20-February-2025-Editorial

APPOINTMENT OF CHIEF ELECTION COMMISSIONER UNDER THE 2023 ACT

The government has appointed Gyanesh Kumar as the Chief Election Commissioner (CEC) under the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. However, concerns have been raised regarding the selection process, as one committee member objected that it did not follow the Supreme Court’s guidelines in the Anoop Baranwal Case (2023).

Key Features of the 2023 Act

Purpose of the Act

• Replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.
• Regulates the appointment, tenure, service conditions, and powers of the CEC and Election Commissioners (ECs).
• Establishes a legal framework for the Election Commission’s functioning.

Judicial Background

• The Act was introduced after Supreme Court intervention, following petitions challenging the government’s exclusive power in appointing the CEC and ECs.
• In the Anoop Baranwal Case (2023), the SC ruled that a panel consisting of the Prime Minister (PM), Leader of Opposition (LoP), and Chief Justice of India (CJI) should select the CEC and ECs until Parliament enacts a law.
• Before the judgment, the President appointed the CEC and ECs on the Prime Minister’s recommendation.

Selection Process

Selection Committee: The CEC and ECs will be appointed by the President based on the recommendation of a three-member panel:

• Prime Minister (Chairperson).
• Leader of Opposition (LoP) (or the leader of the largest opposition party in Lok Sabha).
• A Union Minister nominated by the Prime Minister.

Search Committee:

• Headed by the Law Minister.
• Includes two senior government secretaries.
• Shortlists five candidates.
• The Selection Committee can also consider names beyond this list (under Section 8 of the Act).

Eligibility Criteria

• Candidates must be current or former Secretaries to the Government of India.
• Should have experience in election management.
• Must possess high integrity and administrative capabilities.

Salary, Term, and Reappointment

• The CEC and ECs receive salaries equal to Supreme Court judges.
• Tenure: 6 years or until age 65, whichever comes first.
• No reappointment is allowed.
• If an EC is promoted to CEC, their total tenure cannot exceed 6 years.
• If a CEC or EC is receiving a government pension, their salary is reduced by the pension amount.

Removal and Resignation

• The CEC can only be removed in the same manner as a Supreme Court judge (i.e., through impeachment).
• An EC can be removed based on the CEC’s recommendation.
• Both can resign by submitting their resignation to the President.

Concerns About the 2023 Act

Exclusion of Chief Justice of India (CJI)

• The Supreme Court-mandated panel (PM, LoP, CJI) has been replaced with a panel where the executive has two out of three votes.
• This increases executive control over the selection process.

Violation of Separation of Powers

• Petitioners argue that Parliament cannot override a Supreme Court ruling.
• The SC’s Anoop Baranwal Case (2023) ruling is being challenged due to legislative interference in judicial matters.

Issues with Committee Functioning

• If the LoP position is vacant, only the PM and Union Minister decide on appointments.
• This makes the process one-sided and contradicts the Act’s objective.

Threat to Free and Fair Elections

• With the executive controlling two-thirds of the panel, there is a risk of bias in EC appointments.
• This could undermine electoral independence and credibility.

Search Committee Concerns

• The Search Committee, led by the Law Minister, increases government influence in the selection process.
• This raises questions about neutrality and fairness.

Global Best Practices for Appointing Election Officials

1. South Africa: Includes the President of the Constitutional Court, human rights representatives, and gender equality advocates.
2. United Kingdom: Candidates must be approved by the House of Commons.
3. United States: The President appoints members, but they require Senate confirmation.

Suggested Reforms and Way Forward

Revising the Selection Process

• Restoring the CJI’s role in the Selection Committee can ensure neutrality.
• Adding a retired SC judge or the Lok Sabha Speaker could help balance executive influence.

Strengthening Election Commission Independence

• The Goswami Committee (1990) recommended that CECs and ECs should be barred from post-retirement government positions to ensure impartiality.

Providing Financial Autonomy

• Election Commission funding should be charged on the Consolidated Fund of India (CFI).
• This ensures Parliament cannot reduce or alter its budget.

Equal Protection for ECs and CEC

• The 255th Law Commission (2015) proposed amending Article 324(5) to give ECs the same protection as the CEC.
• Currently, CEC removal requires impeachment, while ECs can be removed by the CEC, making them more vulnerable.

Conclusion

The 2023 Act brings significant changes to the appointment process for the CEC and ECs, but it also raises concerns over executive dominance. Judicial precedents and global practices highlight the need for a transparent and balanced selection process. Ensuring neutrality and independence in the Election Commission is crucial for maintaining India’s democratic integrity.