Row over CEC appointment process: How were CECs appointed before Supreme Court's March 2023 verdict?

According to The Chief Election Commissioner and Other Election Commissioners Act, 2023, the Chief Election Commissioner and Election Commissioners are appointed by the President

Gyanesh Kumar, who was named as an Election Commissioner last year, has been appointed the next Chief Election Commissioner of India, replacing the outgoing Rajiv Kumar.

The appointment came within hours of a meeting held between Prime Minister Narendra Modi, Union Home Minister Amit Shah and Leader of Opposition (LoP) Rahul Gandhi.

According to reports, Gandhi did not approve of the appointment and submitted a dissent note saying the meeting was meaningless as the new law has been challenged in the Supreme Court.

For the first time, the appointment of Kumar as the poll chief was done based on the Chief Election Commissioners and Election Commissioners (ECs) under the 2023 law.

How were the Election Commissioners appointed earlier?

The Election Commission (EC) is a three-member body comprising one Chief Election Commissioner (CEC) and two Election Commissioners. Earlier, the appointment was regulated by the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. However, no selection process was defined in the Act.

The President appointed the poll commissioners on the advice of the Prime Minister. Seniority was usually defined by who was appointed earlier to the Commission. So, when Rajiv Kumar was the CEC, Gyanesh Kumar and Sukhbir Singh Sandhu served as Election Commissioners.

How was the new CEC appointed?

According to The Chief Election Commissioner and Other Election Commissioners Act, 2023, the Chief Election Commissioner and Election Commissioners are appointed by the President.  The shortlisting was done by a search committee which, according to the Act, is headed by the Union Minister for Law and Justice and includes two officials of the rank of secretary to the government.

What has changed under the new Act?

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.

Also, the new Act specifies eligibility criteria for the selection of the CEC and ECs. According to the new Act, candidates must be persons of integrity and must know how to conduct elections.   He or she also should have been a secretary to the government.

The Act also specifies terms of service. “The Chief Election Commissioner and other Election Commissioners shall not be eligible for re-appointment. Where an Election Commissioner is appointed as Chief Election Commissioner, his term of office shall not be more than six years in aggregate as the Election Commissioner and the Chief Election Commissioner,” it states.

Why was the new law adopted?

The top court’s verdict in March 2023 was based on petitions demanding an independent, collegium-like system for the appointment of the CEC and ECs. In the Anoop Baranwal vs Union of India judgment, the SC observed that the Election Commission is an independent body. Hence, the selection process of its commissioners should not be solely determined by the Executive. The key constitutional question raised by these petitions is whether Parliament has the legal authority to override or modify a Constitution Bench judgment through legislation or ordinance.

In March 2024, when the appointment of two ECs took place, the top court was asked to stay the appointments as the current law still gives the ruling party an upper hand in the selection. However, it refused to stay the appointments.

Why is Congress opposing Gyanesh Kumar’s appointment?

The Congress called the appointment a “hasty midnight move”. The party said it goes against the spirit of the Constitution.

“The amended law removed the CJI from the CEC selection panel, and the government ought to have waited until the Supreme Court’s hearing on February 19 before selecting the CEC," said Congress leader KC Venugopal.

How did BJP respond?

The BJP attacked Congress and Rahul Gandhi, calling them "cry babies" and termed the LoP’s dissent “politically motivated”.

"This latest jig by Rahul Gandhi is another attempt to create controversy and peddle propaganda on the appointment of CEC. Has Rahul Gandhi forgotten how ECs were appointed during Congress rule? Despite being in power for decades, why Congress governments did nothing to reform the selection mechanism," Union education minister Dharmendra Pradhan asked on X.

Till 1989, the EC was a single-member body, with only one CEC. However, it was expanded just ahead of the elections to the ninth Lok Sabha amid a tussle between the Rajiv Gandhi government and then CEC R V S Peri Sastri. The Rajiv Gandhi regime had faced some difficult moments during the 1987 presidential election.

Unsure of what Sastri might do during the Lok Sabha elections of 1989, it decided to curtail his powers by making the poll panel a multi-member body. On October 16, 1989, the government appointed S S Dhanoa and V S Seigell to these posts.

However, the Congress lost in the elections, and the National Front government of Prime Minister V P Singh quickly rescinded the presidential notification of October 7, 1989. EC Dhanoa challenged his removal in the Supreme Court, but his petition was dismissed.

Again, in 1990 when T N Seshan was appointed the CEC, the Congress government headed by P V Narasimha Rao decided to expand the poll body again on October 1, 1993.