Scholars Say Anoop Baranwal Already Binds the 2023 EC Law as the Commission’s Dissent Goes Public

The news

New Delhi. Following the 24 and 25 September cards on the Supreme Court’s split and the Opposition’s removal plan, what is new today is a doctrinal case against the reference, a record of how the Election Commission (EC) decides, and a reform agenda. On Wednesday Justices Dipankar Datta and Satish Chandra Sharma disagreed on the challenge to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 and referred it to the Chief Justice of India for a Constitution Bench. In The Indian Express, Faizan Mustafa (CNLU, Patna) and Madhav Anand (NUJS) back Justice Datta. The Act replaced the Chief Justice on the selection panel that Anoop Baranwal (2023) had devised — Prime Minister, Leader of the Opposition and CJI — with a Cabinet Minister nominated by the Prime Minister. Justice Datta held that the reference plea surfaced only “in gradual course” of the Attorney General’s arguments, and that applying a settled principle is not interpretation (Thakur Ganga Singh, 1960). The binding principle, he held, is that appointments must be free of exclusive executive control, because “it is not enough for the ECI to be independent, it must also appear to be independent”; the CJI’s inclusion was “signalling advice, and not a mandate”. Asked whether the PM’s nominee would ever oppose the PM, the AG said “probably no”. The authors say the judges should have read the Act down to require unanimous selection decisions. An IE explainer notes that under Section 18 of the 2023 Act business is unanimous “as far as possible”, otherwise by majority, with one vote per member. Dissent is old: T.N. Seshan clashed with M.S. Gill and G.V.G. Krishnamurthy; N. Gopalaswami wrote in January 2009 seeking Navin Chawla’s removal; Ashok Lavasa dissented in 2019 on Model Code clean chits to Narendra Modi and Amit Shah. The Economic Times reports that the Opposition will submit a removal notice against CEC Gyanesh Kumar “within the next two weeks”; the EC says all final decisions, including on the Special Intensive Revision, were unanimous. A Supreme Court petition by advocate Shailendra Mani Tripathi alleges that Electoral Registration Officers were stripped of powers under Sections 13B, 22 and 23 of the Representation of the People Act, 1950. Gilles Verniers, in ET, proposes public decision trails, auditable roll data and recorded dissent. The syllabus link is GS2 on constitutional bodies and the RP Act.

Static syllabus linkage

1. Article 324(2) left appointments to Parliament, and Parliament waited until 2023. Article 324(1) vests the “superintendence, direction and control” of the preparation of electoral rolls and the conduct of elections to Parliament, State Legislatures and the offices of President and Vice-President in an Election Commission. Article 324(2) says the Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners as the President may fix, and that appointments shall be made by the President “subject to the provisions of any law made in that behalf by Parliament”. The CEC acts as Chairman of the Commission. In the Constituent Assembly, Shibban Lal Saksena warned that the Commissioner could be “under the thumb of the executive”, and Dr. B.R. Ambedkar’s answer was to leave room for a parliamentary law. No such law on the method of appointment was made until the 2023 Act, so for over seven decades appointments were made by the President on the advice of the Union Council of Ministers.
2. Anoop Baranwal gave a principle and an interim machinery; the 2023 Act changed the machinery. In Anoop Baranwal v. Union of India (2023), a five-judge Constitution Bench held that until Parliament made a law, the CEC and Election Commissioners would be appointed by the President on the advice of a committee of the Prime Minister, the Leader of the Opposition in the Lok Sabha (or the leader of the largest Opposition party) and the Chief Justice of India. The Court tied this to free and fair elections, which form part of the basic structure. The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 created a Selection Committee of the Prime Minister as chairperson, the Leader of the Opposition and a Union Cabinet Minister nominated by the Prime Minister, and a Search Committee headed by the Law Minister to prepare a panel of names. The Selection Committee may consider persons outside that panel, and a vacancy in the committee does not invalidate its decisions. The core question in the pending challenge is whether a committee with a two-to-one government majority meets the Baranwal standard of freedom from exclusive executive control.
3. The Commission is a collegium of equals that decides by majority when it cannot agree. The Commission was a single-member body for most of its history; two additional Commissioners were appointed in October 1989 and their posts abolished in January 1990, and it became a three-member body again from October 1993. The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, in Section 10, required business to be transacted unanimously as far as possible and otherwise by majority. In T.N. Seshan v. Union of India (1995), a Constitution Bench upheld the multi-member Commission and the majority rule, holding that the CEC is not superior to the other Commissioners in decision-making. The 2023 Act repealed the 1991 Act and reproduced the rule in Section 18, adding that the Commission may regulate its procedure and allocation of business only by unanimous decision. Section 17 says all business shall be transacted in accordance with the Act.
4. Removal protection differs for the CEC and the other Commissioners. Under the proviso to Article 324(5), the CEC can be removed only in the manner and on the grounds on which a Supreme Court judge is removed, and his conditions of service cannot be varied to his disadvantage after appointment. The other Election Commissioners can be removed only on the recommendation of the CEC. The 2023 Act fixes a term of six years or until the age of 65, whichever is earlier, and Section 16 bars civil or criminal proceedings against present or former CECs and ECs for acts done in the discharge of official duty. Electoral Registration Officers, who prepare and revise the rolls for each constituency, draw their powers from the Representation of the People Act, 1950.

