Challenges to the Appointment of Election Commissioners Act, 2023

Jaya Thakur v Union of India

The Supreme Court will decide if the Chief Election Commissioner and Other Election Commissioner Act, 2023 is contrary to the Constitution Bench decision in Anoop Baranwal (2023). The Act sets up a committee to nominate members to the ECI.



Petitioners: Dr. Jaya Thakur, Association for Democratic Reforms, Sanjay Narayanrao Meshram, Dharmendra Singh Kushwaha

Lawyers: Senior Advocate Vikas Singh, Senior Advocate Kapil Sibal, Advocate Prashant Bhushan, Advocate Suroor Mander, Varun Thakur and Associates

Respondents: Union of India, through Secretary, Ministry of Law and Justice, Election Commission of India through Chief Election Commissioner

Lawyers: Solicitor General Tushar Mehta, Advocate Ankit Agarwal Advocate Arvind Kumar Sharma

Case Details

Case Number: W.P.(C) No. 000014/2024

Next Hearing: March 21, 2024

Last Updated: March 21, 2024

Key Issues


Does the Appointment of Election Commissioners Act, 2023 nullify Anoop Baranwal v Union of India (2023)?

Case Description

The Election Commission of India (ECI) is tasked with the superintendence, direction, and control of elections to Parliament, state legislatures and the offices of the President and Vice-President of India. The ECI comprises three members: The Chief Election Commissioner (CEC) and two Election Commissioners (ECs). 

In Anoop Baranwal v Union of India (2023), the key contention was whether the method of appointing members to the ECI as it existed then was unconstitutional for violating the right to free and fair elections. The petition claimed that according to Article 324 of the Constitution, Parliament was obligated to draft a law to appoint members to the ECI. However, in the absence of such a law, the President was making appointments to the ECI based on recommendations of the Prime Minister. This system, the petitioners claimed, breached the independence of the ECI and threatened fair elections. 

On 2 March 2023, a five-judge Constitution Bench led by Justice K.M. Joseph delivered the judgement in the case. The Bench directed the creation of a committee comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India that would advise the President on ECI appointments. This committee was to exist till Parliament came up with a law for appointments. The Bench noted that impartiality of the ECI was key in ensuring free and fair elections in a democracy. 

Union enacts new legislation for ECI appointments

On 12 December 2023, the Rajya Sabha passed the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Office and Terms of Office) Bill, 2023

The Bill set up a committee of its own to nominate members to the Election Commission. This committee comprised the Prime Minister, Leader of Opposition and a Union Cabinet Minister, nominated by the Prime Minister instead of the CJI of India. 

The new Bill met with immediate criticism. Many claimed that it went against the spirit of the Supreme Court’s judgement as it replaced the CJI with a member of the Union Cabinet. 

On 21 December 2023 the Lok Sabha also passed the Bill. It received the President’s assent on 29 December 2023.

Petitions challenging the Act

On 2 January 2024, Madhya Pradesh Mahila Congress Committee General Secretary, Dr. Jaya Thakur moved to the Supreme Court seeking a stay on the newly enacted law. Subsequently, Association for Democratic Reforms, represented by Advocate Prashant Bhushan also filed petitions challenging the new Act. 

The petitions claim that the Act contravenes the Constitution Bench judgement in Anoop Baranwal (2023). They argued that the selection committee should be insulated from any political and executive interference. 

On 12 January 2024, a Division Bench comprising Justices Sanjiv Khanna and Dipankar Datta refused to stay the legislation as per the plea. 

Appointment of new Election Commissioners

On 9 March 2024, in an unexpected turn of events, Election Commissioner Arun Goel resigned ahead of the upcoming 2024 General Elections. The other EC member, Satish Chandra Pandey had already retired in February 2024. Therefore, Goel’s resignation reduced the ECI to a one-member body comprising just the CEC, Rajiv Kumar. 

In the meantime, apprehending that the Union would take unfair advantage of the situation to appoint new members to the ECI, Jaya Thakur filed a stay application against the Act on 11 March 2024 and ADR filed an application on 12 March 2024. On 13 March 2024, the Supreme Court Bench led by Justice Sanjiv Khanna agreed to sit for an urgent hearing on this matter on 15 March 2024. 

The very next day, the President notified the appointments of former IAS Officers Gyanesh Kumar and Sukhbir Singh Sandhu as members of the ECI. They were nominated by a committee comprising Prime Minister Narendra Modi, Home Minister Amit Shah and Leader of the Opposition Adhir Ranjan Chowdhury. Chowdhury however, filed a dissent note saying that shortlisted names were shared with him only ten minutes before the meeting.

On 15 March 2024, a Division Bench of the Court comprising Justices Sanjiv Khanna, Dipankar Datta and A.G. Masih re-listed the case to be heard on 21 March 2024.