Relevance: GS-2 (Polity, Constitution & Governance) |Source: The Hindu

1. What is the Core Controversy?

The Supreme Court is currently reviewing a new law (the 2023 Act) that changed how India’s top election officials are chosen.

• The “Tyranny of the Elected”: This is a powerful phrase used by the Court to describe a situation where a government uses its majority in Parliament to pass laws that might weaken independent institutions.
• The Main Concern: Critics argue that the new law gives the ruling government too much power over the Election Commission of India (ECI), which must remain neutral to ensure “free and fair” polls.

2. The Constitutional Rules (Article 324)

To understand this, we must look at what the Constitution says:

• Article 324(2): It states that the President appoints the Chief Election Commissioner (CEC) and other Election Commissioners (ECs). However, it specifically says this should be done according to a law made by Parliament.
• The “Legislative Void”: For over 70 years, Parliament never made this law.
• Executive Dominance: Because there was no law, the Central Government (the Executive) had total control over who got appointed, leading to concerns about political bias.

3. The Supreme Court Steps In (Anoop Baranwal Case, 2023)

In 2023, the Supreme Court decided that the ECI needed to be insulated from government pressure.

• The Temporary Committee: The Court ordered that until Parliament passed a law, the CEC and ECs should be chosen by a balanced three-member panel:
  1. The Prime Minister (PM).
  2. The Leader of the Opposition (LoP).
  3. The Chief Justice of India (CJI).
• The Goal: Including the Chief Justice was meant to provide a neutral “third vote” to prevent the ruling party from having the final say.

4. The 2023 Act: What Changed?

Following the Court’s order, Parliament finally passed a law, but it significantly changed the committee’s structure:

• Removal of the CJI: The law completely removed the Chief Justice from the selection panel.
• The 2:1 Majority: The new panel consists of the PM, a Union Cabinet Minister (chosen by the PM), and the LoP.
• The Conflict: Since the PM and the Minister are from the same government, they have a 2:1 majority. This means they can theoretically outvote the Opposition leader on every appointment, making the process feel like a mere formality.

5. UPSC Value Box

• Tarkunde (1975) & Goswami (1990) Committees: Both recommended that the ECI should not be chosen by the government alone and suggested including neutral members like the CJI.
• Basic Structure Doctrine: “Free and fair elections” are part of the Basic Structure of our Constitution. Any law that makes the Election Commission subservient to the government could be challenged for violating this principle.

With reference to the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs), consider the following statements:

1. According to Article 324(2), these appointments are subject to the provisions of any law made by Parliament.
2. The 2023 Act currently includes the Chief Justice of India as a permanent member of the selection committee.
3. Under the 2023 Act, an appointment cannot be challenged simply because there is a vacancy in the selection committee.

Which of the statements given above is/are correct? (a) 1 and 2 only (b) 2 and 3 only (c) 1 and 3 only (d) 1, 2 and 3

Correct Answer: (c)