India Explained
ImplementedBJPNarendra ModiUnsettled

Chief Election Commissioner and Other Election Commissioners Act, 2023

Parliament legislated appointments of election commissioners; the panel is the PM, the Leader of Opposition and a Union Cabinet Minister, replacing the Chief Justice named in the Court's 2023 interim panel.

Election Commission

Facts

  • On 2 March 2023 a five-judge Constitution Bench of the Supreme Court (Anoop Baranwal v. Union of India, W.P.(C) 104 of 2015, (2023) 6 SCC 161) held, as an interim measure until Parliament made a law under Article 324(2), that appointments of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) are made on the recommendation of a three-member committee; the committee named in the Court's directions was the Prime Minister, the Leader of Opposition and the Chief Justice of India [3][5].
  • The Bill was introduced in the Rajya Sabha on 10 August 2023, passed by the Rajya Sabha on 12 December 2023 and by the Lok Sabha on 21 December 2023 [2][6]. The Act (Act No. 49 of 2023) carries the date 28 December 2023 and came into force on 2 January 2024 by notification S.O. 35(E) [1].
  • Section 7 of the Act: the President appoints on the recommendation of a Selection Committee of the Prime Minister (Chairperson), the Leader of Opposition in the Lok Sabha (or, if none is recognised, the leader of the single largest opposition party) and a Union Cabinet Minister nominated by the Prime Minister. An appointment is not invalid merely because of a vacancy or defect in the Committee's constitution [1].
  • Section 6: a Search Committee headed by the Minister of Law and Justice, with two members not below the rank of Secretary to the Government of India, prepares a panel of five names; under section 8(2) the Selection Committee may also consider persons outside that panel [1].
  • Section 5 limits eligibility to persons who hold or have held a post equivalent to Secretary to the Government of India and who have integrity and experience of managing and conducting elections. Section 9: a term of six years or until age 65, whichever is earlier, with no re-appointment [1].
  • Section 10 sets salary equal to that of a Supreme Court judge. Section 11: the CEC is removable in like manner and on like grounds as a Supreme Court judge; other ECs are removable only on the CEC's recommendation [1]. The Bill as introduced in August 2023 had instead linked pay to the Cabinet Secretary [2]; the enacted text uses the Supreme Court judge standard [1].
  • The Act replaced the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 [2].
  • On 12 January 2024 the Supreme Court declined to stay the Act. On 22 March 2024 a bench of Justices Sanjiv Khanna and Dipankar Datta dismissed stay applications against section 7 in Dr. Jaya Thakur v. Union of India (2024 INSC 246), after two EC posts fell vacant and were filled on 14 March 2024 [4][6] (the 12 January refusal is as reported by SC Observer).
  • The writ petitions remain pending. SC Observer reports that on 23 September 2026 a bench directed the papers to the Chief Justice of India to constitute a Constitution Bench; that report was not checked against the order text [6].

Why

Reasons given by those who did it

  • Law Minister Arjun Ram Meghwal said in Parliament that the Bill is in consonance with the Supreme Court ruling, that the committee in the judgment was a stop-gap arrangement, and that under the separation of powers appointments to the Commission fall within the executive's domain, with the Prime Minister a part of the process (as reported by the Tribune and the South First) [7].
  • The Court's own judgment recorded that Article 324(2) makes appointments subject to a law made by Parliament and that the Court's committee would hold good only until such a law was made [3][4].

Criticism of that reasoning

  • Opposition members, including DMK's Tiruchi Siva, asked in the Rajya Sabha on 12 December 2023 why the Chief Justice of India was replaced by a Union minister, and opposition members walked out after the Minister's reply (as reported by the Tribune) [7].
  • PRS Legislative Research noted that two of the three Selection Committee members are from the government side, that a vacancy in the Leader of Opposition post could leave a committee of ruling-party members only, and that the Search Committee's list is not binding [2].
  • In Jaya Thakur the petitioners argued that section 7 conflicts with the Anoop Baranwal judgment and with free and fair elections; the Supreme Court recorded the challenge but made only tentative observations at the interim stage [4].

