• Article looks at why and how CJI became part of the selection panel and cons of being on the panel.

Appointment of the CJI on panel for selecting Chief Election Commissioner (CEC) was heard in the Supreme Court (SC). The Advocate General asked the Judges to refer the matter to a larger bench. The matter was referred to the Chief Justice of India (CJI).

First, did India always have one or multiple election commissioners?

“India had a single member from 1950 to 1989. It became a multi-member body in October 1989, reverted to a single CEC in January 1990, and has comprised one CEC and two election commissioners since October 1993.” Source Hindustan Times

The purpose of this article is to provoke thought and not cast aspersions on the higher judiciary, individually or collectively. It shares information and insights.

According to PRS Research, “In 1991, Parliament passed the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act.  The Act set the salary of the CEC and ECs at the same level as a Supreme Court judge. It did not provide for their appointment process, which continued to be decided by the President.” 3

1. Parliament had not enacted a law governing appointments to the Election Commission despite Article 324 of India’s Colonial Constitution. Surprising, how it escaped the learned men who drafted the Colonial Constitution. From 1950 to 2015, none petitioned the SC for laying down the law!

A March 2023 SC order, Anoop Baranwal v. Union of India,  laid down an interim mechanism under which appointments would be made by a committee comprising the Prime Minister, the Leader of Opposition in Lok Sabha and the Chief Justice of India — until Parliament enacts a law. Source Indian Express

The SC judges who passed the order on 2/3/23 in the Anoop Baranwal matter were KM Joseph and Ajay Rastogi (retired on 17/6/23), Aniruddha Bose (10/4/24), Hrishikesh Roy and CT Ravikumar (January 2025). Retirement dates got from a Google search on 25/9/26. To read 2023 order

When a SC order seeks to extend the reach of the Judiciary by appointing the CJI, even if on a temporary basis, to what was till then an Executive Function there could be a conflict of interest?

2. According to Hindustan Times, “the March 2023 SC order said that the selection of CEC and ECs should be done by a panel headed by the Prime Minister and comprising two other members - leader of Opposition in Lok Sabha and the CJI, to ensure transparency in the selection mechanism.

PRS Research wrote, “A Search Committee headed by the Cabinet Secretary will suggest five names to the Selection Committee. The Selection Committee may consider any person other than those suggested by the Search Committee.” 3

Do the recommendations of the Cabinet Secretary have some value in the eyes of the Supreme Court?

Does transparency come only by the appointment of a SC Judge, in this case CJI, on a selection committee?

Is the SC fully transparent in its working? Be it appointment of Judges or implementation of Vishaka guidelines? Just asking in all humility.

On Assets of Judges, I wrote in 2025 in the Financial Express, “The SC's move towards judges declaring assets has a history of resolutions and varying levels of compliance; while the recent announcement and website updates suggest progress, the declarations remain voluntary, unlike the public disclosure of assets by Union ministers.” However, I visited the SC site on 25.9.26 at 10.15 am and found that “Placing the declaration of assets on the Supreme Court website will be mandatory.” As on date of visit, 27 Judges had declared their assets on the SC site. This is a significant improvement from before. To know about Asset Declarations of before read my 2025 article

I do not know about status of HC Judge Asset declarations so cannot comment.

3. Subsequently, Parliament enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

“The 2023 Bill replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. The CEC and ECs will be appointed by the President upon the recommendation of a Selection Committee. Making the CEC and EC’s salary equivalent to the Cabinet Secretary may lead to government influence as it is fixed by the government. This is unlike the salary of a Supreme Court judge which is fixed through an Act of Parliament.” 3

However, the law replaced CJI on the selection committee with a Union Cabinet Minister nominated by the Prime Minister. Thus, the government got 2 of the 3 member panel for selection of CEC, the third being Leader of Opposition. 1 “

The March 2023 inclusion of CJI in the selection panel was meant to be an interim arrangement till Parliament passed a law. Notwithstanding passing of a law on appointment of CEC, the matter returned to the SC.

In the September 2023 hearing, “According to Justice Datta the top court had already settled the governing Constitutional principle in Anoop Baranwal, which held that appointments to the EC cannot remain under “exclusive executive control”. The question now, he said, was whether the 2023 law complies with that principle.” Source Indian Express Law Beat quotes Justice Datta to say inclusion of CJI was a pro-term measure.   

Conversely, Justice Sharma of the same bench said, “The question, therefore, was not merely whether an existing legal principle should be applied, but whether Parliament was constitutionally entitled to replace the CJI with a Cabinet minister nominated by the Prime Minister. Financial Express

I reiterate that the solution to every issue is not placing a Judge on the Committee or legal. If they were indeed so, the backlog of cases in the higher judiciary would not be what it is today.

This is not to say that I do not admire or respect the judiciary, at all levels.

4. According to the Indian Express, “A 2 judge bench of the SC referred petitions challenging the 2023 law on the appointment of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs)-which excludes the CJI from the process-to the CJI to consider forming a Constitution Bench (which has a minimum of five judges).” 2

Those seeking to get the higher judiciary involved in selection of the CEC may  note that-

A. Every judge of the SC shall be appointed by the President. Article 124

B. Parliament had to pass a Bill for increasing the number of SC judges from 34 to 38. Source

C. Impeachment of a SC judge can only be done by Parliament.

D. Salaries of SC Judges are approved by Parliament. Article 125

The Executive is responsible to the people of India through Parliament. Does a framework exist by which the Higher Judiciary is accountable to the people?

Further, just because the SC has taken upon itself the power to appoint judges (did not exist from 1950 to say 1980s-90s-know background to Collegium System) does not imply that the SC can interfere in Executive functions although Justice Datta said that judges appointing judges is a myth because the Centre has a veto.

Procedure for removal of CEC and SC Judge is same. “The Chief Election Commissioner “shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court.”  

Beyond the above, one cannot compare the appointment of Judges with the CEC because context is different.

On expanding judicial role, SC may wish to heed words of former President Pranab Mukherji who said in 2016, “Each organ of our democracy must function within its own sphere and must not take over what is assigned to others.’’

Respect in India, be it by the Executive or the Higher Judiciary, has to be earned. Article 142 of the Colonial Constitution cannot be a substitute.

Errors if any are without malafide intent.  

Also read and References

1. CEC Appointment Constitution Bench explained – Express 

2. Why did SC refer matter to CJI? – Express 

3. PRS paper on CEC Appointment