SELECTION OF ELECTION COMMISSION OF INDIA

Under the new law, the selection of the two Election Commissioners (ECs) was conducted by a three-member Selection Committee. This committee consisted of Prime Minister Narendra Modi, Union Home Minister Amit Shah, and Adhir Ranjan Chowdhury, the Leader of the Indian National Congress in the Lok Sabha as the leader of the largest party in the Opposition. The ECs were chosen from a shortlisted panel of six names. The initial shortlisting process was carried out by a committee headed by the Union Minister for Law and Justice, as mandated by the Act, and included two government officials holding the rank of Secretary.

3. Appointing the Election Commission Before the Current Process

• Before the recent changes, the appointment process for Election Commissioners (ECs) was not explicitly defined by law. Article 324 of the Constitution granted the power of "superintendence, direction and control of elections" to the Election Commission, which could include the Chief Election Commissioner (CEC) and other ECs as determined by the President.
• However, for about four decades after the Constitution's adoption, only a single CEC was in office. It wasn't until October 1989 that the Election Commission became a multi-member body, but this arrangement was short-lived, as the appointment of two Election Commissioners was rescinded in January 1990.
• In 1991, a law was enacted to establish the conditions of service for the CEC and ECs, later amended in 1993. However, this legislation did not outline a specific appointment process for ECs.
• Consequently, the President appointed the CEC and ECs based on a panel of names typically presented by the Law Ministry to the Prime Minister. The Prime Minister would then recommend one of the candidates from this panel to the President for appointment as an EC.
• It was customary to appoint officials as ECs initially, and then upon the completion of the CEC's tenure, the senior EC would be elevated to the position of CEC. This process lacked a formalized selection mechanism and relied on established conventions rather than a structured legal framework.

• In the case of Anoop Baranwal versus Union of India, a five-member Constitution Bench of the Supreme Court made a significant ruling regarding the appointment process of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs).
• The court emphasized that the power to appoint these officials was not intended to be solely vested in the executive branch, as stated in the Constitution. Instead, this power was subject to any law enacted by Parliament.
• Since no such law had been passed since the Constitution's inception, the court established an interim arrangement for appointments until Parliament formulated its own law.
• According to this interim arrangement, appointments were to be made by a three-member committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha (or the leader of the largest party in the Opposition), and the Chief Justice of India.
• In response to this ruling, Parliament passed the 2023 Act, which received presidential assent and was officially notified in late December 2023.
• This Act established a formal process for the appointment of the Chief Election Commissioner and Election Commissioners, aligning with the guidelines set by the Supreme Court's interim arrangement.

• Criticism against the Act primarily centers on the composition of the selection panel for appointing Election Commissioners and the perceived imbalance of power in favor of the executive branch. The Act has faced backlash for removing the Chief Justice of India (CJI) from the selection committee and replacing this position with a Union Minister, thereby creating a two-one majority for the executive in the three-member committee.
• Critics argue that this change undermines the principle of independence and impartiality in the appointment process. By giving the executive a significant majority in the selection panel, there are concerns about potential political influence or bias in the appointment of Election Commissioners, which could compromise the integrity of the Election Commission.
• The government's defense that the Act does not entirely remove the CJI from the appointment process is met with skepticism. Critics view the inclusion of the CJI in the selection committee as a crucial safeguard to ensure a balanced and fair appointment process, free from undue influence or partisan considerations.
• Despite these criticisms and legal challenges, the Supreme Court has consistently declined requests to stay the implementation of the new Act. However, petitioners continue to challenge the Act's provisions, particularly regarding the appointment of Election Commissioners, arguing that it contravenes the core principle established by the Constitution Bench judgment – the necessity to depoliticize the appointment process and ensure independence from the executive branch.