“Yes Man” Attitude to the Executive: A Question on India’s Electoral Official’s Appointment
- Jayanti Ranjan
- Feb 24
- 9 min read
Updated: Mar 31
Authored by Amrapali Gautam, a third-year law student at Rajiv Gandhi National University of Law, Punjab

The recent appointment of Election Commissioner Gyanesh Kumar as Chief Election Commissioner has again shed light on discrepancies existing in the Selection Committee constituted under the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 [hereinafter ‘the 2023 Act’]. The appointment of the officials of the Election Commission of India (ECI) is made following the procedure established under the 2023 Act, despite its constitutionality being challenged before the Supreme Court. Although the 2023 Act is riddled with various inconsistencies which question its neutrality, this blog is constrained to highlight the defects in the Selection Committee, which hinders its ability to act as an impartial and non-partisan body. The blog also explores the intent of the Constituent Assembly in enacting the provision pertaining to elections and the appointment procedure followed in different democracies in the world.
The ECI has the power to supervise, direct, and control the electoral process of the Parliament, the State Legislatures, and the offices of the President and Vice President. It is a permanent constitutional body comprising a Chief Election Commissioner (CEC) and two Election Commissioners (ECs). As per Article 324(2) of the Constitution of India, the President shall appoint the CEC and the ECs on the advice of the Prime Minister. The Prime Minister and its Council of Ministers belong to the political party, are part of the ruling executives and are directly elected by the people.
Article 327 of the Constitution of India bestows the power upon Parliament to legislate on matters related to elections and other necessary spheres, including the appointment of the ECI officials. The Parliament, in exercise of this power, enacted the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 (the 1991 Act), which primarily dealt with salary, allowances and service conditions, but did not provide the procedure for appointing ECI officials. However, the crux of the independence of ECI lies with the appointment of its officials. Thus, the lacunae in the 1991 Act were redressed by the Chief Election Commissioner and Other Election Commissioner (Appointment, Conditions of Service and Term of Office) Act, 2023 (the 2023 Act), which governs the appointment, terms of service, and tenure of the CEC and ECs, and establishes procedures for the functioning of the ECI. It aims to resolve the longstanding legislative gap that has existed since the adoption of the Constitution.
The 2023 Act: Undoing Anoop Baranwal's Judgement
The 2023 Act was enacted in light of the 2023 ruling of the Supreme Court of India (SC) in Anoop Baranwal v. Union of India (the judgment). In this case, it was contended by the petitioner that the appointment of the ECI officials by the President of India is made on the recommendation of the Prime Minister, an executive member, which raises questions on the neutrality of the process. The SC held that in the absence of any legislation related to the matter of appointment of the CEC and the ECs, the President shall appoint the CEC and the ECs on the advice of the Selection Committee comprising of the Prime Minister, the Leader of the Opposition, and the Chief Justice of India (CJI). The above composition strikes a balance of power between different organs of the government in the Search Committee. It also affirms the neutrality in the selection mechanism, which was backed by the Goswami Report on Electoral Reforms, 1990 (Chapter II para 1.2) and the Law Commission Report, 2015 (para 6.10.3), which recommended the CJI position in the panel for appointing electoral officials.
The judgement further aligns with the view of the Father of the Indian Constitution, Dr. Ambedkar, who remarked that ‘The election machinery should be outside the control of the executive Government, there has been no dispute’. Thus, it is imperative to curb the influence of the executive in the appointment of ECI officials to ensure the independence of the electoral process.
The Selection was constituted under the 2023 Act, but its composition is departing from what was laid under the judgement. Under Section 7(1) of the 2023 Act, the Selection Committee selects the candidate from the list proposed by the Search Committee and recommends it to the President for appointment as the ECI officials. However, the modification made in the composition of the Selection Committee is a grey area and sparks a possibility of partisan appointment. The Selection Committee comprises the Prime Minister, the Opposition Leader, and a Union Cabinet Minister. The CJI’s position is removed from the Committee, which ensured fairness by striking down executive supremacy and is contrary to the spirit of the judgement, thereby reinstating the overt control of the executive.
