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The government introduced a Bill in Rajya Sabha Thursday that seeks to replace the Chief Justice of India with a Cabinet Minister nominated by the Prime Minister in the committee for selection of the Chief Election Commissioner and Election Commissioners. It also makes the Leader of Opposition in Lok Sabha a member of the selection committee.
This comes five months after the Supreme Court ruled that a three-member panel, headed by the Prime Minister and comprising the Leader of the Opposition in Lok Sabha and the Chief Justice of India, will select the CEC and ECs until a law is enacted by Parliament on their appointments.
Ruling on petitions seeking an independent mechanism to appoint the CEC and ECs, a five-judge Constitution Bench also said where no Leader of Opposition is available, the committee will include the leader of the largest Opposition party in Lok Sabha in terms of numerical strength.
As the Opposition raised slogans over the Manipur issue in Rajya Sabha, Union Law Minister Arjun Ram Meghwal introduced the Bill “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”.
As of now, the CEC and ECs are appointed by the government as per Article 324(2) of the Constitution which states: “The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President”.
In its affidavit submitted to the Supreme Court, the government had said that in the absence of a legislation, it had followed the “sound practice” of selecting CECs and ECs from the civil services.
“There is a database of serving/retired officers of the rank of Secretary to the Government of India/Chief Secretaries. The appointees are selected from the said database. The Minister of Law and Justice recommends a panel for the Prime Minister and the President from the database,” the government told the court.
The Bill that has been introduced – The Chief Election Commissioner and other Election Commissioners (Appointment Conditions of Service and Term of Office) Bill, 2023 – says the ECI will consist of a CEC and other ECs from among people who hold or have held the post equivalent to Secretary to the Government of India and “shall be persons of integrity, who have knowledge of and experience in management and conduct of elections”.
First, a Search Committee, headed by the Cabinet Secretary and including two members not below the rank of Secretary, “having knowledge and experience in matters relating to elections, shall prepare a panel of five persons”.
This will then be sent to the Selection Committee, chaired by the Prime Minister and including the Leader of Opposition or leader of the single largest Opposition party in Lok Sabha and a Cabinet Minister nominated by the Prime Minister.
“The appointment of Chief Election Commissioner and other Election Commissioners shall not be invalid merely by reason of any vacancy in or any defect in the constitution of the Selection Committee,” the Bill states.
The Selection Committee will regulate its procedure in a “transparent manner” and it may consider any other person apart from those included in the Search Committee’s panel, it states.
The terms of the CEC and ECs remain unchanged, at six years or until they reach the age of 65 years, whichever is earlier. The Bill says the salary of the CEC and ECs would be equivalent to the Cabinet Secretary, while as of now their salary as per the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, is equated with a Supreme Court judge. The amount, however, is the same.
The next vacancy in the ECI is likely to arise when Election Commissioner Anup Chandra Pandey retires in February 2024, just before Lok Sabha elections are expected to be announced.
The Bill also repeals the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, saying the business of the ECI will be enacted as per the new Act, once passed.
The Bill keeps the same language as in the Act, saying that the business of the EC should, as far as possible, be transacted unanimously and if there is a difference of opinion, the majority’s opinion will prevail.
On August 4, the Supreme Court dismissed a plea challenging the appointment of Election Commissioner Arun Goel. Goel was appointed as EC on November 19, 2022, a day after he opted for voluntary retirement from the IAS after a 37-year career.
Goel, who was Secretary, Heavy Industries, was scheduled to retire on December 31, 2022. His appointment filled a vacancy that had been there since May 15, 2022.
