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CEC Appointed Under New Law Amid Supreme Court Challenge

Syllabus:

GS-2:

Constitutional Bodies , Transparency & Accountability

Focus:

For the first time, India’s Chief Election Commissioner (CEC) was appointed under the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023. However, the new law has been challenged in the Supreme Court for allegedly undermining the Election Commission’s independence.

Evolution of CEC Appointment in India:

Previous Process of Appointment

• The Election Commission of India (ECI) consists of the Chief Election Commissioner (CEC) and two Election Commissioners (ECs).
• Traditionally, the President appointed the CEC based on the Prime Minister’s recommendation.
• Incumbent CECs were usually succeeded by the senior-most EC, determined by their date of appointment.
• This system allowed the ruling government significant discretion in choosing the CEC.

Issues in the Old System

• The absence of a parliamentary law governing appointments led to concerns over executive dominance.
• The Supreme Court noted that the framers of the Constitution never intended for the Executive to have exclusive control over these appointments.
• The lack of institutional checks and balances raised concerns about the independence of the ECI.

Appointment of CEC and ECs in India:

• No Specific Legislative Process: The Constitution does not specify a legislative process for appointing the Chief Election Commissioner (CEC) and Election Commissioners (ECs).
• Constitutional Provision: Article 324 vests the “superintendence, direction, and control of elections” in an Election Commission comprising the CEC and other ECs as determined by the President.
• Previous Appointment Process: Until the Supreme Court’s ruling in March 2023, the CEC and ECs were appointed by the President based on the government’s recommendation.

Role of Election Commissioners in Ensuring Free and Fair Elections:

• Conducting Elections
• The ECI ensures free and fair elections to Parliament, State Legislatures, the President, and the Vice-President as per Article 324.
• Model Code of Conduct (MCC)
• The ECI enforces the MCC to ensure a level playing field for political parties and candidates.
• Political Party Regulation
• Grants recognition to political parties and allots election symbols.
• Acts as a judicial authority in disputes regarding party recognition and symbols.
• Voter Education
• Conducts awareness programs on voter rights, responsibilities, and the importance of voting.
• Monitoring Election Expenditure
• Ensures political parties and candidates do not exceed the legal spending limits.
• Addressing Electoral Malpractices
• Takes action against booth capturing, bogus voting, and voter intimidation to uphold electoral integrity.

The New Appointment Process Under the 2023 Act:

Key Provisions of the 2023 Act

• The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023 prescribes a structured appointment process.
• A Search Committee, led by the Law Minister and two senior government officials, shortlists five candidates.
• A Selection Committee, comprising the Prime Minister, the Leader of Opposition (LoP), and a Cabinet Minister, makes the final choice.
• The Act mandates that candidates must have held a post equivalent to the rank of Secretary to the Government of India and possess experience in managing elections.
• The CEC and ECs serve a single tenure and cannot be reappointed.

First Appointment Under the New Law

• Gyanesh Kumar, a former IAS officer, was selected as the new CEC.
• The Selection Committee met on February 17, comprising PM Narendra Modi, Home Minister Amit Shah, and LoP Rahul Gandhi.
• The appointment followed the same process used in March 2024 to appoint Election Commissioners.
• Rahul Gandhi dissented, arguing that the process should be halted until the Supreme Court ruled on its validity.

Why Was the Appointment Process Changed?

Supreme Court’s Intervention

• Several petitions (2015-2022) challenged the government’s exclusive power in appointing Election Commissioners.
• The Supreme Court, in March 2023, ruled that appointments should be made by a Selection Committee comprising:
  • The Prime Minister
  • The Leader of Opposition
  • The Chief Justice of India (CJI)
• The court emphasized that leaving the process solely to the Executive would have “devastating effects” on democracy.
• The ruling was meant to ensure that appointments were made through a broader consultative process.

Government’s Response: New Law

• The government enacted the 2023 Act before any vacancy could arise, ensuring that Parliament defined the selection process.
• However, the law replaced the CJI with a Cabinet Minister in the Selection Committee, effectively restoring the government’s majority control over appointments.
• Critics argue that this undermines the independence of the ECI.

Challenges to the New Law:

Petitions in the Supreme Court

• The Association for Democratic Reforms (ADR) and other petitioners challenged the exclusion of the CJI from the Selection Committee.
• They argue that the law weakens institutional independence by giving the government the final say.
• A key question is whether Parliament has the authority to override a Supreme Court ruling through legislation.

Constitutional Questions Raised

• Can Parliament modify a judicially prescribed process through a new law?
• Does the new law violate the constitutional principle of an independent Election Commission?
• Does the Act strengthen or weaken the credibility of India’s electoral process?

Supreme Court’s Response

• The Supreme Court scheduled a hearing for February 19, 2025, after Rajiv Kumar’s retirement.
• Justice Surya Kant assured that any appointment made in the interim would be subject to the Court’s final decision.
• If the law is struck down, the appointments made under it could face legal challenges.

Implications and Way Forward:

Impact on Electoral Integrity

• A strong, independent Election Commission is crucial for fair elections in a democracy.
• The selection process must inspire public confidence, ensuring that the CEC is not seen as biased.

Government’s Justification

• The government defends the new process, saying it provides a clear, structured framework for appointments.
• The law formalizes eligibility criteria and tenure to ensure continuity and stability in the ECI.

Concerns Raised by the Opposition

• The opposition and civil society groups fear that the new system weakens checks and balances.
• The exclusion of the CJI reduces the judiciary’s role, allowing the Executive greater control over election oversight.

Possible Supreme Court Verdict

• If the Supreme Court upholds the law, the government’s process will be validated.
• If the Court strikes it down, Parliament may have to amend the law or restore the judiciary’s role.
• A possible middle-ground solution could involve introducing greater transparency and consultation in appointments.

Conclusion:

The new appointment process formalizes the selection of the CEC but has raised concerns over executive dominance. The Supreme Court’s decision will determine the validity of the law and its impact on electoral integrity. Ensuring a transparent and independent selection process remains crucial for strengthening democratic institutions.

Source: TH

Mains Practice Question:

The Supreme Court’s 2023 ruling aimed to make the Election Commission’s appointment process more transparent. The CEC Appointment Act, 2023 replaced the Chief Justice of India with a Cabinet Minister in the Selection Committee. Analyze the key provisions of the Act and the constitutional challenges it faces.