SC flags executive veto in CEC appointments, raising questions on independence

The Supreme Court on Thursday acknowledged the so-called “executive veto” in the appointment of the chief election commissioner and election commissioners, arguing that it undermines the independence of the Election Commission. The bench questioned the show of independence in designating the Leader of Opposition in Lok Sabha as the third member of the selection panel chaired by the Prime Minister, with a Union minister as the other member. This arrangement effectively gives the executive a 2:1 majority in appointments, drawing scrutiny over the balance between democratic processes and political control. The court was hearing petitions challenging the Election Commission (Appointment, Conditions of Service and Term of Office) Act, 2023, with petitioners contending that the law threatens the ECI’s independence by allowing the government to appoint “its man.”

The judges referred to a prior five-judge decision from the Anoop Baranwal case, which established the panel composition for CEC/EC appointments—originally including the Chief Justice of India—but noted the new law replaced the CJI with a Union minister. While the Baranwal judgment was not claimed to be binding, the bench stressed that Parliament acted after that ruling and must justify the change. The Centre argued that Baranwal cannot be a binding precedent and would hold only until Parliament enacted a new law. The Centre’s affidavit also stated that the court’s concerns about the composition are part of a historical debate and would be resolved through the legislative process. The issue becomes particularly salient given that the CBI director’s selection involves a panel where the CJI is a member, highlighting how different bodies balance independence versus executive involvement in appointments.

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