Changing the guard, confronting the democratic crisis

(Election Commission of India: independence, appointments and the credibility of the electoral process)

1. At a Glance

• An op-ed in The Hindu (12 Oct 2026, p. 10) argues that the crisis is bigger than one Chief Election Commissioner (CEC). In its view, the institutional safeguards of democracy have weakened, and the credibility of the Election Commission of India (ECI) is in doubt [1].
• The core issue is how the CEC and Election Commissioners (ECs) are appointed. The 2023 Act set up a selection panel that the executive dominates. It replaced the panel the Supreme Court set up in Anoop Baranwal, which included the CJI [2][4].
• Other flashpoints are the Special Intensive Revision (SIR) of electoral rolls, the integrity of EVMs, and CEC immunity under Section 16 of the 2023 Act [1][10].
• For UPSC this links constitutional bodies (Art. 324), the basic structure (free and fair elections), separation of powers, and electoral reform. It is high-yield for GS-II.

2. Why in the News

• The op-ed asks whether CEC Gyanesh Kumar's exit would be enough to fix an electoral process it calls "compromised" in favour of the BJP. It notes that protests are growing across the country [1].
• It says the SIR has removed over 13 crore names from draft electoral rolls, raising concerns about genuine voters losing their right to vote [1].
• A fresh petition in the Supreme Court seeks criminal prosecution of CEC Gyanesh Kumar and an investigation into alleged voter deletions during the SIR [10].
• A Constitution-Bench-level challenge to the CEC and Other ECs Act, 2023 went to final hearing in May 2026 [7][9].

3. Background & Evolution

• Art. 324(2) says the CEC and ECs are to be appointed by the President, subject to any law made by Parliament. Until 2023 no such law existed [2][4].
• 2 March 2023, Anoop Baranwal v. Union of India: a five-judge Constitution Bench held that, until Parliament legislated, appointments should be made on the advice of a committee of the PM, the Leader of Opposition (LoP) in the Lok Sabha and the CJI [2]. This was an interim, "stop-gap" arrangement [2][9].
• December 2023: Parliament passed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. It replaced the CJI on the panel with a Union Cabinet Minister nominated by the PM [2][3][4].
• March 2024: a Congress leader moved the SC to stop the appointment of new ECs under the 2023 Act [8]. On 22 March 2024 the SC declined to stay the appointments, saying interference would lead to "chaos" [5][11].
• May 2026: the SC asked whether a court can direct Parliament to include the CJI on the panel [9]. It said that "EC must be independent as free & fair polls [are] part of [the] basic structure" [7].
• 23 September 2026: the SC delivered a reportable judgment (2026 INSC 1040) in a related writ matter. Its full holding was not reviewed for this note [6].

4. Core Static Facts

5. Multi-Dimensional Analysis

Legal / Constitutional

• Baranwal left the matter to Parliament. The Attorney General argues that Parliament has an absolute right to legislate and is not bound by the "stop-gap" panel [9].
• Petitioners say the 2023 Act restores executive dominance over appointments: the PM and a minister form a 2:1 majority on the panel [2][9].
• The SC treats free and fair elections as part of the basic structure, so the ECI's independence is constitutionally required [7].
• Section 16 immunity raises the question of who holds the CEC accountable. This is directly at issue in the plea to prosecute the CEC [10].

Ethical / Governance

• Institutional credibility depends on whether the public sees the body as neutral, not only on whether it is legally valid. The op-ed warns that any replacement could be "another, perhaps worse, 'yes man'" [1].
• The op-ed argues that every check-and-balance institution, the media included, has weakened, so the problem is systemic [1].
• Because the Search Committee is led by the Law Minister and the Selection Committee can pick from outside its list, the filtering role is diluted [2][4].

Social

• Large-scale deletions under the SIR put the universal adult franchise (Art. 326) at risk, especially for migrants, the poor and people without documents. The op-ed cites "fate of millions of genuine voters" [1].

Scientific / Technological

• The op-ed raises concerns about EVM integrity: the security of electoral technology, custody of machines and auditing (VVPAT verification) [1].

