Introduction

India is hailed around the world for being the largest democracy in the world, and Indian elections regardless of whenever they take place are the talk of the world, but with the tag of the largest democracy in the world comes the responsibility for conducting the world’s biggest elections and managing it effectively.

The position of Chief Election Commissioner of India is fundamental for the smooth conduct of elections in India. He is responsible for ensuring free, fair, and transparent elections in the country. Being the head of the Election Commission of India, he plays a crucial role in upholding the democratic principles envisaged in the constitution. Yet, the method by which the Chief Election Commissioner is appointed has long been an issue of debate with concerns about the executive influence that affects the commissioner’s autonomy.

This controversy was elevated in 2023, when the Indian Parliament passed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The Act made changes to the selection process by removing the Chief Justice of India from the appointment panel, thereby bypassing the Judiciary’s role with an executive-dominated system. Experts argue that this Act can have an impact on the independence of the Election Commission, making it more or less a puppet of the people in power.

Historically, the absence of a statutory framework for the selection process allowed any government to exercise discretion which led to accusations of bias in appointments. The Supreme Court of India in the case of Anoop Baranwal v. Union of India (2023) advocated for a neutral selection panel that involves the Prime Minister, The leader of the opposition, and the CJI. However, the new Act works contrary to these recommendations giving rise to genuine concerns about its potential impact on electoral integrity

This article evaluates the key provisions, historical precedents, and debates of the 2023 Act and its criticisms to ultimately study the controversy surrounding the appointment of CEC and the new Act.

Constitutional and Historical Perspective on CEC Appointments

The appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) has been a topic of debate since India’s independence and is nothing new. The makers of the Constitution put in their efforts to create a neutral and independent Election Commission (ECI) that can ensure free and fair elections still, the absence of a well-defined selection process in the original constitutional framework left room for executive overreach leaving concerns about political influence in appointments.

During the Constituent Assembly debate (1947- 1949) the issue of who should appoint the CEC was extensively discussed. Dr BR Ambedkar the chairman of the drafting committee, was of the opinion that elections should be conducted by an authority independent of governmental control to prevent political influence in the democratic process. However, no consensus was reached on the method of appointment. However, several proposals were considered.

1. Appointment by the President in consultation with Parliament (to ensure democratic overview)

2. Appointment by the President on the recommendation of an independent body (to bypass the chance of executive control)

3. Appointment solely by the President (to allow flexibility in the selection process)

The Assembly ultimately adopted Article 324 which gave the power of appointment of Chief Election Commissioner and other election commissioners in the hands of the President which was subject to any law enacted by parliament. The problem arose when for decades no specific parliamentary law on the appointment of Election commissioners was enacted by parliament. It allowed successive governments to exercise their discretion in the selection process of the Chief Election Commissioner and other Election Commissioners.

One major safeguard was nevertheless introduced in the form of Article 324(5). It stated that (CEC) could not be removed except through a process similar to the impeachment of a Supreme Court judge. This protected the Election Commission from arbitrary removal ensuring its autonomy.

From 1950 to 1991 the Prime Minister and the ruling government had absolute discretion in the appointment of the CEC and ECs. This absolute power was a threat to the neutrality of the Election Commission as an institution as aimed during the framing of the constitution because any government in power could appoint any individual sympathetic to their interest.

The Supreme Court certainly over the years has played its role in defining the appointment process of the CEC. The Supreme Court in the case of S.S Dhanoa vs Union of India (1991) ruled that the CEC in no way subordinate to the government and  must function independently.

Similarly, in the case of T.N Seshan vs Union of India (1995) judgment upheld the multi-member structure of the Election Commission, ensuring collective decision-making, and recently in the landmark case of Anoop Baranwal vs Union of India(2023) SC recommended changing the appointment mechanism stating that CEC and ECs should be selected by a panel which comprises of the Prime minister, The leader of the Opposition in Lok Sabha, and the Chief  Justice of India (CJI) with an objective to prevent complete executive dominance and take a step towards neutral CEC and ECs appointment as envisaged in the constitution.

However, within months of this ruling government passed the CEC Appointment Act, of 2023 neglecting the Supreme Court’s recommendation and restoring executive control over the appointments.

The CEC Appointment Act, 2023: Key Provisions and Changes

 The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.was introduced as a step to formalize the appointment process for election commissioners. The Act since its introduction has faced significant backlash for its nature of executive dominance, as it removed the Chief Justice from the appointment process of the CEC and ECs ending the important role of the Judiciary in the fair appointment of the same. 

This Act which was passed in December 2023 introduced some major provisions-

Selection Committee for appointments-

As per Section 7 of this Act the CEC and ECs will be appointed by the President but based on recommendations from a three-member selection committee that will consist of- The Prime minister, the leader of the Opposition, and a Union Cabinet minister which shall be nominated by the Prime minister himself. In the absence of the leader of the opposition, the leader of the single largest party would take his place.

