Why in News?
  
The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 was introduced in Rajya Sabha.
It repeals the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.
 
Basics about Election Commission:  
The Election Commission of India (ECI) is an autonomous constitutional authority responsible for administering Union and State election processes in India.
It was established in accordance with the Constitution on 25th January 1950 (celebrated as national voters' day). The secretariat of the commission is in New Delhi.
The body administers elections to the Lok Sabha, Rajya Sabha, and State Legislative Assemblies in India, and the offices of the President and Vice President in the country.
It is not concerned with the elections to panchayats and municipalities in the states. For this, the Constitution of India provides for a separate State Election Commission.
 
Constitutional Provisions: 
Part XV (Article 324-329) of the Indian Constitution: It deals with elections and establishes a commission for these matters.
  
Article 324: Superintendence, direction and control of elections to be vested in an Election Commission.
  
Article 325: No person to be ineligible for inclusion in, or to claim to be included in a special, electoral roll-on grounds of religion, race, caste or sex.
  
Article 326: Elections to the House of the People and to the Legislative Assemblies of States to be based on adult suffrage.
  
Article 327: Power of Parliament to make provision with respect to elections to Legislatures.
  
Article 328: Power of Legislature of a State to make provision with respect to elections to such Legislature.
  
Article 329: Bar to interference by courts in electoral matters.
  
Structure of ECI:
·         Originally the commission had only one election commissioner but after the Election Commissioner Amendment Act 1989, it was made a multi-member body.
·         The Election Commission shall consist of the Chief Election Commissioner (CEC) and such number of other election commissioners, if any, as the President may from time-to-time fix.
·         Presently, it consists of the CEC and two Election Commissioners.
·         At the state level, the election commission is helped by the Chief Electoral Officer who is an IAS rank Officer.
 
Appointment & Tenure of Commissioners: 
·         The President appoints CEC and Election Commissioners.
·         They have a fixed 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 (SC) of India.
 
Removal: 
·         They can resign anytime or can also be removed before the expiry of their term.
·         The CEC can be removed from office only through a process of removal similar to that of a SC judge by Parliament that is on the grounds of Proved Mis behaviour or Incapacity.

Limitations:  
·         The Constitution has not prescribed the qualifications (legal, educational, administrative or judicial) of the members of the Election Commission.
·         The Constitution has not specified the term of the members of the Election Commission.
·         The Constitution has not debarred the retiring election commissioners from any further appointment by the government.
 
Powers and Functions of ECI: 
Administrative:
·         To determine the territorial areas of the electoral constituencies throughout the country on the basis of the Delimitation Commission Act of Parliament.
·         To prepare and periodically revise electoral rolls and to register all eligible voters.
·         To grant recognition to political parties and allot election symbols to them.
·         Election Commission ensures a level playing field for the political parties in election fray, through strict observance by them of a Model Code of Conduct evolved with the consensus of political parties.
·         It decides the election schedules for the conduct of elections, whether general elections or bye-elections.
 
Advisory Jurisdiction & Quasi-Judicial Functions: 
·         Under the Constitution, the Commission has advisory jurisdiction in the matter of post-election disqualification of sitting members of Parliament and State Legislatures.
·         The opinion of the Commission in all such matters is binding on the President or, as the case may be, the Governor to whom such opinion is tendered.
·         Further, the cases of persons found guilty of corrupt practices at elections which come before the SC and High Courts are also referred to the Commission for its opinion on the question as to whether such person shall be disqualified and, if so, for what period.
·         The Commission is vested with quasi-judicial power to settle disputes relating to splits/ mergers of recognised political parties.
·         The Commission has the power to disqualify a candidate who has failed to lodge an account of his election expenses within the time and in the manner prescribed by law.

Supreme Court Verdict on Appointment of CEC:  
Recently in March, 2023, A five-judge bench of the Supreme Court (SC) unanimously ruled that the appointment of the Chief Election Commissioner and the Election Commissioners shall be made by the President on the advice of a Committee consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha and Chief Justice of India (CJI).
In case no leader of Opposition is available, the leader of the largest opposition Party in the Lok Sabha in terms of numerical strength will be a part of such committee.
  