Administrative / Federal

• The SIR is a nationwide revision of the rolls. How well the ECI coordinates with state election machinery (CEOs and BLOs) affects how accurate the rolls are [1].
• The SC has warned that judges stepping into appointments mid-election would cause "chaos" [11].

6. Recent Developments (last 12–18 months)

• 6 May 2026: the SC asked whether a court can direct Parliament to add the CJI to the EC appointment panel [9].
• May 2026: final hearing on a batch of six petitions challenging the 2023 Act. The SC observed that the ECI must be independent [7][9].
• 23 September 2026: SC judgment 2026 INSC 1040 in a related writ (civil original jurisdiction) [6].
• 30 September 2026: a plea in the SC sought prosecution of CEC Gyanesh Kumar over SIR deletions. This drew attention to Section 16 immunity [10].
• 12 October 2026: The Hindu op-ed by Mehbooba Mufti (President, J&K Peoples Democratic Party). It reports growing protests and refers to the Union Education Minister having to step down earlier under public pressure [1].

7. Prelims Hooks

• Appointment of the CEC and ECs: Article 324(2) [2].
• The 2023 Act is the first law Parliament passed under Art. 324(2) on EC appointments [2][4].
• Selection Committee under Section 7: PM, LoP (Lok Sabha), and a Union Cabinet Minister nominated by the PM. The CJI is not a member [4].
• The Search Committee is headed by the Union Law Minister, not the Cabinet Secretary as the original Bill proposed [2][4].
• The Search Committee shortlists 5 names [4].
• The Selection Committee may appoint someone outside the shortlist [4].
• An appointment is not invalid because of a vacancy in the Selection Committee [4].
• Section 16 gives the CEC and ECs immunity from civil and criminal proceedings for official acts [10].
• Anoop Baranwal v. UoI (2023) set the panel of PM + LoP + CJI as an interim measure [2].
• On 22 March 2024 the SC refused to stay EC appointments made under the 2023 Act [5][11].
• The SC has held that free and fair elections are part of the basic structure [7].
• The SIR is reported to have excluded more than 13 crore names from draft rolls [1].

8. How the Act Tilts the Panel Towards the Government

• Before an election, the panel could have only ruling-party members
• The Act says an appointment stays valid even if a seat on the Selection Committee is vacant [4].
• The PM's post and a Cabinet Minister's post never fall vacant. Only the Leader of Opposition (LoP) seat can be empty, for example when the Lok Sabha is dissolved [2].

• So the risk is greatest just before a general election. The panel could then be made up only of ruling-party members [2].

• The opposition member can always be outvoted

• Even with all three seats filled, the PM and the minister they choose form a 2:1 majority [2].

• PRS notes that this lets the government of the day control the selection. That may weaken the ECI's independence [2].

• The shortlist does not bind the final choice

• The Search Committee was set up to look for capable candidates. The Selection Committee can still pick someone outside its list of five [2][4].
• PRS also points to the other side. The outside-name clause stops civil servants alone from controlling who gets considered, because the Search Committee is made up entirely of civil servants [2].
• In the Act, though, the Law Minister heads the Search Committee [4]. So both stages now lead back to the executive (the government of the day).

9. Independence Gaps the 2023 Law Never Touched

• Election Commissioners have weaker job protection than the CEC
• The CEC can be removed only the way a Supreme Court judge is removed. An EC can be removed on the CEC's recommendation [2].
• So an EC who disagrees with the CEC has less protection, even though the Supreme Court (1995, T.N. Seshan) treated ECs as equal to the CEC [2].

• In Anoop Baranwal (2023), the Court said it could not order equal protection itself. Only Parliament can give it, through a Constitutional Amendment [2].

• The ECI still has no secretariat of its own

• The Goswami Committee (1990) and the ECI itself proposed an independent secretariat, like the ones Lok Sabha, Rajya Sabha and the courts have [2].
• The ECI's 2018 reform proposals asked for the same thing [2].

• The 2023 law did not take up either the removal issue or the secretariat issue [2].

