SC asks if there was a ‘proper debate’ in Parliament before enacting CEC/EC appointments law

The Supreme Court on Thursday (May 7, 2026) asked if there had been a “proper debate” in the Parliament about the “ethos” of its 2023 judgment that took the appointment of members of the Election Commission of India out of the exclusive hands of the political executive, namely, “the party which not unnaturally has an interest in perpetuating itself in power”.

In a 2023 judgment in Anoop Baranwal versus Union of India, a Constitution Bench of the court had replaced the mechanism of the President appointing the Chief Election Commissioner and Election Commissioners on the sole advice of the Prime Minister with a more participatory appointment process involving a three-member selection committee of the Prime Minister, the Opposition Leader in the Lok Sabha, and the Chief Justice of India. The court had said the committee would be in place till the Parliament brought in a law to replace it.

The Union government had reacted to that judgment within months, by bringing in a law which reverted to the dominant role of the executive in the appointments of the CEC and ECs. Under the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act of 2023, the CJI was replace in the selection committee by a Union Cabinet Minister nominated by the Prime Minister.

Opposition MPs suspended before debate

“But was there a proper debate in the Parliament about the Anoop Baranwal judgment? Is the ethos voiced in the judgment reflected in the Parliamentary debates… That is not clear,” said Justice Dipankar Datta, heading a Bench comprising himself and Justice Satish Chandra Sharma.

Senior advocate Shadan Farasat, appearing for an intervenor, said the passing of the law had been preceded by an en masse suspension of Opposition MPs. “There was no proper debate in the Parliament,” he said.

“A majority of the Opposition was suspended. [AIMIM MP Asaduddin] Owaisi was the sole objector. He made substantive submissions on the floor that the proposed law did not conform with the Anoop Baranwal judgment. The Law Minister replied that the ‘court asked us to frame a law, we have done so’,” advocate Prashant Bhushan, for Association for Democratic Reforms, submitted.

Insufficient safeguards

Mr. Bhushan said the ability to remove a CEC by impeachment was not a sufficient safeguard to protect the independence of the Election Commission. The appointments to the top poll body, too, should be independent and transparent, he added.

Advocate Kaleeswaram Raj, appearing for activist C.R. Neelakandan, pointed out that, long before the Anoop Baranwal judgment, the Supreme Court had emphasised the “principle of free and fair elections” in 1975 in the landmark Indira Nehru Gandhi versus Raj Narain case, a decision which triggered the Emergency.

He submitted that in the 1975 case law, the top court had held fair and free elections to be an “essential postulate of democracy and which, in turn, is a part of the basic structure of the Constitution”.

“Other nations have upheld the independence of the Election Commission as a fourth branch institution, or an autonomous institution supporting democracy,” Mr. Raj submitted.

Senior advocate Vijay Hansaria, for petitioner-activist Jaya Thakur, said, “Executive dominance in appointments to Election Commission creates a chilling and real-world impact on electoral integrity and fairness… A compromised EC sets a dangerous precedent for the erosion of other independent institutions.”