Context: The Supreme Court declined a request for an interim stay on the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

About the Act

• The Act replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.

• The Act set the salary of the CEC and ECs at the same level as a Supreme Court judge.  

• It did not provide for their appointment process, which continued to be decided by the President.

Background

• In 2023, while examining the appointment of the CEC and ECs, the Supreme Court declared that their appointment should not be done solely by the Executive.

• The Court noted that the ECI should be independent of Executive control.  

• It mandated a selection process, which would hold until Parliament made a law.

• The Court directed that the appointment should be done by the President on the recommendation of a Selection Committee.  

• The Selection Committee will consist of: (i) the Prime Minister, (ii) the Leader of Opposition in Lok Sabha, and (iii) the Chief Justice of India. 

Article 324 of Constitution

• Article 324 of the Constitution states that the Election Commission will comprise the Chief Election Commissioner (CEC) and such number of Election Commissioners (ECs), as the President may decide.  

• The Election Commission of India (ECI) is responsible for managing the preparation of electoral rolls and conducting elections to Parliament, State Legislatures, and the offices of the President and Vice-President.  

• The Constitution specifies that the President will appoint the CEC and ECs, subject to the provisions of an Act of Parliament.   

Key Features of the CEs and ECs Appointment Act, 2023

• Election Commission: The Election Commission will consist of a Chief Election Commissioner (CEC) and other Election Commissioners (ECs).  The President will periodically fix the number of ECs.

• Appointment of the Commission: The Commission will be appointed by the President, upon the recommendation of the Selection Committee.  

• The Selection Committee will comprise the Prime Minister, Cabinet Minister, and Leader of Opposition in Lok Sabha (or leader of the single largest opposition party).   

• A Search Committee headed by the Cabinet Secretary will suggest five names to the Selection Committee.  

• The Selection Committee may consider any person other than those suggested by the Search Committee.

• Eligibility criteria:  The CEC and ECs must: (i) be persons of integrity, (ii) have knowledge and experience in the management and conduct of elections, and (iii) be or have been Secretary (or equivalent) to the government.

• Term and reappointment:  Members of the Election Commission will hold office for six years, or until they attain the age of 65 years, whichever is earlier.

• Members of the Commission cannot be re-appointed.  

• If an EC is appointed as a CEC, the overall period of the term may not be more than six years.

• Salary and pension:  The salary, allowances, and other conditions of service of the CEC and ECs will be equivalent to that of the Cabinet Secretary.  

• Removal:  The Bill retains the manner of removal of CEC and ECs as specified in the Constitution.

• The CEC may be removed in the same manner and on the same grounds as a Supreme Court Judge.  

• ECs may be removed only upon the recommendation of the CEC.

Concerns of the Act

• Independence of the Election Commission: The Constitution envisages the Election Commission (ECI) as an independent body that is responsible for conducting free and fair elections.

• Several provisions in the Bill may undermine the independence of the ECI.

• Selection Committee is Dominated by the Government: The Selection Committee will consist of the Prime Minister, a Cabinet Minister, and the Leader of Opposition in Lok Sabha which means majority of members are from the government of the day.

• Validity of Selection Committee: The Act upholds the validity of the Selection Committee even if there is a vacancy or defect in constituting the Committee.

• Role of Search Committee: The Selection Committee selects names from a panel of five people suggested by the Search Committee.

• The Selection Committee may go beyond the names suggested by the Search Committee, and choose any other candidate which may undermine the role of the Search Committee. 

• Eligibility Criteria: Only a person who is or has been at a rank equivalent to Secretary to the government will be eligible.

• By limiting the eligibility criteria of the CEC and ECs to civil servants, the Bill may exclude other qualified individuals from such posts.  

• Salaries: The Act equates the salary of the CEC and ECs to that of the Cabinet Secretary of the government. Earlier, it was equated to the salary of the Supreme Court Judge.

• Both salaries are currently equivalent but they are regulated differently.   

• The salary of a Cabinet Secretary salary is fixed by the government upon the recommendation of the Central Pay Commission which allows the greater control of the Executive in determining the salary of the CEC and ECs. 

Conclusion

• The CEC and EC Appointment Act 2023 shows reform in the selection process for the ECI, but it also raises concerns about the potential hijacking of the process of appointment of CEC & EC in the hands of the executive. 

• The suggested alterations could potentially impact the autonomy and operations of the Election Commission of India . 

• The independence of the Election Commission is paramount to guarantee impartiality and integrity in the execution of electoral processes. 

• Addressing these concerns and upholding the non-partisan nature of the Election Commission is essential for maintaining public trust in the electoral system and ensuring fair and unbiased elections.