Independence of Election Commission Cannot Rest on Good Faith Alone, SC Signals

The Supreme Court's decision to reserve judgment, rather than rule outright, suggests the bench itself is wrestling with how far constitutional trust can substitute for structural safeguards. By flagging the committee's 2:1 executive tilt against the Centre's good-faith defence, Justices Datta and Sharma have effectively signalled that the real test ahead isn't Parliament's intent, but whether independence can survive without institutional design to back it.

By Mahima Katal

The Supreme Court on Thursday reserved its judgment on a question that has quietly outgrown its procedural framing: whether petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 must be referred to a larger five-judge bench. A bench of Justices Dipankar Datta and Satish Chandra Sharma has asked both the Centre and the petitioners to file written submissions, deferring a decision on reference even as the hearing surfaced the doctrinal fault line the eventual bench will have to resolve.

At issue is the composition of the committee that selects the CEC and election commissioners under the 2023 Act, the prime minister, a Union minister nominated by the prime minister, and the leader of opposition or the largest opposition party in the Lok Sabha.

This arrangement excludes the Chief Justice of India, departing from the interim mechanism laid down by a five-judge Constitution bench in its March 2023 ruling in Anoop Baranwal, which had directed that the CEC and election commissioners be appointed by a committee comprising the prime minister, the leader of opposition and the CJI, pending parliamentary legislation. Parliament's subsequent law, enacted in December 2023, retained the executive-legislature structure but dropped the judicial member, the substitution now under challenge by petitioners including Congress leader Jaya Thakur and the Association for Democratic Reforms.

Appearing for the Centre, Solicitor General Tushar Mehta built his defence around what might be called a presumption-of-good-faith argument. He submitted that it would be wrong to assume the prime minister and other ministers would act in bad faith merely because they hold a numerical majority in the selection committee, and argued that the office of the prime minister carries a constitutional sanctity that doubting the committee's composition would undermine. Mehta pressed the logic further, asking why, if the prime minister's decisions require an external check in this context, the same principle should not extend to Cabinet formation itself, where no outsider is consulted. He also urged that the matter be referred to a larger bench under Article 145(3), given that it involves a substantial question of constitutional interpretation, a position Attorney General R Venkataramani echoed at the outset of the hearing, framing the questions arising from Anoop Baranwal as warranting consideration by a bench larger than the one currently seized of the matter.

The bench's response reoriented the inquiry away from the question of trust and toward the question of structure. Justice Datta's observation that the committee currently stands "2:1" , two members aligned with the executive against one from the opposition, treated the arithmetic of the panel, not the character of any individual officeholder, as the constitutionally relevant fact. His remark that the court would trust the prime minister, but that "this has not happened over the years," did not dispute Mehta's premise of good faith so much as bypass it: the question before the court, on this reading, is not whether executive discretion has been exercised in bad faith, but whether an appointing body structured with a built-in executive majority can be said to guarantee the independence the Election Commission requires as a matter of design. The bench framed this as a demand for a "show of fairness" in the composition itself, explicitly distinguishing that requirement from any finding that fairness had not been achieved in practice.

The exchange also touched on the limits of institutional self-regulation more broadly. When Mehta argued that the executive and legislature are the only branches directly accountable to the people, Justice Datta's aside, wondering aloud whether judges still select judges "nowadays", registered as a reminder that the collegium system invites comparable scrutiny of self-perpetuating appointment structures, without resolving what bearing that comparison has on the case at hand. The bench separately invoked B.R. Ambedkar's late remarks on the fragility of Indian democracy and pressed the Solicitor General for figures on lawmakers facing criminal cases, signalling that the constitutional trust doctrine Mehta invoked cannot be assessed in the abstract, disconnected from the empirical record of the institutions being trusted.

Both sides opposed reference to a larger bench, though for different reasons left unstated in Thursday's proceedings. What is now on record is that the Centre's affidavit has separately rejected the petitioners' claim that two election commissioners were appointed in March 2024 to pre-empt the Supreme Court's consideration of interim relief in these very petitions, and that the Court has already declined to stay those appointments.

The written submissions the bench has now called for will determine whether the reference question, and, with it, the substantive challenge to the 2023 Act's departure from Anoop Baranwal, proceeds before the present bench or is escalated to a five-judge bench better positioned to settle the doctrinal question Thursday's hearing left open: whether the independence of the Election Commission is a matter that constitutional trust in elected office can supply on its own, or one that only institutional design can guarantee.