Election Commissioners Act 2023 Challenge: Separation of Powers, CJI Role in Appointments, and Democratic Safeguards Analysis

  • Post category:Blog
  • Reading time:9 mins read

Election Commissioners Act 2023 challenge: Separation of powers, CJI role in appointments, and democratic safeguards analysis.

Table of Contents

The challenge to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 (“Election Commissioners Act 2023”) is fundamentally a contest over institutional independence: who controls appointments to the Election Commission of India (ECI), and whether the “rules of the democratic game” can be shaped by the very executive that competes in elections. The petitions argue that removing the Chief Justice of India (CJI) from the selection committee reintroduces executive dominance, weakening the constitutional guarantee of free and fair elections embedded in Article 324 and the broader basic structure.

This article analyses the legal challenge through three lenses—separation of powers, the CJI’s role in appointments, and democratic safeguards—while situating it against the constitutional backdrop of Anoop Baranwal v. Union of India (2023) and the Supreme Court’s interim stance of refusing to stay the 2023 Act before the 2024 General Elections.

1) The constitutional setting: Article 324 and the “appointment gap”

Article 324 vests the ECI with the “superintendence, direction and control” of elections to Parliament, State legislatures, and the offices of the President and Vice-President. Clause (2) contemplates that the CEC and Election Commissioners shall be appointed by the President “subject to the provisions of any law made in that behalf by Parliament,” which created a long-running constitutional tension: Parliament had not enacted a detailed appointments law for decades, leaving the executive with de facto primacy.

In Anoop Baranwal (2023), a Constitution Bench crafted a stop-gap mechanism: until Parliament enacted a law under Article 324(2), appointments would be recommended by a three-member committee consisting of the Prime Minister, the Leader of Opposition (LoP) in the Lok Sabha, and the CJI. The Court’s underlying logic was not merely administrative—it was constitutional: the ECI’s impartiality is indispensable to free and fair elections, and therefore appointment design must minimise executive capture.

Parliament then enacted the Election Commissioners Act 2023, replacing the CJI in the selection committee with a Union Cabinet Minister nominated by the Prime Minister (with the committee comprising PM + Cabinet Minister + LoP). The petitions argue this change dilutes the “independence architecture” articulated in Anoop Baranwal and revives the pre-2023 imbalance where the executive effectively chose the referees of elections.

2) What the 2023 Act changes: committee design and the executive’s structural advantage

From the case record and reporting before the Supreme Court, two institutional layers matter: a Search Committee and a Selection Committee. Section 6 provides for a Search Committee which prepares a panel of eligible candidates, and Sections 7–8 provide for a Selection Committee which makes the recommendation for appointment.

The core challenge is not that the executive participates in appointments—most democracies involve elected branches—but that the 2023 Act’s structure is argued to give the executive a built-in majority on the Selection Committee (2 out of 3), making dissent by the LoP mathematically incapable of altering outcomes. Petitioners say that this creates a risk of “partisan appointments,” especially when combined with opaque shortlisting and speed in decision-making.

These concerns were sharpened by the events around March 2024, when two Election Commissioners were appointed close to a scheduled Supreme Court hearing on interim relief. According to the account before the Court, the LoP claimed he received a shortlist of six names only around ten minutes before the meeting, and that the meeting date was advanced. The Supreme Court bench noted these procedural inconsistencies and questioned why the LoP was not given more time to consider candidates and why the shortlists were structured the way they were.

This “process critique” becomes constitutionally relevant because appointment legitimacy depends not only on statutory compliance but also on whether the process demonstrates good-faith insulation from political expediency—particularly for bodies that must police the fairness of elections against the government of the day.

3) Separation of powers: who appoints “constitutional referees”?

3.1 The doctrine in play

Separation of powers in India is not a strict wall but a functional distribution ensuring checks and balances. The ECI sits in a special category of institutions—often called “fourth-branch” bodies or constitutional watchdogs—whose independence is essential to democratic legitimacy. When the executive enjoys dominant influence over appointment, critics argue the watchdog risks becoming dependent on the very actor it must regulate.

In Anoop Baranwal, the Court’s interim committee design effectively injected a non-executive constitutional authority (the CJI) into the process to reduce the risk of unilateral executive control. The 2023 Act reverses that by replacing the CJI with a cabinet minister nominated by the Prime Minister, thereby restoring executive predominance through a two-member bloc aligned with the government.

3.2 Petitioners’ separation-of-powers argument

The petitioners’ constitutional argument (as captured in the pending case description) is that the Act is contrary to the logic of Anoop Baranwal and undermines institutional independence needed for free and fair elections. They claim the selection committee must be insulated from “political and executive interference,” and that excluding the judiciary removes an important external check.

