Source: The Indian Express 

Introduction 

Pursuant to the Chief Election Commissioner and Other Election Commissioners Act, 2023, a selection committee comprising the Prime Minister, Home Minister, and Leader of Opposition has appointed new Chief Election Commissioner (CEC) of India, marking the first implementation of the statutory appointment framework. 

Does the 2023 Act Affect the Independence of the Election Commission and Violate the Separation of Powers? 

• The Supreme Court established a selection committee including the Chief Justice of India to appoint Election Commissioners (EC). 
• Parliament passed the 2023 Act replacing the Chief Justice with a Cabinet Minister nominated by the Prime Minister. 
• This gives the government majority control over the selection committee. 
• The Act potentially states the Election Commission's independence by increasing executive influence. 
• Petitioners argue the law circumvents judicial oversight in the appointment process. 
• The constitutional question is whether Parliament can override a Constitution Bench judgment through legislation. 
• The Supreme Court must determine if the new appointment mechanism violates separation of powers principles. 

What was the Earlier Rule for Appointment of Chief Election Commissioner? 

• No specific law passed by Parliament governed CEC appointments. 
• The President appointed the CEC on the advice of the Prime Minister. 
• Traditionally, the senior-most Election Commissioner was elevated to CEC. 
• Seniority was determined by who was appointed to the Commission earlier. 
• If multiple commissioners were appointed on the same day, the order of names in the appointment notification determined seniority. 
• The process gave significant discretionary power to the Executive. 
• No formal selection committee or consultation process was statutorily required. 

What is the New Rule for Appointment of Chief Election Commissioner? 

• Appointments now follow the Chief Election Commissioner and Other Election Commissioners Act, 2023. 
• A search committee headed by the Law Minister first prepares a shortlist of five candidates. 
• The shortlist is presented to a Selection Committee comprising the Prime Minister, Leader of Opposition, and a Cabinet Minister nominated by the PM. 
• The Selection Committee can also consider names beyond the shortlisted candidates. 
• The President makes the final appointment based on the Selection Committee's recommendation. 
• The Act specifies eligibility criteria: appointees must be serving or former Secretary-level officers with knowledge of election management. 
• A CEC cannot be reappointed, and total service (as EC and CEC combined) cannot exceed six years. 

Is the New Appointment Process for Election Commissioners Compromising Judicial Oversight and Institutional Independence? 

• The new committee gives the government effective control with two out of three members (PM and PM-nominated Cabinet Minister). 
• It replaces the Supreme Court's recommended inclusion of the Chief Justice of India with a Cabinet Minister. 
• This change potentially undermines judicial oversight in the appointment process. 
• The new structure may compromise the Election Commission's independence from executive influence. 
• Petitioners argue Parliament has overstepped its authority by legislatively modifying a Constitution Bench judgment. 
• The constitutional validity of the Act remains challenged before the Supreme Court. 
• The Leader of Opposition's dissent in the selection process highlights concerns about the timing of appointments while legal challenges are pending. 
• The current process may not adequately safeguard against partisan appointments to this crucial constitutional body. 

What is Article 324 of Indian Constitution? 

• Article 324 vests the superintendence, direction, and control of all elections to Parliament, State Legislatures, and Presidential/Vice-Presidential offices in the Election Commission. 
• The Election Commission consists of a Chief Election Commissioner and other Election Commissioners as fixed by the President. 
• The President appoints the Chief Election Commissioner and other Election Commissioners, subject to any law made by Parliament. 
• When multiple Election Commissioners are appointed, the Chief Election Commissioner acts as Chairman of the Commission. 
• The President may appoint Regional Commissioners after consulting the Election Commission to assist with election functions. 
• Parliament may legislate on the conditions of service and tenure of Election Commissioners and Regional Commissioners. 
• In the absence of Parliamentary legislation, the President determines their conditions of service and tenure by rule. 
• The Chief Election Commissioner enjoys security of tenure similar to a Supreme Court Judge and cannot be removed except on similar grounds and procedure. 
• The conditions of service of the Chief Election Commissioner cannot be varied to his disadvantage after appointment. 
• The President or State Governors must provide necessary staff to the Election Commission when requested for discharge of its functions. 

What are the Important Provisions of Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023? 

• Section 3: Election Commission 
  • The Election Commission consists of a Chief Election Commissioner and other Election Commissioners as fixed by the President. 
• Section 5: Qualifications 
  • Appointees must be holding or have held a post equivalent to Secretary to the Government of India. 
  • They must be persons of integrity with knowledge and experience in election management. 
• Section 6: Search Committee 
  • A Search Committee headed by the Minister of Law and Justice prepares a panel of five persons. 
  • The committee includes two other members not below Secretary rank. 
• Section 7: Selection Committee 
  • The Selection Committee consists of the Prime Minister (Chairperson), Leader of Opposition, and a Union Cabinet Minister nominated by the PM. 
  • If no recognized Leader of Opposition exists, the leader of the largest opposition party serves instead. 
• Section 8: Selection Procedure 
  • The Selection Committee regulates its own procedure in a transparent manner. 
  • The Committee may consider persons beyond those included in the Search Committee's panel. 
• Section 9: Term of Office 
  • The term is six years from the date of assuming office or until age 65, whichever comes earlier. 
  • No reappointment is permitted. 
  • Total service as EC and CEC combined cannot exceed six years. 
• Section 11: Resignation and Removal 
  • The CEC cannot be removed except in the same manner and on the same grounds as a Supreme Court Judge. 
  • Other ECs cannot be removed except on the recommendation of the CEC. 
• Section 18: Disposal of Business 
  • The Commission regulates procedures for transaction of business through unanimous decision. 
  • All business should be transacted unanimously when possible. 
  • If members differ, decisions are made by majority opinion. 

Conclusion 

The legal validity of the 2023 Act remains sub judice before the Supreme Court, which is examining whether Parliament can override a Constitution Bench judgment through legislation. The Court has indicated that its determination may retroactively affect appointments made under the contested provisions.