Next CEC to be appointed per new law; SC to take view on new statute soon

All eyes are on the Supreme Court which will examine the law on appointing members of the Election Commission as its validity has been challenged for not having the chief justice of India as a member of the selection panel.

The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, which came into force in December 2023, was first used to appoint Gyanesh Kumar and S S Sandhu as Election Commissioners in March 2024 to fill up the vacancies created following the resignation of Arun Goel and retirement of Anup Chandra Pandey.  With Chief Election Commissioner Rajiv Kumar demitting office on February 18 on attaining the age of 65, the law will be applied for the first time to appoint a CEC.

Before the new law on the appointment of CEC and ECs came into force, the election commissioners were appointed by the President on the government's recommendation. And as per convention, the senior-most Election Commissioner was elevated as CEC.

But this time, the PM-led panel will decide on new EC. Between Gyanesh Kumar and Sandhu, the former is senior.

Gyanesh Kumar has a tenure till January 26, 2029 when he turns 65.

According to the law, a search committee headed by the law minister and comprising two Union secretaries will prepare a panel of five names for the selection committee to take a call.

The selection committee, headed by the prime minister and comprising a Union minister named by the PM and the Leader of Opposition in Lok Sabha, will recommend a name to the president for appointment as CEC or election commissioner.

According to Section 6 of the law, the selection panel has the power to consider even those not short-listed by the law minister-led search committee.

A 1991 law on CEC and election commissioners dealt with their salaries and service conditions but not the method of appointment.

In its March 2, 2023 verdict, a Supreme Court bench headed by Justice K M Joseph (since retired) had set up a panel comprising the prime minister, the Leader of Opposition and the CJI to appoint the CEC and election commissioners.

It had said till a law is framed on the appointments, the collegium decided by the panel would hold good.

Later, when the government brought the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, it replaced the CJI with a Union minister to be named by the PM in the selection panel.

The change in the composition of the selection committee has been challenged. While posting the matter for February 4, a top court bench said it would see whose views had supremacy.

"It will be the opinion of the court under Article 141 versus legislative power to enact law," it underscored.