This is framed as a basic structure problem: free and fair elections are part of the Constitution’s democratic core, and the ECI is the mechanism through which that core is operationalised. Therefore, appointment design cannot be reduced to ordinary political discretion because it shapes the credibility of the electoral process itself.

3.3 The Union’s counter-position

The Union has defended the removal of the CJI, arguing that the independence of the ECI does not necessarily flow from having a judicial member on the selection committee and that Parliament is constitutionally empowered to legislate the appointment process under Article 324(2). In essence, the government’s stance treats the 2023 Act as a legitimate legislative choice within Parliament’s domain, and suggests that judicially-designed committees should not harden into permanent constitutional mandates.

This is where separation of powers cuts both ways: petitioners invoke it to argue against executive capture; the Union invokes it to argue against judicial “overreach” into appointment architecture once Parliament has legislated.

4) The CJI’s role: why it was introduced, and why its removal is contested

4.1 Why the CJI mattered in Anoop Baranwal

The Anoop Baranwal stop-gap committee included the CJI as an institutional counterweight to the executive, premised on the idea that appointments “cannot be left in the hands of the Executive” if independence is to be meaningfully protected. As recorded in court reporting, counsel argued that unbridled executive power in appointments “would pose a serious threat to free and fair elections,” and that the CJI’s presence served as an independence guarantee.

Importantly, the Court’s arrangement was expressly interim—“till Parliament came up with a law.” The constitutional controversy now is whether Parliament’s law can ignore the independence rationale identified by the Court and still satisfy the constitutional requirement that elections remain free and fair.

4.2 Arguments for including the CJI (or a neutral member)

Those supporting CJI (or neutral constitutional authority) involvement typically rely on three propositions:

  • The ECI adjudicates disputes and makes decisions with quasi-judicial consequences during elections; independence requires an appointment method that does not enable control by political competitors.
  • A neutral member helps create consensus-based selection and makes the LoP’s role meaningful rather than symbolic.
  • In a 2–1 committee, executive-aligned members can outvote the LoP routinely, so the LoP becomes a mere “witness,” not a real check.

4.3 Arguments against including the CJI

On the other side, critics argue that:

  • Judicial presence on executive appointments risks blurring institutional roles and may pull the judiciary into political controversy.
  • Independence can be ensured through other safeguards (fixed tenure, removal protections, transparent criteria) rather than a judicial seat on the selection panel.
  • Since Article 324(2) explicitly empowers Parliament to make a law, legislative design choices should be tested for constitutionality but not dictated by judicial preference.

The Supreme Court itself hinted at this tension in March 2024: Justice Khanna remarked that the Court’s intent in Anoop Baranwal was to push Parliament to make a law and that it is not for the Court to decide what kind of law Parliament makes—though constitutionality can still be questioned on merits.

5) Democratic safeguards: what’s at stake beyond the committee composition

The case is about more than whether the CJI sits on the panel; it is about whether the appointments ecosystem has sufficient safeguards to keep the ECI independent in practice. The March 2024 episode demonstrates how procedural design can undermine safeguards even if a formal committee exists.

5.1 Transparency and deliberation

When shortlists are large and late-disclosed (e.g., a list of 200, then a shortlist of six allegedly shared minutes before the meeting), the LoP’s capacity to exercise meaningful scrutiny is reduced. This matters because deliberation time is part of independence: rushed processes favour the actor with institutional control of files and intelligence inputs (typically the executive).

5.2 Balance of convenience vs constitutional urgency (the Court’s interim stance)

Before the 2024 General Elections, the Supreme Court refused to stay the Act, noting the “balance of convenience” and the risk of destabilising the ECI close to elections. The bench posed a pragmatic question: with elections around the corner, should the country have a one-member commission or a three-member commission? This interim approach shows a recurring judicial dilemma—protect democratic integrity without creating administrative chaos during an election cycle.

5.3 “Capture risk” as a structural constitutional harm

The petitioners’ deeper claim is structural: even without proving actual bias, a process that permits executive dominance produces a reasonable perception of capture, which can erode public confidence in electoral neutrality. In democratic safeguards analysis, perceived independence is not cosmetic—it affects compliance, legitimacy of outcomes, and political stability.

5.4 The pending posture and institutional moments

The challenge remains pending, with the Supreme Court set to determine whether the Act nullifies or undermines the Anoop Baranwal framework and the constitutional requirement of an independent ECI. The case record also notes changes in bench composition, including a recusal and a new bench led by Justice Surya Kant. These procedural realities underscore why the Act’s constitutionality will likely be decided through a full merits hearing rather than interim orders.

Tags: , , , , ,