The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 is the law that regulates the appointment, salary, tenure and service conditions of the Chief Election Commissioner and Election Commissioners.
It was enacted after the Supreme Court’s Anoop Baranwal judgment, 2023, where the Court had directed that, until Parliament made a law, the CEC and ECs should be appointed on the recommendation of a committee consisting of the Prime Minister, Leader of Opposition in Lok Sabha and Chief Justice of India.
The 2023 Act replaced the earlier Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. The 1991 Act mainly dealt with service conditions and transaction of business, but did not provide a detailed appointment process.
Background
Article 324 of the Constitution provides for the Election Commission of India. It says that the Chief Election Commissioner and Election Commissioners shall be appointed by the President, subject to any law made by Parliament.
For decades, Parliament had not made a specific law on the appointment process. In practice, appointments were largely controlled by the executive.
In Anoop Baranwal v. Union of India, 2023, the Supreme Court held that the Election Commission must be insulated from executive dominance because free and fair elections are central to democracy. The Court created an interim selection mechanism involving the Prime Minister, Leader of Opposition and Chief Justice of India.
The 2023 Act was then passed by Parliament to formally create a statutory appointment mechanism.
Appointment Process
Under the 2023 Act, the CEC and ECs are appointed by the President on the recommendation of a Selection Committee.
The Selection Committee consists of:
• Prime Minister
• Leader of Opposition in Lok Sabha
• Union Cabinet Minister nominated by the Prime Minister
If there is no recognised Leader of Opposition, the leader of the single largest opposition party in Lok Sabha is included.
Before names reach the Selection Committee, a Search Committee prepares a panel of candidates. The Search Committee is headed by the Cabinet Secretary and suggests names to the Selection Committee.
This is the most debated part of the law because the Chief Justice of India, who was included in the Supreme Court’s interim arrangement, has been excluded from the final statutory committee.
Eligibility and Tenure
The Act provides that the CEC and ECs should be persons of integrity and should have knowledge and experience in the management and conduct of elections.
They should be holding, or should have held, a post equivalent to the rank of Secretary to the Government of India.
The tenure is:
• Six years, or
• Until the age of 65 years, whichever is earlier
They are not eligible for reappointment. If an Election Commissioner is later appointed as Chief Election Commissioner, the total combined tenure cannot exceed six years.
Service Conditions and Removal
The Act provides for salary, allowances and conditions of service of the CEC and ECs. The original Bill proposed that their salary and service conditions would be equivalent to that of the Cabinet Secretary, whereas earlier they were equivalent to a Supreme Court judge under the 1991 framework. PRS flagged that this could raise concerns because Cabinet Secretary-level service conditions are more closely linked with executive control.
The removal protection remains constitutionally important.
The Chief Election Commissioner can be removed in the same manner and on the same grounds as a Supreme Court judge.
Election Commissioners can be removed only on the recommendation of the Chief Election Commissioner.
This protection is meant to ensure that Election Commissioners are not removed arbitrarily by the executive.
Constitutional Debate
The main debate is whether the 2023 Act sufficiently protects the independence of the Election Commission.
Supporters of the law argue that Article 324 allows Parliament to make a law on appointments. Since Parliament has now made a law, the constitutional gap identified in Anoop Baranwal has been filled.
Critics argue that the Act gives the executive dominance in the selection process because two members of the three-member committee can come from the government side: the Prime Minister and the Union Cabinet Minister nominated by the Prime Minister.
The concern is not only actual bias but also perceived neutrality. The Election Commission conducts elections in which the ruling party is also a contestant. Therefore, its appointment process must inspire public confidence.
The core issue is whether institutional independence requires the presence of a neutral member like the Chief Justice of India, or whether Parliament has full discretion to design the committee.
Current Status
The constitutional validity of the 2023 Act has been challenged before the Supreme Court.
In May 2026, the Supreme Court began hearing petitions challenging the Act. Petitioners argued that the law creates executive dominance in appointments and weakens the spirit of the Anoop Baranwal judgment. The Court also heard concerns that the law was passed with very limited parliamentary debate.
The first appointments under the new law also became controversial because the process was completed very quickly. The Supreme Court, during hearings, remarked on the speed of Election Commissioner appointments under the new law.
Concerns
The biggest concern is executive dominance. Since the Prime Minister and a Cabinet Minister nominated by the Prime Minister are part of the committee, the government may have effective control over the appointment.
The second concern is exclusion of the Chief Justice of India. The Supreme Court’s interim arrangement included the CJI to create a more balanced and independent selection mechanism.
The third concern is the eligibility pool. Since the Act requires candidates to be or have been Secretary-level officers, critics argue that it may exclude other suitable persons with election, legal, constitutional or administrative expertise.
The fourth concern is public trust. Even if the Election Commission acts independently, the appointment process must appear impartial because elections are the foundation of democracy.
Key concerns include:
• Executive majority in the selection committee
• Exclusion of Chief Justice of India
• Limited candidate pool
• Risk to perceived independence of Election Commission
• Possible politicisation of appointments
• Tension between parliamentary power and constitutional independence
• Impact on public confidence in free and fair elections
Conclusion
The CEC & EC Appointment Act, 2023 creates a statutory process for appointing Election Commissioners, but its main controversy lies in executive dominance and exclusion of the Chief Justice of India. Its constitutional test will depend on whether the Supreme Court sees the law as a valid parliamentary framework or as a threat to the independence of India’s election management body.
