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How Govt's CEC Appointment Bill Goes Against SC Advice, Keeps Chief Justice Out

The Supreme Court ruled on 2 March that ECs should be appointment by a committee comprising the PM, CJI and LoP.

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The Centre on Thursday, 10 August introduced a Bill in Parliament which proposes that the members of the Election Commission of India (EC) be selected by a committee comprising the Prime Minister, the Leader of Opposition in the Lok Sabha, and a Union cabinet minister nominated by the PM. 

The Bill – called The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 – was presented by Union Law Minister Arjun Ram Meghwal in the Rajya Sabha in the ongoing Monsoon Session of the Parliament. 

The Bill proposes to “regulate the appointment, conditions of service and term of office of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs), the procedure for transaction of business by the Election Commission and for matters connected therewith or incidental thereto.” 

At present, the CEC and ECs are appointed by the President as stated in Article 324(2) of the Constitution of India. However, it is subject to “provisions of any law made in that behalf by the Parliament.” 

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Why Now? 

It was in March this year that the Supreme Court had ruled that the appointment of the ECs would be carried out on the advice of a committee comprising the Prime Minister, and leader of Opposition in the Lok Sabha (or leader of largest Opposition party), and the Chief Justice of India (CJI). 

The court added that the practice will be in force until a law is made in this regard by the Parliament. 

“This law will continue to hold good until a law is made by Parliament. Court asks the government to make a necessary change with regard to funding of ECI from the Consolidated Fund of India and need for separate Secretariat." 
The Supreme Court of India

The apex court was of the firm view that the election commission must remain “aloof” from subjugation by the executive. “A vulnerable Election Commission would result in an insidious situation and detract from its efficient functioning,” the Bench comprising -- Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar -- had observed. 

In its affidavit submitted to the top court, the government had said that in the absence of legislation, it had followed a “sound practice” of selecting CECs and ECs from the civil services, The Indian Express has reported.  

“There is a database of serving/retired Officers of the rank of Secretary to the Government of India/Chief Secretaries. The appointees are selected from the said database. The Minister of Law and Justice recommends a panel for the Prime Minister and the President from the database,” the government had reportedly informed the court. 

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What Else  Does The Bill Propose? 

According to the Bill: 

  • That the CEC and other ECs would be selected from among people who hold or have held the post equivalent to secretary to the Government of India and “shall be persons of integrity, who have knowledge of and experience in management and conduct of elections.” 

  • A Search Committee headed by the Cabinet Secretary and including two members not below the rank of Secretary having knowledge and experience in matters relating to elections, shall prepare a panel of five persons for consideration by the Selection Committee. 

  • This Selection Committee will be chaired by the Prime Minister and include the Leader of Opposition or leader of the single-largest Opposition party in the Lok Sabha and a Union Cabinet minister, nominated by the PM. 

  • The appointment of the CEC and other ECs shall not be invalidated merely because of any vacancy in or any defect in the constitution of the Selection Committee. 

  • The Selection Committee shall regulate its own procedure (of appointing the CEC and ECs) in a transparent manner. 

  • The CEC and other ECs shall hold office for a term of six years from the date on which they assume office or till they attain the age of 65 years, whichever is earlier. 

  • The CECs and other ECs shall not be eligible for re-appointment. 

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