A bench hearing the matter questioned why successive governments had failed to establish an independent mechanism for appointments to the Election Commission despite repeated concerns over executive influence in the process.
Appearing for the Association for Democratic Reforms, Advocate Prashant Bhushan argued that every ruling party had taken advantage of executive control over appointments to the constitutional body. He submitted before the court that political parties had historically demanded an independent appointment mechanism while in opposition, but abandoned the demand after coming to power.
“When people were in opposition, they clamoured for an independent body. But once they came to power, they stopped bothering about it,” Bhushan told the bench.
Bhushan also referred to earlier remarks made by senior Bharatiya Janata Party leader L.K. Advani, who had criticised the concentration of appointment powers in the hands of the executive when the party was not in power.
During the hearing, Justice Dipankar Datta remarked that the issue reflected a broader pattern in Indian politics. Referring to previous political observations on governance, Justice Datta said, “I am reminded of a parliamentarian saying ‘tyranny of the unelected.’ This should be equated with tyranny of the elected.”
Justice PK Sharma added, “Tyranny of the majority.”
Justice Datta further observed, “Whoever comes to power is doing the same thing. It is unfortunate for the country.”
The bench also referred to a documentary produced by the British Broadcasting Corporation on Dr. B.R. Ambedkar, noting that Ambedkar had expressed concerns about the functioning of democracy in India within a few years of the Constitution coming into force.
The court questioned why Parliament had failed to enact a law governing the appointment process before the Supreme Court’s 2023 Anoop Baranwal judgment. The judgment had temporarily introduced a selection committee comprising the Prime Minister, the Leader of the Opposition, and the Chief Justice of India.
Under the new legislation, the Chief Justice of India has been removed from the selection panel. Petitioners challenged the move, arguing that it weakens the independence of the Election Commission and restores executive dominance over appointments.
Bhushan argued that the Supreme Court had repeatedly underlined the necessity of an independent appointment process to safeguard free and fair elections and uphold constitutional principles, including Article 14 and the rule of law.
“The requirement of independent Election Commissioners is premised on free and fair elections,” he submitted before the court.
According to Bhushan, the new legislation effectively revives the same defects in the appointment process that had earlier been identified by the Supreme Court. He argued that the court had “taken great pains to set things right” through previous judgments.
Bhushan further submitted that the new law contradicted at least five Constitution Bench judgments dealing with institutional independence and constitutional governance.
The petitions challenge the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023. The petitioners, including the Association for Democratic Reforms and activist Jaya Thakur, argued that the legislation gives the political executive of the day dominant, if not exclusive, control over the appointment of the Chief Election Commissioner and Election Commissioners.
The hearing has once again brought the issue of institutional independence and electoral transparency into national focus, with the Supreme Court raising serious concerns over the concentration of appointment powers within the executive and its long-term implications for democratic governance.
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