• The retirement of Chief Election Commissioner Rajiv Kumar in February 2025 has brought renewed attention to the Supreme Court regarding the validity of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023. 

• This legislation, which alters the appointment process for the Election Commission of India (ECI), is being scrutinised for potentially undermining the court’s authority and principles of institutional independence.

The law to regulate appointments of CEC, election commissioners

• On December 28, 2023, the President gave assent to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023.

• The Chief Election Commissioner and other election commissioners shall be appointed from amongst persons who are holding or have held a post equivalent to the rank of secretary to the government of India and shall be persons of integrity, who have knowledge of and experience in management and conduct of elections.

• A search committee headed by the Minister of Law and Justice and comprising two other members not below the rank of secretary to the government of India, shall prepare a panel of five persons for consideration of the selection committee, for appointment as the Chief Election Commissioner and other election commissioners.

• The Chief Election Commissioner and other election commissioners shall be appointed by the President on the recommendation of a selection committee consisting of:

a) Prime Minister - chairperson

b) Leader of Opposition in the House of the People - member

c) A Union Cabinet Minister to be nominated by the PM - member.

• The Chief Election Commissioner and other election commissioners shall be paid a salary which is equal to the salary of a judge of the Supreme Court.

• The Chief Election Commissioner and other election commissioners shall hold office for a term of six years from the date on which he assumes his office or till he attains the age of 65 years, whichever is earlier.

• The Chief Election Commissioner and other election commissioners shall not be eligible for re-appointment.

• Where an election commissioner is appointed as Chief Election Commissioner, his term of office shall not be more than six years in aggregate as the election commissioner and the Chief Election Commissioner.

• The Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a judge of the Supreme Court.

Key issues in question

• A bench of Justices Surya Kant, Dipankar Datta and Ujjal Bhuyan was informed by advocate Prashant Bhushan, representing an NGO, the incumbent Chief Election Commissioner (CEC) Rajiv Kumar was set to superannuate on February 18, and a new CEC would be appointed under the new law, if the court didn’t intervene.

• Bhushan said the top court in its March 2, 2023 verdict set up a panel comprising the Prime Minister, the Leader of Opposition and the CJI to appoint the CEC and election commissioners (EC).

• However, under the new law the selection committee will comprise the Prime Minister, a Union Cabinet minister, the Leader of Opposition or the leader of the largest opposition party in Lok Sabha. They have removed CJI from the selection committee, submitted Bhushan.

• Judicial Authority vs Legislative Power: Justice Surya Kant emphasized that the core legal test lies in determining whether the legislative powers of Parliament can be used to dilute or circumvent binding judicial decisions under Article 141 of the Constitution.

• Conflict with Constitution Bench Judgment: Petitioners argue that the 2023 Act contravenes the Supreme Court’s March 2023 judgment in the Anoop Baranwal case, which mandated a diverse and independent selection committee for appointments to the ECI.

• The judgment was aimed at ensuring the ECI’s independence by eliminating the government’s exclusive control over appointments.

Changes introduced by the 2023 Act

• Revised Selection Committee: The Act replaces the Chief Justice of India with a Union Cabinet Minister nominated by the Prime Minister. This move is seen as tipping the balance in favor of the Executive.

Criticism from petitioners

• Advocate Prashant Bhushan argued that this change reintroduces government monopoly over the ECI’s appointments, contrary to the Constitution Bench’s intent.

• Senior advocate Gopal Sankaranarayanan called the law a threat to democracy, asserting that any such change in the ECI’s appointment process requires a constitutional amendment, not ordinary legislation.

Election Commissioners

• The first Chief Election Commissioner (Sukumar Sen) was appointed on March 21, 1950. 

• Originally, the commission had only a Chief Election Commissioner. It currently consists of the Chief Election Commissioner and two Election Commissioners.

• Two additional commissioners were first appointed on October 16, 1989, but they had a very short tenure till January 1, 1990. Later, on October 1, 1993, two additional election commissioners were appointed.

• The concept of multi-member Commission has been in operation since 1993, with decision making power by majority vote.

• The Chief Election Commissioner can be removed from office only through impeachment by Parliament. 

Election Commission of India

• The Election Commission of India (EC) is a permanent independent constitutional body created under Article 324 of the Indian Constitution. 

• The EC was set up on January 25, 1950, on the eve of India becoming a sovereign democratic republic with its headquarters in New Delhi. 

• EC is vested with the powers and responsibilities of superintendence, direction and control of the entire process of preparation and revision of electoral rolls for, and conduct of, elections to the houses of Parliament and Legislatures of the states and the Union Territories and of elections to the offices of President and Vice-President. 

• Elections are conducted according to the constitutional provisions, supplemented by laws made by Parliament and rules and orders made thereunder. 

The major laws are: 

• The Presidential and Vice-Presidential Elections Act, 1952.

• The Representation of the People Act, 1950.

• The Representation of the People Act, 1951. 

• EC prepares, maintains and periodically updates (new registration, modification and deletion as per guidelines) the electoral rolls, registers political parties/candidates, supervises the whole process of conducting election, monitors the election campaigns, including funding and expenditure of candidates, maintaining Model Code of Conduct (MCC) to make the entire electoral process free fair democratic and accessible for all its stakeholders. 

• It also facilitates coverage of the election process by the media, carries out the voter education and awareness measures, organises the polling stations/ booths where voting takes place, and oversees under stringent surveillance mechanisms the counting of votes and the declaration of results. 

• All political parties are required to get themselves registered with the Election Commission. Based on performance criteria laid down in the Election Symbols (Reservation & Allotment) Order 1968, the EC grants recognition to political parties as national or state parties. It also decides disputes relating to splits/mergers of recognised political parties.

• At the state level, the election work is supervised, subject to overall superintendence, direction and control of the Commission, by the Chief Electoral Officer of the State, who is appointed by the Commission from amongst senior civil servants proposed by the concerned state government. He is, in most of the States, a full time officer and has a small team of supporting staff.

(The author is a trainer for Civil Services aspirants.)