Parliament clears new election commissioner Bill that removes CJI from the appointment committee

The new Act provides a three-member committee consisting of the Prime Minister (PM), a Union cabinet minister of his choice and Leader of Opposition in Lok Sabha, all but ensuring that the PM's choice always goes through.

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ON Thursday, the Parliament cleared the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

The Bill was passed in Lok Sabha earlier in the day amidst the en masse suspension of Opposition members of Parliament (MPs). On December 12, the Rajya Sabha had passed the Bill.

The Bill seeks to regulate the appointment, conditions of service and term of office of the Chief Election Commissioner (CEC) and other election commissioners (ECs), the procedure for transaction of business by the election commission and for matters connected therewith or incidental thereto.

On March 2, 2023, the Supreme Court of India, in Anoop Baranwal versus Union of India (2023), had directed the constitution of a committee related to the regulation of appointments in the Election Commission of India (ECI).

As per the judgment, the committee should consist of the Chief Justice of India, the Prime Minister and Leader of the Opposition in Lok Sabha for appointment of the ECI members.

However, the Bill passed by the Parliament has dropped the CJI from the selection committee to appoint the CEC and ECs.

The Bill provides that the CEC and other ECs 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.

As per the Bill, the 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 CEC and other ECs.

Thereafter, a panel comprising the Prime Minister; the Leader of Opposition in Lok Sabha and a Union cabinet minister to be nominated by the Prime Minister, shall recommend the name for the appointment to be made by the President.

Pertinently, the Bill also provides that the selection committee may also consider any other person than those included in the panel by the search committee.

The Bill also provides that the CEC and ECs shall hold office for a term of six years from the date on which they assume their office or till they attain the age of sixty-five years, whichever is earlier.

It also clarifies that when 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. Both the CEC and ECs shall not be eligible for re-appointment.

The Bill retains the status of ECs on par with Supreme Court judges. The original Bill, which was introduced earlier this year, had sought to downgrade their salaries, perks and allowances, aligning them with those of a cabinet secretary.

On September 17, The Indian Express had reported that a group of former CECs had decided to write to the Prime Minister to express their concerns about the potential "downgrade" of the status of the ECI.

Article 324(2) only stipulates that the appointment of the Chief Election Commissioner and election commissioners shall be made by the President "subject to the provisions of any law made in that behalf by Parliament".

The Parliament enacted the Election Commission (Conditions Of Service Of Election Commissioners And Transaction Of Business) Act in 1991.

The Act deals with the salary, terms of office, pension and other perks for election commissioners but does not prescribe a selection procedure for their appointment or an eligibility criteria.

Till now, the CEC and ECs were appointed by the President on the advice of the Prime Minister.