The Chief Election Commissioner and Other Election Commissioners Bill, 2023

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 is listed for discussion in the upcoming special session

Table of Contents

Context: The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 is listed for discussion in the upcoming special session of the Parliament.

About the Bill

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, was introduced in Rajya Sabha in August 2023.
It repeals the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.

Key Provisions of the Bill

Appointment of Election Commissioners

Earlier	Now
As per Article 324 of the Constitution, the Election Commission consists of the Chief Election Commissioner (CEC) and such number of other Election Commissioners (ECs), as the President may decide. The CEC and other ECs are appointed by the President.	The Bill specifies the same composition of the Election Commission. It adds that the CEC and other ECs will be appointed by the President on the recommendation of a Selection Committee.

Selection Committee	The Selection Committee will consist of: the Prime Minister as Chairperson, the Leader of the Opposition in Lok Sabha as member, and a Union Cabinet Minister nominated by the Prime Minister as member. If the Leader of Opposition in Lok Sabha has not been recognised, the leader of the single largest opposition party in Lok Sabha will assume the role.
Search Committee	A Search Committee will prepare a panel of five persons for the consideration of the Selection Committee. Composition of Search Committee: The Search Committee will be headed by the Cabinet Secretary. It will have two other members, not below the rank of Secretary to the central government, having knowledge and experience in matters related to elections. However, the Selection Committee may also consider candidates who have not been included in the panel prepared by the Search Committee.
Qualification of CEC and ECs	Persons who are holding or have held posts equivalent to the rank of Secretary to the central government will be eligible to be appointed as CEC and ECs. Such persons must have expertise in managing and conducting elections.
Conduct of business	All business of the Election Commission is to be conducted unanimously. In case of difference of opinion between the CEC and the other ECs on any matter, it shall be decided through majority.

Salary and allowances

Earlier	Now
The 1991 Act provides that the salary of the ECs will be equal to that of a Supreme Court judge.	The Bill provides that salary, allowance, and service conditions of the CEC and other ECs will be the same as that of the Cabinet Secretary.

Term of office

Earlier	Now
The 1991 Act mandates that the CEC and other ECs will hold office for a term of six years or until they reach the age of 65 years, whichever is earlier. If an EC is appointed as the CEC, his total term cannot exceed six years.	The Bill retains the same tenure. Further, under the Bill, the CEC and other ECs will not be eligible for re-appointment.

Removal and Resignation

Under Article 324 of the Constitution, the CEC can only be removed from his office in a manner similar to that of a Supreme Court judge. An EC can only be removed from office on the recommendation of the CEC. The Bill retains this removal procedure.
Further, the 1991 Act provides that the CEC and other ECs may submit their resignation to the President. The Bill has the same provision.

What are the Concerns with the Bill?

Power Distribution: The committee’s power balance, where the Prime Minister and a nominated Cabinet Minister hold majority sway, leaves the Leader of the Opposition with a minority vote. This raises questions about the committee’s fairness and its ability to ensure independence in the selection process.
Impact on Electoral Governance: The perception of Executive influence in the selection process may undermine the Commission’s ability to conduct elections impartially.
Constitutional Implications: The bill could create a peculiarity where the Constitution stipulates that a CEC can only be removed in a manner similar to that of a Supreme Court Judge, but their service conditions align with those of a Cabinet Secretary. This misalignment raises questions about the constitutional framework governing the Election Commission.

Way Forward

Before passing the Bill, extensive consultations with opposition parties, legal experts, and stakeholders should be conducted to address diverse concerns comprehensively.
The government should reconsider the Selection Committee’s composition, possibly giving the opposition a greater role to ensure fairness.
Including independent experts, jurists, and civil society representatives in the Search Committee or as Selection Committee observers could enhance the process’s credibility.