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SC refuses to stay new law excluding CJI from Selection Panel to elect CEC and EC

Published: 18th Jan, 2024

Context

Government enacted a new law, The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023  to select the CEC and EC through Selection Panel committee

Importance of Election Commission: Its functioning determines the quality of governance and strength of democracy.

KEY Highlights

KEY Highlights of the New Law -

Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 , replaces  the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.

Appointment Process:

The CEC and ECs will be appointed by the President upon the recommendation of a Selection Committee.

  • The Selection Committee includes Prime Minister, a Union Cabinet Minister, and the Leader of Opposition/leaderof the largest opposition party in Lok Sabha.
  • Recommendations of the Selection Committee will be valid even if there is a vacancy in this Committee.
  • A Search Committee headed by the Cabinet Secretarywill propose a panel of names to the Selection Committee.
  • Eligibility Member should be equivalent to the Secretary to the central government.

Salary and Conditions:

  • The salary and conditions of service of the CEC and ECs will be similar to that of the Cabinet Secretary.
    • Earlier in 1991 Act, it was equivalent to the salary of a Supreme Court Judge.

Removal Process:

  • Existing constitutional provisions under (Article 324(5)) which allows the CEC to be removed like a Supreme Court Judge, while ECs can only be removed on the recommendation of the CEC by President

Safeguards of CEC and ECs:

  • CEC and EC are immune to   legal proceedings related to actions taken during their tenure, provided such actions were part of the discharging of official duties.
  • The amendment aimed to shield these officials from civil or criminal proceedings related to their official functions.

Major Concern:

  • SC in March 2023 held that the CEC and ECs shall be appointed on the advice of a committee comprising the Prime Minister, Leader of Opposition in the Lok Sabha and the Chief Justice of India.(New Law dilutes SC Observation)
  • Lacks Independent Mechanism (Violates free and fair election )
  • Violates separation of power is also the basic structureof the Constitution”
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