Two pleas have been filed in the Supreme Court challenging the law regarding the appointment of Chief Election Commissioners (CEC) and Election Commissioners.
On December 29, President Droupadi Murmu gave assent to the Bill, subsequently a gazette notification brought it into force as the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
One of the pleas seeks the reintroduction of the Chief Justice of India in the committee to select CECs and Election Commissioners while the other, by Congress leader Jaya Thakur, prays for declaring the law ultra-vires under Articles 14, 21, 50 and 324 of the Constitution in as much as the Act violates the principles of free and fair elections and apart from being contrary to principles laid down by the Court in the Anoop Baranwal vs the Union of India case.
The Act Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, has provisions to set up a search committee chaired by the law minister and two other persons not below the rank of secretary, to prepare a panel of five persons for consideration of the selection committee for appointment as CEC or ECs.
On August 10, Law Minister Arjun Ram Meghwal introduced the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 in Rajya Sabha.
Reportedly, the bill was introduced in the wake of the Supreme Court judgement that had noted the legal vacuum as regards appointment of Election Commissioners. The aforesaid Bill was passed by the Rajya Sabha on December 12 before being passed by the Lok Sabha on December 21.
The Act states that the selection committee that appoints CECs and Election Commissioners will be chaired by the Prime Minister and will comprise a Union Cabinet Minister and the Leader of the Opposition in the Lok Sabha.
Earlier, former Supreme Court judge Justice Rohinton Nariman had said that the bill could seriously jeopardise the independence of the Election Commission of India (ECI).
Justice Nariman had mentioned that if the bill becomes law, the executive will have the final say in appointing Chief Election Commissioner and Election Commissioners, which would affect free and fair elections.
The apex court judgment dated March 2, 2023, had said that until the Central government comes up with a law on appointments to the Election Commission of India (ECI), the appointments should be done on the advice of a committee comprising the PM, the Chief Justice of India (CJI) and the Leader of the Opposition in the Lok Sabha.
A Constitution Bench comprising Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar had also asked the Central government to consider establishing a permanent secretariat for the Election Commission of India. Additionally, it was also suggested that its expenditure be charged to the Consolidated Fund of India, so that the poll body can be truly independent.
The Court added that an election commission that does not ensure free and fair polls as per the rules of the game, guarantees the breakdown of the foundation of the rule of law.