Court – Supreme Court of India

Petitioner – Anoop Baranwal

Respondent – Union of India

Bench – Honorable Justice K.M Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar

Date of Judgement  – March 02, 2023

Citation – W.P.(C) 114/2015


A Writ petition (WP (C) 104/2015) was filed by Anoop Baranwal, in January 2015 calling the attention of the Supreme Court to review the manner of appointment of the members of the Election Commission under Article 324 of the Constitution of India. The Constitution in Part XV contains the articles relating to Elections conducted and regulated in India, the article whose true effect had to be considered was Article 324(2) of the Constitution. The said sub Article provides the structure of the Election Commission and that the Chief Election Commissioner (CEC) and other Election Commissioner (CE) would be appointed by the President. On October 23, 2018, a division bench of the Supreme Court comprising former Chief Justice Rajan Gogoi and S.K Kaul referred the questions arising in the proceedings to a Constitution Bench for an authoritative pronouncement.  

The provisions contained in Article 324(2) places expectation on the Parliament to lay down a law prescribing the method of appointment of the Election Commission, and the absence of such a law or statute even after almost seven decades, is an act of insubordination in the Constitution of India. The present system of appointment of the CEC and other ECs violates the provisions contained in the Article 324 and thereby it is the need to constitute a body that deals with the appointment of the Election Commission to ensure the transparency and neutrality of the constitutional body. A total of four petitions were clubbed by the Supreme Court in the matter, seeking directions from the court.

Issues Raised

1. Does the current process for appointment violate equality guarantee under the Constitution?

2. Does the ongoing selection procedure of the Election Commission contradicts the right to free and fair elections?

3. Whether the safeguard given to the Chief Election Commissioner be extended to other Election Commissioners? 


Part I: Arguments by the Petitioners

  • There exists a legal vacuum in the absence of any procedural abidance on the qualification, eligibility and appointment of an Election Commissioner, as a result institutional integrity is adversely affected. Senior Counsel Gopal Sankaranarayanan contended that the fundamental norm or a basic feature needs to be secured, he further submitted that the Election Commission should display fearless independence in line with the Judiciary. 
  • Right to vote is a Constitutional Right which is violated when elections are not being conducted fairly and without favoritism by a neutral Commission. 
  • In his further submission Senior Counsel Gopal Sankaranarayanan, reminded the honorable court of its momentous role in pronouncing reformative judgements in elections and electoral reforms, additionally in matters relating to affidavits on assets, criminal antecedents, special courts for criminal trials of M.P and M.L.A.s. NOTA or prevention of booth capturing. References were made to the report of Justice Madan Lokur and the Law Commission of India’s Two-Hundred and Fifty Fifth Report.
  • The existing practice of appointment is incompatible with Article 324(2) and is manifestly arbitrary, also stressing upon the fact that no power under the Constitution of India can be exercised contrary to Part III be it the Executive or Legislature, as argued by Senior Counsel Prashant Bhushan.
  • The petitioners referred the Supreme Court Advocates-on-Record and Another v. Union of India to emphasize on the fact that the role of the Executive is monopolistic and the system is inaccessible to the public. It further contended that the independence of the Commission is intimately interlinked with the process of appointment, and the Executive alone being the part of the appointment turns the Commission into a partisan body and an extension of the Executive. 
  • The Constitution mandates the Election Commission of India to manage Election process in India, while also looking into any quasi-judicial issues between political parties. The Election Commission has the power to register political parties, allot symbols, to enforce the moral code of conduct. In cases of dispute where the parties involve the ruling dispensation, the Election Commission, if solely appointed by the Executive, will be in the clutches of the party in power and this practice falls foul of Article 14 of the Constitution. The petitioners relied upon numerous judgments of the Supreme Court to cement their position, in Supreme Court Advocates-on-Record and Others v. Union of India , Prakash Singh and Others v. Union of India and Others, Vineet Narnia and Others vs. Union of India and Another.
  • The petitioners represented by Senior Counsel Anup G. Choudhary and Counsel Kaleeswaram Raj questioned the legislative inaction to form a law that would make the institution of the Election Commission truly independence in body and spirit, since free and fair election is a Fundamental Right of the citizens, its denial necessitate judicial intervention. The counsel tried to explain the shrinking pool of contenders mostly restricted to Bureaucrats that too majorly IAS officers, an alarming situation as these IAS officers work in close alliance to their political masters, thereby simply abusing the position which they promised to uphold. 
  • To declare the appointment of Election Commissioners by the Executive as unconstitutional
  • The petitioner’s sough from the Court 
  1. to constitute a collegium-like committee of five comprising the Prime Minister, the leader of the Opposition or the Single largest party in Lok Sabha, the Chief Justice of India, the Speaker of the Lok Sabha and an eminent Jurist. 
  2. the person should have impeccable integrity and high moral character.
  3. the individual must have never had affiliation either directly or indirectly to any political party.
  4. that the person appointed must have been an IAS or the IPS or a Judge of the High Court
  5. the expenditure of the Election Commission should be brought on par with those of the Supreme Court, the CAG and the UPSC. 