Benefits and concerns

Benefits (3)

  • Gives the appointment process a statutory basis, as Article 324(2) contemplates, ending reliance on an interim judicial arrangement.The Court itself noted the legislative vacuum and that its committee was pro tem pending a law [3][4]. Whether the statutory process is more or less independent than the interim panel is the subject of the pending challenge and is not decided by the sources reviewed.
  • Sets published eligibility rules, a fixed six-year term, no re-appointment and pay and removal protections at Supreme Court judge level.Sections 5, 9, 10 and 11 of the Act [1]. The 1991 Act's service conditions were also pegged to Supreme Court judges according to PRS [2]; the Act's text does not change that standard for pay.
  • Requires the Selection Committee to include the Leader of Opposition and to regulate its procedure 'in a transparent manner', and lets it look beyond the Search Committee's five names.Sections 7 and 8 of the Act [1].

Concerns (3)

  • The Chief Justice of India named in the Court's interim panel was replaced by a Union Cabinet Minister nominated by the Prime Minister, so two of three members are drawn from the government side.Section 7 of the Act [1]; PRS analysis [2]; Opposition objection in the Rajya Sabha [7]. The government's reply is that the panel was a stop-gap and appointments are an executive function [7].
  • The Supreme Court has recorded concern about the procedure followed for the first appointments under the Act.In its 22 March 2024 order the Court said such selections should be made with full details of candidates circulated to all Selection Committee members, noted that section 6 appears to contemplate five names per post, and recorded the petitioners' allegation that the Leader of Opposition received details of the shortlisted candidates only minutes before the 14 March 2024 meeting. It declined interim relief because of the timing of the 2024 general election and called its observations tentative [4].
  • The Act's validity has been pending before the Supreme Court since January 2024, so the appointment framework remains legally unsettled.Writ petitions 11, 13, 14, 87 and 191 of 2024 [4]; SC Observer case tracker [6].

Evidence points

+0.5
points, mean of two scorers (scale −25 to +25)
−1 to +2
range between the two scorers' totals
Low confidence
scorers agree within 1 point on every criterion
ReachHow many people did the action materially affect?
Mean +0.5A 0B +1
Outcome evidenceDo official or independent data show the intended result (or its opposite), compared with the era baseline and peers?
Mean 0.0A 0B 0
Cost and sustainabilityIs the fiscal cost proportionate, and is the effect durable?
Mean −0.5A −1B 0
Process and rightsWas it made with debate, consultation and legal soundness, and did it respect rights and court rulings?
Mean −1.5A −2B −1
DeliveryWas it implemented as announced, on time and at scale?
Mean +2.0A +2B +2

Positive meanNegative meanScorer AScorer B

Scorer A. Statute implemented from January 2024 but its independence effect is undecided, validity is pending in court, and the Court noted procedural concerns in first appointments.

Scorer B. The Act gave a statutory basis and tenure protections, but the government-weighted committee and a pending Supreme Court challenge keep net process and outcome near neutral.

Context used when scoring

Era baseline
Before 2023 there was no parliamentary law on the appointment process; since 1950 appointments were made by the President on the Union government's advice, and from 1991 service conditions were set by the Election Commission (Conditions of Service) Act, 1991.
Lag before outcomes show
3 years
Uncertainty
Low confidence. Scorer totals are −1 and +2. How uncertainty is shown.

In depth

Article 324(2) of the Constitution says the President appoints the Chief Election Commissioner and other Election Commissioners, subject to any law made by Parliament. No such law existed until 2023. In March 2023 the Supreme Court said that, until Parliament legislated, appointments should follow the advice of a three-member committee, and it named the Prime Minister, the Leader of Opposition and the Chief Justice of India.

Parliament passed the 2023 Act in December 2023. It provides for a Selection Committee of the Prime Minister, the Leader of Opposition and a Union Cabinet Minister nominated by the Prime Minister. The government’s position is that this fits the Court’s ruling because the Court’s committee was a temporary measure and appointments are an executive function. Opposition members and several commentators say that replacing the Chief Justice with a minister gives the government side a majority on the committee. The Supreme Court has not decided that question: in March 2024 it refused to stay the law, and the challenge is pending.

The sources reviewed do not allow a conclusion on whether the Act has changed how independently the Commission works. The scoring fields are left blank because no outcome evidence is available.

Sources

  3. Anoop Baranwal v. Union of India (judgment of 2 March 2023)
    Supreme Court of India (via Indian Kanoon)Court

Last reviewed .Report an error orchallenge a score.

Dossiers on this topic

Fact files that share a sub-category with this action. They are not scored.

  • InstitutionOngoing

    Election Commission of India

    Constitutional body that runs Indian elections under Article 324: how its members are appointed and removed, how it enforces the Model Code of Conduct, and the court findings and party complaints on its decisions across eras.

    Facts as of

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