Appointing the Election Commission: An Expert Explains what Constituent Assembly said

Polity & Governance · 5 October 2026 · Based on Indian Express (original report)

2-minute summary

The debate over the appointment process of the Chief Election Commissioner (CEC) and Election Commissioners in India has resurfaced, drawing parallels to historical debates in the Constituent Assembly. On June 15, 1949, members like Shibban Lal Saxena and H.N. Kunzru cautioned against leaving the appointment of the electoral referee solely in the hands of the executive, warning that the ruling party could install partisan figures, thereby poisoning democracy at the source. While B.R. Ambedkar acknowledged this as a major challenge, the Constituent Assembly left the appointment mechanism to be decided by future parliaments under Article 324, while shielding commissioners through removal protections. For over seven decades, Parliament enacted no law for appointments. In 2023, the Supreme Court in *Anoop Baranwal v. Union of India* mandated a selection committee comprising the Prime Minister, Leader of the Opposition, and the Chief Justice of India (CJI). However, later in 2023, Parliament enacted the Chief Election Commissioner and Other Election Commissioners Act, replacing the CJI with a Union Cabinet Minister. This shift has reignited concerns about institutional independence, with critics arguing that the system must not only be impartial but also appear to be so.

Why it's in the news

The controversy surrounding the appointment mechanism of Election Commissioners under the 2023 Act has brought historical Constituent Assembly debates back into sharp focus, raising fundamental questions about the perception of independence of India's electoral referee.

Facts to remember

Article 324 of the Constitution establishes the Election Commission of India.
The Constituent Assembly debated the appointment mechanism of election commissioners on June 15, 1949.
The Supreme Court judgment in Anoop Baranwal v. Union of India was delivered in 2023.
The Chief Election Commissioner and Other Election Commissioners Act, 2023 replaced the Chief Justice of India with a Union Cabinet Minister on the selection committee.

Background and context

During the framing of the Indian Constitution, the Drafting Committee faced intense deliberations regarding the autonomy of the Election Commission. While provisions were made to protect Election Commissioners from arbitrary removal—equating them to Supreme Court judges—the exact appointment mechanism was left open-ended under Article 324, pending legislative action by Parliament. Members like Shibban Lal Saxena and H.N. Kunzru strongly advocated for robust institutional safeguards, arguing that because the executive government is a primary participant in elections, it should not hold exclusive power to appoint the referee. Despite these warnings, the Constituent Assembly left the matter to Parliament. For 74 years, executive appointments continued under presidential discretion without a dedicated statutory framework, until the Supreme Court intervened in 2023, which was subsequently modified by Parliament through the 2023 Act.

Constitutional provisions

Article 324 — Provides for the superintendence, direction, and control of elections to be vested in an Election Commission, including provisions on appointment and removal.

Mains practice: Examine the evolution of the appointment process of the Election Commission of India in light of recent legislative changes and constitutional debates.

The Election Commission of India (ECI), as the foundational referee of Indian democracy, has witnessed continuous debate over its appointment architecture, tracing back from the Constituent Assembly to recent legislative enactments.

• Constitutional Origins: During the Constituent Assembly debates in June 1949, members like Shibban Lal Saxena and H.N. Kunzru warned that leaving appointments solely to the executive could compromise the referee's neutrality. Consequently, Article 324 shielded commissioners from arbitrary removal but left the appointment mechanism open for Parliament to legislate.

• Executive Precedent and Judicial Intervention: For 74 years, Parliament enacted no specific law, and appointments were made directly by the President on executive advice. In *Anoop Baranwal v. Union of India* (2023), the Supreme Court ruled that appointments should be made on the advice of a committee comprising the Prime Minister, Leader of the Opposition, and the Chief Justice of India (CJI) to ensure institutional neutrality.

• Legislative Response: Parliament subsequently enacted the Chief Election Commissioner and Other Election Commissioners Act, 2023, replacing the CJI with a Union Cabinet Minister nominated by the Prime Minister, altering the panel's balance.

• Governance Implications: Critics argue that the current structure permits executive dominance over the selection panel, raising concerns about the *perception* of independence, which is as vital as actual neutrality in democratic governance.

Way Forward:

1. Parliament should consider broad-based bipartisan representation on selection panels to enhance public trust.

2. Transparent vetting processes and objective criteria should be institutionalized for candidate shortlisting.

3. Empowering the ECI with independent secretarial funding and unified administrative independence will further strengthen institutional integrity.

Conclusion: Ensuring a robust appointment architecture is essential for upholding public faith in electoral democracy, aligning with the timeless warning that democracy is poisoned at the source when integrity is doubted.

Prelims practice questions

Q1. Consider the following statements regarding the Election Commission of India: 1. Article 324 of the Constitution explicitly prescribes a parliamentary two-thirds majority for appointing Election Commissioners. 2. The Constituent Assembly finalized a rigid statutory framework for election appointments in 1949. 3. The Chief Election Commissioner and Other Election Commissioners Act, 2023 includes the Chief Justice of India in the selection committee. How many of the above statements are correct?

Only one
Only two
All three
None

Answer: D. Statement 1 is incorrect because Article 324 left the appointment mechanism to be legislated by Parliament, not a two-thirds majority. Statement 2 is incorrect because the Assembly left the appointment process open-ended. Statement 3 is incorrect because the 2023 Act replaced the CJI with a Union Cabinet Minister. Thus, none of the statements are correct.

Q2. Which of the following landmark Supreme Court judgments ruled that appointments to the Election Commission should be recommended by a committee comprising the Prime Minister, Leader of the Opposition, and the Chief Justice of India, pending parliamentary legislation?

Anoop Baranwal v. Union of India
Indira Nehru Gandhi v. Raj Narain
Kesavananda Bharati v. State of Kerala
S.R. Bommai v. Union of India

Answer: A. In Anoop Baranwal v. Union of India (2023), the Supreme Court ruled that appointments to the Election Commission should be made on the recommendation of a committee consisting of the Prime Minister, the Leader of the Opposition, and the Chief Justice of India until Parliament enacted a law.

Q3. Consider the following statements with reference to the Election Commission of India: 1. The Chief Election Commissioner can be removed from office in the same manner and on the same grounds as a judge of the Supreme Court. 2. The Constitution of India bars retiring Election Commissioners from holding any office under the government after tenure. Which of the statements given above is/are correct?

1 only
2 only
Both 1 and 2
Neither 1 nor 2

Answer: A. Statement 1 is correct because the Chief Election Commissioner is protected by removal provisions similar to those of a Supreme Court judge. Statement 2 is incorrect because the Constitution of India does not bar retiring Election Commissioners from holding subsequent government offices.

Revision flashcards

Which Article of the Indian Constitution provides for the establishment and powers of the Election Commission? Article 324 of the Constitution of India.
Who appoints the Chief Election Commissioner and other Election Commissioners under the constitutional framework? The President of India, based on advice and statutory frameworks enacted by Parliament.
In what year did the Supreme Court deliver its ruling in Anoop Baranwal v. Union of India regarding ECI appointments? In 2023, the Supreme Court mandated an interim selection committee involving the CJI.
As of October 2026, who replaced the Chief Justice of India on the ECI selection panel under the 2023 Act? A Union Cabinet Minister nominated by the Prime Minister.
Why is the perception of independence considered as critical as actual impartiality for the Election Commission? Because the government is a contestant in elections while the ECI acts as referee; a referee lacking public trust undermines democratic legitimacy.