Why Supreme Court ruled like this?
SC stated that a reading of the debates of the Constituent Assembly (CA) on the appointment of ECI makes clear that all the members were of the clear view that elections must be conducted by an independent Commission.
While ordinarily, the court cannot encroach on a purely legislative power, but in the context of the Constitution and inertia of the Legislature and the vacuum created by it make it necessary for the court to intervene.
On the question whether process of removal should be same for CEC and the ECs, SC stated that it cannot be same as CEC has special position and article 324 becomes inoperable without CEC.
SC left the question of funding the EC, Permanent secretariat and need for expenditure to be charged on Consolidated Fund of India for the government to decide.
 
Government Argument: 
The government had argued that in the absence of such a law by parliament, the President has the constitutional power and asked the SC to exhibit Judicial restraint.
As the constitution places the power to make any law on appointment of ECI in the hands of Parliament, SC ruling on this issue poses a question of Separation of Power.
However, SC has stated that this ruling will be subject to any law made by parliament, which means parliament can bring a law to undo it.
Another view is that since there is no law made by parliament on this issue, the Court must step in to fill the “constitutional vacuum.”
Now Government’s reaction to this ruling of SC was in the form of this bill introduced in Rajya Sabha.
 
Now Let us see what changes does the Bill intends to bring in? 
The Bill specifies the same composition of the Election Commission.  It adds that the CEC and other ECs will be appointed by the President on the recommendation of a Selection Committee.
  
Selection Committee: The Selection Committee will consist of: (i) the Prime Minister as Chairperson, (ii) the Leader of the Opposition in Lok Sabha as member, and (iii) a Union Cabinet Minister nominated by the Prime Minister as member.
Note: Here Instead of CJI as a member of Selection Committee as suggested by SC, This bill replaced him with Union Cabinet Minister nominated by the Prime Minister as member.  
If the Leader of Opposition in Lok Sabha has not been recognised, the leader of the single largest opposition party in Lok Sabha will assume the role.
  
Search Committee: A Search Committee will prepare a panel of five persons for the consideration of the Selection Committee.  The Search Committee will be headed by the Cabinet Secretary.  It will have two other members, not below the rank of Secretary to the central government, having knowledge and experience in matters related to elections.  The Selection Committee may also consider candidates who have not been included in the panel prepared by the Search Committee.
  
Qualification of CEC and ECs: Persons who are holding or have held posts equivalent to the rank of Secretary to the central government will be eligible to be appointed as CEC and ECs.   Such persons must have expertise in managing and conducting elections.
  
Salary and allowances: The 1991 Act provides that the salary of the ECs will be equal to that of a Supreme Court judge.  The Bill provides that salary, allowance, and service conditions of the CEC and other ECs will be the same as that of the Cabinet Secretary.
  
Term of office: The 1991 Act mandates that the CEC and other ECs will hold office for a term of six years or until they reach the age of 65 years, whichever is earlier.  
If an EC is appointed as the CEC, his total term cannot exceed six years.  
The Bill retains the same tenure.  Further, under the Bill, the CEC and other ECs will not be eligible for re-appointment.
  
Conduct of business: All business of the Election Commission is to be conducted unanimously.  In case of difference of opinion between the CEC and the other ECs on any matter, it shall be decided through majority.
  
Removal and resignation: Under Article 324 of the Constitution, the CEC can only be removed from his office in a manner similar to that of a Supreme Court judge. 
 This is done through an order of the President, based on a motion passed by both Houses of Parliament in the same session.
 The motion for removal must be adopted with: 
(i) majority support of total membership of each House, and 
(ii) at least two-thirds support from members present and voting.  
An EC can only be removed from office on the recommendation of the CEC.  
The Bill retains this removal procedure.
Further, the 1991 Act provides that the CEC and other ECs may submit their resignation to the President.  The Bill has the same provision.
 
Mains Question: 
  Q: In order to ensure Vibrant Democratic Functioning in India, there is need for Stronger Institutions particularly ECI. In this Context, Examine the issues it is facing and also suggest a way forward?