The proposed The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 (henceforth referred to as "Bill"), must be perceived as a manifestation of a long-drawn demand for a legislative framework to determine the appointments to the Election Commission from all quarters of civil society.
However, in a rather interesting turn of events, while the Bulletin for the Special Session of the Parliament mentioned the Bill, it remained conspicuous in its absence from the agenda of the first sitting of the Special Session held on 18 September. It’s not surprising, given that certain provisions of the Bill had stirred the hornet’s nest evoking strong opposition and criticism.
One of the most prominent censures was the deliberate elimination of the Chief Justice of India (CJI) from the selection committee, effectively reversing the Supreme Court’s judgment in Anoop Baranwal v. Union of India, (2023).
The pushback on the draft of the bill is hinged upon the plausible dilution of the independence of the Election Commission, given that the proposed selection committee is likely to be an extension of the Executive. The Bill does run into major risks of Executive overreach and influence but perhaps the exclusion of the CJI isn’t really the core problem.
What are the Salient Features of the Bill?
As the first legislative attempt to realise the constitutional mandate of Article 324, the bill in itself is salient. Article 324 (2) of the Indian Constitution laid down that the appointments of the Chief Election Commissioner (CEC) and the Election Commissioners (EC) must be in accordance with a law made by the Parliament. However, seven decades since the adoption, there has been no legislation drawn to determine such appointments. Thus, this bill in fact brings some semblance of a constitutional safeguard to the opaque process that was being followed thus far.
One may attribute this to the strong diktat of the Supreme Court in its March 2023 Judgment which formed a temporary committee comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India till the time a law to this effect is passed. Accordingly, the Bill lays down the process of selection and removal of the CEC and ECs and the salaries and the transaction and disposal of businesses of the CEC and the ECs.
The Proposed Bill states that the CEC and ECs will be selected by a selection committee comprising of the Prime Minister, the Leader of the Opposition and a Cabinet Minister who would consider eligible candidates from a pool recommended by a search Committee, consisting of bureaucrats, with expertise in election matters and not below the rank of a Secretary to the Government.
It also equalises the process of removal of the CEC and ECs wherein, in the current position of law, according to Article 324 (5), the former could only be impeached, the latter could be removed upon the recommendation of the former. This made ECs bereft of the immunity enjoyed by the CEC. The current Bill proposes the same process of removal from office for CEC and ECs, i.e., the process of impeachment akin to that of a Judge of the Supreme Court.
Yet another interesting facet that the Bill brings in is the levelling of the salary of the CEC and ECs at par with that of a Cabinet Secretary.
Now the question arises as to whether the Bill adheres to the Judgment in its letter and spirit as well as the constitutional vision of Article 324. The popular perception is that it doesn’t, especially by virtue of removing the CJI from the ambit of selecting the CEC and ECs thereby according the government complete authority to play favourites.
This however may not be the germ of the problem.
What Then is the Problem With the Bill?
Besides the absence of mandated unanimity, two of the most pressing issues in the proposed bill revolve around the perceived designation of the CEC and the ECs and the potential overreach of the selection committee in terms of going beyond the recommendations of the search committee.
Dilution of the stature of the members of the Election Commission
The salary stated in the bill for CEC and ECs has been expressed at par with that of a Cabinet Secretary which earlier according to the 1991 Act, was at par with that of a Supreme Court Judge. Effectively the amount remains the same but the titular perception dilutes the dignity of the office of the CEC and the ECs and one wonders whether it implies a sense of answerability towards the Executive.
Power to select anyone outside the recommendations of the search committee
This can be a watershed of partisan and partial power play because section 8(2) of the Bill grants the selection committee the to appoint anyone beyond the recommendations of the search committee. Now the search committee has been designated to include competent officers with experience in electoral matters and who are not involved in any political parties, unlike that of the members of the selection committee.
Now to reverse the search committee’s recommendations could enable the selection committee to circumvent the due process of law and make appointments advantageous to them. The Bill’s lack of safeguards and conditions in which such lateral candidatures can be considered can set a dangerous precedent.
The lettering of the bill unequivocally establishes the dominance of the bureaucrats, especially IAS officers in the search committee and rightfully so, given the dynamic nature of their role with respect to the conduct of elections.
Hence, the conduit to facilitate lateral entries without clarity around the qualifications of the “other candidates” can become a catchment area for executive overreach over the competence of the search committee. While disputes over candidatures is a fairly plausible scenario, this bill is eerily silent on any dispute resolution processes. Parallelly, the blanket warrant to consider any candidate beyond the recommended pool of the search committee further adds to the quandary.
In the context of the tilted majority in the composition and powers of the selection committee, a scenario where overruling an eligible candidate to appoint laterally without established grounds can become common. The framing of the Rules might eventually provide the necessary procedural bulwarks.
Until then, this remains an area of major concern.
On the Absence of the CJI
The basic tenet of why any representative of the Judiciary must be kept away from any executive chores is because of the constitutional principle of separation of powers. The selection of members of the Election Commission squarely falls outside the purview of the judiciary since it does not have expertise in electoral matters. Moreover, the constitutional process of appointments and removal of members of the Election Commission is subject to judicial review.
Hence, if the CJI is involved in the selection process, any officer of the judiciary will be faced with some degree of conflict of interest when adjudicating any dispute regarding the appointments.
The 2023 composition recommended by the Supreme Court was palpably transient in nature therefore the Parliament in bringing forth the proposed bill has not defied any parts of the Judgment.
Moreover, on the question of accountability and undue influence of the government in the current composition, it must be noted that this composition is in fact an encouraging step to bring in some degree of transparency and safeguards in the process which earlier was predominantly in the hands of the government.
However, the current structure of the selection committee does not fully warrant a fair selection process either. This is because although there is the presence of the Leader of the Opposition, the Prime Minister and the Cabinet Minister’s presence tilts the power dynamics in the favour of the ruling party.
What the Bill should have done to mitigate this problem was to enforce absolute unanimity in case of decisions of the committee. The rule of majority is in fact what dilutes the impartiality of the process.
In fact, the presence of the CJI as a member of the Judiciary and not an elected representative cannot be considered a talisman for securing fairness and transparency. The controversy around the selection of the CBI director, Alok Verma reminds us of the dangers and pitfalls of involving the judiciary in executive processes.
That Article 329 of the Constitution explicitly debars the Court from interfering in electoral matters except when a petition is brought before it, emphasises the fact that the two institutions must be kept separate.
This Bill is a welcome step towards streamlining free and fair elections in India but not without caveats. So if the Parliament in fact revisits the draft of the bill before putting it out for discussion, one hopes the cracks beyond the composition of the selection committee will be probed into and plastered as necessary to protect the independence of the Election Commission as an institution.
(Yashaswini Basu is a Bangalore based lawyer. She holds a law degree from SOAS, University of London. She tweets at @yashaswini_1010. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)