The Chief Election Commissioner And Other Election Commissioners (Appointment, Conditions of Service And Term of Office) Act, 2023
🗳️ The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023
🔹 1. Introduction
The Chief Election Commissioner and Other Election Commissioners (CEC & ECs) Act, 2023 is a law enacted by the Parliament of India to provide a statutory framework for:
Appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs),
Terms of service, salary, and tenure,
Removal procedures, and
Other conditions of service.
This Act replaces the previous practice of appointment made solely by the executive (i.e., the President acting on advice of the Prime Minister and Council of Ministers), by instituting a three-member Selection Committee.
It was passed in response to and partially in reaction to the Supreme Court’s judgment in March 2023 (explained below).
🔹 2. Background and Need for the Act
Until 2023, there was no specific law governing the appointment and conditions of service for the Election Commissioners. Appointments were made under Article 324(2) of the Constitution, which left the process to the discretion of the executive "until Parliament makes a law".
✔️ In March 2023, the Supreme Court, in a landmark case, directed that the appointment of CEC and ECs must be made by a committee consisting of:
Prime Minister,
Leader of Opposition in Lok Sabha,
Chief Justice of India (CJI).
This judgment was seen as a move to ensure independence of the Election Commission.
The government, however, subsequently passed this Act — excluding the CJI from the committee — and replacing it with a Cabinet Minister nominated by the Prime Minister. This became controversial.
🔹 3. Objective of the Act
To establish a clear legal framework for appointment, service conditions, and tenure of the CEC and ECs.
To bring the process under Parliamentary control rather than executive discretion.
To align with Article 324(2) which requires a law by Parliament.
🔸 4. Key Provisions of the Act
A. Appointment Process (Section 3)
A Selection Committee will recommend names to the President.
The Selection Committee consists of:
Prime Minister (Chairperson),
Leader of Opposition in Lok Sabha,
Union Cabinet Minister nominated by the PM.
⚠️ Controversy: The CJI is excluded, in contrast to the Supreme Court’s 2023 judgment.
The Committee recommends a panel of names selected by a Search Committee.
B. Search Committee
Headed by the Cabinet Secretary.
Prepares a panel of eligible candidates (civil servants of eminence, experience, and integrity).
May include serving or retired officials from government or public sector.
C. Qualifications
Must be persons of integrity, experience, and knowledge in governance and election matters.
Typically from civil services, including retired IAS, IPS, or IFS officers.
D. Tenure and Service Conditions (Sections 5–8)
| Aspect | Provision |
|---|---|
| Term | 6 years or until 65 years of age (whichever is earlier) |
| Reappointment | Not allowed after serving as CEC or EC |
| Salary | Same as a Supreme Court judge |
| Removal | CEC: Same manner as a Supreme Court judge ECs: On recommendation of CEC |
E. Independence and Protection
CEC can only be removed through impeachment by Parliament (as per Article 324).
ECs can be removed only on CEC’s recommendation.
Salaries and service conditions cannot be varied to their disadvantage after appointment.
⚖️ 5. Legal and Constitutional Context
📜 Article 324 of the Constitution of India
Vests the superintendence, direction, and control of elections in the Election Commission.
Provides for the appointment of CEC and ECs by the President.
Mentions that the President shall act "subject to any law made by Parliament" — i.e., this Act.
⚖️ 6. Case Law
🏛️ Anoop Baranwal v. Union of India (2023)
Supreme Court Constitution Bench Judgment
Issue: Challenge to the lack of transparency in appointment of CEC and ECs.
Held: Until Parliament makes a law, the appointment must be made by a committee comprising:
Prime Minister,
Leader of Opposition in Lok Sabha,
Chief Justice of India.
Significance: This judgment gave judicial backing to demands for a transparent, bipartisan appointment process.
Impact: Led to the government passing this law to override the judgment, by excluding the CJI from the selection committee.
⚖️ Related Case Law:
1. T.N. Seshan v. Union of India (1995)
Issue: Autonomy of the Election Commission.
Held: CEC is not superior to other Election Commissioners; all have equal powers.
Relevance: Strengthens the argument for having impartial and independently appointed commissioners.
2. PUCL v. Union of India (2003)
Reiterated the role of Election Commission as a neutral body in electoral democracy.
Emphasized need for institutional independence from political pressure.
🔍 7. Criticism and Controversy
Exclusion of the CJI from the selection committee is seen as a step back from judicial oversight.
Gives greater control to the executive, raising concerns about the independence of the Election Commission.
Critics argue it dilutes the spirit of the Supreme Court's 2023 ruling.
Supporters argue it aligns with Parliament’s constitutional power to make laws under Article 324(2).
📌 8. Summary
| Feature | Details |
|---|---|
| Name of Law | Chief Election Commissioner and Other Election Commissioners Act, 2023 |
| Objective | To regulate appointment, tenure, and service of CEC and ECs |
| Selection Committee | PM, LoP in Lok Sabha, Cabinet Minister (NO CJI) |
| Tenure | 6 years or up to 65 years |
| Salary | Same as Supreme Court Judge |
| Removal of CEC | By impeachment (as for SC Judges) |
| Removal of ECs | On recommendation of CEC |
| Case Law Influence | Anoop Baranwal v. Union of India (2023) |
✅ Conclusion
The Chief Election Commissioner and Other Election Commissioners Act, 2023 is a landmark legislative development, fulfilling a long-pending constitutional requirement under Article 324(2). However, the controversy over exclusion of the Chief Justice of India from the selection process continues to raise questions about the independence of the Election Commission.
It’s a classic example of the tension between the executive, judiciary, and legislature, and will likely continue to be debated — both legally and politically — in the coming years.
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