THE SUPREME COURT IS SET TO ADJUDICATE, on November 11, the petitions challenging the Chief Election Commissioner and Other Election Commissioners Act, 2023, the law that has kept the Chief Justice of India (‘CJI’) out of the committee that appoints Election Commissioners. These writs have been filed, adjourned, and then re-listed time and again for the better part of a year. In the meanwhile, three appointments, including that of Chief Election Commissioner Gyanesh Kumar, have been made while the Act has remained under challenge in the Court.
The issue is more than scheduling conflict. The postponement contravenes the fundamentals of electoral neutrality. With each passing month of the 2023 law remaining under enactment, a process solidifies in which the executive imposes power on the organ charged with overseeing it. The longer the state of uncertainty persists, the more it becomes difficult to rectify the negative effect on democracy.
In March 2023, the Supreme Court in Anoop Baranwal v. Union of India set an interim precaution: that until the Parliament enacted a law to the effect, appointments to the Election Commission of India (‘ECI’) would be made by a three-member committee consisting of the Prime Minister, the leader of the Opposition, and the CJI. The idea was neither symbolism nor majoritarianism but structural balance: the avoidance of any single branch of government from becoming dominant in the process.
