March 1, 2024

Lukmaan IAS

A Blog for IAS Examination




THE CONTEXT: A Public Interest Litigation (PIL) is filed in the Supreme Court challenging the legality and provisions of a new law altering the process of appointing the Chief Election Commissioner and Election Commissioners.


  • The PIL seeks an independent and transparent system of selection, contesting the amendment’s deviation from the Supreme Court’s previous order and the exclusion of the Chief Justice of India (CJI) from the selection committee.

Background of Contention:

  • Amendment and Selection Process:
    • The new law empowers the central government with significant authority to appoint the CEC and ECs, excluding the CJI from the selection committee.
  • Opposition Accusations:
    • The opposition alleges that the government disregarded the Supreme Court’s directive by removing the CJI from the selection panel, citing a violation of the court’s March 2023 order.

PIL’s Grounds and Key Assertions:

  • Independent and Transparent System:
    • The advocate filing the PIL seeks the implementation of an impartial and transparent system for the selection process, advocating for a neutral and independent selection committee.
  • Constitutional Inquiry:
    • The PIL raises the constitutional query of whether Parliament or a legislative assembly holds the jurisdiction to nullify or amend a judgment previously issued by the Supreme Court, especially when stemming from a Constitution Bench ruling.
  • Inclusion of CJI in the Selection Committee:
    • The plea requests the inclusion of the CJI in the committee responsible for appointing the CEC and ECs, aiming to reinstate the CJI’s role in the process.

Challenges to the New Act:

  • Gazette Notification Challenge:
    • The PIL seeks an injunction against the implementation of the Gazette Notification of December 28, 2023, pertaining to the Chief Election Commissioner and Other Election Commissioners (Appointment, Condition of Service and Term of Office) Act, 2023.
  • Contention on Parliament’s Authority:
    • The plea questions whether the Parliament or legislative assembly possesses the authority to amend or nullify a prior judgment issued by the Supreme Court, especially from a Constitution Bench.

Provisions in the Act and Proposed Changes:

  • Formation of Search Committee:
    • The Act stipulates the creation of a search committee chaired by the Union Law Minister, tasked with nominating a panel of five individuals for consideration by the selection committee for the CEC or ECs.
  • Exclusion of CJI:
    • The amended law omits the CJI from the selection committee, deviating from the Supreme Court’s earlier directive which included the CJI, the Prime Minister, and the Leader of Opposition in the Lok Sabha.

Election Commission of India:

  • The Election Commission of India consists of a Chief Election Commissioner (CEC) and two Election Commissioners (ECs).
  • The CEC is the head of the Commission and has a higher status than the ECs. All decisions of the Commission are taken by a majority vote, with the CEC having the casting vote in case of a tie.
  • According to Article 324, the Election Commission shall consist of the CEC and such number of other election commissioners, if any, as the President may from time-to-time fix.
  • Babasaheb Ambedkar had in 1949 said, “the whole election machinery should be in the hands of a Central Election Commission, which alone would be entitled to issue directives to returning officers, polling officers and others”.
  • Article 324(2): The appointment of the CEC and other Election Commissioners shall be made by the President, subject to the provisions of any law made in that behalf by Parliament.
  • The Law Minister suggests a pool of suitable candidates to the Prime Minister for consideration.
  • The President makes the appointment on the advice of the PM.


  • The President appoints Chief Election Commissioner and Election Commissioners.
  • They have tenure of six years, or up to the age of 65 years, whichever is earlier.
  • They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court of India.
  • All Election Commissioners have equal say in the decision making of the Commission.


  • The PIL challenging the recent law amendment for appointing the CEC and ECs underscores concerns regarding transparency, the constitutional authority to modify court directives, and the exclusion of the CJI from the selection process.
  • The outcome of this legal challenge will potentially impact the method and impartiality of future appointments to critical electoral positions in the country.


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