Why UPSC loves this

1. The GS2 syllabus names both the constitutional bodies and the RP Act. “Appointment to various constitutional posts, powers, functions and responsibilities of various constitutional bodies” and “salient features of the Representation of People’s Act” are explicit syllabus lines. Mains questions on the Election Commission have asked about its independence and its role in free and fair elections, and the appointment law is now the sharpest illustration of that theme.
2. Prelims favours composition and procedure. Who appoints the Election Commissioners, who sits on the selection committee, how a CEC is removed, and whether the CEC can overrule the other members are the facts most likely to be tested. The Seshan judgment on equal votes and the 2023 Act’s committee composition are the two anchors.
3. Ethics and governance papers ask about institutional trust. The difference between an institution being independent and appearing to be independent, and Verniers’s distinction between trust and trustworthiness, map directly onto GS4 themes of transparency, accountability and public confidence in institutions.

Analysis

1. Justice Datta’s distinction between principle and prescription is the stronger reading of Baranwal. A court’s declaration binds through its reasoning, not through every piece of machinery it improvises to fill a gap. Baranwal’s machinery — PM, Leader of the Opposition, CJI — was explicitly temporary, so Parliament was free to replace it; its principle — no exclusive executive control — was not. Testing the 2023 Act against that principle is ordinary application, which a two-judge Bench can do. The Attorney General’s “probably no” to the question of whether a PM’s nominee would ever vote against the PM concedes the factual premise of the challenge. The counter-view, which Justice Sharma accepted, is that whether Parliament must include a neutral selector at all is a new question deserving a larger Bench; that is respectable, but it risks letting a legislative override reopen settled law merely by being enacted.
2. The NJAC analogy cuts the other way. The Solicitor General argued that if the Law Minister’s presence endangered judicial independence in the NJAC case (2015), the executive deserves a corresponding space in choosing Election Commissioners. But the NJAC judgment protected an independent institution from the executive; using it to protect executive control over another independent institution inverts it. The executive is not a neutral appointer in elections, since the party in government is itself a contestant. The umpire analogy in the op-ed is apt: a referee chosen by one team is suspect even if honest. That is why the appearance standard matters more for the EC than for most bodies.
3. Unanimity in selection is a good remedy, but it carries a deadlock risk. Mustafa and Anand propose reading the Act down so that the Selection Committee must decide unanimously, giving the Opposition a veto. That would force consensus candidates and make appointees acceptable to losers, which is the real test of an election body. The difficulty is that a veto can be used to block every name, leaving the Commission short of members before an election. A workable design would pair a unanimity requirement with a time-bound fallback — for instance a panel prepared by a neutral search body, or reversion to including the CJI if the committee cannot agree. Courts usually avoid writing such detail, which is why the better route is legislative amendment.
4. Majority rule makes dissent normal; hiding it is what damages the Commission. The 1991 and 2023 laws both assume disagreement, which is why they provide for majority decisions. Seshan’s case, the Gopalaswami–Chawla episode and Lavasa’s 2019 dissents show that disagreement has always existed. The Commission’s present line — that objections were only “observations” and every final decision was unanimous — may be technically true, but it treats dissent as an embarrassment rather than as evidence of deliberation. Lavasa’s complaint that his dissents were not recorded in final orders is the precedent that should worry the Commission most. Courts publish dissents without losing authority, as Verniers notes, and an electoral body that records them would gain credibility, not lose it.
5. The ERO petition shows why internal procedure is a legal question, not only a managerial one. The Representation of the People Act, 1950 gives Electoral Registration Officers statutory powers over inclusion and deletion, which is why the petition frames centralisation under the Director General (IT) in Delhi as a breach of Sections 13B, 22 and 23. If roll management has moved to a central software system, the legal question is whether the statutory officer still takes the decision or merely signs off on one. The petition also argues that Section 16 immunity covers only acts with a nexus to official duty. Whatever the merits of these allegations, which the Court has yet to examine, they show that the Commission’s internal allocation of business under Section 18 has legal consequences for every voter.

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