Explained: Does the CEC have veto power? How the Election Commission of India decides | Today’s news
The Supreme Court on September 23 referred petitions challenging the 2023 Act regulating the process of appointment of Chief Election Commissioners and Election Commissioners to a larger bench, legal news website LiveLaw reported.
The development came amid a political tussle after an Indian Express report highlighted the objections raised by the two Electoral Commissioners during several decisions during the implementation of the Special Intensive Review (SIR) of the electoral rolls.
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Two of the three members of the Election Commission, Sukhbir Singh Sandhu and Vivek Joshi, have raised objections at least 14 times in 10 months against decisions related to the introduction of SIR, according to an Indian Express report.
Quick answers to key questions
•5 QUESTIONS
The Chief Election Commissioner (CEC) heads the Election Commission of India, which is responsible for supervising, managing and controlling the country’s elections and ensuring that they are conducted in a fair and impartial manner.
Calls for CEC Gyanesh Kumar’s removal stem from allegations that he acted unilaterally and ignored the dissent of other election commissioners on major decisions, leading to concerns about the integrity of the election process.
The Election Commission of India operates as a multi-member body, where decisions are usually taken by majority vote between the CEC and two Election Commissioners, with no member having a veto.
Section 7 establishes a selection committee for the appointment of the CEC and Election Commissioners consisting of the Prime Minister, a Union Cabinet Minister and the Leader of the Opposition, effectively changing the previous process that involved the Chief Justice of India.
A special intensive review (SIR) is an electoral roll verification process aimed at identifying irregularities in the electoral rolls. It has sparked controversy over concerns of mass voter erasure and allegations of mistreatment in its implementation.
During the SC hearing on Wednesday, though a two-judge bench of Justice Dipankar Datta and Justice Satish Chandra Sharma disagreed on whether the matter should be referred, finally ordered that it be referred to the CJI to constitute a Constitution Bench of adequate strength to avoid further delay.
In July, the court reserved its decision on whether the question of the constitutionality of the law regulating the appointment of the Chief Electoral Commissioner and the Electoral Commissioners should be referred to the Constitutional Court.
The grounds of appeal challenge Section 7 of the Act, according to which the selection committee consists of the Prime Minister, a union cabinet minister appointed by the Prime Minister and the leader of the opposition.
Demands removal of CEC Gyanesh Kumar
The Indian Express report sparked a political row with the Congress party that Gyanesh Kumar has no right to remain in office and must resign. Many leaders also demanded Kumar’s removal and impeachment.
The Election Commission of India, in its response to the Indian Express report, defended its decision-making process, saying that different opinions and insights within the institution are a normal part of deliberation before taking a final decision.
Both the Indian Express report and the Supreme Court hearing have revived questions about the division of power between the Chief Election Commissioner (CEC), currently Gyanesh Kumar, and the other two members of the Election Commission of India (ECI). This will also focus on how the commission makes a decision in the event of a disagreement
How does the electoral commission work?
The Election Commission of India is a permanent constitutional body. The panel was established in accordance with the constitution on 25 January 1950.
Originally, the commission had only a chief election commissioner. It currently consists of a Chief Election Commissioner and two Election Commissioners.
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Two additional commissioners were first appointed on 16 October 1989, but served only briefly until 1 January 1990. Later, on 1 October 1993, two more election commissioners were appointed. Since then, the concept of a multi-member commission with decision-making authority by majority vote has been in place.
How are CECs and ECs appointed?
Until 2023, the President appointed the Chief Election Commissioner (CEC) and the Election Commissioner on the recommendation of the Union Council of Ministers. This arrangement was challenged by petitioners who argued that the process allowed the government to select commissioners.
In Anoop Baranwal v. Union of India, a five-judge Constitution Bench held in 2023 that the commission must be insulated from the influence of the executive. The bench ordered that until Parliament takes a decision on the matter, a committee comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India will select the CEC and the Election Commissioner.
Parliament passed the law within months. Chief Election Commissioner and other Election Commissioners (appointment, terms of service and term of office) Act, 2023passed in December of that year.
The Act thus replaced the CJI in the Selection Committee with a Union Cabinet Minister nominated by the Prime Minister. The government thus received two representatives in the three-member panel in addition to the leader of the opposition.
What is Section 7 of the Act?
Section 7 of the Act establishes a Selection Committee consisting of the Prime Minister as Chairman, the Leader of the Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Government. Prime minister.
The President of the Senate is no longer a member of the Senate, as was the case before 2023.
Petition The Association for Democratic Reforms (ADR) and others challenged the law in the Supreme Court saying it was against the spirit of the Anoop Baranwal judgment.
The court has so far refused to stay the law or appointments under it, including those of Kumar and Sandhu, who were both appointed as Election Commissioners in March 2024. (Kumar became CEC in February 2025).
IN Anoop Baranwal In Union of IndiarulingThe Constitution Bench noted that Parliament had not enacted a law regulating the appointment to the Election Commission, despite Article 324 of the Constitution contemplating such appointment.
What is Article 324 of the Constitution?
Article 324 of the Constitution of India deals with the supervision, management and control of elections to be entrusted to the Election Commission
Article 324(1) of the Constitution entrusts the Electoral Commission with the “supervision, management and control of the preparation of electoral lists and the conduct of all elections” to Parliament, state legislatures and the offices of the President and Vice President.
The committee conducts role reviews such as Special intensive revision (SIR), under this provision, read with sections of the Representation of the People Act, 1950.
The Supreme Court in the case of Mohinder Singh Gill v. Chief Election Commissioner (1977) interpreted Article 324 to confer power on the Commission to act even though Parliament had not enacted specific laws on the subject. The commission could decide if its actions did not conflict with applicable laws. The Electoral Commission enforces Model Code of Conduct (MCC) under this authority.
Article 324(2) says that the commission “shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time determine”.
The commission had a single member from 1950 to 1989. In October 1989 it became a multi-member body, in January 1990 it switched to a single ÚVK. Since October 1993, it has consisted of one ÚVK and two election commissioners.
Does the CEC have veto power?
The Electoral Commission is supposed to function as a collegial, multi-member body, in which two electoral commissioners share decision-making with the ÚVK as colleagues.
So in 1995 Chief Election Commissioner TN Seshan challenged the 1993 law. The court rejected this challenge, stating that after the election commissioners are appointed, the commission functions as a multi-member body in which the ÚVK has no primacy or veto.
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The procedure was set out in the Electoral Commission (Conditions of Service of Electoral Commissioners and Business Transactions) Amendment Act 1991 of 1993. Under this Act, the Commission acted unanimously as far as possible.
Disagreements between the ÚVK and election commissioners were decided by a majority. The Commission could distribute the trades among its members by unanimous decision.
The Act of 2023 repealed the 1991 law but retained majority rule.
