The new election commissioner statute excluded the Chief Justice of India from the selection committee to appoint the Chief Election Commissioner and other election commissioners, replacing him with a Union minister of the Prime Minister’s choice.
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ON Friday, the Supreme Court issued notice to the Union government in a public interest litigation (PIL) challenging the newly enacted Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
The Act excluded the Chief Justice of India (CJI), from the selection committee to appoint the Chief Election Commissioner and other election commissioners.
A Bench comprising Justice Sanjiv Khanna and Dipankar Datta directed to list the matter on April 2024. The Bench declined to grant a stay of the Act observing that a stay could not be put on legislation in that manner.
It is likely that the vacancy arising on February 15, 2024 on the retirement of election commissioner Anup Chandra Pandey will be filled under the new law.
Senior advocate Vikas Singh, who appeared for the petitioner, urged that the Act violated the separation of power and is contrary to the ruling of the five-judge Bench in Anoop Baranwal versus Union of India (2023).
As per the judgment, a committee comprising the CJI, Prime Minister and Leader of the Opposition in Lok Sabha were to appoint the Chief Election Commissioner and other election commissioners.
However, the law enacted by the Parliament last year excluded the CJI from the committee, replacing him with a Union minister nominated by the Prime Minister.
In her petition, Jaya Thakur, who is a Congress leader, contends that the impugned Act compromises the free and fair election because the exclusion of the CJI from the committee will ensure that the Prime Minister and his nominee will always have the majority to take decisions regarding appointment of election commissioners. Hence this process cannot be said to be free and fair, the petition contends.
As per the impugned Act, a ‘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 Chief Election Commissioner and other election commissioners.
Thereafter, the panel comprising the Prime Minister, the Leader of the 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 Act also provides that the selection committee may consider any other person than those included in the panel by the search committee.
The Act also provides that the Chief Election Commissioner and other election commissioners 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 Chief Election Commissioner and other election commissioners shall not be eligible for re-appointment.
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 eligibility criteria.
Till now, the Chief Election Commissioner and other election commissioners were appointed by the President on the advice of the Prime Minister.
