Background

• • In March 2023, a Constitution Bench of the Supreme Court directed that Chief Election Commissioner and Election Commissioners will be appointed by the President on the advice tendered by a committee of Prime Minister, Leader of Opposition (LoP) in the Lok Sabha or the leader of the single largest party in opposition and the Chief Justice of India (CJI).
  • The court said the high-powered committee would continue to advise the President on the appointment until the Parliament enacts a law on the appointment process of Election Commissioners. 
  • Article 324 of the Constitution asks the parliament to make laws for the appointment of CEC. However, till the date it has not been constituted. 

• Chief Election Commissioners and Election Commissioners have so far been appointed by the President on the advise of the Prime Minister. 

• The judgment has now brought the appointment process of Chief Election Commissioners and Election Commissioners on par with that of the CBI Director.
• The verdict came on petitions seeking a Collegium-like ‘independent’ mechanism to appoint the CEC and ECs.

Why in News?

• The Parliament has recently passed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023.

Highlights of the Bill

• The Bill replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. 
• It provides for the appointment, salary, and removal of the Chief Election Commissioner (CEC) and Election Commissioners (ECs). 

Selection & Search Committee: 

• The CEC and ECs will be appointed by the President upon the recommendation of a Selection Committee.   
  • The Selection Committee will consist of the Prime Minister, a Union Cabinet Minister, and Leader of Opposition/leader of the largest opposition party in Lok Sabha.
• A Search Committee headed by the Cabinet Secretary will propose a panel of names to the Selection Committee.  

Eligibility criteria:  

• The CEC and ECs must: 

(i) be persons of integrity, 

(ii) have knowledge and experience in the management and conduct of elections, and 

(iii) be or have been Secretary (or equivalent) to the government.

Term and reappointment:  

• Members of the Election Commission will hold office for six years, or until they attain the age of 65 years, whichever is earlier.  
• Members of the Commission cannot be re-appointed.  
• If an EC is appointed as a CEC, the overall period of the term may not be more than six years.

Salary and pension: 

• The salary, allowances, and other conditions of service of the CEC and ECs will be equivalent to that of the Cabinet Secretary.
  • Under the 1991 Act, it was equivalent to the salary of a Supreme Court Judge.

Removal:  

• The Bill retains the manner of removal of CEC and ECs as specified in the Constitution.   
  • The CEC may be removed in the same manner and on the same grounds as a Supreme Court Judge. ECs may be removed only upon the recommendation of the CEC.

Key Issues and Analysis

• The selection process of the Election Commission may be dominated by the government, which has implications for its independence.

• Accepting the Selection Committee’s recommendations in spite of a vacancy in its constitution may effectively lead to a monopoly of government members in selecting candidates.  
• Making the CEC and EC’s salary equivalent to the Cabinet Secretary may lead to government influence as it is fixed by the government.  This is unlike the salary of a Supreme Court judge which is fixed through an Act of Parliament.
• CECs and ECs also perform quasi-judicial functions. Limiting these posts to senior bureaucrats may exclude other suitable candidates.