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Chief Election Commissioner and Other Election Commissioners Act, 2023

The President gave her assent to the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 in December, 2023. Recently, the Hon’ble SC refused to stay the said Act.

Replacement of the Act

It replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.

Aim of the Act

  • An Act essentially aims to regulate the appointment, conditions of service, and term of office for the Chief election commissioner (CEC) and other election commissioners (EC), as well as outline the procedure for the functioning of the Election Commission.
  • The legislation aims to bring transparency to the appointment process, responding to a directive from the Supreme Court of India in the Anoop Baranwal v Union of India case, 2023.

Composition

  • The SC noted recommendations from the Dinesh Goswami Committee on Electoral Reforms (1990) and the Law Commission’s 255th report on Electoral Reforms (2015).
  • The SC using its power under Article 142 of the Constitution of India laid down that the CEC and ECs shall be appointed by a Committee consisting of-
  • Prime Minister
  • Leader of Opposition/leader of the largest opposition party in the Lok Sabha
  • Chief Justice of India
    • SC ruled that this mechanism shall be in place till Parliament enacts a law on this matter.
    • However, as per the Act, The CEC and other ECs shall be appointed by the President on the recommendation of a Selection Committee consisting of:
  • Prime Minister as Chairperson.
  • Leader of Opposition/leader of the largest opposition party in the Lok Sabha.
  • Union Cabinet Minister to be nominated by the Prime Minister.

Eligibility of CEC & ECs

  1. Persons who are holding or have held a post equivalent to the rank of Secretary to the Government of India, and
  2. Should be persons of integrity, who have knowledge of and experience in management and conduct of elections.

 

Salary,Term etc. of CEC and ECs

The CEC and other ECs shall-

  • be paid a salary which is equal to the salary of a Judge of the Supreme Court.
  • 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.
  • shall not be eligible for re-appointment
  • CEC can only be removed from his office in a manner and on grounds similar to that of a Supreme Court judge.
  • An EC can be removed from office upon the recommendation of the CEC.
  • may resign at any time by writing to the President.
  • A Search Committee headed by the Cabinet Secretary will propose a panel of names to the Selection Committee.

Constitution of India

    • Articles (324-329) in Part XV of the Constitution deals with  However, the Constitution does not lay down a specific legislative process for the appointment of the CEC and ECs.
    • The President makes the appointment on the advice of the Union Council of Ministers headed by the Prime Minister.

Concerns for the Act

  • The composition of the Selection Committee, predominantly comprised of members from the ruling government, raises concerns about potential interference in the independence of the Election Commission of India (ECI).
  • The Act upholds the validity of the Selection Committee even if there is a vacancy or defect in constituting the Committee.
  • By limiting the eligibility criteria of the CEC and ECs to civil servants, the act may exclude other qualified individuals for the post.
  • There is inequality in removal of CEC and ECs.
  • The Act is silent regarding the post-retirement jobs to CEC and ECs.

Therefore, the independence of the Election Commission should be protected being a part of the basic structure of the Constitution of India.

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FAQs

What does the Chief Election Commissioner and Other Election Commissioners Act, 2023 aim to achieve?

The Act aims to regulate the appointment, conditions of service, and term of office for the Chief Election Commissioner (CEC) and other Election Commissioners (ECs), ensuring transparency and adherence to the Supreme Court's directive from the Anoop Baranwal v Union of India case, 2023.

What is the composition of the Selection Committee under the new Act?

The Selection Committee consists of the Prime Minister as Chairperson, the Leader of Opposition or the leader of the largest opposition party in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister.

What are the eligibility criteria for the Chief Election Commissioner and Election Commissioners?

Eligible candidates must hold or have held a post equivalent to the rank of Secretary to the Government of India and must be individuals of integrity with knowledge and experience in the management and conduct of elections.

How does the Act address the term and salary of the Chief Election Commissioner and Election Commissioners?

The CEC and ECs are to be paid a salary equal to that of a Supreme Court judge. They hold office for a term of six years or until they reach the age of sixty-five, whichever is earlier, and are not eligible for re-appointment.

What concerns have been raised regarding the independence of the Election Commission under the new Act?

Concerns include the predominant composition of the Selection Committee by members of the ruling government, the exclusion of non-civil servants from eligibility, inequality in the removal process of the CEC and ECs, and the absence of provisions for post-retirement jobs.