• The pool of candidates is very narrow

• Under the Bill, only people who are or were at Secretary rank in the government could be CEC or EC [2].
• The ECI also does quasi-judicial work (it decides some cases, much like a court). It rules on whether MPs and MLAs should be disqualified and settles disputes over party symbols [2].
• A pool made up only of bureaucrats leaves out judges and other experts who could do this work [2].

10. The Strongest Case for the 2023 Act, Answered

• The argument: the Constitution gives this choice to Parliament, not to judges
• Art. 324(2) makes appointments "subject to" a law made by Parliament. The Constituent Assembly left the method for Parliament to decide [2].
• Baranwal itself said its panel would apply only until Parliament made a law [2]. The Attorney General argues that Parliament is not bound by that panel [9].
• The Supreme Court has asked whether a court can order Parliament to add the CJI to the panel [9].
• Having a CJI help pick officials whose decisions may later come before the courts also creates its own separation-of-powers problem.

• Bodies such as the CIC and CVC are already chosen by similar government-led panels [2].

• What this argument gets right

• Parliament had the power to legislate. The Act did not break a final court order (see Section 11 of the note).

• Adding the CJI is not the only way to make the process independent. The models in other countries (next section) mostly use the legislature, not judges.

• Where it falls short

• The question is not whether Parliament could make a law. It is whether this law keeps the ECI independent, because the SC treats free and fair elections as part of the basic structure [7].
• PRS notes that the SC places the ECI "on a higher pedestal" than statutory bodies like the CIC. So following the CIC model does not settle the question [2].
• Ambedkar told the Constituent Assembly that, for elections to be truly free, the election machinery must be out of the control of the government of the day [2].

11. How Other Democracies Pick Their Election Bodies

• United Kingdom: Parliament decides, not the Cabinet

• A Speaker's Committee made up of MPs oversees recruitment. The House of Commons approves the names, and the monarch then appoints them [2].

• United States: the Senate confirms

• The President nominates members, but the Senate must confirm them [2].

• Members cannot be serving elected or appointed officials, or hold federal government posts in the executive, legislature or judiciary, when appointed [2].

• Canada: a resolution of the House

• The election chief is appointed by a resolution of the House of Commons [2].

• South Africa: a mixed, multi-institution panel

• The panel is chaired by the President of the Constitutional Court. It includes members from the Human Rights Commission and the Commission on Gender Equality, and the public prosecutor [2].

• One of the five commissioners must be a judge. Members must not have high party-political profiles [2].

• The lesson for India

• In each of these models, the cabinet of the day does not hold a built-in majority. India's 2023 panel does [2].

12. What the Op-Ed Proves and What It Only Claims

• Separate the legal record from the political claim
• The appointment design, the vacancy clause and Section 16 immunity are written into the law and can be checked [4][10].

• The claim that the electoral process is "compromised" in favour of the BJP comes from an opposition party president [1]. Treat it as a reported claim, not a finding.

• The 13 crore figure needs context before you use it

• The figure counts names left out of draft rolls (the first version of the voter list) [1]. People can still file claims to be added back before the final roll is published.

• If you use the figure, say who claimed it, and do not treat it as voters finally removed.

• Why the op-ed still matters

• The SC is now hearing a plea to prosecute the CEC over SIR deletions [10]. This shows that worries about voters being wrongly deleted have reached the Court.
• An answer that says "these allegations are now before the Supreme Court" is safer and stronger than one that takes either side's numbers as fact.

13. Reforms Already on the Table

• Parliament: protect ECs the same way as the CEC
• This needs a Constitutional Amendment, as the SC pointed out in Baranwal [2].

• It would let ECs disagree with the CEC without fearing removal.

• Parliament: give the ECI its own secretariat

• This was recommended by the Goswami Committee (1990) and the ECI's own 2018 proposals [2].

• Parliament: change the panel so no single side has a majority

• Goswami (1990): President in consultation with the CJI and the LoP [2].
• National Commission to Review the Working of the Constitution (2002): PM, LoP in both Houses, the Lok Sabha Speaker and the Rajya Sabha Deputy Chairman [2].
• Law Commission (2015): PM, LoP and the CJI [2].

• Any of these removes the 2:1 government majority.

