“We are making a Constitution forever and not only for today.” Shibban Lal Saksena said this in the Constituent Assembly on June 15, 1949. He was warning that a ruling party might one day choose a loyalist to run India’s elections. Seventy-seven years later, the Supreme Court is wrestling with the same worry.

 

On September 23, 2026, a two-judge Bench differed over whether challenges to the 2023 law governing the appointment of the Chief Election Commissioner and other Election Commissioners should be heard by a larger Constitution Bench. The matter was then placed before the Chief Justice for consideration of a Constitution Bench. In the Constituent Assembly, more than seven decades ago, members were already asking whether an Election Commission could be genuinely independent if the government of the day had too much influence over the choice of the people who would run it.

 

The debate took place on June 15 and 16, 1949, while the Constitution was still being made and well before India had held its first general election. Who prepared the electoral roll? Who supervised elections? And, most difficult of all questions, who should appoint the people expected to keep the electoral process free from political influence? These questions were raised during the discussion of draft Article 289, which ultimately became Article 324.

 

The earlier draft of the Constitution had envisaged separate election commissions for the provinces. B.R. Ambedkar’s new proposal would instead place the entire election machinery under a single central commission, with regional commissioners working under it. He gave a surprisingly concrete reason for the change. Complaints had reached the Drafting Committee and the Central Government that, in some provinces, people who differed from the local majority in race, language, or culture were being kept off the electoral rolls. The concern was not first about polling day but about whether some citizens could be prevented from reaching the ballot box at all. Ambedkar called his proposal a “radical and fundamental departure” from the earlier draft.

 

There was a constitutional principle behind it. Ambedkar reminded the Assembly that the Fundamental Rights Committee had already considered the freedom of elections. The House had decided not to treat it as a fundamental right. Still, there had been no dispute that elections to legislative bodies had to be protected from interference by the executive of the day. The Assembly was trying to establish an institution in which impartiality would be constitutionally protected.

 

This is why the question of tenure appeared so quickly in the debate. Ambedkar’s draft placed the Chief Election Commissioner, for removal, on the same footing as a judge of the Supreme Court. Other Election Commissioners and Regional Commissioners were also given protection, though through a different mechanism.

 

But the debate became much more interesting when members stopped asking what would happen to a commissioner after appointment and began asking what would happen before it. Saksena thought the draft had left a serious gap. A party in power that wanted to win the next election, he warned, could appoint “a staunch party-man” as Chief Election Commissioner. A secure tenure would then protect the appointment rather than the independence of the institution. He proposed that the President’s choice be confirmed by a two-thirds majority of the two Houses sitting together.

 

Mahavir Tyagi immediately saw the weakness in the proposal. What would stop a majority party from whipping its members into line? Saksena accepted that nothing would help for now. He was willing to trust the government of the moment, but he did not want that trust turned into a permanent assumption that future governments would deserve the same confidence.

 

Hirday Nath Kunzru pushed the concern further the following day. If the President acted under responsible government on the advice of the Ministry, then the presidential appointment did not provide the political distance the draft appeared to assume. The President, Kunzru warned, would have little choice but to accept the Prime Minister’s nominee. He proposed that Parliament should be authorised to provide for these matters by law.

 

At this point, Ambedkar made one of the most revealing admissions in the debate. He agreed that there was force in Saksena’s criticism. There was little point, he said, in providing a secure tenure if the Constitution did nothing to prevent the appointment of “either a fool or a knave or a person who is likely to be under the thumb of the Executive”. The question, he admitted, was likely to be “one of our greatest headaches”.

 

Ambedkar had considered possible ways out. He referred to the American system, under which certain presidential appointments require the concurrence of the Senate, but thought the process slow and liable to bring political considerations into appointments. The Drafting Committee had also considered an Instrument of Instructions that would require the President to consult before making appointments. Ambedkar instead proposed that the President’s appointment power should operate subject to a law made by Parliament. The Assembly accepted the amendment that same evening, leaving Parliament to make detailed provision later.

 

It is easy to assume today that the framers missed this gap. On the contrary, the debates show they saw it clearly. The Assembly had settled the principle of independence firmly, but not the institutional form through which independence at the point of appointment could be secured. What was not agreed upon was a method of appointment that would command confidence without creating another constitutional problem.

 

That difficulty is also visible in the federal argument that accompanied the debate. Ambedkar wanted a national Commission partly because he believed provincial governments could interfere with the electoral rolls. Members such as H.V. Pataskar and Kuladhar Chaliha were uneasy about centralising so much authority. 

 

Independence from one level of government could mean dependence on another.

Article 324 reflected that unresolved balance. It placed the superintendence, direction and control of electoral rolls and elections in the Election Commission and protected the Chief Election Commissioner against removal, while leaving appointments subject to parliamentary law. For over seven decades, no such law was made. In *Anoop Baranwal v. Union of India*, decided in March 2023, the Supreme Court laid down an interim arrangement involving the Prime Minister, the Leader of the Opposition, and the Chief Justice of India until Parliament enacted legislation. 

 

Under the law enacted by Parliament later that year, the selection committee consists of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister. It is this law that the Court must now examine.

 

The question that troubled Saksena, Kunzru and Ambedkar remains recognisable. The old debate does not settle the challenge before the Supreme Court, and a speech made in 1949 cannot answer a legal question arising in 2026. What it does show is that the framers never regarded the Election Commission as an ordinary administrative department. It was part of the machinery through which the people would choose, and change, their governments.

 

Before the Republic cast its first vote, the framers were already worrying about the referee. They gave it a constitutional home and important protections. On the question of who should choose its members, however, they left the conversation unfinished.

 

More than seventy years later, that conversation has returned.