Context: The Union government introduced a Bill in the Rajya Sabha that proposed the selection panel for appointing the Election Commission.
CEC and other EC (Appointment, Conditions of Service and Term of Office) Bill, 2023
It repeals the Election Commission (Conditions of Service of EC and Transaction of Business) Act, 1991.
Important Provisions of the Bill
Composition of Election Commission
- The Election Commission shall consist of— (a) Chief Election Commissioner (CEC); and (b) such number of other Election Commissioners (EC) as the President may fix from time to time.
- The CEC and other EC shall be appointed by the President by warrant under his hand and seal.
Qualification
- The CEC and other EC 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.
Search Committee
- A Search Committee headed by the Cabinet Secretary and comprising of two other members not below the rank of Secretary to the Government of India, having knowledge and experience in matters relating to elections, shall prepare a panel of five persons for consideration of the Selection Committee, for appointment as the CEC and other EC.
Selection Committee
- The CEC and other EC shall be appointed by the President on the recommendation of a Selection Committee consisting of
- Prime Minister—Chairperson.
- Leader of Opposition in the House of the People—Member.
- a Union Cabinet Minister to be nominated by the Prime Minister—Member.
- In the House of the People, where the Leader of Opposition has not been recognised as such, the leader of the single largest party in opposition of the Government in the House of the People shall be deemed to be the Leader of Opposition.
- The appointment of the CEC and other EC shall not be invalid merely by reason of any vacancy in or any defect in the constitution of the Selection Committee.
Power of Selection Committee to Regulate its Own Procedure
- Selection Committee shall regulate its own procedure in a transparent manner for selecting the CEC or other EC.
- Selection Committee may also consider any other person than those included in the panel by the Search Committee.
Term of Office
- The CEC and other EC shall hold office for a term of six years from the date on which he assumes his office or till he attains the age of sixty-five years, whichever is earlier.
- The CEC and other EC shall not be eligible for re-appointment.
- Where an Election Commissioner is appointed as CEC, his term of office shall not be more than six years in aggregate as the Election Commissioner and the CEC.
Salary
- The salary, allowances and other conditions of service of the CEC and other EC shall be the same as those of the Cabinet Secretary.
Resignation and Removal
- The CEC or an Election Commissioner may, at any time, by writing under his hand addressed to the President, resign his office.
- The CEC and other EC shall not be removed except in accordance with the provisions contained in the first and second provisos respectively of clause (5) of article 324 of the Constitution.
Disposal of Business
- The Election Commission may, by unanimous decision, regulate the procedure for transaction of its business as also allocation of its business amongst the CEC and other EC.
- All business of the Election Commission shall, as far as possible, be transacted unanimously, and if the CEC and other EC differ in opinion on any matter, such matter shall be decided according to the opinion of the majority.
Supreme Court Judgement in Anoop Baranwal Vs Union of India
- In this case Supreme Court declared that the appointment of CEC and ECs shall be made by the President based on advice tendered by a Committee consisting of the Prime Minister, the Leader of Opposition in the Lok Sabha and the Chief Justice of India.
- The court also added that the aforesaid judgment that the said norm provided by the Supreme Court will continue to hold good till a law is made by the Parliament.
Changes Introduced
| Election Commission (Conditions of Service of EC and Transaction of Business) Act, 1991. | CEC and other EC (Appointment, Conditions of Service and Term of Office) Bill, 2023 |
| The act provides for appointment of CEC and ECs as President may decide. | It adds that the CEC and other ECs will be appointed by the President on the recommendation of a Selection Committee. |
| The act does not provide for any selection committee for appointment of CEC and ECs | It provides for a selection committee consisting of (i) the Prime Minister as Chairperson, (ii) the Leader of the Opposition in Lok Sabha as member, and (iii) a Union Cabinet Minister nominated by the Prime Minister as member. |
| The act does not provide for any search committee for appointment of CEC and ECs. | It provides for a search committee headed by a Cabinet Secretary. |
| The act does not provide for qualification of a person to be appointed as CEC and EC. | The bill provides that Such persons must have expertise in managing and conducting elections. |
| The act provides that the salary of the ECs will be equal to that of a Supreme Court judge. | The Bill provides that salary, allowance, and service conditions of the CEC and other ECs will be the same as that of the Cabinet Secretary. |
| The bill does not have any provision about reappointments. | Under the Bill, the CEC and other ECs will not be eligible for re-appointment. |
Issues with the new bill
- Constitutional Question: Article 324(5) says that the terms of service of the CEC and ECs will be as enacted by Parliament provided that the removal of the CEC will be as the removal of the Supreme Court judges and ECs can be removed on the recommendation of the CEC by the President of India. These provisions cannot be amended by ordinary law of Parliament. It will need an amendment of the Constitution by Parliament.
- Independence: The selection committee which has the majority of the government questions the independence of selection committee as being independent and impartial in the appointing process.
- Downgrade in Condition of Service: The bill also downgrades the status and standing of the CEC and two ECs in case of salary and allowances from that equivalent to a Supreme Court judge to that of the Cabinet secretary.
- Issue Remains: the issue that a CEC was not holding office for six years remains as the provision made under bill that combine tenure of the ECs cannot be more than 6 years, retirement age of 65 years for CEC leaves the possibility tenure being less than 6 years.
Arguments in favour of the Bill
- Constitutional Mandate: Constitution provides that subject to the provision of the parliament law president can determine the condition of service of CEC and ECs.
- In line with Judgement: According to the Supreme Court the direction given was subject to the law made by the parliament, so the bill agrees with the judgement.
- Provide for Qualification: the proposed bill provides for the qualification which reduces the ambiguity and discretion of executive in appointment.
- Constitution of Search and Selection Committees: the bill provides for the constitution of these bodies to streamline the process of selecting and appointing an individual.
- Clarity about Reappointment: initially the act does not have clear provision about the reappointment, the bill tries to remove the ambiguity and clearly states that there cannot be any reappointment which ensure the independence of the election commission of India.
Election Commission of India was envisaged by the constitutional makers an independent body to conduct free and fair election in India. While old system of appointment had some inherent problems with it, it has also given us CEC like Sukumar Sen, T.N. Seshan etc. the bill introduced to fill the loopholes in the old act has some positive aspect and some issue associated with it which need further deliberation and debate in the Parliament.
