[Answered] Critically examine the flaws in The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, and discuss its implications on free and fair elections in India.

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 was enacted as the first statutory law under Article 324(5) of the Indian Constitution, dealing with the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs).

Key Flaws in the Bill

• Government-Controlled Selection Committee: The bill mandates a three-member selection committee consisting of: The Prime Minister (Chairperson), LoP in the Lok Sabha & cabinet minister nominated by the Prime Minister.
• Lack of Transparency in Shortlisting Candidates: A search committee, led by the Law Minister and two senior bureaucrats, prepares a list of five eligible candidates. The lack of public disclosure of shortlisted candidates raises concerns about arbitrariness and potential favoritism in the selection process.
• Undermining Institutional Autonomy: The bill mandates that the President must appoint the CEC and ECs based on the committee’s recommendation, leaving no room for independent scrutiny.
• Potential Violation of Article 14 (Right to Equality): By ensuring that the government-backed candidate always secures selection, the bill disregards fair competition among eligible candidates.
• Departure from Global Best Practices: Many democracies, including the United States, Canada, and South Africa, ensure bipartisan or judicial participation in electoral appointments. The removal of the CJI from the selection panel weakens India’s commitment to global democratic norms.

Implications of Free and Fair Elections

• Erosion of Electoral Credibility: If the Election Commission is perceived as aligned with the government, public trust in the neutrality of election processes will erode. The credibility of election outcomes may be questioned, leading to democratic instability.
• Political Influence in Electoral Decisions: A government-backed Election Commission may hesitate to take strict action against ruling party violations of the Model Code of Conduct (MCC). Selective enforcement of election rules could create an uneven playing field for opposition parties.
• Weakening of the Basic Structure Doctrine: The Supreme Court has ruled that free and fair elections form a part of the basic structure of the Constitution. Any law that compromises electoral fairness could be struck down as unconstitutional.
• Threat to Democratic Institutions: If the government gains undue control over the Election Commission, it sets a precedent for similar interference in other independent institutions like the judiciary and CAG. This could weaken the broader institutional checks and balances essential for democracy.

Conclusion

The CEC and ECs Appointment Bill, 2023 suffers from serious constitutional infirmities, primarily due to executive dominance in the selection process. By replacing the CJI with a cabinet minister, the bill creates a structural bias in favor of the ruling government, undermining the independence of the Election Commission. To uphold electoral integrity, it is crucial to revise the selection process, ensuring a balanced and independent appointment mechanism.