• Recently, Rajya Sabha passed The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Office and Terms of Office) Bill, 2023.
• It provides for the procedure for appointment of the Chief Election Commissioner (CEC) and the other two Election Commissioners (ECs).

Constitutional Provisions:

• Article 324 provides for the composition of the Election Commission of India (ECI).It conists of the CEC and two other ECs.
• The Constitution provides that the appointment of the CEC and EC shall, subject to the provisions of any law made by Parliament.
• While the existing parliamentary law provides for their conditions of service, it is silent with respect to appointments.
• The appointments till date are made by the President, that is the Central Government and there is no mechanism for ensuring independence during the appointment process.

Supreme Court ruling on the same:

• A Public Interest Litigation (PIL) filed by Anoop Baranwal in 2015 pleaded for the Supreme Court to issue directions to set up an independent, collegium­like system for the appointment of the CEC and ECs.
• The Supreme Court in this case, in March 2023, held that there has been a legislative vacuum due to the absence of any law by Parliament in the last 73 years with respect to the appointment of the CEC and EC.
• In the past, the Dinesh Goswami Committee on Electoral Reforms (1990) and the Law Commission in its 255th report on Electoral Reforms (2015), had suggested regarding the same.
• They recommended that the CEC and ECs should be appointed by a committee consisting of the Prime Minister, the Chief Justice of India (CJI) and the Leader of the Opposition or the largest Opposition party in the Lok Sabha.
• Considering these recommendations, the Supreme Court, exercising its powers under Article 142 (to issue directions for doing ‘complete justice’ in any matter), laid down that the CEC and ECs shall be appointed by a committee consisting of the Prime Minister, the CJI and the Leader of the Opposition or the largest opposition party in the Lok Sabha.
• It said that this mechanism shall be in place till Parliament enacts a law on this matter.

What does the proposed law provide?

• The CEC and other ECs shall be appointed from persons who are holding or have held a post equivalent to the rank of Secretary to the Government of India.
• There shall be a search committee headed by the Minister of Law and Justice, who shall prepare a panel of five persons for consideration to the selection committee.
• The CEC and EC shall be appointed by the President on the recommendation of this selection committee consisting of the Prime Minister, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister to be nominated by the Prime Minister.
• It is for the first time that the Parliament is proposing a structured mechanism for identification of suitable persons for the post of CEC and EC.
• However, this bill removes the CJI from the selection process that was laid down in the Anoop Baranwal case.

Best practices globally

• The international practices for selection and appointment of members to the electoral body varies between different democracies.
• In South Africa, the President of the Constitutional Court, representatives of the Human rights Court and gender equality are involved.
• In the U.K., the House of Commons approves the candidates, whereas in the U.S., the appointment is by the President and confirmed by the Senate.

Supreme Court -  Order (March 2023)

• The Supreme Court, in a landmark decision, ruled that the selection of Chief Election Commissioner and Election Commissioners be done by a three-member committee. This committee will comprise of:
  • Prime Minister
  • Leader of the Opposition in Lok Sabha/Leader of the Single Largest Opposition Party
  • Chief Justice of India
• Currently, appointments of CEC and ECs are done by the President on the aid and advice of the Union Cabinet headed by the Prime Minister.
• A five-judge Constitution Bench of the Supreme Court was hearing a bunch of petitions seeking a selection process similar to what is followed in the case of the Director, Central Bureau of Investigation (CBI).
  • The Director of CBI is selected by a committee which consists of Prime Minister, Leader of the Single Largest Opposition Party and the Chief Justice of India.
• The Court has unanimously disapproved of the present system of the Centre appointing members of the poll watchdog.
• Pointing to Article 324(2) of the Constitution, the Court has called upon Parliament to make a law regarding the criteria for selection, conditions for service and tenure of the CEC and ECs.
  • According to Article 324(2) of the Constitution, the CEC and ECs shall be appointed by the President, with the aid and advice of the Council of Ministers, till Parliament enacts a law fixing the criteria for selection, conditions of service and tenure.
• Justifying its decision, the bench said there is a legislative vacuum as Parliament, in the last seven decades, did not frame a law as envisaged in the Constitution.
• The Supreme Court ruling, for now, will bring to an end the decades-old practice of the CEC and ECs being appointed on the advice of the Council of Ministers, as is laid down in the Constitution.

