Why In News?
A two-judge bench of the Supreme Court delivered a split verdict on petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
Election Commissioners Appointment Framework In India
Article 324(2) of the Constitution vests the superintendence, direction, and control of elections in the Election Commission of India (ECI), requiring that the Chief Election Commissioner (CEC) and Election Commissioners (ECs) shall be appointed by the President, subject to any law enacted by Parliament.
Following the creation of the ECI on 25 January 1950, Parliament did not enact a governing statute, leaving appointments under exclusive executive discretion on the advice of the Prime Minister and Union Council of Ministers.
Evolution into a Multi-Member Commission: Established initially as a single-member entity, the ECI was converted into a multi-member body under
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The Election Commissioner Amendment Act, 1989, reverted briefly in 1990, and permanently reconstituted on 1 October 1993 to comprise 1 CEC and 2 ECs who make decisions by majority vote with equal status.
Safeguards Against Removal: uUnder Article 324(5), the CEC can only be removed via parliamentary impeachment like a Supreme Court Judge, whereas ECs can be removed by the President solely on the recommendation of the CEC.
What Changed Under The Chief Election Commissioner And Other Election Commissioners Act, 2023?
Statutory Selection Committee: The Chief Election Commissioner and Other Election Commissioners Act, 2023 replaced the 1991 Act and established a statutory three-member Selection Committee comprising the Prime Minister (PM), a Union Cabinet Minister nominated by the PM, and the Leader of Opposition (LOP) in Lok Sabha.
Removal of the Chief Justice of India: The statute omitted the Chief Justice of India (CJI) from the selection panel established by the Anoop Baranwal (2023) judgment, replacing judicial representation with a Union Cabinet Minister.
Institutionalization of Executive Majority: By placing two executive members (PM and a nominated Union Cabinet Minister) alongside 1 LOP, the statute secures a permanent 2:1 executive majority in all selection decisions.
Two-Tier Search Committee Shortlisting: Section 6 mandates a Search Committee chaired by the Cabinet Secretary to prepare a panel of 5 candidates of Secretary to the Government of India rank; however, Section 7 empowers the Selection Committee to consider candidates outside this shortlisted panel.
Service Status Alignment: The 2023 Act aligned the salary, allowances, and service conditions of the CEC and ECs with the Cabinet Secretary, altering the statutory equivalence to a Supreme Court Judge provided under the 1991 Act.
Tenure: Section 8 of the 2023 Act provides that the CEC and ECs hold office for a tenure of 6 years or until attaining 65 years of age, whichever is earlier.
Rulings In Anoop Baranwal (2023) And The Recent Supreme Court Split Verdict
The Anoop Baranwal (2023) Precedent: A five-judge Constitution Bench ruled in Anoop Baranwal vs Union of India (2023) that appointments cannot remain under exclusive executive control to safeguard the Basic Structure Doctrine.
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It instituted an interim committee comprising the Prime Minister, Leader of Opposition, and Chief Justice of India pending parliamentary legislation.
Justice Dipankar Datta's Opinion (Against Referral): Held that the core principle requiring an independent selection process was already settled in Anoop Baranwal.
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He noted that a Union Cabinet Minister bound by collective responsibility under Article 75(3) cannot oppose the Prime Minister, rendering the LOP's presence "largely ornamental" and failing the "perception test" that the ECI must "appear to be independent".
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He rejected the government's comparison with the judicial collegium as "disingenuous, evasive and disquieting".
Justice Satish Chandra Sharma's Opinion (For Referral): Held that because the court is examining the constitutional validity of the 2023 Act for the first time, Article 145(3) mandates that a substantial question of law regarding statutory validity must be decided by a five-judge Constitution Bench.
Challenges In the Appointment of ECI
Executive Dominance and Structural Bias
Law Commission of India 255th Report (2015), emphasized that exclusive executive control over electoral appointments creates structural bias and recommended a balanced selection panel comprising the Prime Minister, Leader of Opposition, and Chief Justice of India to guarantee institutional neutrality.
Absence of Removal Protection Parity for Election Commissioners
While Article 324(5) safeguards the Chief Election Commissioner (CEC) from arbitrary removal by requiring parliamentary impeachment like a Supreme Court Judge, Election Commissioners (ECs) can be removed by the President solely on the recommendation of the CEC.
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This lack of equal constitutional protection leaves ECs vulnerable to administrative pressures within a multi-member commission where decisions are made by majority vote.
Erosion of Public Confidence and Perceived Autonomy
2nd Administrative Reforms Commission (2007), highlighted that unilateral executive control over independent constitutional bodies undermines public trust and recommended broad-based selection collegiums to ensure structural independence.
Way Forward
Re-instating a Neutral Selector on the Panel
To satisfy the "perception test" and guarantee genuine institutional autonomy, the selection panel must include a neutral constitutional functionary—such as the Chief Justice of India as mandated in Anoop Baranwal (2023)—to act as an independent counterweight against executive dominance.
Adopting Broad-Based Collegium Model
Parliament should align the appointment framework with recommendations from expert committees, such as the Goswami Committee (1990), the 2nd Administrative Reforms Commission (2007), and the Law Commission 255th Report (2015), which advocated multi-stakeholder selection panels incorporating judicial, parliamentary, and executive representatives.
Learn from International Models for Electoral Neutrality
South African Electoral Commission Model, utilizes an independent selection panel chaired by the Chief Justice alongside representatives of constitutional institutions to ensure cross-party trust and political neutrality.
Granting Equal Removal Protections under Article 324(5)
Parliament should amend the constitutional framework to grant Election Commissioners the same impeachment-level safeguards enjoyed by the CEC, ensuring functional equality and shielding all members from political interference.
Conclusion
Ensuring absolute neutrality in the Election Commission of India is vital to upholding the Basic Structure Doctrine and protecting democratic legitimacy. Parliament and the judiciary must collaborate to institutionalize a transparent, non-partisan appointment process that inspires unwavering public trust
Source: INDIANEXPRESS
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PRACTICE QUESTION Q. Examine the importance of an independent Election Commission for constitutional democracy in India. 150 words |
