In March, the Supreme Court’s constitution bench, led by Justice KM Joseph, issued a significant ruling regarding the selection of election commissioners. The decision outlined that a committee consisting of the Prime Minister, the Leader of the Opposition, and the Chief Justice should oversee the appointment process until Parliament enacts a law specifying the procedure. The primary point of contention revolves around the composition of this selection committee.
Upon scrutinising the Constituent Assembly debates during the Constitution’s framing, the bench concluded that the framers’ intent was for Parliament to legislate on the appointment of election commissioners, rather than leaving this responsibility solely to the executive branch.
In the case of Anoop Baranwal v Union of India, the Supreme Court underscored the framers’ vision of establishing an independent Election Commission with appointments governed by law, free from executive discretion.
The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 will directly contradict the Supreme Court’s directive, advocating for the Election Commission’s selection by a panel comprising the Prime Minister, the Leader of the Opposition, and the Chief Justice of India (CJI). If the bill is enacted, it will stand to override the Supreme Court’s explicit guidance.
The validity of the appointment of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs) will not be affected by any vacancy or defect in the constitution of the Selection Committee.
The Selection Committee comprises of :
- The Prime Minister, serving as the Chairperson,
- The Leader of the Opposition in Lok Sabha as a member. If the Leader of the Opposition in Lok Sabha is not recognized, the leader of the single largest opposition party in Lok Sabha assumes this role.
- A Union Cabinet Minister nominated by the Prime Minister as a member.
A significant amendment includes a provision safeguarding the CEC and ECs from legal proceedings related to actions taken during their tenure, provided such actions were carried out in the discharge of official duties. The objective of this amendment is to protect these officials against civil or criminal proceedings arising from their official functions.
IMPACT OF THE BILL:
- Transparency and Independence:
- Allowing the Selection Committee’s recommendations to remain valid in the presence of a vacancy raises concerns about potential dominance by members of the ruling party, compromising the diversity and independence of the committee.
- With the inherent security of the Prime Minister’s and a cabinet minister’s positions, the sole potential vacancy in the Leader of the Opposition role may lead to an exclusive ruling party representation in the committee during critical decision-making phases, raising worries about a lack of opposition influence.
- A shift from Judicial Benchmark to Executive Control:
- Aligning the salaries of the CEC and ECs with that of the Cabinet Secretary, whose compensation is determined by the executive, raises apprehensions about potential government influence.
- Unlike the fixed salary of a Supreme Court Judge determined by an Act of Parliament, this shift may jeopardize the financial independence of the EC.
- Limiting Eligibility to Civil Servants:
- Restricting eligibility to individuals with a background equivalent to the Secretary to the government may exclude highly qualified candidates, limiting diversity in the Election Commission of India (ECI).
- Given the quasi-judicial role of the Election Commission, the eligibility criteria may overlook individuals with diverse backgrounds and expertise, impacting the ECI’s ability to adjudicate effectively.
- Concerns About Lack of Parity:
- The disparity in removal processes between the CEC and ECs, with the CEC following the Supreme Court Judge removal provision while ECs require the CEC’s recommendation, raises fairness concerns.
- Balance of Power:
- With the Prime Minister and a nominated Cabinet Minister forming the majority in the three-member committee, concerns arise about an imbalance of power, potentially favouring the Executive.
- The inclusion of only one Cabinet Minister, besides the Prime Minister, undermines the influence of the Leader of the Opposition, raising questions about the committee’s independence.
- Impact on Electoral Governance:
- Proposed changes may affect the autonomy and functionality of the ECI, crucial for impartial and integral election conduct.
- Perceived Executive influence in the selection process could cast doubt on the EC’s ability to fulfil its duties without bias.
- If the Bill is enacted unchanged, the appointment process may lose transparency, enabling the government to appoint a candidate of its choice shortly before scheduled elections, raising concerns about impartiality.
- Upholding the non-partisan nature of the Election Commission is imperative for maintaining public trust and ensuring fair elections, particularly in the context of increased criminal and monetary influences in politics and partisan media. There is a pressing need for an impartial appointment process for election commissioners to counteract these challenges.
