The Supreme Court Thursday Morning, March 2, 2023, gave its decision regarding the filed petitions asking for an independent body for appointment regarding positions in the EC, ordering the set up of a panel composed of members including the PM and Leader of Opposition Party and the CJI for advising the President for the final appointment.

The presiding five-judge committee led by Justice KM Joseph mentioned further that in the absence of a single leader of opposition, the party with the largest share amongst elected opposition party members in the Lok Sabha would act as a substitute, to appoint the EC and CECs. Other bench members included Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and CT Ravikumar.

The Court made sure to mention that this new development was just a temporary fix, till the Parliament enacts a law fixing the criteria for selection, conditions of service and tenure.

As per Article 324(2) of the Constitution, the power to appoint the CEC and ECs lies with the President, and a panel of a council of M inisters are to advice them on such.

In his independent opinion on the decision, Justice Rastogi commented that the protection available for the removal of CEC should also apply to that of Election Commissioners.

He was quoted as saying, “In the facts and circumstances, keeping in view the importance of maintaining the neutrality and independence of the office of the Election Commission to hold a free and fair election, which is a sine qua non for upholding the democracy, it becomes imperative to shield the appointment of Election Commissioners and to be insulated from the executive interference. It is the need of the hour and advisable in my view to extend the protection available to the Chief Election Commissioners…to other Election Commissioners as well until any law is framed by the Parliament”.