Search Committee for shortlisting the candidate

As per section 6 of the Act a search committee that will be headed by the Minister of Law and Justice comprising two other members who will not be below the rank of secretary to the government shall prepare a panel of five members for consideration of the selection committee. The selection committee however is not bound to choose from the search committee’s recommendations.

Eligibility criteria and terms and conditions

Candidates for being eligible must have served as a secretary to the government of India or held any equivalent rank. According to the Act the CEC and the ECs will serve for six years or until the age of 65 whichever is earlier

Aspect	Pre-2023 System (Before SC Ruling)	Supreme Court’s Mandate (March 2023)	New Process Under 2023 Act
Selection Panel	Prime Minister & Council of Ministers	PM + Leader of Opposition + Chief Justice of India (CJI)	PM + Union Minister + Leader of Opposition
Judicial Role	No role in appointments	CJI included to ensure neutrality	CJI removed, full executive control
Candidate Pool	Open to various experts	Open to all qualified individuals	Restricted to former bureaucrats (Secy-level only)
Search Committee	No formal committee	No formal committee	Cabinet Secy-led panel recommends names
Transparency	Fully executive-controlled	Judicial oversight ensured partial transparency	Govt. panel can bypass Search Committee’s recommendations

Criticism and Constitutional Challenges to the Act

Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 Since its introduction has faced strong criticism from legal experts, political opposition, and civil society organisations. The main concern is that by giving the executive nearly absolute power and control over the appointment process the Act challenges the independence of the Election Commission a body that has the responsibility of ensuring free and fair elections in the country.

Despite being framed as a law that has been brought in place to formalize the selection process the 2023 Act has raised many concerns regarding its impact on electoral democracy.

Firstly, the step of the removal of the Chief Justice of India from the selection committee has been subjected to severe criticism. It directly contradicts the Supreme Court’s 2023 ruling in Anoop Baranwal vs Union of India the case mandated judicial participation in the selection process as a step towards neutrality in the appointment of the CEC and the ECs.

As per this Act, the selection committee will comprise the prime minister as the head of the committee he will be accompanied by the leader of the opposition and a union minister which he himself will appoint. This change has been prima facie engineered in such a way that the power remains tilted heavily in the favor of the ruling party. This move increases the chances of partiality in the appointments of the CEC and ECs. With this setup, the ruling party can easily appoint a person who works on the direction of the ruling party.

Secondly, the Election Commission of India (ECI) is an independent body and is supposed to be working independently to ensure a truly healthy democracy. However, this Act makes the CEC and the ECs more accountable to the executive than the constitution. This Act bypasses the Supreme Court’s ruling which envisioned a balanced multi-institutional approach and makes the appointment process a more centralized one with almost all powers in the hands of the ruling government.

Thirdly, the Act makes eligible only former bureaucrats who have served at the rank of secretaries to the government of India to be eligible for appointment to the post. This directly excludes legal experts, judges, and election law specialists from applying to such posts making it only a post open for civil servants who often worked closely with the ruling establishment. There is a high chance that when these people are appointed for the post they will remain government loyalties.

Fourthly, the Search committee headed by the Minister of Law and Justice will shortlist five candidates but, the selection committee is not bound by these recommendations. This in simple language means that the prime minister-led selection committee can ignore all suggested names and appoint someone according to their choice. This makes the process very centric and non-transparent.

This Act violates the very spirit of Article 324 and the constitution-makers. The framers of the constitution intended the Election Commission of India to be a body free from any control and capable of making its own decisions. By giving the entire control into the hands of the executives this Act of 2023 attacks the spirit of Article 324 and challenges the electoral process and fairness.

Conclusion

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 represents an important moment in India’s democratic evolution as a country. While the government tries hard to defend this Act by terming it as “a structured reform to streamline appointments” in reality it has a lot of negatives. This Act directly attacks the spirit of Article 324 and the intention of the constitution-makers. This Act is just more than a procedural change. It has the potential to reshape India’s electoral framework for decades to come.

The Act which is presently challenged in the Supreme Court if upheld, could allow future governments to appoint an individual who aligns with their interest, leading to serious concerns over a free and fair electoral process. The loss of public trust in the electoral institutions which it would generate would result in reduced voter confidence which will surely damage India’s democratic integrity. This Act centralizes power into the hands of the executive excluding judicial insights and the opinion of different field experts in the appointment of an important position that has the responsibility to look over the election process of the world’s largest democracy.

The integrity of India’s democracy which is hailed as the world’s largest democracy ultimately rests on the credibility of its election commission. If anything happens to the autonomy of the Election Commission that will directly impact the election process of the country. The fate of the CEC Appointment Act, 2023 is not just a question of governance but it is also the test of India’s commitment to its own constitution.

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This article is written by Prakhar Singh.