Anoop Baranwal v. Union of India

Article 324(2) of the Constitution says the Election Commission will consist of a Chief Election Commissioner and as many Election Commissioners as the President may fix. The President appoints them, subject to any law made by Parliament. The Constitution therefore expected Parliament to make a law on appointments, but no such law was made for more than seventy years. Even in the Constituent Assembly, Dr. Ambedkar had raised the concern that there was no safeguard against appointing a person who would remain under executive pressure.

In practice, the President made these appointments on the aid and advice of the Council of Ministers, so the executive had complete control. This raised questions about the neutrality of a body that conducts elections in which the government's own party takes part.

Anoop Baranwal, a public-spirited citizen, filed a petition under Article 32. He argued that the system was problematic because only the executive decided appointments, with no role for the judiciary or the legislature. This compromised the autonomy of the Election Commission. The absence of a law had created a constitutional vacuum, meaning a gap where the Constitution expects a law but none exists, and this gap could be misused.

1. Does the existing system of appointing the Chief Election Commissioner and Election Commissioners violate the independence of the Election Commission?

2. Does the absence of a law under Article 324(2) give the executive unlimited discretion in making these appointments?

3. Can the Supreme Court lay down guidelines when Parliament has not passed any law on the subject?

4. The larger question: does placing complete control of these appointments in the hands of the executive go against constitutional morality?

Petitioner's side: The executive has exclusive control over appointments, which compromises the neutrality of the Election Commission. This goes against the principle of separation of powers. The Election Commission is a constitutional body, like the Comptroller and Auditor General or the judiciary, so its appointments should also be independent. Many democracies use a multi-member panel or an independent committee for such appointments. Expert bodies had said the same: the Law Commission in its 255th Report (2015) recommended a committee of the Prime Minister, the Leader of Opposition and the Chief Justice of India, and the Second Administrative Reforms Commission (2007) spoke of a broad-based collegium.

Union of India's side: The Constitution itself says the President, that is, the executive, will make the appointment. Until Parliament makes a law, the judiciary should not cross its limits, because law-making is the legislature's job. The existing system had conducted credible elections so far, so there was no need to interfere. Any change in the process could happen only through a law made by Parliament, not through court guidelines.

A five-judge Constitution Bench decided unanimously, and Justice K. M. Joseph wrote the main opinion.

The Court held that Parliament ought to have made a law under Article 324(2), but more than seventy years had passed without one. Where there is a constitutional vacuum and the legislature fails to act, the judiciary can step in to protect constitutional objectives. The Court recalled that it had similarly laid down guidelines for the independence of the C.B.I. in Vineet Narain v. Union of India (December 1997). Separation of powers does not mean that the objectives of the Constitution should be left incomplete when the legislature stays inactive.

The Court emphasised that free and fair elections are part of the basic structure of the Constitution, and the independence of the Election Commission is necessary for this. It created a temporary mechanism: until Parliament makes a law, the President will appoint the Chief Election Commissioner and the Election Commissioners on the advice of a committee consisting of the Prime Minister, the Leader of Opposition in the Lok Sabha and the Chief Justice of India. If there is no Leader of Opposition, the leader of the largest opposition party in the Lok Sabha takes that place. The committee's task was to keep appointments transparent and neutral.

On removal: under Article 324(5), the Chief Election Commissioner has the same protection from removal as a Supreme Court judge, but other Election Commissioners can be removed on the recommendation of the Chief Election Commissioner. Justice Ajay Rastogi, in his concurring opinion, stressed this inequality and said Election Commissioners should get the same protection. The majority did not accept this, holding that a plain reading of Article 324(5) does not give Election Commissioners that protection; the lecture states that Justice Rastogi himself called it only desirable. The Court also appealed to Parliament to consider an independent secretariat and independent funding for the Election Commission.

Later developments (as stated in the lecture): In December 2023, Parliament passed the Chief Election Commissioner and Other Election Commissioners Act, 2023. Its selection committee consists of the Prime Minister, the Leader of Opposition and a Union Cabinet Minister nominated by the Prime Minister; the Chief Justice of India is not included. The Act has been challenged in the Supreme Court. In March 2024 the Court declined to stay the Act. The lecture says that on 23 September 2026 a two-judge bench split on whether to send the matter to a larger bench, so it was referred to the Chief Justice of India to consider setting up a Constitution Bench, and that the challenge is still pending.

Article 324(2), Constitution of India; Article 324(5), Constitution of India; Article 32, Constitution of India; Chief Election Commissioner and Other Election Commissioners Act, 2023 (passed after the judgment)

This case is regarded as a milestone for Indian democracy because it deals with the independence of the Election Commission, the body that ensures free and fair elections. Students should know it for three reasons. First, it holds that free and fair elections are part of the basic structure. Second, it shows how the judiciary can fill a constitutional vacuum when Parliament fails to make a law, following the approach of Vineet Narain. Third, it is closely linked with later events: Parliament's 2023 Act, which replaced the Chief Justice of India with a Union Cabinet Minister on the selection committee, and the pending challenge to that Act. For examinations, students should remember both the Court's interim mechanism of 2023 and the Act that Parliament passed afterwards.

Hypothetical: Suppose a constitutional provision says that members of a national commission shall be appointed by the President, subject to a law made by Parliament. For decades, Parliament makes no such law, and the government alone picks the members. Zoya, a public-spirited citizen, files a writ petition under Article 32, arguing that this harms the commission's independence. Following the approach in Anoop Baranwal, the Supreme Court may lay down a temporary, neutral selection process to fill the gap, and this process would apply only until Parliament passes its own law. If Parliament later passes such a law, the law takes over, though Farhan, another citizen, could still challenge that law in court if he believes it is unconstitutional.