articles 326 and related statutes, and that free and fair elections are a basic feature of the Constitution.

The court’s directive fills a legislative void with a fair and balanced appointment mechanism modeled on established practices for other constitutional bodies such as the Central Vigilance Commission and Lokpal. It underscores the court’s role in protecting democratic values and the rule of law when legislative action lags.

Statutory provisions

Article 324(2), Article 324(5), Article 326, Article 142, The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, Representation of the People Act, 1950, Representation of the People Act, 1951, Lokpal and Lokayuktas Act, 2013, Delhi Special Police Establishment Act, 1946

Anoop Baranwal v. Union of India (SC)(Constitution Bench) : Law Finder Doc Id # 2147558