Govt’s stand in the SC

The Centre opposed any intervention by the Supreme Court in the appointments. The government argued that while Article 324 (2) mentions the appointment being subject to a law by Parliament, without such a law, the President had the constitutional power to appoint them. Furthermore, the government stated that the existing procedure had been consistently relied upon by different governments, and that a “utopian model cannot be the premise” for making changes.

The Centre’s legal representatives also argued that the petitioners were unable to demonstrate that the independence of the Election Commission is under threat, and hence, there’s no immediate trigger to warrant judicial interference. Essentially, the government asked the court to show judicial restraint.

Supreme Court’s ruling

On March 2, 2023, the five-judge bench ruled on the matter.

The Supreme Court delved into the legislative history of Article 324, including the discussions in the Constituent Assembly regarding the role of the Election Commission and the appointment of its members. The Court observed that it was evident that the founding fathers of the Constitution did not want the Executive to have exclusive authority in appointing Election Commission members. Therefore, the inclusion of the words “subject to any law to be made by Parliament” in Article 324 (2) was representative of the need for Parliament to legislate on this matter.

The absence of such a law, the court noted, left a vacuum. Taking note of the “devastating effect of continuing to leave appointments in the sole hands of the Executive’’, the court deemed it appropriate to lay down a process for the appointment of election commissioners. Accordingly, it ruled that “the appointment of the Chief Election Commissioner and the Election Commissioners shall be made by the President on the advice of a Committee consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha, and in case no Leader of the Opposition is available, the leader of the largest opposition Party in the Lok Sabha in terms of numerical strength, and the Chief Justice of India.”

However, the Court was careful to specify that these norms were “subject to any law to be made by Parliament’. In other words, Parliament was free to enact a law on the appointment process in the future.

Was this the first time a consultative process was considered?

The consultative process ordered by the Supreme Court wasn’t unprecedented. It echoed a similar proposal from the 1990 committee chaired by the then Law Minister Dinesh Goswami. This committee recommended that the President consult the Chief Justice of India and the Leader of the Opposition, or the leader of the largest Opposition group, for appointing the Chief Election Commissioner. For the other two Election Commissioners, the consultation was to involve the Chief Justice of India, the Leader of the Opposition, and the Chief Election Commissioner.

In 2015, the 20th Law Commission’s 255th report also emphasised the need for a consultative process. It suggested the President make appointments after consulting a three-member collegium or selection committee, comprising the Prime Minister, the Leader of the Opposition or the leader of the largest Opposition party in the Lok Sabha, and the Chief Justice of India.

What happened after the SC judgment?

The Centre introduced a Bill in Parliament in August last year, outlining a procedure for appointing Election Commissioners. Since the Court had specified that its appointment norms are “subject to any law to be made by Parliament,” the government was well within its right to bring a Bill. However, the appointment process proposed in the Bill raised concerns regarding its potential to undermine the reforms sought by the Court.

The Bill, passed by Parliament in December 2023, establishes a committee comprising the Prime Minister, the Leader of Opposition in the Lok Sabha, and a Cabinet Minister nominated by the PM. The selection will be made from five names shortlisted by a screening panel headed by the Law Minister and comprising two Union secretaries.

The composition of the committee was criticised by the Opposition. This is because, as per the intent of the Constitution’s framers, the Election Commission should be an independent body. The proposed committee’s composition effectively sidelines the Leader of Opposition, who could be consistently outvoted by the Prime Minister and the Union minister.

This Bill was passed by Parliament in December 2023 and the President gave her assent within a week.