According to Section 8(2), the Selection Committee can also consider any other person, other than those whom the Search Committee recommends. It renders the whole process of proposing the names by the Search Committee fictitious, and enables the executive-dominated Selection Committee to appoint any official of their choice conveniently. It truly endangers transparency in the selection mechanism by giving the executive supremacy in the electoral process, which the judgement highlighted (para 222) “As long as the party that is voted into power is concerned, there is, not unnaturally, a near insatiable quest to continue in the saddle. A pliable Election Commission, an unfair and biased overseer of the foundational exercise of adult franchise, which lies at the heart of democracy, who obliges the powers that be, perhaps offers the surest gateway to acquisition and retention of power.”
Furthermore, Section 16 immunises the CEC and ECs from any civil or criminal proceeding for any actions taken in their official capacity while discharging their duty. If any decision taken by an ECI official, whose appointment is made by a committee where 2/3rd members are executives, makes a decision that potentially favours the ruling party, this provision saves them from being held responsible or accountable, which further leaves enough room for officials to act in an apolitical manner. Kuldeep Kumar v. U.T. Chandigarh exemplified the presence of such malpractice, where the returning officer defaced eight ballot votes. This signifies a need for a decision-making process that is free from arbitrary actions, unfairness, and a lack of transparency.
Unconstitutionality of the Section 7(1) of the 2023 Act
Although the Selection Committee of the judgement was a “pro-tem measure” intended to function until the legislation for appointing EC officials was enacted, the newly established 2023 Act contradicted it. This discrepancy was challenged in Jaya Thakur v. Union of India, wherein the petition contested the non-alignment of the appointment of ECs, before the 2024 General Elections, with the judgment’s selection mechanism. The petition also raised concerns about the hasty appointment of ECs a day before the stay order hearing appears to make it infructuous. Furthermore, the Leader of Opposition was notified about the appointment just ten minutes beforehand constituted a procedural anomaly, leading to a severe lack of transparency.
The stay order was refused owing to the balance of convenience, which favoured the respondents and consequently protected any disturbance that might be caused, in the schedule of the 18th Lok Sabha General Election. The court also upheld the “concept of plurality” by validating the impugned EC appointment. The three-member Commission was deemed essential for conducting the general elections as it provides “balance and checks”, a principle underscored in the TN Sheshan case.
The bench highlighted in Jaya Thakur case (para 10) “Unless the provision is ex-facie unconstitutional or manifestly violates fundamental rights, the statutory provision cannot be stultified by granting an interim order. Stay is not ipso facto granted for mere examination or even when some cogent contention is raised. Suspension of legislation pending consideration is an exception and not the rule.” But, the history of the provision of elections has been outlined, which the judgement extensively analysed.
Elections in democratic India are considered inherently fundamental, if not explicitly mentioned under Chapter III (Fundamental Rights) in the Constitution of India. The Constituent Assembly established a committee to identify the elements that constitute Fundamental Rights. Dr. BR Ambedkar asserted,
The independence of the elections and the avoidance of any interference by the executive in the elections to the Legislature should be regarded as a Fundamental Right and provided for in the chapter dealing with Fundamental Rights. When the matter came up before the House, it was the wish of the House that while there was no objection to regard this matter as of fundamental importance, it should be provided for in some other part of the Constitution and not in the Chapter dealing with Fundamental Rights.
Moreover, the Preamble to the Constitution proclaims India a Democratic Republic. The Preamble and its elements formulate the “basic structure” of the Indian Constitution as proclaimed by Keshvananda Bharti v. State of Kerala. In Indira Nehru Gandhi v. Shri Raj Narain & Another, the Allahabad High Court ruled (para 124) “If the democratic way of life through parliamentary institutions based on free and fair elections is a basic feature which cannot be destroyed or damaged by amendment of the Constitution, it cannot similarly be destroyed or damaged by any legislative measure.” Any legislation that dilutes the free and fair elections, which are a part of the “basic structure”, shall stand ultra vires to the Constitution. Further, T. N. Sheshan, CEC v. Union of India (page 623 para 10) strongly stressed the autonomy of ECI, “In order to ensure the purity of the election process it was thought by our Constitution-makers that the responsibility to hold free and fair elections in the country should be entrusted to an independent body which would be insulated from political and/or executive interference.” The executive-dominant Selection Committee thus stands ultra vires to the Constitution, as there exists a potential for subjective appointment of ECI officials. This can easily influence the decision-making capacity of the official, who is shielded from any legal actions.
