DATE: March 2, 2023

PETITIONER: Anoop Baranwal

RESPONDENT: Union of India

BENCH: Justice K.M. Joseph (headed the bench), Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy and Justice C.T. Ravikumar.

CASE NUMBER: WP(C) 104/2015

LEGAL PROVISIONS: The Constitution of India (fundamental rights, Article 324, Article 142 and Article 248) and the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.


  • In 2015, the petitioner Anoop Baranwal filed a Public Interest Litigation challenging the constitutional validity of the procedure of electing the Election Commission under Article 324(2) of the Constitution.
  • In October 2018, a two-judge bench of the Supreme Court, in reaction to the PIL, referred the case to a larger bench because of the need to closely examine Article 324 of the Constitution.
  • Additionally, a few similar petitions were submitted by Ashwini Kumar Upadhyay, Association for Democratic Reforms and others.
  • In September 2022, for the first time, the Supreme Court discussed a matter related to the appointment procedure of the election commission.
  • After a month’s hearing, the five-judge bench reserved its verdict, which was announced on March 2, 2023.


The instinct case was based on the following issues:

  1. Does the Election Commission of India’s current appointment procedure violate the Right to Equality?
  2. Does the Election Commission of India’s current appointment procedure violate the Right to Free and Fair elections?


The council on behalf of the Petitioner was Prashant Bhushan, and on behalf of the Respondent was Arvind Kumar Sharma.

Arguments from the Petitioner’s side

Article 324(2) of the Constitution states that the election commission shall be appointed by the President subject to the provisions of any law made by the Parliament. However, post-independence, no such law was enacted, and the Prime Minister became the advisory body to the President in this regard. Thus, not obliging to the inscribed procedure in the Constitution.

The entire procedure of selecting the election commission was challenged on the basis that the advice of the executive was solely considered. This is arbitrary and violates Article 14 of the Constitution. Thus,  a fair, just and transparent method for the appointment of the election commission is missing. This is necessary because India is a democracy, and an independent Election Commission is the foundation of this.

The term and tenure of the EC were challenged and contended that it must get constitutional safeguards to function independently. 

The criteria for appointing an Election Commissioner should be mentioned in the provisions.

Appointment of the Election Commission is not just about the right to vote but also about free and fair elections.

So, the crux of the challenge is that since there is no law made by Parliament, the Court shall fill the “constitutional vacuum”.

Arguments from the Respondent’s side 

The Union of India contended that Article 324(2) of the Constitution conferred power upon the Parliament to appoint election commissioners. If there are any loopholes in the provisions related to the Election Commission, the Parliament is entitled to deal, not the Judiciary.

The Election Commission Act, 1991[2] was mentioned to prove that the Parliament protected the Election Commission’s service condition and was fulfilling its responsibility.

The court shall refrain from intervening in the appointment procedure of the election commission under Article 324, respecting the principle of separation of powers.

The appointment of the commission by the President does not damage the process of free and fair elections, and the court should not intervene with the power of the executive.

The right to vote is a statutory right and not a fundamental right. Thus, there is no violation of fundamental rights.


The court backed its judgement by stating that the Election Commission is an autonomous constitutional body. It administers the union and state election process, and India being a democracy, independence of the election commission is mandatory.

Article 324[3] and the Act of 1991 is also silent on the selection process.

The verdict was announced on the basis of reading and interpreting the debates of the Constituent Assembly. The members were of the view that the elections must be conducted independently and the regime prevailing under the Government of India Act, 1935 shall not be followed.

The Dinesh Goswami Commission, 1990[4], suggested the Chief Justice of India and the Leader of the Opposition should participate in the selection process of the EC.

Report of the Second Administrative Reform Commission, 2009[5], stated that a board-based committee should be set up for statutory bodies, EC being one of them.

The Law Commission of India Report, 2015 [6], stated that the Election Commission should be free of political pressure and executive interference to maintain the purity of the process.


The role of the judiciary is to interpret the laws enacted by the legislative and pronounce judicial decisions. It can also give deadlines and guidelines to the other organs of the government.

The judgement was viewed as if the judiciary framed a law which is beyond the purview of the judiciary’s powers. Thus, the apex court was criticised for overstepping and not refuting the purpose of separation of powers among the three pillars of the constitution.  The court relied upon its power under Article 142[7] of the Constitution.

However, Article 248f[8] The Constitution only empowers the Parliament with residual law-making powers, not the judiciary.

Also, the involvement of the Chief Justice of India in the appointment procedure of the EC is not wise because it is not a judicial decision, and the CJI is not fully aware of the suitability of office roles.


The Supreme Court, in its judgement, replaced the previous method of appointment by the President on the advice of the Prime Minister with a three-member committee consisting of the Prime Minister, the Leader of the Opposition and the Chief Justice of India. Further, the court stated that when the Parliament enacts a law for the selection of the Election Commission as required by Article 324(2) of the Constitution, the method mentioned in the instant judgement will refute its power. This means the judgement was passed subject to the law enacted by the Parliament. Therefore, the petition challenging the constitutionality of the procedure was upheld, and a decision was pronounced accordingly.

Further, the gravity of the instant discussion should be taken into consideration. The independence of the Election Commission is crucial to uphold the democratic spirit of the nation. Also, for the reason that the EC ensures every citizen participates in the process of selecting the government. Hence, it is vital that the commission be transparent, accountable and arbitrary decision-making should not be conducted as the general public will lose trust in the functioning of the country, and the founding principle will be compromised. However, the principle of separation of powers of the three organs is viewed to be ignored.

In my opinion, instant judgement is the first step towards making the Election Commission an independent body and filling the constitutional vacuum. In furtherance, I view the issue of the judiciary overstepping as not an issue because the pronouncement is subject to the laws framed by the Parliament except involving the Chief Justice of India in the process. So, the power to frame legislation is vested in the legislative body only; the judiciary has merely laid down a temporary procedure for the Election Commission appointment.

Therefore, the destiny of the Election Commission of India is in the hands of the organs of the government, which should finally take a decision for the welfare of its citizens. After all, as Abraham Lincoln once said, “The ballot is stronger than the bullet”.

Bhavika Mittal,

DES Shri Navalmal Firodia Law College affiliated with Savitribai Phule Pune University.

[1] SCC Online SC 216

[2] Election Commission (Conditions of Service of Election Commissioners and Transaction of business) Act, 1991.

[3] Superintendence, direction and control of elections to be vested in an Election Commission. There are six clauses to the article.

[4] Chapter II, Electoral Machineary.

[5] Report of Second Administrative Refrom Commission, 2009

[6] 255th law commission of India Report, Chapter VI. 

[7] Enforcement of decrees and orders of the Supreme Court and unless as to discovery, etc. (1) The Supreme Court in the exercise of its jurisdiction, may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.

[8] Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent, List or State List.

⁠Such power shall include the power of making any law imposing a tax not mentioned in either of those Lists.