Context
Recently, the Supreme Court of India questioned whether a “proper debate” was held in Parliament regarding the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The Court’s inquiry focused on whether the “ethos” of its 2023 Anoop Baranwal judgment—which aimed to insulate the appointment process from exclusive executive control—was adequately reflected in the legislative debates. This comes in the wake of petitions challenging the exclusion of the Chief Justice of India (CJI) from the selection panel, replaced by a Union Cabinet Minister nominated by the Prime Minister.
1. Background: The Legislative Vacuum
- Article 324(2): It states that the President shall appoint the CEC and ECs, subject to any law made by Parliament.
- Historical Practice: For over 70 years, no such law was enacted. Appointments were made by the President on the sole advice of the Prime Minister/Council of Ministers.
2. The Landmark Anoop Baranwal Case (2023)
A five-judge Constitution Bench ruled that to ensure the independence of the ECI, a selection committee must be formed.
- The Judicial Committee: Prime Minister, Leader of Opposition (LoO) in Lok Sabha, and the Chief Justice of India (CJI).
- Mandate: This arrangement was meant to be temporary, “until Parliament makes a law.”
3. Key Features of the 2023 Act
The Parliament enacted the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, effectively replacing the Supreme Court’s temporary arrangement:
- The Selection Committee:
- Prime Minister (Chairperson).
- Leader of the Opposition in Lok Sabha (Member).
- A Union Cabinet Minister nominated by the PM (Member).
- Appointment Process for Other ECs: The Act treats the appointment of Other Election Commissioners exactly like that of the CEC. They are appointed by the President based on the recommendation of the same three-member Selection Committee.
- Search Committee: Headed by the Cabinet Secretary, it prepares a panel of five names for the Selection Committee.
- Eligibility: Candidates must be persons of integrity and have served in a rank equivalent to the Secretary to the Government of India.
- Salary and Service Conditions: The Act equates the salary and status of the CEC and ECs to that of the Cabinet Secretary (previously equal to a Supreme Court Judge).
4. Constitutional Safeguards
- Security of Tenure: The CEC can only be removed in the same manner as a Supreme Court Judge (Impeachment).
- Other Election Commissioners: Cannot be removed except on the recommendation of the CEC.
- Term: 6 years or until the age of 65, whichever is earlier.
Q. Consider the following statements regarding the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023:
1. The Selection Committee for the appointment of CEC and ECs includes the Chief Justice of India as a permanent member.
2. The salary of the Chief Election Commissioner is now equivalent to that of a Judge of the Supreme Court of India.
3. A Search Committee headed by the Cabinet Secretary is responsible for suggesting a panel of names to the Selection Committee.
Which of the statements given above is/are correct?
A) 1 and 2 only
B) 3 only
C) 2 and 3 only
D) 1, 2 and 3
Answer: B) 3 only
Solution:
• STATEMENT 1 IS INCORRECT: The 2023 Act replaced the Chief Justice of India (CJI) with a Union Cabinet Minister nominated by the Prime Minister in the Selection Committee.
• STATEMENT 2 IS INCORRECT: The Act changed the status and salary of the CEC and ECs from being equivalent to a Supreme Court Judge to being equivalent to the Cabinet Secretary.
• STATEMENT 3 IS CORRECT: The Act provides for a Search Committee headed by the Cabinet Secretary to propose a panel of five names for consideration.
