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.
The 2023 bill, which months later substituted the CJI with a Union Cabinet Minister, on paper, was in exercise of the Parliament's legislative power. In practice, however, it tilted the scale unequivocally in the executive’s direction. The executive now holds two out of three votes in deciding appointments to an institution that must be immune to it.
It may be called a technical transition, but it exacts a constitutional toll. As the Supreme Court famously observed in Mohinder Singh Gill v. Chief Election Commissioner (1977), “Free and fair elections are the lifeblood of democracy”. That principle is currently under strain.
Judicial restraint is a praiseworthy virtue. Judicial delay is not. With its recurrent deferral of the question, the Supreme Court has allowed the 2023 Act to operate sans supervision. Every new appointment that follows pursuant to this legislation cements further the status quo, making it that much harder for the Court to successfully intervene without upsetting settled arrangements.
The effect is cumulative. The Court’s Anoop Baranwal judgment envisioned a neutral, constitutionally credible process. The longer this litigation remains undecided, the more that vision fades from practical relevance. Citizens are left to wonder whether procedural delays have, in effect, rewritten a constitutional safeguard.
This discussion has nothing to do with the question of judicial overreach; it has to do with the swiftness of judicial activity. The Court has rightly remarked in Vineet Narain v. Union of India (1997) that the independence of institutions lies at the heart of the rule of law. Preservation of such independence cannot be seen as activism but as a guarantee of constitutional fidelity.
The crisis need not necessarily be one of a judiciary versus executive showdown. A more balanced model is possible and preferable. The Parliament may review the 2023 Act and include a neutral member in the selection panel, whether the CJI, a retired judge, or a constitutional officer such as the Comptroller and Auditor General.
In addition, making selection criteria transparent and having a clear selection rationale published for the purpose of appointments will add to credibility. The independence of the Election Commission is not a stumbling block that impedes governance but a guarantee of democratic legitimacy. As even the Dinesh Goswami Committee on Electoral Reforms (1990) emphasised, insulating the Commission from executive influence is indispensable for public confidence. Governments are also better off when elections are handled by a body where impartiality is absolute.
India's democratic framework has survived several tests from coalition instability to populism. But it relies on institutions that evoke respect rather than distrust.
When the bench sits to hear this matter, it will be adjudicating more than a statute. It will decide whether the principle of checks and balances can survive legislative convenience. The Supreme Court’s task is not merely to strike down or uphold a law, but to signal that independence cannot be diluted through delay.
Every day this case remains undecided is another day when the line between government and referee blurs. As Justice Krishna Iyer wrote in Mohinder Singh Gill, “The Commission is a sentinel of democracy.” That sentinel must not only be fair but must appear fair.
The Court's final ruling will thus define more than the process of appointment; it will decide whether the Indian democracy will further exist on the strength of its institutions or that of its incumbents' convenience. As the hearing finally approaches, the question is simple yet profound: will the Court act in time to restore confidence before the next election cycle sets in? Because when justice waits, democracy wobbles, and the cost of both is borne by the voter.