Before Questioning Today’s CEC, Look at How India Chose Them Before 2023
The independence of the Election Commission of India has once again become a major political argument. Congress has repeatedly questioned Chief Election Commissioner Gyanesh Kumar, accused the Election Commission of being too close to the BJP government and attacked the mechanism through which Election Commissioners are now selected. Rahul Gandhi opposed proceeding with Kumar’s appointment in February 2025 while the legality of the new selection mechanism was before the Supreme Court. Congress leaders argued that removing the Chief Justice of India from the selection committee had made the mechanism excessively favourable to the executive. Those concerns deserve examination, particularly because an Election Commission must command confidence across political parties. But the debate becomes incomplete when India’s history before 2023 is quietly left outside the discussion.
That history matters even more today. On September 23, 2026, the Supreme Court referred the challenge to the 2023 appointment law for consideration by a larger Constitution Bench after two judges differed on important aspects of the case. The constitutional argument is therefore very much alive. Yet while India debates whether the present system gives the government too much influence, another question deserves equal attention: how exactly were Election Commissioners selected during the decades before Narendra Modi, before the 2023 law and during the long periods when Congress itself governed India?
Before 2023, The Opposition Had No Seat
For more than seven decades, India did not have a parliamentary law laying down a selection committee for appointing the Chief Election Commissioner and Election Commissioners. Article 324 provided for appointment by the President, subject to any law Parliament might enact. Parliament never created such an appointment mechanism during that period. In practice, as the Supreme Court itself explained in the Anoop Baranwal case, the President acted on executive advice, and the applicable government rules placed the effective choice of the person to be appointed with the Prime Minister. There was no Leader of Opposition sitting across the table. There was no Chief Justice of India participating in the selection. There was no three-member statutory committee requiring competing institutional voices to discuss the appointment.
This was not some brief constitutional accident. Governments of different political colours operated under the arrangement, including successive Congress governments that dominated much of India’s post-independence history. Congress therefore has every right to criticise the present mechanism, but the historical comparison should be stated accurately. The opposition participation that Congress now rightly treats as important simply did not form part of the appointment structure when Congress governments themselves were making these appointments.
The Supreme Court Changed the Formula
The major change arrived in March 2023 through the Supreme Court’s judgment in Anoop Baranwal v Union of India. Concerned about leaving appointments exclusively with the executive when Parliament had still not enacted the law contemplated by Article 324, the Constitution Bench created an interim arrangement. Until Parliament legislated, appointments were to be made on the advice of a committee consisting of the Prime Minister, the Leader of Opposition in the Lok Sabha and the Chief Justice of India. For the first time, therefore, the selection process was moved away from the longstanding model in which the executive effectively controlled the choice.
This distinction is crucial. The PM, LoP and CJI formula was not an ancient constitutional convention that existed throughout the Congress era. It was an interim judicial arrangement created in 2023 precisely because Parliament had never enacted the appointment law contemplated by the Constitution.
Parliament Added A Statutory Opposition Role
Parliament subsequently enacted the Chief Election Commissioner and Other Election Commissioners Act, 2023. Under that law, the selection committee consists of the Prime Minister, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister. Where there is no formally recognised Leader of Opposition, the leader of the largest opposition party in the Lok Sabha performs that role. Whatever criticism one may make of the composition, opposition participation is now embedded in statute in a way that it was not for the previous seven decades.
That does not settle the controversy. Critics have a substantial objection to the replacement of the CJI with a minister nominated by the Prime Minister because it leaves two members of the three-member committee connected to the government. That is exactly why the constitutional challenge continues. But acknowledging that criticism should not require pretending that the previous system was more inclusive. Before 2023, the opposition did not possess even the statutory seat it has today.
Congress’s Own History Makes the Debate More Complicated
There is another historical layer. Former CEC M. S. Gill, who headed the Election Commission between 1996 and 2001, later entered the Rajya Sabha as a Congress member in 2004 and became a Union minister in the UPA government. T. N. Seshan, one of India’s best-known former CECs, contested the 1999 Lok Sabha election from Gandhinagar as the Congress candidate against L. K. Advani. None of this proves that either man acted improperly while holding constitutional office, and it should not be presented as such. It does, however, demonstrate that the boundary between former Election Commission officials and subsequent political roles has not historically been as absolute as today’s rhetoric can sometimes suggest.
Debate The CJI Question, But Remember The Full History
India should absolutely debate whether the CJI should return to the selection committee, whether another independent constitutional authority should replace the Cabinet minister, whether shortlisted candidates should be disclosed more transparently and whether Election Commissioners should face a cooling-off period before accepting political positions. Those are legitimate institutional questions, and whatever safeguards are adopted should apply regardless of which party controls the Union government.
What should not disappear from that discussion is the historical baseline. For decades, including long periods of Congress rule, the opposition had no statutory voice in selecting Election Commissioners and neither did the judiciary. The present system can therefore be criticised for giving the executive two of three seats while still recognising that it formally gives the opposition something the old system never did. A serious debate about Election Commission independence should compare systems honestly, not begin Indian institutional history only when the political party sitting in government changed.
