Appointment of CEC and EC

• 19 Feb 2025

For Prelims: Chief Election Commissioner (CEC), Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, Anoop Baranwal Case, 2023, Election Commission, LoP, CJI, Goswami Committee, Law Commission.  

For Mains: Concerns related to appointment of Chief Election Commissioner and way forward. 

Source: IE 

Why in News? 

Gyanesh Kumar has been appointed 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. 

• One of the members of the selection committee objected that the selection process bypassed Supreme Court (SC) guidelines in the Anoop Baranwal Case, 2023. 

What are the Key Facts Regarding the 2023 Act? 

• About: The Act replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 to regulate the appointment, tenure, service conditions of CEC/ECs, and Election Commission procedures. 
• Judicial Background: This Act followed SC intervention after several petitions challenged the Centre’s exclusive power in appointing CEC and ECs. 
  • In the Anoop Baranwal Case, 2023, the SC ruled that a panel of the Prime Minister, LoP, and CJI would select CEC and ECs until Parliament passed a law. 
  • Before the Judgement, the appointment of the CEC and other ECs was made by the President on the advice of the Union Council of Ministers headed by the Prime Minister. 
• Key Provisions: 
  • Selection Committee: The CEC and ECs will be appointed by the President based on the recommendation of a Selection Committee consisting of: 
    • Prime Minister (Chairperson). 
    • Leader of the Opposition (LoP) (or leader of the largest opposition party) in the Lok Sabha. 
    • Union Cabinet Minister nominated by the Prime Minister. 
  • Search Committee: A Search Committee, led by the Law Minister and comprising two other members not below the rank of Secretary to the Government of India, shortlists five candidates. 
    • Section 8 of the Act gives the Selection Committee the power to consider names beyond the shortlisted five. 
  • Eligibility Criteria:  The CEC and other ECs must have held a Secretary-level post in the Government of India and possess integrity, election management experience. 
  • Salary, Term, and Reappointment: CEC and ECs receive a SC judge's salary and serve for six years or until age 65, whichever is earlier. 
    • CEC and ECs cannot be re-appointed. If an EC becomes CEC, their total tenure cannot exceed six years. 
    • A CEC or EC receiving a government pension (excluding disability pension) will have their salary reduced by the amount of the pension received. 
  • Removal and Resignation: The CEC can be removed only in the same manner and on the same grounds as a SC Judge, while an EC can be removed on the CEC’s recommendation.  
    • Both can resign to the President. 

What are the Key Concerns Regarding the 2023 Act? 

• Exclusion of CJI: The 2023 Act replaces the SC-mandated panel (PM, LoP, CJI) with a committee of the PM, LoP, and a Union Minister allowing the executive to dominate the selection process. 
• Violation of Separation of Power: The Act is being challenged in SC by petitioners arguing whether Parliament has the legal authority to override or modify a SC’s Constitution Bench ruling in the Anoop Baranwal Case, 2023 through legislation or ordinance. 
• Vacancy in Selection Committee: The Act allows the Selection Committee to function despite vacancies.  
  • If the LoP post is vacant due to the dissolution of the Lok Sabha, only the PM and a Union Minister will remain for selecting candidates, effectively bypassing both the judgment and the 2023 Act. 
• Undermining Free and Fair Elections: With the executive holding two of three votes, the Act raises concerns over ECs' independence and potential alignment with the ruling party that may undermine free and fair elections. 
• Impact on Credibility of EC: The Act's Search Committee for CEC and EC candidates faces criticism for increasing executive influence even before appointment. 
  • Perceived bias in EC selection could significantly impact Indian democracy, as elections determine political power. 

 

Global Practices in the Appointment of Electoral Body Members 

• South Africa: The selection process involves key figures such as the President of the Constitutional Court, representatives of the Human Rights Court, and advocates for gender equality. 
• United Kingdom: Candidates for the electoral body are subject to approval by the House of Commons. 
• United States: The President appoints members to the electoral body, and the appointments require confirmation by the Senate. 

Way Forward 

• Reviewing Selection Process: Restoring the CJI’s role in the Selection Committee as per the Anoop Baranwal Case, 2023 would introduce a neutral element in the process, reducing the risk of political bias. 
  • A retired Supreme Court judge or the Speaker of the Lok Sabha can be included in the Selection Committee to dilute executive dominance. 
• Strengthening Independence of EC: The Goswami Committee (1990) advised barring CECs and ECs from government posts, including Governor, to prevent conflicts of interest and ensure impartiality. 
• Financial Autonomy: The expenditure of the Election Commission should be 'charged' on the Consolidated Fund of India (CFI) so that it cannot be altered or reduced through voting. 
• Equality Between CEC and ECs: The 255th Law Commission (2015) report on Electoral Reforms recommended amending Article 324(5) to give ECs the same protection as the CEC, ensuring impartiality and resistance to external influence. 
  • Article 324(5) mandates impeachment like Supreme Court judges for CEC removal, while ECs can be removed on the CEC’s recommendation, making them more vulnerable. 

Drishti Mains Question: 

Q.Evaluate the concerns related to executive influence in the appointment process in the Election Commissioners and suggest measures to enhance its autonomy. 

UPSC Civil Services Examination, Previous Year Questions (PYQs) 

Prelims 

Q.Consider the following statements: (2017) 

1. The Election Commission of India is a five-member body.
2. Union Ministry of Home Affairs decides the election schedule for the conduct of both general elections and bye-elections.
3. Election Commission resolves the disputes relating to splits/mergers of recognised political parties.

Which of the statements given above is/are correct? 

(a) 1 and 2 only 

(b) 2 only 

(c) 2 and 3 only 

(d) 3 only 

Ans: (d)  

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 Mains 

Q.Discuss the role of the Election Commission of India in the light of the evolution of the Model Code of Conduct. (2022)