• Parliament: remove the vacancy clause for the period before elections

• This would stop a panel made up only of government members from choosing commissioners just before polls [2].

• Parliament: open eligibility beyond Secretary-rank bureaucrats

• The US and South Africa set wider eligibility, combined with rules that keep out partisan figures [2].

14. Anchors for Answers

• Data: More than 13 crore names left out of draft rolls under the SIR (an opposition leader's claim, not ECI data) [1]
• Report/Committee: Goswami Committee (1990); National Commission to Review the Working of the Constitution (2002); Law Commission (2015, 255th Report); ECI Proposed Election Reforms (2018) [2]
• Law/Case: Art. 324(2) and 324(5); Anoop Baranwal v. UoI (2023); T.N. Seshan v. UoI (1995, ECs equal to the CEC); CEC and Other ECs Act, 2023 (Sections 7 and 16) [2][4][10]
• Comparison: UK (MPs on the Speaker's Committee recruit, House of Commons approves); US (Senate confirms); South Africa (panel chaired by the Constitutional Court President, one commissioner must be a judge) [2]

15. Mains Relevance

• GS-II: appointments to constitutional posts, and the powers, functions and responsibilities of constitutional bodies. Also covers the Representation of People's Act, separation of powers, and judicial review.
• GS-IV: institutional integrity, probity in governance, and the public trust deficit.
• Possible question stems: 1. Did the CEC and Other ECs Act, 2023 dilute the spirit of Anoop Baranwal? Critically examine its implications for the independence of the Election Commission. (15 marks) 2. Free and fair elections form part of the basic structure. Against this background, discuss whether the immunity under Section 16 of the 2023 Act is compatible with institutional accountability. (10 marks) 3. Large-scale revisions of electoral rolls must balance purity of the rolls against the right to vote. Discuss with reference to the Special Intensive Revision. (15 marks)

16. Related Topics to Study Next

• Art. 324–329 and the RP Acts of 1950/1951: the full constitutional and statutory framework for elections.
• Removal of the CEC vs the ECs: compare it with the security of tenure given to Supreme Court judges.
• Basic structure doctrine (Kesavananda, Indira Gandhi v. Raj Narain): the foundation of the "free and fair elections" principle.
• EVM–VVPAT litigation and audit protocols: links to the op-ed's concerns about technology and custody.
• Electoral roll revision (summary vs intensive) and Art. 326: the franchise questions behind the SIR.
• Appointment panels for the CBI Director, CVC, Lokpal and CIC: comparative designs with and without a judicial member.
• Goswami Committee (1990) and Law Commission's 255th Report: earlier recommendations on collegium-style EC appointments.

17. NCERT Concepts to Revise

• Election Commission of India (Polity): The article is about the ECI's independence and credibility; Article 324 is its constitutional basis.
• Chief Election Commissioner (Polity): The CEC's appointment, removal and immunity are the central issues, including the plea to prosecute the CEC.
• Free and fair elections (Polity): The Supreme Court links an independent ECI to free and fair elections, which it treats as part of the basic structure.
• Basic structure doctrine (Polity): Explains why free and fair elections cannot be overridden by ordinary law like the 2023 Act.
• Special Intensive Revision (Polity): The SIR and its reported mass deletions of voters are a major flashpoint in the op-ed.
• Electoral roll (Polity): SIR revises the rolls, so you need to know how rolls are prepared and why accuracy matters.

18. Common Errors / Trap Areas

• Bill vs Act: the Search Committee is headed by the Law Minister in the Act, not the Cabinet Secretary as in the Bill [2][4].
• Baranwal was not permanent: the CJI-inclusive panel applied only "until Parliament makes a law." The 2023 Act did not "violate a final order." Whether it is valid is a separate question [2][9].
• The third member of the Selection Committee is a Union Cabinet Minister nominated by the PM, not the Lok Sabha Speaker and not the CJI [4].
• The March 2024 SC order refused an interim stay on appointments. It did not decide whether the Act is constitutional [5][11].
• Op-ed claims vs established facts: figures such as "13 crore exclusions" and claims of bias come from an opinion piece by a political leader [1]. Quote them as reported claims, not as official ECI data.