NORMALLY, the successor to the post of Chief Election Commissioner (CEC) is the most senior Election Commissioner. For the first time, according to the Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, the net can be spread widely.
Current CEC Rajiv Kumar is stepping down on February 18. The Election Commission comprises the CEC and two election commissioners – Gyanesh Kumar and Sukhbir Singh Sandhu at present.
Gyanesh Kumar may still be in the fray but as per Sections 6 and 7 of the Act, the Law Department will set up a Search Committee headed by the Law Minister to prepare a five-member panel for the Selection Committee.
The Selection Committee, which includes the Prime Minister, a Cabinet minister and the Leader of the Opposition in the Lok Sabha, can choose from this panel or consider “any other person” from outside.
Section 6 of the Act specifies the process for the appointment of the Chief Election Commissioner and other Election Commissioners.
Even if Gyanesh Kumar remains nominated for the top post, the Act gives the selection committee the option of considering names outside the Election Commission.
This came against the backdrop of the EC facing fire from the Opposition on a number of issues – from the cleanliness of electoral systems to the effective functioning of EVMs. On Tuesday, Kumar denied the allegations, calling them “irresponsible.”
When we were asked about this team, the official of the Ministry of Law said that this process is yet to be started.
A senior EC official said: “The change means that outsiders (except for the two Election Commissioners) may have a chance to head the commission.”
Regarding the consequences of this change, former CEC OP Rawat said, “It opens up an opportunity to correct the decision of the previous system if, after the election, the government changes. It can also make the system vulnerable to the destruction of the credibility of the Commission.”
Law Department spokesperson and Secretary Rajiv Mani were not available for comment.
According to Section 5 of the Election Commissioner and Other Commissioners (Appointment, Terms of Service and Tenure of Office) Act, 2023, candidates for this position shall be current or former officials of the rank of Secretary.
Clause 6 states, “The Inquiry Committee chaired by the Minister of Law and Justice and consisting of two other members not below the rank of Secretary to the Government of India, shall prepare a panel of five persons for consideration by the Selection Committee, for appointment as Secretary to the Government of India.” The Chief Election Commissioner and other Election Commissioners.”
This Act was brought after an intervention from the Supreme Court, following a number of petitions filed between 2015 and 2022 against the Center’s exclusive powers to appoint Election Commissioners.
The court noted that the framers of the Constitution did not intend to give the executive the power to make special appointments.
Break with tradition?
If the Election Commission is under review, the new law gives the Government an opportunity to break away from tradition. Since the leader of the opposition is in the assembly, the debate about who is next is not over.
Worried about the “negative effect” of leaving the positions to the Executive only, the court instituted a new procedure.
In March 2023, the Court ruled that the appointment of the CEC and EC would be made by the President on the advice of a committee comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India. This program was supposed to continue until the Parliament passes a law for the appointment of these.
The Union Government finally brought in a law in December 2023, which mandated the appointment of CECs and ECs through a short-listing panel and a selection committee. However, the Chief Justice of India was dropped as a member of the Selection Committee.
Two ECs Kumar and Sandhu have been appointed under this new system.
On Wednesday, the Supreme Court said it will consider in February the petitions challenging the Act, especially the CJI’s dismissal.
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