The Election Commission runs every Lok Sabha, Rajya Sabha, assembly, presidential and vice-presidential election in India. How its three members are chosen, and how they take decisions together, is now before the Supreme Court in two separate challenges.
What the Constitution says
Article 324 places the "superintendence, direction and control" of electoral rolls and elections in an Election Commission. It says the Commission will have a Chief Election Commissioner (CEC) and as many other Election Commissioners as the President fixes, appointed by the President "subject to the provisions of any law made in that behalf by Parliament".
For more than 70 years, Parliament made no such law. In practice the President appointed commissioners on the advice of the government of the day, which meant the Prime Minister.
The Anoop Baranwal judgment
In March 2023, a five-judge Constitution bench ruled in Anoop Baranwal v Union of India that until Parliament passed a law, appointments would be made on the advice of a committee of three: the Prime Minister, the Leader of the Opposition in the Lok Sabha (or the leader of the largest opposition party), and the Chief Justice of India.
The 2023 Act
Parliament then passed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. Its selection committee has three members:
- the Prime Minister, as chair
- the Leader of the Opposition in the Lok Sabha, or the leader of the largest opposition party
- a Union Cabinet minister nominated by the Prime Minister
The Chief Justice is no longer on the panel. With the Prime Minister and a minister of the Prime Minister's choosing, the government holds two of the three votes. A search committee headed by the Law Minister prepares a shortlist, though the selection committee may also consider people outside it.
Critics, including petitioners in Jaya Thakur v Union of India, argue this brings back executive control that the Constitution bench tried to end. The government has defended the law as Parliament's choice, which Article 324 expressly allows. The challenge is pending.
Section 18: how the three decide
The section now in the news is Section 18. It says the Commission may, unanimously, regulate how its business is transacted and allocated among members. It adds that business shall, as far as possible, be transacted unanimously, and that where the CEC and other commissioners differ, the matter is decided by majority.
This builds on the 1995 Supreme Court ruling in T.N. Seshan v Union of India, which held that the CEC is first among equals, not a boss over the other two.
The case now in court
Petitions pending before the Supreme Court argue that decisions on the voter roll revision were taken without the concurrence of Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi, in breach of Section 18. The Commission says every SIR order was approved unanimously and that recorded objections were suggestions made during deliberation.
Section 18 allows a majority to overrule a dissenting member, so recorded disagreement is not by itself a breach. The petitioners say decisions went ahead without the concurrence the section requires; the Commission says they were unanimous. The court will have to decide which account the files support.
Read the documents yourself
- Constitution of India, Article 324 (Legislative Department)
- PRS Legislative Research, Legislative Brief on the CEC and Other Election Commissioners Bill, 2023
- Supreme Court Observer, Jaya Thakur v Union of India (challenge to the 2023 Act)
- Supreme Court Observer, Challenge to powers of the Chief Election Commissioner
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