The Indian Parliament enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, during the Winter Session, with the Rajya Sabha passing it on 12 December and the Lok Sabha on 21 December 2023. The Act replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, and establishes a new statutory framework for the appointment of the Chief Election Commissioner and Election Commissioners — effectively superseding the selection mechanism prescribed by the Supreme Court in Anoop Baranwal v. Union of India (2023).
Background
In March 2023, a five-judge Constitution Bench of the Supreme Court in Anoop Baranwal v. Union of India directed that until Parliament enacted legislation governing the appointment of the CEC and ECs, the selection would be made by a committee comprising the Prime Minister, the Chief Justice of India, and the Leader of Opposition in the Lok Sabha. The Court's interim direction was necessitated by the absence of any statutory mechanism governing appointments to the Election Commission, which had historically been made by the President on the advice of the Prime Minister alone.
The Government introduced the CEC and Other ECs Bill on 10 August 2023 in the Rajya Sabha, proposing a selection mechanism that differed materially from the Supreme Court's prescription. The Bill was examined by the Department-Related Parliamentary Standing Committee on Law and Justice, which submitted its report recommending certain modifications.
Key Provisions
The Act establishes the following framework for Election Commission appointments:
Selection committee composition: The CEC and ECs are to be appointed by the President on the recommendation of a Selection Committee comprising the Prime Minister (Chairperson), a Union Cabinet Minister nominated by the Prime Minister, and the Leader of Opposition in the Lok Sabha (or the leader of the largest opposition party). The Chief Justice of India is excluded from the selection committee.
Search committee: A Search Committee headed by the Cabinet Secretary, along with two members not below the rank of Secretary to the Government, is to prepare a panel of five persons for the Selection Committee's consideration.
Salary and conditions of service: The salary, allowances, and conditions of service of the CEC and ECs are made equivalent to those of the Cabinet Secretary, a change from the earlier equivalence with Supreme Court judges.
Single term: The CEC and ECs serve a single term and are not eligible for re-appointment. The term is six years from the date of assumption of office or until the age of 65, whichever is earlier.
Repeal: The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, is repealed.
Implications for Practitioners
This legislation carries significant constitutional implications. By establishing a PM-led selection committee that excludes the Chief Justice of India, Parliament has effectively overridden the Supreme Court's March 2023 direction in Anoop Baranwal. Constitutional law practitioners should note that the legislative override is achieved through Parliament's plenary legislative power under Article 324(2), which expressly contemplates parliamentary legislation on the subject.
The Act has already been challenged before the Supreme Court, with petitioners arguing that the exclusion of the CJI from the selection committee undermines the independence of the Election Commission. Practitioners following this litigation should monitor the constitutional challenge closely, as it raises fundamental questions about the extent to which Parliament can legislatively override judicial directions issued under Article 142.
The downgrading of salary equivalence from Supreme Court judges to Cabinet Secretary also merits attention, as it may be argued that this reduces the institutional stature and independence of the Election Commission.