Challenges to the Appointment of Election Commissioners Act, 2023

Transcript:

Did you know that until 2023, there were no laws governing appointments to the Election Commission of India?

The Election Commission is as old as the Constitution, established on 25 January 1950 under Article 324. It is an autonomous body that consists of the Chief Election Commissioner and two other Election Commissioners. Article 324 of the Constitution obligates the Parliament to make laws for such appointments.

But for decades, the law was absent and appointments rested entirely in the hands of the executive. The Election Commissioners were appointed by the President, based on the advice and recommendations of the Prime Minister and the Council of Ministers.

The executive-heavy process was challenged in 2015 in a Public Interest Litigation filed by Anoop Baranwal, who argued that it violates Article 324(2) of the Constitution. The PIL sought an independent, Collegium-like system for ECI appointments.

The matter was referred to a Bench of five-judges which, in March 2023, created a three-person interim committee— including the Prime Minister, the Leader of the Opposition in Parliament, and the Chief Justice of India for the appointment. The directions were temporary until Parliament made a legislation.

Only months later, in December  2023, the Parliament enacted  the Chief Election Commissioner and other Election Commissioners Act. The Act provided that a three-person committee shall consist of the Prime Minister, the Leader of the Opposition in Parliament, and an Union Cabinet Minister—in place of the Chief Justice of India.

The 2023 Act was challenged by Congress Leader, Jaya Thakur on the ground that Act contravenes the Constitution Bench judgement in Anoop Baranwal, making appointment to Election Commission dependent heavily on the executive.

The Bench of Justices Dipankar Datta and SC Sharma reserved judgement on whether the matter should be referred to a constitution bench.

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