Election Commission Appointments: SC Refuses to Stay New Law Excluding CJI from Panel Picking CEC, ECs

What’s in Today’s Article?

• Why in News?
• About the New Law to Appoint CEC and ECs
• Background in which the New Law to Appoint CEC and ECs Introduced
• Why was the New Law to Appoint CEC and ECs Challenged?

Why in News?

• The Supreme Court declined a request for an interim stay of the new law excluding the Chief Justice of India (CJI) from the panel to select the chief election commissioner (CEC) and election commissioners (ECs).

About the New Law to Appoint CEC and ECs

• The CEC and other ECs (Appointment, Conditions of Service and Term of Office) Act 2023 replaced the Election Commission (Conditions of Service of ECs and Transaction of Business) Act 1991.
  • The 1991 Act provides for the appointment, salary, and removal of the CEC and ECs.
• According to the provisions of the new law, 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 or leader of the largest opposition party in the Lok Sabha.
• Under the legislation, a Search Committee headed by the Union Law Secretary will propose a panel of names to the Selection Committee.
• According to the new law, the Salary of the CEC and ECs will be equivalent to Judges of the SC and if the CEC or ECs passes any order, it will not be challenged in any court of law.

Background in which the New Law to Appoint CEC and ECs Introduced

• Article 324 of the Indian Constitution specifies that while the CEC and ECs will be appointed by the President, this is subject to Parliamentary law (if such law exists).
• While this provision places an expectation on Parliament to draft a relevant law, it has not done so up (until now).
• In the absence of such a law, the President has been making appointments as per the recommendations of the Prime Minister.
• In 2023, the Constitution Bench of the SC (in the Anoop Baranwal v. Union of India case) decided to change the process for Election Commission appointmentsin order to secure their independence.
  • The Bench created a committee comprising the PM, the Leader of the Opposition in Parliament, and the Chief Justice of India.
  • This committee will make recommendations and advise the President on Election Commission appointments until Parliament enacts a separate law on the subject.
• Thus, the new law has been brought in consonance with the direction of the SC with regard to the appointment of CEC and ECs.

Why was the New Law to Appoint CEC and ECs Challenged?

• The petitioners argued that the new law also went against the SC ruling (in the Anoop Baranwal case) which restricted the government’s power to appoint CEC and ECs.
• As the new law excludes the CJI from the selection panel, it does not provide an “independent mechanism” for the appointment of the members of the Election Commission of India (ECI).
  • Thus, it is violative of the principle of free and fair elections.
  • As the functioning of the ECI greatly determines the quality of governance and strength of democracy, the fairness and transparency in the procedure of appointment becomes very crucial.
• The petitioners also claimed that the new law was against the concept of separation of powers.
  • The SC had in the past held that mandamus issued by the SC cannot be overruled by the legislature and separation of power is also the basic structure of the Constitution.

Q1) How is the chief election commissioner (CEC) of the Election Commission of India removed?

CEC can be removed from his office by the president on the basis of a resolution passed to that effect by both the houses of parliament with a two-thirds majority in both the Lok Sabha and the Rajya Sabha on the grounds of proved misbehaviour or incapacity.

Q2) How is one of the main functions of the Election Commission of India?

The Election Commission of India is an autonomous constitutional authority that administers elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies in India, and the offices of the President and Vice President in the country.

Source: SC refuses to stay new law excluding CJI from panel picking CEC, ECs