A Constitution Bench of the Supreme Court in the case of  Anoop Baranwal v. The Union of India has ordered that Election Commissioners will be appointed by the President of India on the advice of a Committee consisting of the Prime Minister, and leader of the Opposition in the Lok Sabha (or leader of the largest opposition party), and the Chief Justice of India. This practice will be enforced until a law in this regard is made by the Parliament. The bench was deciding a batch of petitions recommending reform in the process of appointment of members of the Election Commission of India and said that there is an unavoidable necessity of making a law under Article 324 (superintendence, direction and control of elections to be vested in the Election Commission) of the Constitution.

The advocates for the petitioner contended that having the recommended selection committee will be questionable as to its neutrality. He insisted that a mechanism be evolved to appoint Election Commissioner and Chief Election Commissioner through a transparent process that is devoid of arbitrariness.  

While referring to the doctrine of separation of power, it was argued by the solicitor general that conferring the power of appointment upon the executive and CJI would mean that the constitution has to be rewritten which would be in the teeth of the concept of democracy.

 Justice Joseph noted that the executive is required to pick names of those who could serve the full tenure, otherwise, it would be a violation of Section 6 of the Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Act, 1991. Justice Rastogi added that grounds for the removal of Election Commissioners should be the same as that of the Chief Election Commissioner.

The Court said the Election Commission has to remain “aloof” from all forms of subjugation by the executive. “One of the ways it can interfere is by cutting off financial support. A vulnerable Election Commission would result in an insidious situation and detract from its efficient functioning.” The major concern of the bench was to ensure that the persons appointed are “above politics“.