The Chief Election Commissioner and Other Election Commissioners Act, 2023, marks a significant milestone in India's legislative history, aimed at reforming the appointment process of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) to enhance transparency and independence in the Election Commission of India (ECI).

The impetus for this legislation stemmed from the Supreme Court's landmark ruling in Anoop Baranwal v. Union of India [2023] 9 S.C.R. 1, which highlighted the deficiencies of the previous system dominated by executive influence. Key features of the new Act include the introduction of a collegium system, protection for the CEC and ECs from legal proceedings related to their duties, and measures to ensure a more independent and transparent electoral body.

This article explores the historical context, the deficiencies of the previous provisions, the role of the Anoop Baranwal case, and the implications of the new Act, placing these reforms in a global context. The legislative changes are essential for upholding the integrity of India's electoral process and reinforcing the nation's democratic institutions.

Introduction
The recent enactment of the Chief Election Commissioner and Other Election Commissioners Act, 2023[1], is a significant milestone in India's legislative history. This Act aims to bring about essential reforms in the appointment process of the Chief Election Commissioner (C.E.C.) and Election Commissioners (ECs) to ensure greater transparency and independence in the Election Commission of India (E.C.I.). The need for this legislation arose from the landmark Supreme Court ruling in Anoop Baranwal v. Union of India [2023] 9 S.C.R. 1[2], which highlighted the shortcomings in the previous system. This article explores the historical background, the deficiencies of the previous provisions, the role of the Anoop Baranwal case, and the key features and implications of the new Act.

Historical Context and Previous Provisions
The Election Commission of India (ECI) was established under Article 324[3] of the Indian Constitution and is responsible for overseeing elections to Parliament, state legislatures, and the offices of the President and Vice-President. Originally a single-member body, the ECI evolved to include multiple members to manage the increasing complexities of elections.

Before the 2023 Act, the appointment of the CEC and ECs was primarily under the executive's purview, with the President appointing these officials based on the advice of the Prime Minister and the Council of Ministers. This method raised significant concerns about potential executive influence and lack of transparency, as criticized in numerous debates and reports over the years. However, this system had several deficiencies:

1. Lack of Independence: The executive's control over appointments raised serious concerns about the independence of the ECI.
2. Absence of a Collegium System: Unlike the judiciary, the ECI lacked a collegium system for appointments, which could ensure a more balanced and transparent selection process.
3. Inadequate Tenure Protections: While the tenure was fixed, the removal process for ECs was not robust, potentially undermining their independence.

Recent Vacancies and the Urgency to Fill Them
The resignation of Election Commissioner Arun Goel, coupled with the earlier retirement of Election Commissioner Anup Chandra Pandey on February 14, 2024, has resulted in two vacancies in the ECI. Although there is no constitutional urgency to fill these vacancies as the CEC can supervise the conduct of the impending Lok Sabha elections alone, the discourse about the ECI's role and performance in recent years makes filling these vacancies a matter of public interest. Given this context, the current law, "The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023[4]," should be followed under normal circumstances. However, the enactment of this law has a recent history closely tied to a Supreme Court judgment.

A Turning Point
The case of Anoop Baranwal v. Union of India [2023] 9 S.C.R. 1[5],led to a critical turning point in India's electoral system. In March 2023, the Supreme Court ruled on the Public Interest Litigation (PIL) filed by a lawyer, challenging the appointment process of the Election Commissioners (ECs). The Court emphasized the need for a transparent and independent appointment process. This judgment was a pivotal event that ultimately led to the enactment of the 2023 Act.

Before this judgment, the government made appointments of the Chief Election Commissioner (CEC) and ECs, despite the Constitution directing Parliament to legislate the appointment process. The Court's directive stated that the President of India should make these appointments based on the advice of a Committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India. This directive was to remain in effect until a law was passed by Parliament.

The 2023 Act[6] introduced key provisions to reform the appointment process, including the establishment of a collegium system to reduce executive influence, enhance transparency, and ensure the independence of the Election Commission of India (ECI). The Act also provided protection from legal proceedings for the CEC and ECs related to their official duties.

Global Practices in the Appointment of Electoral Body Members
To place the Indian reforms in a global context, several international models can be considered:

• South Africa: Involves key figures like the President of the Constitutional Court and representatives from human rights bodies to ensure diverse representation.
• United Kingdom: Requires House of Commons approval for candidates, adding a layer of parliamentary scrutiny.
• United States: Appointments by the President require Senate confirmation, ensuring a balance of power.

Conclusion
In conclusion, the Chief Election Commissioner and Other Election Commissioners Act, 2023, represents a significant step toward strengthening the independence and transparency of the Election Commission of India. The Supreme Court's decision in Anoop Baranwal v. Union of India [2023] 9 S.C.R. 1[7], played a crucial role in highlighting the deficiencies of the previous system and advocating for necessary reforms. These legislative changes are essential for upholding the integrity of India's electoral process and reinforcing the nation's democratic institutions.

References:

• https://www.freepressjournal.in/mumbai/navi-mumbai-on-national-voters-day-nmmc-chief-pledges-to-maintain-sanctity-of-elections
• https://indianexpress.com/article/india/gyanesh-kumar-sukhbir-singh-sandhu-take-charge-as-election-commissioners-9215260/
• https://www.drishtiias.com/daily-updates/daily-news-analysis/the-ces-and-other-ecs-appointment-conditions-of-service-and-term-of-office-bill-2023
• https://sansad.in/getFile/BillsTexts/RSBillTexts/PassedRajyaSabha/CRC-CEC-E12132023113818AM.pdf?source=legislation
• https://www.livelaw.in/tags/anoop-baranwal-vs-union-of-india-2023-livelaw-sc-155
• https://indiankanoon.org/doc/950881/
• https://scc-nlul.refread.com/Members/SearchResult.aspx
• https://digiscr.sci.gov.in/view_judgment?id=MzQ1OTI=

End-Notes:

• The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, Bills of Parliament, 1949 (India).
• Anoop Baranwal v. Union of India [2023] 9 S.C.R.1.
• INDIA CONST. art.324.
• The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, Bills of Parliament, 1949 (India).
• Anoop Baranwal v. Union of India [2023] 9 S.C.R.1.
• The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, Bills of Parliament, 1949 (India).
• Anoop Baranwal v. Union of India [2023] 9 S.C.R.1.

Written By: Advika Mattoo