 Part I: Arguments by the Respondents 

  • The Learned Attorney General of India in his humble submissions emphasized on the absence of any such vacuum as claimed by the petitioners and projected as the very foundation of the claim. He also dismissed the Judicial intervention as a necessity in the case, the introduction of the Collegium or Body of persons to select the Chief  Election Commissioner or other ECs would trample upon the constitutional process of aid and advice of Council of Ministers, as contemplated under Article 74 of the Constitution of India.
  •  The Founding Fathers have laid down very clearly that the appointment of the CEC and the ECs shall be by the President which is well settled in the Constitutional Scheme of things. The power given the President under Article 324(2) was always understood to be exercised by the President. 
  • The respondents emphasized that the Doctrine of Separation of Power must be respected as it is a reflection of democracy itself, relying on the judgment of the Supreme Court in Samsher Singh vs State of Punjab and Another The Honorable court is being invited to apply the principles involved in the context of ordinary Statutes to the interpretation of the Constitution itself, which is impermissible. 
  • The Learned Solicitor General placed Article 53 which deals with the Executive Powers of the Union, and affirmed that the law contemplated under Article 324(2) is the law contemplated under Article 53(3)(b). He further raised his argument by stating that the constitutional validity of Article 324 cannot be considered as its part of the original Constitution and therefore matters relating to policy rightfully must remain immune from the judicial radar.


The constitutional bench considered the arguments made by the parties, the circumstances surrounding this issue and the essential requirements of the law on the appointment of the Election Commission before pronouncing its landmark judgment. The critical keynotes which have been intellectually discussed and thought upon to arrive at a decision are understated:

  1. On the argument presented by the learned Attorney General & learned Solicitor General, cautioning the Court to respect the Doctrine of Separation of Power, the court while referring to several cases in I.C Golak Nath and Others v. State of Punjab and Another., Bandhua Mukti Morcha v. Union of India and Others, Re. Delhi Laws Act, 1912, in Indira Nehru Gandhi v. Raj Narain & Ors. Justice Y.V Chandrachud held inter alia as:

But the principle of separation of powers is not a magical formula for keeping the three organs of the State within the strict confines of their functions.”

Separation of powers as understood, the court states in India constitutes a part of the Basic Structure of the Constitution of India in His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Another and I.R Coelho (Dead) by LRs v. State of Tamil Nadu., equally, judicial review has been recognized as forming a part of the Basic Structure of the Constitution. The court while exercising its power of declaring a law made by the legislation as unconstitutional under Article 13 of the Constitution cannot be accused of transgressing the principle of separation of power.  Such exercise cannot expose the court to charge that it is not observing the limits set by the Constitution. 

  1. In terms of the security of tenure and conditions of appointment of ECI members, the Court stated that the independence of ECI members has been completely undermined due the exception which has been made the norm by terminating the services of those appointed before their actual term of six years is completed because they reach the age of sixty-five years. The Court stated that the Union Government has consistently chosen members who are close to the age of sixty-five since 2004, interfering with the ECI’s independence. Considering that  neither the Election Commission Act, 1991 nor the Constitution impose such a limitation, the Supreme Court questioned the basis for respondent’s argument that a Chief Election Commissioner should be appointed only on the basis of prior experience. As per article 324(5). The removal of the Chief Election Commissioner from office may only occur through the same process as that of a Supreme Court judge. In order to maintain the total independence of the ECI, one of the Justice also recommended in his concurring opinion that this clause be extended to the other Election Commission. 
  1. The constitutional bench of the Honorable Supreme Court, laid down the guidelines to regulate the selection of the members of the Election Commission, in exercise of the power conferred under article 142. It said that until the Parliament makes a law in consonance with article 324(2) of the Constitution, the direction is given to form a committee comprising
  1. The Prime Minister of India
  2. Leader of Opposition of the Lok Sabha or the Leader of the largest opposition party in the Lok Sabha in terms of numerical strength only in case of no Leader of Opposition.
  3. The Chief Justice of India,

On the analysis of the Constitutional Assembly debates, it was noted by the Court that the Founding Fathers had reached a consensus that the law regarding appointment of Election Commission must be made by elected members of the Parliament. Therefore, the Parliament must respect the mandate of the Founding Fathers and not undermine the core value of a democracy and rule of law. 

The courts directions are stated below as they are:

1) It is desirable that the grounds of removal of the Election Commissioners shall be the same as that of the Chief Election Commissioner that is on the like grounds as a Judge of the Supreme Court subject to the “recommendation of the Chief Election Commissioner” as provided under the second proviso to Article 324(5) of the Constitution of India. 

2) The conditions of service of the Election Commissioners shall not be varied to his disadvantage after appointment.

Defects of Law

The Judgement depicts the court exercising its powers beyond its scope, to resort to courts is not a remedy for all ills in a society in Common Cause v. Union of India and Others. Judicial restraint should not only recognize the equality of the other two branches with the Judiciary, it should foster that equality by minimizing inter branch inference. Judicial activism’s unpredictable result makes the judiciary a moving target and thus decrease the ability to maintain equality with the other branches namely Legislature and Executive. Courts must not try to run a government nor behave like emperors. Doctrine of Separation of powers between the three branches is nothing but a consequence of principles of equality enshrined in Article 14 of the Constitution. 


Elections in India are the world’s biggest carnival of democracy, almost a billion people vote to choose their representative to the Temple of democracy. In that respect a body responsible to conduct elections must be impartial and fair and not under any subdued pressure from any branch of the Government. The court stepped up to exercise its power of judicial review to look into the grievances of the petitioners in regard to the overall process to select the members of the Election Body. The court rejected the plea to declare the appointment by the Executive of Members as unconstitutional, which shows that the Article 324 is not sufficiently arbitrary, but requires to secure a structural independence and contain adequate safeguard against executive dominance. The proposed solution to include the Chief Justice does not solve the larger question of Institutional Independence but only reflects the partial controlling intention of the Judiciary in the structure of Election Institutions.  


College – Lloyd School of Law, Greater Noida