Gyanesh Kumar becomes CEC: How the appointment process has changed

Here's all you need to know about the changed process of selection of Chief Election Commissioner and issues surrounding it

On Monday, the government elevated Election Commissioner Gyanesh Kumar as the Chief Election Commissioner (CEC). Kumar is the first CEC to be appointed under the new law on the appointment of the members of the Election Commission.

 

Here’s all you need to know about the changed process of selection and issues surrounding it:

 

What is the new selection process for the Chief Election Commissioner?

 

According to The Chief Election Commissioner and Other Election Commissioners Act, 2023, the Chief Election Commissioner and Election Commissioners are appointed by the President upon the recommendation of a selection committee, which consists of:

 

1. Prime Minister

 

2. A Union Cabinet Minister

 

3. Leader of Opposition or leader of the largest opposition party in the Lok Sabha

 

The Act also states that a search committee, headed by the Cabinet Secretary, will propose a panel of names to the selection committee.

 

How were the Election Commissioners appointed earlier?

 

The Election Commission derives its authority from Article 324 of the Constitution, which states: "The Election Commission will comprise the Chief Election Commissioner and such number of Election Commissioners, as the President may decide."

 

Earlier, the appointment of Election Commissioners was regulated by the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. This Act, however, did not define the selection process. As a result, the President appointed the Election Commissioners on the advice of the Prime Minister and the Council of Ministers.

 

What has changed under the new Act?

 

Salary: Under the 1991 Act, the salary of the Election Commissioners was equivalent to that of a Supreme Court judge. However, the new Act defines the salary and conditions of service of the CEC and ECs as equivalent to that of a Cabinet Secretary.

 

Eligibility: Previously, there were no specific eligibility criteria for the selection of the CEC and ECs. The new Act now specifies that candidates must:

 

1. Be persons of integrity

 

2. Have knowledge and experience in the management and conduct of elections

 

3. Be or have been a Secretary (or equivalent) to the government

 

What remains unchanged?

 

Term and reappointment: The Act keeps the tenure conditions unchanged to six years or until the attainment of 65 years of age. Members of the Commission cannot be reappointed.

 

Removal: The Act also retains the removal process for CEC and ECs as specified in the Constitution. The CEC may be removed in the same manner as applicable for a Supreme Court judge. ECs may only be removed upon the recommendation of the CEC.

 

The Constitution states: "The Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court."

 

Why did the process change?

 

In the Anoop Baranwal vs Union of India judgment, the Supreme Court observed that the Election Commission is an independent body and, therefore, the selection process of its commissioners should not be solely determined by the Executive.

 

The apex court suggested that Parliament should enact a law defining the selection process. Meanwhile, the court directed that until such a law was in place, appointments should be made by the President based on the recommendation of a Selection Committee.

 

The Supreme Court's prescribed Selection Committee consisted of:

 

1. The Prime Minister

 

2. The Leader of Opposition in the Lok Sabha

 

3. The Chief Justice of India

 

However, the new Act replaced the Chief Justice of India on the Selection Committee with a Union Minister nominated by the Prime Minister, effectively increasing the Executive's control over appointments.

 

Legal challenge

 

After the new law was passed, multiple petitions were filed in the Supreme Court, challenging its validity. The petitions also sought to put on hold the appointment of two Election Commissioners in March 2024 under The Chief Election Commissioner and Other Election Commissioners Act, 2023.

 

The apex court declined to stay the appointments but agreed to hear the matter. A final judgment on the issue is still pending.