Can Parliament legislate around an interim arrangement made by a Constitution Bench? Discuss with reference to the separation of powers.

Under Article 324(2), the President appoints the CEC and ECs "subject to any law made by Parliament". No such law was made for over 70 years. In Anoop Baranwal v. Union of India (2 March 2023), a Constitution Bench filled this gap with an interim PM–LoP–CJI panel. It was to last only "until Parliament enacted a law" [1]. The 2023 CEC Act replaced the CJI with a Union Cabinet Minister [1]. Parliament can legislate here, but only within limits.

Why Parliament can legislate

• Textual mandate: Article 324(2) gives this field to Parliament. The Court's panel was a stop-gap, not a constitutional rule [1].
• Precedent: the Vishaka guidelines (1997) applied only until the POSH Act, 2013 was passed. Interim judicial measures are meant to give way to legislation.
• Separation of powers: if courts decide who sits on selection panels, they risk judicial legislation. Parliament's democratic mandate deserves deference.

Why the power is not unlimited

• Basic structure: free and fair elections are part of the basic structure (Indira Gandhi v. Raj Narain, 1975). A law must actually protect the EC's independence; simply passing one is not enough.
• No bare override: Parliament can remove the basis of a judgment, but it cannot simply overrule it (Madras Bar Association, 2021). Justice Datta's prima facie view was that the Act wrongly ignored Anoop Baranwal [4].
• Executive dominance: the PM and a minister the PM nominates hold a permanent 2:1 majority. The panel's choice stays valid even if a seat is vacant [1]. PRS warns this "may undermine the independence of the ECI" [1].
• Unsettled question: the Court split on whether to refer the case to a Constitution Bench (2026 INSC 1040) [3].

Separation of powers is a system of checks and balances, not a wall between the organs. Parliament holds the pen, and judicial review decides where its limits lie.

Way forward

• Adopt the Law Commission's 255th Report (2015), which proposed a PM–LoP–CJI panel [2]. Parliament would then be acting on its own expert body's advice, not on a court order.
• Let the leader of the largest Opposition party fill a vacant LoP seat [2].
• Learn from South Africa, whose electoral commission must include a judge [1].

Parliament may legislate in place of an interim judicial arrangement, but the law must keep Article 324's promise of an independent EC. A Constitution Bench ruling and a consensus panel that includes the CJI would reconcile parliamentary authority with judicial review. Together they would protect free and fair elections as part of the Constitution's basic structure.