The story so far:
For several decades, Parliament had not enacted a law laying down the procedure for these appointments. Union of India. Justice Sharma, held in favour of sending the case to a Constitution Bench, stating that several questions of substantial importance were at stake While Justice Datta did not find a reference to a Constitution Bench necessary. A removal motion has to be passed by the required special majority in both Houses of Parliament. Only after Parliament passes the motion can the President issue an order removing the CEC.
Article 324(2) provides that the President appoints the CEC and other Election Commissioners, subject to any law made by Parliament. In March 2023, a five-judge Constitution Bench of the Supreme Court delivered its judgment in Anoop Baranwal v. The Constitution Bench held that until Parliament made a law under Article 324(2), appointments to the Election Commission would be made on the recommendation of a three-member committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India. Parliament enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which came into force in January 2024. The 2023 law has been challenged before the Supreme Court. On September 23, a Division Bench of Justices Dipankar Datta and S.C. Sharma delivered a ‘split’ verdict on the Union government’s plea seeking a larger bench reference of the challenges against the 2023 Act. The procedure is set out in the Judges (Inquiry) Act, 1968.
Article 324 of the Constitution vests the “superintendence, direction and control” of elections in the Election Commission of India (ECI). The court said the arrangement would operate only until Parliament enacted a law on the subject.
This led to a challenge before the Supreme Court on the question of how the independence of the ECI could be protected when its members were appointed by the executive. One of the questions before the court is whether replacing the CJI with a Union Cabinet Minister is constitutionally valid.
The appointment mechanism differed from the one prescribed by the Supreme Court in Anoop Baranwal. The President appoints the CEC and ECs on the recommendation of this committee. Under the 2023 Act, the Selection Committee consists of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister.
