What are the new changes in the appointment of CEC & ECs?

The Chief Election Commissioner (CEC) & Election Commissioners (ECs) play a crucial role in ensuring free and fair elections in India. The independence of the commission has become a major topic of debate, especially after the Supreme Court’s 2023 judgement.

Why was the old appointment system questioned?

The old system of appointing the Chief Election Commissioner and other Election Commissioners was questioned due to the dominance of the executives, which impacted the independence and impartiality of the Election Commission of India as an autonomous and constitutional body. Many previous committees, including the Dinesh Goswami Committee and the 2nd ARC, recommended a more transparent and bipartisan mechanism.

What was the Supreme Court judgement on the Election Commission rule in 2023?

In March 2023, the Supreme Court gave a landmark judgement in the case of Anoop Baranwal vs Union of India; a five-judge constitution bench made the judgements. Key rulings were:

• Independent Selection Committee: The CEC and ECs should be appointed by an independent selection committee consisting of the prime minister, the leader of the opposition in the Lok Sabha and the chief justice of India.

Following the Supreme Court's judgement, the government enacted the Chief Election Commissioner and Conditions of Service and Term of Office Act, 2023. This law changed the selection committee for appointments by replacing the Chief Justice of India with a Union Cabinet Minister nominated by the Prime Minister.

What is the new provision of the 2023 Appointment Law?

The government introduce a new law that replaced the Chief Justice of India with a Cabinet minister nominated by the Prime Minister of India. The new selection committee includes: 

1. Prime Minister of India as Chairperson

2. Leader of Opposition (Lok Sabha Only)

3. A Union Cabinet Minister nominated by the Prime Minister

A search committee for the selection of the CEC and ECs, headed by the Cabinet Secretary, to prepare the list of eligible candidates. 

Key Criticisms of the New Law

• Reduces opposition power because the executive has 2 out of 3 votes.

• It weakens checks and balances recommended by the Supreme Court of India.

• It may impact the neutrality of the Election Commission.

• Critics says it reverses reforms that aimed to make EC appointments more independent 

• Raised the question of the constitutionality of the institution, the separation of powers, and democratic accountability.

Arguments in Favour of the New Law

• The Parliament of India has a clear legal framework which aligns with provisions mentioned in Article 324.

• The present government argued the revised system ensures efficiency and avoids judicial overreach.

• To avoid the bias and authenticity of the institution, it has also maintained a role for the Leader of the Opposition in the Loksabha.

• The government claims the revised system ensures efficiency and avoids judicial overreach.

Constitutional Provision for CEC and ECs 

The Election Commission of India is an autonomous body which is established under Article 324 and Part XV of the Indian Constitution; other key constitutional provisions are:

Article 324(1): It grants powers to the CEC to conduct elections to parliament, state legislatures and the offices of president and vice-president.

Article 324(2): It empowers the President of India to appoint the CEC and other election commissioners.

Article 324(3): It talks about the commissions being chaired by Chief election commissioners, which consist of other election commissioners

Article 324(4): Grant permission to the President to appoint regional commissioners as necessary to assist the Commission after consultation with EC

Article 324(5): It gives the provision of safeguarding the tenure and service conditions of the CEC and ECs.

The changes provided by the government of India in the appointment procedure of the Chief Election Commissioner and other Election Commissioners have revived discussions about the independence of constitutional bodies in India; while the new law aims to provide clarity and transparency, concerns remain about the dominance of the executive.