PM Modi, Amit Shah & Rahul Gandhi meet to appoint new Chief Election Commissioner: How the appointment process works, why it was changed

How did the appointment process work before, what has changed, and why did Gandhi object to the new process in Monday’s meeting? Here’s all you need to know.

How were Chief Election Commissioners appointed earlier?

The Election Commission (EC) is a three-member body comprising one Chief Election Commissioner (CEC) and two Election Commissioners. Although all three election commissioners are equal, the CEC, like the Chief Justice of India, is the first among equals.

Earlier, there was no law passed by Parliament for the appointment of the CEC and ECs. The President made the appointment on the advice of the Prime Minister. Traditionally, the successor to the incumbent CEC has been the next senior-most Election Commissioner. Seniority was usually defined by who was appointed earlier to the Commission.

For instance, when Rajiv Kumar was the CEC, Gyanesh Kumar and Sukhbir Singh Sandhu served as Election Commissioners. Kumar and Sandhu were appointed to the Commission on the same day, March 14, 2024, and are both IAS officers of the 1988 batch. So who is the senior appointee? Sources within the government and Commission state that it is Gyanesh Kumar since his name appeared first in the appointment notification issued by the Union Law and Justice Ministry.

Hence, under the old system, the President would have appointed Gyanesh Kumar as CEC upon Rajiv Kumar’s retirement. But it’s not so simple this time.

How was the new CEC appointed this time?

The new CEC was appointed under a new law — Chief Election Commissioner And Other Election Commissioners (Appointment, Conditions of Service And Term of Office) Act, 2023. This law lays down procedures for the appointment of both the CEC and ECs.

Under the Act, a search committee headed by the Law Minister (currently Arjun Ram Meghwal) and having two senior bureaucrats serving as secretaries to the Government of India must first draw up a shortlist of five candidates. This shortlist is then sent to a Selection Committee made up of the Prime Minister, the Leader of Opposition, and a Cabinet Minister nominated by the PM.

The current Selection Committee comprises Prime Minister Narendra Modi, LoP and Congress leader Rahul Gandhi and Home Minister Amit Shah. This committee met Monday evening at the Prime Minister’s Office in South Block to select Rajiv Kumar’s successor. Section 8 of the Act gives this Committee the power to also consider names beyond the shortlisted five. Notably, Gyanesh Kumar and Sukhbir Singh Sandhu were appointed to the Commission in March 2024 under the same process.

Sources say shortlists of five names each for the posts of CEC and EC were placed before the committee members. During the 30-minute meeting, Rahul Gandhi submitted a dissent note asking the Government to defer the appointment until the Supreme Court decides on petitions challenging the new appointment process. While his dissent was recorded in the meeting proceedings, a decision was reportedly made on final selections for both the CEC and EC positions.

Based on this recommendation, an official notification was released on Monday night, saying that in exercising the powers conferred under the 2023 Act, the President had appointed Kumar as the CEC with effect from February 19. Vivek Joshi, an IAS officer of the 1989 batch, was also appointed as an EC “with effect from the day he assumed charge of his office.”

Therefore, while the new process did not rule out Gyanesh Kumar from becoming CEC — his name was among the five shortlisted — the new law allowed the government to cast its net wider and potentially bring in a new CEC altogether.

Does the new Act specify eligibility conditions?

While the government usually appointed retired senior bureaucrats to the Commission in the past, the Act makes the qualifications for the jobs clear. “The Chief Election Commissioner and other Election Commissioners shall 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,” Section 5 of the Act states.

The Act also specifies terms of service. “The Chief Election Commissioner and other Election Commissioners shall not be eligible for re-appointment. Where 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,” it states.

Why was the appointment process for the Election Commissioners changed?

This Act was brought after an intervention from the Supreme Court, following a clutch of petitions filed between 2015 and 2022 that challenged the Centre’s exclusive powers in picking the Election Commissioners.

The court had noted that the Constitution’s founders never intended to give the Executive exclusive appointment powers. Concerned about the “devastating effect” of leaving appointments solely to the Executive, the court established a new process. In its judgment on March 2, 2023, the Supreme Court ruled that a selection committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India would select the CEC and ECs until Parliament enacted a law.

Before any vacancy in the Commission could arise, the government brought the Bill in Parliament, which passed it in December 2023. However, the Act changed the composition of the selection committee from the one recommended by the Court — replacing the CJI with a “Union Cabinet Minister to be nominated by the Prime Minister”, effectively giving the government the final say on who is selected.

Will the new appointments settle the matter?

No, not until the Supreme Court hears petitions challenging the new appointment process. The non-profit group Association for Democratic Reforms has challenged the removal of the Chief Justice of India as a member of the Selection Committee under the new law.

The key constitutional question raised by these petitions is whether Parliament has the legal authority to override or modify a Constitution Bench judgment through legislation or ordinance. Although the petitioners sought an early hearing before Rajiv Kumar’s retirement, the Court scheduled it for February 19 – a day after his exit. However, SC judge Surya Kant assured the petitioners that the “consequences” of the court’s decision on the validity of the new Act would apply even if appointments were made in the interim.