Explained | All about the Bill to select election commissioners and India's stance

Previously, as per the 1991 act, their salary was equal to that of a judge of the Supreme Court.

- Union Cabinet Minister will be nominated by the Prime Minister

- Where the LoP in Lok Sabha has not been recognised as such, the leader of the single largest opposition party shall be deemed to be the LoP.

The bill clarifies that "the said norm provided by the Supreme Court will continue to hold good till a law is made by the Parliament".

On March 2, a five-judge bench of the Supreme Court directed for the formation of an independent panel which will advise on appointments of ECs, including the CEC.

- Prime Minister of India

- Leader of Opposition in Lok Sabha or the leader of the largest opposition party

- Chief Justice of India

The Supreme Court in its order quoted the Law Commission Report 2015 that highlighted that the "Commission should be completely insulated from political pressure or executive interference to maintain the purity of elections, inherent in a democratic process".

Justice KM Joseph, who wrote the judgment observed, "A person, who is in a state of obligation or feels indebted to the one who appointed him, fails the nation and can have no place in the conduct of elections, forming the very foundation of the democracy. An independent person cannot be biased."

The Supreme Court order highlighted that the guidelines shall be in effect until the Parliament makes a law in consonance with Article 324(2) of the Constitution.

It provides for the Election Commission of India. Clause 2 states that "the appointment of the CEC and other ECs shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President".

A law that was never put in place.

A clutch of writ petitions filed under Article 32 of the Constitution sought among other things, a law for ensuring a fair, just and transparent process of selection by constituting a neutral and independent collegium/ selection committee.

- Appointment done solely by the Executive, practice incompatible with Article 324(2)

- No law to regulate appointment of Election Commissioners

- There has been inaction by the government in not making appropriate law

- Financial independence not enough to ensure overall independence

There was no specific legislation. The President approved appointments on the advice of the PM-headed Council of Ministers.

The Statement of Objects & Reasons states that the Election Commission Act 1991 do not contain provisions regarding the qualifications, search committee for preparing panel of persons for consideration and recommendation.

Former CEC TS Krishnamurthy told CNBC-TV18, "It is the prerogative of the government to not include the CJI, but they could have considered including the Lok Sabha Speaker instead of a Cabinet Minister." He added, "The Bill gives an impression that the ECI's status has been downgraded. Will the ECs continue to be equated to SC judges in terms of privileges and perquisite? This may have to be clarified."

The appointment of EC members has historically been a central government prerogative. The President appoints the CEC and other ECs on the recommendation of the Council of Ministers. So essentially, the ECI selection panel has always been an executive domain.

The Centre, in November 2022, had told the Supreme Court that they oppose the collegium-type system with the CJI as one of its members. Appearing for the Centre, Solicitor General Tushar Mehta said, "A presupposition that only with the presence of the judiciary, independence and fairness will be achieved, that is an incorrect reading of the Constitution."

The BJP-led government and the Supreme Court has been at loggerheads over the collegium system of judges' appointment. The issue of appointment, elevation and transfer of SC and high court judges are in the domain of a collegium, comprising the CJI and four senior-most judges. Former Law Minister Kiren Rijiju has been critical of the judiciary for stonewalling the government's push to ensure executive influence in judges' appointment.

The collegium system was a result of a number of judicial pronouncements over the years.

United States: The 6-member Federal Election Commissioners are appointed by the President and confirmed by the Senate.

Canada: The Chief Electoral Officer is appointed for a 10-year non-renewable term by a resolution in the House of Commons. The person reports directly to the President.

United Kingdom: Speaker's Committee with membership drawn from MPs within the Parliament, oversees the recruitment. The candidates for these posts are then approved by the House of Commons and appointed by the Monarch.

Germany: The top election regulator, the Federal Returning Officer & his/her deputy are appointed by Federal Ministry of the Interior for an indefinite time. The work of the electoral committees is essentially supervised by the general public as all their decisions are taken in public meetings and afterwards announced publicly by the returning officers.

France: The 9-member Constitutional Council oversees the election of the President of the Republic and referenda. The French President and the presidents of each of the houses of Parliament (National Assembly & Senate) appoint three members each.