Appointment Of Election Commissioner

Context:

Election Commissioner Gyanesh Kumar was appointed as the next chief election commissioner on, the Law Ministry said. He is the first CEC to be appointed under a new law on the appointment of the members of the Election Commission (EC).

Implications and Issues of the Chief Election Commissioner and Other Election Commissioners (Appointment) Act, 2023

Constitutional Underpinning

• As stated in Article 324 called the Power of Appointment
  • CEC and ECs to be appointed by the President, the act of appointing is subject to the provisions of parliamentary law.
• Lack of Statutory Framework for Appointments
  • No law had existed until recently to statutorily govern these appointments, hence turning the sovereign authority of the President to the advice of the Prime Minister.
• Constitutional Ruling of 2023
  • The Supreme Court said in the case of Anoop Baranwal v. Union of India that a committee consisting of the PM, the Leader of the Opposition, and the Chief Justice of India should make the appointments until a law was made.
• Legislative Response
  • The new Act undermines the SC mandated process by giving the CEC and ECs a different selection mechanism.

New Appointment Process Under the Act

• Election Commission Structure
  • The Election Commission consists of the CEC and two Election Commissioners.
• Eligibility Conditions
  • Section 5 of the Act limits eligibility to serving or retired Secretary level officers.
• Major Modal Shift
  • From the start, senior most EC would be elevated as CEC.
  • The alternative perception is open for the selection of candidates from beyond the Election Commission.
• Search Committee
  • Chair: Union Minister of Law and Justice.
  • Members: Two members from the Government.
  • Task: To shortlist five candidates from which the Selection Committee will choose.
• Selection Committee Members
  • Prime Minister
  • One member chosen from amongst the Cabinet Ministers
  • Leader of the Opposition in Lok Sabha
• Decision: For any list submitted for consideration, the committee may select that person or choose someone independently.

The Act Has Some Important Effects

• More Flexibility for the Government
  • The executive has received more control over appointments of CEC and EC.
  • The government has some levers in their favour regarding the candidate selection as the critical areas of Election Commission have come under scrutiny.
• Political Issues in Future
  • The Election Commission always has been under fire primarily for electoral rolls and electronic voting machines (EVMs).
  • As the Leader of the Opposition is part of the process, there could be political wrangling over these appointments.

Concerns about the Act

• Pending Challenges and a Supreme Court Review
  • Various petitions challenging the exclusion of the Chief Justice of India are pending in the Supreme Court.
  • A hearing scheduled for February 2025 has the potential to shape the implementation of the Act.
• Chief Justice of India Excluded
  • The 2023 SC order sought to restrain the executive’s control over appointments in the Election Commission.
  • It included the Chief Justice of India in the selection panel in previous times to check any arbitrary action through judicial oversight.
  • Removal of the CJI from such controversial selection, therefore, has the propensity to compromise institutional checks and balances.
• Partisanship Is to Be Expected
  • The appointment process may be politicized and could lead to the loss of credibility of the Commission, according to former CEC O.P. Rawat.
  • Selection in favor of those they perceive to be sympathetic to the interests of the ruling party may arise through a government led selection.