Supreme Court Split on 2023 Law for Appointment of CEC and Election Commissioners

Supreme Court Split on 2023 Law for Appointment of CEC and Election Commissioners

Why in News?

• The Supreme Court has referred petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 to the Chief Justice of India for considering a larger bench. 
• The two-judge bench gave a split view on whether the matter should be heard by a Constitution Bench. 

Background

• Article 324(2) provides for the appointment of the CEC and Election Commissioners by the President, subject to any law made by Parliament.
• In Anoop Baranwal v. Union of India (2023), the Supreme Court directed that, until Parliament made a law, appointments should be based on a committee comprising the Prime Minister, Leader of Opposition and Chief Justice of India. 
• Parliament subsequently enacted the 2023 Act, replacing the CJI with a Union Cabinet Minister nominated by the Prime Minister. 

Key Issues Before the Court

• Justice Dipankar Datta held that the existing bench could decide whether the 2023 law conforms to principles already laid down in Anoop Baranwal. 
• He raised concerns that the selection committee gives substantial influence to the executive. 
• Justice Satish Chandra Sharma favoured reference to a Constitution Bench, stating that the constitutional validity of the 2023 Act had not previously been authoritatively decided. 
• The matter has therefore been placed before the CJI to consider an appropriate larger bench. 

What is a Constitution Bench?

• Under Article 145(3), a Constitution Bench must have at least five judges. 
• It deals with a substantial question concerning the interpretation of the Constitution. 
• Its decisions carry significant precedential value. 

Key Features of the 2023 Act

• Search Committee: Headed by the Union Law Minister, with two senior government officials. 
• Selection Committee: Consists of the Prime Minister, a Union Cabinet Minister nominated by the PM, and the Leader of Opposition in Lok Sabha. 
• Candidates must have relevant experience in election management and must have held a post equivalent to Secretary to the Government of India. 
• The tenure is six years or until the age of 65 years, whichever is earlier, subject to the statutory provisions. 
• Legal Protection: Protects serving and former CECs/ECs from civil or criminal proceedings for actions or statements made while performing their official constitutional/statutory duties.

Forms For Registration in Electoral Roll

• The Election Commission of India (ECI) is responsible for preparing and revising electoral rolls under Article 324 of the Constitution. This process is also regulated by Section 21 of the Representation of the People Act, 1950. The Registration of Electors Rules, 1960 (RER, 1960) prescribe different forms for registering voters, making changes, raising objections, and maintaining electoral rolls.

• Form 6: Used by a person seeking registration as a new elector. Under Section 19 of the Representation of the People Act, the qualifying dates for determining eligibility on attaining 18 years are 1 January, 1 April, 1 July and 1 October of the year in which the electoral roll is prepared or revised. 

• Form 6A: Used for registration of an Overseas Elector. An Indian citizen residing outside India due to education, employment or other reasons can register in the constituency corresponding to the address mentioned in their passport. 
• Form 7: Used to object to the inclusion or seek deletion of a name from an electoral roll. A registered elector can use it to object to another person's inclusion or to request deletion of their own name. 
• Form 8: Used by an existing elector for shifting residence or correcting details in the electoral roll. 
• Form 5: Used by the Electoral Registration Officer (ERO) to publish the draft electoral roll. 
• Form 9: Contains the list of applications for inclusion of names received through Form 6. 
• Form 10: Contains the list of objections to the inclusion of names received through Form 7. 
• Form 11: Contains the list of objections or applications for correction of entries received through Form 8. 
• Form 11A: Contains applications for shifting an address within the same constituency, received through Form 8. 
• Form 11B: Contains applications for shifting an address from one constituency to another, received through Form 8. 

Forms 9 to 11B are prepared and published by the Electoral Registration Officer (ERO).

Practice Question

Q. With reference to the appointment of Election Commissioners and electoral-roll forms in India, consider the following statements:

1. The Anoop Baranwal judgment prescribed a selection committee comprising the Prime Minister, Leader of Opposition in the Lok Sabha and Chief Justice of India, until Parliament enacted a law on the matter. 
2. Under the 2023 Act, the Selection Committee consists of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the Lok Sabha. 
3. Form 7 is used for objecting to the proposed inclusion of a name or seeking deletion of an existing entry from the electoral roll. 
4. Form 8 can be used for shifting residence within or outside a constituency as well as for correction of entries in the electoral roll. 

Which of the statements given above are correct?

(a) 1 and 2 only
 (b) 1, 3 and 4 only
 (c) 2, 3 and 4 only
 (d) 1 and 4 only

Answer: (b) 1, 3 and 4 only

Explanation

• In Anoop Baranwal v. Union of India, the Supreme Court prescribed a committee comprising the Prime Minister, Leader of Opposition and CJI until Parliament enacted a law. Hence, Statement 1 is Correct. 
• The 2023 Act replaced the CJI with a Union Cabinet Minister nominated by the Prime Minister in the Selection Committee. Hence, Statement 2 is Incorrect. 
• Form 7 is used for objecting to a proposed inclusion or seeking deletion of an existing entry from the electoral roll. Hence, Statement 3 is Correct. 

Form 8 is used for shifting residence within or outside a constituency and for correction of particulars in the electoral roll. Hence, Statement 4 is Correct.