Supreme Court Hears Challenges to Election Commissioners Act

The Supreme Court of India is currently hearing multiple petitions challenging the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023. The controversy centers on the appointment process of Election Commissioners, with petitioners arguing that the new law undermines the independence of the Election Commission of India (ECI), a cornerstone of free and fair elections.

Key Issues Raised Against the 2023 Act

• The 2023 Act excludes the Chief Justice of India (CJI) from the high-level committee recommending appointments of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs).
• The new appointments committee consists of:
  • Prime Minister – Chairperson
  • Leader of Opposition in Lok Sabha – Member
  • Union Cabinet Minister nominated by the Prime Minister – Member
• Petitioners, including the NGO Association for Democratic Reforms (ADR) contend this exclusion violates the Constitution and undermines the independence of Election Commissioners.
• Sections 7 and 8 of the 2023 Act, which govern appointments, are alleged to fail in providing an independent and impartial selection process, potentially compromising the basic structure of the Constitution.
• Supreme Court hearings began in early 2025, and although the Court initially refused to stay appointments, the matter remains under active consideration.
• The government appointed Gyanesh Kumar as CEC and Vivek Joshi as EC under this law despite pending legal challenges, prompting urgent hearings.
• Senior advocates, including Prashant Bhushan, argue that excluding the CJI gives excessive executive control, threatening the neutrality of the Election Commissioners.
• The Court’s eventual ruling will have far-reaching implications for the autonomy of the Election Commission and for safeguarding democratic processes from executive interference.

Salient Features of the 2023 Act

• Replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.
• The Election Commission now consists of:
  • Chief Election Commissioner (CEC)
  • Other Election Commissioners (ECs) as determined by the President
• Eligibility: Persons who hold or have held posts equivalent to Secretary to Government of India, with integrity and experience in election management.
• Search Committee: Headed by the Minister of Law & Justice, preparing a panel of five candidates for consideration.
• Selection Committee: Appointments made by the President on recommendation of:
  • Prime Minister – Chairperson
  • Leader of Opposition in Lok Sabha – Member
  • Union Cabinet Minister nominated by Prime Minister – Member
• Term of office: 6 years or until age 65; re-appointment not allowed.
• Salary: Equal to that of a Supreme Court judge.
• Resignation & Removal:
  • CEC removable like a Supreme Court judge; other ECs removable on CEC’s recommendation.
• Leave & Other Conditions: Governed by previous service rules and presidential discretion.
• Transaction of Business: Decisions made unanimously by the CEC and ECs, or by majority in case of disagreement.
• Protection: No civil or criminal proceedings shall be entertained for actions performed in official capacity.

Background on Election Commissioners

• Originally, the Election Commission had only a CEC for nearly 40 years after 1949.
• It became a multi-member body in 1989.
• In 1991, legislation defined service conditions but did not prescribe a formal appointment process.
• Traditionally, the President, on the recommendation of the Prime Minister, appoints Election Commissioners, often promoting the senior EC to CEC.
• Article 324 vests “superintendence, direction and control of elections” in the Election Commission, consisting of the CEC and such number of ECs as the President may fix.

Supreme Court Rulings and Observations

• The Court noted a significant legislative gap regarding appointments of CEC and ECs.
• Independence of Election Commissioners is crucial for free and fair elections.
• Referencing other constitutional bodies, such as Human Rights Commissions and CBI, the Court emphasized independent appointment mechanisms.
• Previous recommendations by the Dinesh Goswami Committee and Law Commission suggested a selection committee including:
  • Prime Minister
  • Chief Justice of India
  • Leader of Opposition (or largest opposition party in Lok Sabha)
• The Court, exercising Article 142 powers, ruled that appointments should follow this committee composition.

Issues with the 2023 Act

• Government influence over the selection of Election Commissioners may compromise independence.
• Accepting recommendations from an incomplete panel could result in government-dominated appointments.
• Restricting EC positions to senior bureaucrats may overlook other qualified candidates.
• Replacing the CJI with a Union Minister results in a two-to-one executive majority in the three-member selection committee.

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