New CEC selection today: How PM Modi, Amit Shah and Rahul Gandhi will choose Rajiv Kumar’s successor | Explained News

The Election Commission (EC) is a three-member body made up of one Chief Election Commissioner (CEC) and two Election Commissioners. Although all three election commissioners are equal, the CEC, like the Chief Justice of India, is the first among equals.

Earlier, there was no law passed by Parliament for the appointment of the CEC and ECs. The appointments were done by the President on the advice of the Prime Minister. Traditionally, the successor to the incumbent CEC has been the next senior-most Election Commissioner. Seniority was usually defined by who was appointed earlier to the Commission.

The current Commission is made up of Rajiv Kumar as CEC and Gyanesh Kumar and Sukhbir Singh Sandhu as the two Election Commissioners. Both Kumar and Sandhu were appointed to the Commission on the same day, March 14, and are of the same batch of IAS officers (year 1988). So who is senior? Sources within the government and Commission state that it is Gyanesh Kumar, since in the appointment notification issued by Rashtrapati Bhavan, his name comes first.

Hence, under the old system, upon Rajiv Kumar’s retirement, the President would have notified Gyanesh Kumar’s appointment as CEC. But it’s not so simple this time.

So how will the new CEC be appointed this time?

The new CEC is being appointed under a new law  — Chief Election Commissioner And Other Election Commissioners (Appointment, Conditions of Service And Term of Office) Act, 2023. This law lays down procedures for appointment of CEC and ECs both.

Under the Act, a search committee headed by the Law Minister (currently Arjun Ram Meghwal) and comprising two senior bureaucrats serving as secretaries to the Government of India are to first draw up a shortlist of five candidates. This shortlist is then sent to a Selection Committee made up of the Prime Minister, Leader of Opposition and a Cabinet Minister nominated by the PM.

The current composition of the selection committee is Prime Minister Narendra Modi, LoP Rahul Gandhi and Home Minister Amit Shah. It’s this committee that will meet this evening at PM’s residence to select Rajiv Kumar’s successor. Section 8 of the Act gives this Committee the power to also consider names from outside the five shortlisted. The President, on the recommendation of the Selection Committee, will appoint the next CEC.

This is exactly how Gyanesh Kumar and Sukhbir Singh Sandhu were appointed to the Commission in March 2024, and a similar process is being followed for the appointment of CEC.

While this process doesn’t rule out Gyanesh Kumar from being appointed to the top post — his name can still be part of the five shortlisted for the position and may even get finally selected — the new law gives the government room to cast its net wider and maybe even bring in a new CEC altogether.

Apart from laying down the exact appointment process, does the new Act also specify eligibility conditions?

While in the past the government had usually appointed retired senior bureaucrats to the Commission, the Act makes the qualification for the job clear: “The Chief Election Commissioner and other Election Commissioners shall be appointed from amongst persons who are holding or have held a post equivalent to the rank of Secretary to the Government of India and shall be persons of integrity, who have knowledge of and experience in management and conduct of elections,” Section 5 of the Act states.

The Act also sets clear 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 appointment process changed?

This Act was brought after an intervention from the Supreme Court, following a clutch of petitions filed between 2015 and 2022 challenging the Centre’s exclusive powers in picking the Election Commissioners.

The court had noted that the Constitution’s founders never intended to give the Executive exclusive appointment powers. Concerned about the “devastating effect” of leaving appointments solely to the Executive, the court established a new process. In its judgment on March 2, 2023, the Supreme Court ruled that a selection committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India would select the CEC and ECs, until Parliament enacted a law.

Before any vacancy in the Commission could arise, the government brought the Bill in Parliament, which passed it in December 2023. The Act changed the composition of the selection committee — replacing the CJI with a “Union Cabinet Minister to be nominated by the Prime Minister”, effectively giving the government the final say on who is selected.

Will today’s Selection Committee decision settle the matter of the new CEC appointment?

No, not until the Supreme Court hears petitions challenging the new appointment process. Association for Democratic Reforms has challenged the removal of the Chief Justice of India as member of the Selection Committee under the new law.

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. Although the petitioners sought an early hearing before Rajiv Kumar’s retirement, the Court scheduled it for February 19, a day after his exit. However, SC judge Surya Kant assured the petitioners that “consequences” of the court’s decision on the validity of the new Act would apply even if appointments were made in the interim period.