Quick answer
In Anoop Baranwal v. Union of India (2 March 2023), a five-judge Constitution Bench of the Supreme Court held that, until Parliament made a law under Article 324(2), the Chief Election Commissioner and Election Commissioners would be appointed by the President on the advice of a committee of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India. This was an interim arrangement. Parliament then passed the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, whose Selection Committee replaces the Chief Justice of India with a Union Cabinet Minister nominated by the Prime Minister.
The case
Anoop Baranwal v. Union of India, Supreme Court of India, 2 March 2023. Bench: K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar, JJ. Justice K.M. Joseph wrote the main judgment; Justice Rastogi agreed with its conclusions and added his own. Article 324(2) says appointments to the Election Commission are made by the President "subject to the provisions of any law made" by Parliament. No such law existed, so in practice appointments were made on the advice of the Prime Minister and the Council of Ministers. The Court held that this gap needed to be filled to protect free and fair elections.
Key points
- Committee: Prime Minister, Leader of the Opposition in the Lok Sabha (or, if there is none, the leader of the largest opposition party in the Lok Sabha) and the Chief Justice of India.
- Interim only: the Court said this norm would "continue to hold good till a law is made by the Parliament".
- Reason: an independent Election Commission is essential to free and fair elections, and appointment by the executive alone was the concern raised in the Constituent Assembly.
- Removal (Article 324(5)): the Chief Election Commissioner can be removed only like a Supreme Court judge; other Election Commissioners only on the recommendation of the Chief Election Commissioner.
Court's interim committee and the 2023 Act compared
| Member | Anoop Baranwal (2023) interim committee | Section 7(1), Act 49 of 2023 |
|---|---|---|
| Chair | Prime Minister | Prime Minister (Chairperson) |
| Opposition | Leader of the Opposition in the Lok Sabha, or leader of the largest opposition party | Leader of Opposition in the Lok Sabha, or leader of the single largest opposition party |
| Third member | Chief Justice of India | Union Cabinet Minister nominated by the Prime Minister |
Example
In a moot court, Neha argues that the Chief Justice of India must always sit on the panel that selects Election Commissioners because of Anoop Baranwal. Farhan replies that the Court's committee was expressly temporary and lasted only until Parliament made a law, which it did in 2023. Farhan's reading of the judgment is correct; whether the 2023 law itself is constitutional is a separate question raised in later petitions.
Current law note
The 2023 Act (No. 49 of 2023) received the President's assent on 28 December 2023. Section 6 provides a Search Committee to prepare a panel, and Section 7(1) sets up the Selection Committee shown above. Petitions challenging Section 7(1) were filed in the Supreme Court. On 22 March 2024, in Dr. Jaya Thakur v. Union of India, a bench of Sanjiv Khanna and Dipankar Datta, JJ. refused to stay the Act or the appointments made under it, while leaving the constitutional challenge to be decided later. For a fuller summary of the 2023 judgment, see the Anoop Baranwal v. Union of India case summary.
Exam point
Anoop Baranwal (2023) created an interim PM, Leader of Opposition and CJI committee for appointing Election Commissioners "till a law is made"; the 2023 Act replaced the CJI with a Union Cabinet Minister, and the validity of that Act is a separate question raised in later petitions.
Sources and further reading
- Anoop Baranwal v. Union of India (2 March 2023), judgment text, Indian Kanoon
- Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, Gazette of India
- Dr. Jaya Thakur v. Union of India (22 March 2024), Indian Kanoon
- Article 324, Constitution of India, Indian Kanoon
