Appointments to the Election Commission – Proposed changes: Explained, pointwise

Introduction

Recently, 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. The proposed legislation for appointments to the Election Commission aims to exclude the Chief Justice of India (CJI) from the committee responsible for appointing the Chief Election Commissioner (CEC) and Election Commissioners (ECs). This action has ignited conversations about how the Bill might impact the autonomy of the appointment procedure.

What was the need for the Bill for appointments to the Election Commission?

In March, a five-judge bench of the Supreme Court unanimously ruled that a high-power committee consisting of the Prime Minister, Leader of Opposition in Lok Sabha, and the CJI must pick the CEC and ECs.

The judgement came in a 2015 public interest litigation, challenging the constitutional validity of the practice of the Centre-appointed members of the Election Commission.

In 2018, the case was referred to a larger bench since it required a close examination of Article 324 of the Constitution.

Article 324(2) reads: “The Election 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 fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.”

However, since there was no law made by Parliament as prescribed by the Constitution, the Court stepped in to fill the “constitutional vacuum”.

The Bill now seeks to address this vacuum and set up a legislative process to make appointments to the Election Commission.

How are the CEC and ECs appointed currently?

Appointments to the Election Commission are currently the central government’s prerogative.

In the absence of a legislation, the government selects CECs and ECs from the civil services.

There is a database of serving/retired officers of the rank of Secretary to the Government of India/Chief Secretaries. The appointees are selected from the said database.

The Minister of Law and Justice recommends a panel for the Prime Minister and the President from the database. The President makes the appointment on the advice of the Prime Minister.

What are the key features of the Bill for appointments to the Election Commission?

Selection Committee: The Bill states that the CEC and other ECs will be appointed by the President on the recommendation of a 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.  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.

The appointment of Chief Election Commissioner and other Election Commissioners shall not be invalid merely by reason of any vacancy in or any defect in the constitution of the Selection Committee

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.

Re-appointment: 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.

Can the Parliament undo a decision of the Supreme Court?

Parliament has the power to nullify the effect of a Court ruling by addressing the concerns flagged in the judgement. The law cannot simply be contradictory to the ruling.

Parliament has to remove the judgement’s “very basis”. In Utkal Contractors (1987), the apex court explicitly held that rendering judicial judgment ineffective through legislative powers by removing the basis of judgment is a well-known pattern of all validating laws.

In Madras Bar Association versus Union of India (2021), the Supreme Court stated that “the defect pointed out (by the judgement) should have been cured (by the validating statute) such that the basis of the judgment pointing out the defect is removed”.

In this case, the arrangement prescribed by the Supreme Court was specifically because the Court noted that there was a “legislative vacuum”. Filling that vacuum is well within the purview of the Parliament.

What are the concerns with the Bill for appointments to the Election Commission?

Functioning of selection committee: The Bill permits the selection committee to “govern its own process with transparency.” So, the methods employed by this committee are likely to remain undisclosed. The Selection Committee also retains the option to evaluate individuals beyond those initially listed by the Search Committee. This would grant the Selection Committee complete authority in determining the Election Commissioners and undermine the authority of the search committee.

Executive control: As mentioned by the Supreme court, the Constituent Assembly wanted that the election machinery should be outside the control of the executive government. The Supreme Court attempted this in its judgement but while enacting a law. The composition of the Selection Committee in the Bill raises questions on whether the process is now independent or if it remains biased in favor of the Executive. With the inclusion of the Prime Minister and a Cabinet Minister nominated by the Prime Minister within the three-member panel, the presence of the Leader of the Opposition holds lesser influence even before the process begins.

Downgrading of the status: The Bill downgrades of the status of election commissioners as well as the CEC from being at par with Supreme Court judges to that of cabinet secretary. The cabinet secretary is directly under the government. Granting election commissioners, the equivalent status of Supreme Court judges provides them with significantly greater influence in relation to the political class they interact with.

What are the positive aspects of the Bill for appointments to the Election Commission?

Search committee: The Bill has suggested that a search committee, headed by the Cabinet Secretary, should prepare a panel of names. This is an improvement on the present practice where the government can choose literally anyone.

Qualifications: Previously, there was no regulation stipulating the qualifications for appointment to the positions of CEC and ECs. The bill prescribes the qualifications and prioritizes civil servants with prior experience in conducting elections.

Inclusion of opposition: In contrast to the past practice where only the government held the decision-making authority, the inclusion of the leader of the opposition represents a positive development. This change allows for the possibility for someone to agree or disagree.

Conclusion          

In order to enhance the credibility of the appointment process, a prerequisite of a unanimous decision by the selection committee can be added to the Bill.

The Election Commission of India has stood as a prominent emblem of democracy worldwide. To uphold this reputation, comprehensive safeguards must be implemented to eliminate any potential doubts regarding its credibility.

Sources: Indian Express, The Wire, PRS