Additionally, the appointing procedure, where two-thirds of the members are the executive in the Selection Committee, does not comply with the “procedure established by law” of Article 21 (Right to Life and Personal Liberty). As A. K. Gopalan v. State of Madras observed, the law must be “jus” that abides by the principles of natural justice, not merely “rex,” i.e. an enacted law. Thus, the Selection Committee as constituted in the judgement was a “pro-tem measure” until legislation established the independence of ECI from the executive, which the 2023 Act failed to do.
Further, it is essential for any legislation enacted to qualify the test of just, fair and reasonable laid by Article 21 in coalescence with Article 19 (Right to Freedom) and Article 14 (Right to Equality) as underscored in Maneka Gandhi v. Union of India. Therefore, the composition of the Selection Committee under Section 7(1) of the 2023 Act appointing procedure is unfair and arbitrary, rendering it ultra vires to the Constitution.
Comparative Practice of Different Democracies
The selection and appointment of members of the electoral body vary among democracies. In South Africa, according to Section 6(3) of the Electoral Commission Act, the panel for appointing the Electoral Commission comprises four members – the President of the Constitutional Court, a representative of the Human Rights Commission, the Commission on Gender Equality, and the Public Prosecutor. In Canada, the chief electoral officer is appointed by the House of Commons. Similarly, in the UK (para 13), the candidate on the Speaker’s Committee on the Electoral Commission is approved by the House of Commons, whereas in the United States of America, the president appoints the Federal Election Commissioner, with the advice and consent of the Senate.
Thus, in democratic countries worldwide, appointing electoral officials is a consultative process that involves the executive, legislator and other independent bodies solidifying neutrality, impartiality, and objectivity of the electoral body. The 2023 Act deviates in this respect, which raises concerns about the integrity of the democratic process.
Conclusion
The history and the intentions of the Constituent Assembly depict that elections were always the fundamental aspect of the Constitution and that democracy is the basic constitutional setup. An Independent Election Commission is necessary to uphold the Rule of Law. Therefore, the appointment of Electoral officials must be free and without any interference from the executive monopoly, as the independence of ECI is linked with the appointing process of its officials.
Although the 2023 Act fills the appointment vacuum that existed for 74 years. However, the Act does not correspond with the judgment’s recommendation. The procedure for appointing the ECI officials as stipulated by the 2023 Act through the Selection Committee, does not only stands ultra vires to the Constitution by harming the basic structure but also violates the fundamental feature of the Constitution to have free and fair elections. This makes the 2023 Act unjust, unfair and arbitrary, thereby bereft of the “procedure established by law” enshrined under Article 21 read with Article 14 and Article 19 of the Indian Constitution, which renders Section 7(1) of the 2023 Act unconstitutional. Thus, it is crucial to restore the CJI's position in the Selection Committee to ensure neutrality, maintain balance, and keep a check on the committee’s members as depicted by the selection mechanism of the various democracies.
ECI is a constitutional body; its independence is crucial, and any political fidelity towards any political party compromises the free and fair elections in the country. Therefore, the executive must not reign over the appointing process of the ECI officials through its numerical strength and reinforce their political affiliations, as it may result in a contest with obvious winners. It easily effaces the independence of the electoral process, ECI and the institution of democracy, which formulates the basic structure of the Constitution of India. One must not forget that the Act was passed when 97 opposition Members of Parliament (MPs) were suspended from the Lok Sabha leaving the ruling majority and other friendly parties in the house, with no proper debate and discussion with the opposition is a blatant violation of democratic ethos The survival of democracy is supreme over the whims and fancies of any ruling political party striving to secure its interest by meddling in the electoral process.
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