The Supreme Court bench of Justice Dipankar Datta and Justice Satish Chandra Sharma continued hearing challenges against the 2023 Election Commissioners Act. Senior Advocate Shadan Farasat, appearing for an intervenor, concluded his arguments by labelling the law as being “outside the threshold of the Constitution” due to executive dominance in the selection committee.
Earlier, Senior Advocate Sanjay Parikh, representing PUCL, argued that a non-independent commission violates Articles 14 and 19, affecting voters’ rights. Advocate Prashant Bhushan, for ADR, and Senior Advocate Vijay Hansaria also criticised the “haste” of recent appointments. The matter is scheduled for further hearing next week.
Background
The current legal battle is rooted in the 2023 Anoop Baranwal v. Union of India [WP(C) No. 104/2015] judgment. For decades, the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) was made solely by the President on the advice of the Prime Minister. The Supreme Court ruled this “vacuum”—the lack of a specific law by Parliament—could not continue. They directed an interim committee consisting of the Prime Minister, the Leader of the Opposition, and the Chief Justice of India (CJI). However, the Parliament then passed the 2023 Act, which removed the CJI and gave a Cabinet Minister the third seat, ensuring the government always has a 2-1 majority.
The argument against a “Prime Minister’s Man”
According to Live Law, Senior Advocate Vijay Hansaria opened the challenge by arguing that the new law effectively allows the ruling party to select its own “referee.” He argued that even though the Leader of the Opposition is in the room, they are mathematically irrelevant. The core of his argument was that the Election Commission must be insulated from the “political whims” of the government of the day to remain impartial.
“The idea is that it should not be Prime Minister’s man. Under the impugned Act, if the Prime Minister suggests the appointment of X, there is no way out that anybody else can be appointed. The Constituent Assembly members expressed that it must be independent, impartial and it must not be under government of the day.”
Dominance versus mere presence in selection
In today’s hearing (May 7, 2026), Senior Advocate Shadan Farasat emphasised that the problem is not the presence of the executive, but its absolute dominance. He compared the current selection committee to unfair arbitration clauses in contracts, where one party gets to choose the judge. He argued that if the referee is sympathetic to one side, the entire contest is compromised before it begins.
“In arbitration involving PSUs etc. there used to be unilateral clauses. It was akin to having a ‘Home Umpire’… In such a case the arbitrator would not be impartial as he would at the be sympathetic to one party. Presence (of executive) is not a problem but dominance is” as Live Law reported
The haste of appointments and judicial scrutiny
A major point of contention was the “breakneck speed” with which the government appointed two new Commissioners on March 14, 2024. Petitioners alleged that the government rushed the process to appoint Gyanesh Kumar and Sukhbir Sandhu just one day before the Supreme Court was scheduled to hear a stay application against the Act. The Court noted that the Leader of the Opposition was given a list of 200 names only hours before the final meeting.
“On 12th March the LOP sought the shortlisted candidate. On 13th March Secretary sent a list of 200 names being considered… On 14th March they gave a list of 6 names. The selection committee met on the same day and recommended the names… who were sworn in on 15th March.”
During the hearing, Justice Datta observed that “We can only say that we wish such speed is shown in appointment of judges. Especially High Court judges.”
Constitutional thresholds and global comparisons
Counsel for the intervenors brought up the South African Constitution, where the electoral body is a “guarantor institution” protected from simple majority votes. Farasat argued that India’s ECI serves the same purpose and should require a two-thirds majority or unanimity in the selection committee. This would force the Prime Minister and the Leader of the Opposition to agree on a person who is fair to both sides of the political aisle.
“ECI is a guarantor institution. Electoral commission is one of the state institutions supporting constitutional democracy. It is explicit in their [South African] constitution but implicit in our constitution… They have requirement of simple majority… Simple majority might mean executive so your lordships are right that two third versus executive.”
The fallout: Article 14 and the rights of voters
Senior Advocate Sanjay Parikh concluded the petitioner’s arguments by linking the independence of the ECI to the fundamental rights of every citizen. He argued that if the commission is not independent, it violates Article 14 (Equality) because it does not treat all political parties with an even hand. Furthermore, it violates Article 19, as the voter’s right to a free and fair election is curtailed when the overseeing body is under executive control.
“Naturally the rights of the voters are affected if ECI is not independent. Article 19 is also violated… an election commission that is not independent would fail to adhere to the guarantee of equality under article 14 of the constitution.”
This law is outside the threshold of the constitution: Petitioner
As the hearing drew to a close, Shadan Farasat urged the court to strike down the law. He acknowledged that while striking down the law might be “impractical” for previous actions taken by the commission, it was necessary to prevent another round of biased appointments. He asked the court to set the law aside and provide a “functional” interim mechanism that restores the balance originally intended by the Anoop Baranwal bench.
“This law is outside the threshold of the constitution. Your lordships should set it aside and then in the interim give us something functional… You have to consider that another round does not happen if you agree with us. If you don’t that is a different question.”
With the petitioners’ arguments concluded, the matter is set to continue next week for the Union of India’s response.
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