The Government has introduced a bill in the Rajya Sabha to modify the appointment process of the Chief Election Commissioner (CEC) and Election Commissioners (ECs). The proposed bill aims to exclude the Chief Justice of India (CJI) from the panel responsible for selecting the CEC and ECs. This change has triggered discussions about the composition of the selection committee and its potential impact on the process’s independence.
GS II: Polity and Governance
Dimensions of the Article:
- Background of the Chief Election Commissioner Appointment Issue
- Current Process of Appointment for CEC and ECs
- Key Features of the Bill Aiming to Alter the Appointment Process of CEC and ECs
- Concerns Regarding the Proposed Changes to the Appointment Process of CEC and ECs
Background of the Chief Election Commissioner Appointment Issue
The context for the recent bill can be traced back to a series of legal developments:
Supreme Court Ruling (March 2023):
- In March 2023, the Supreme Court ruled that the Chief Election Commissioner (CEC) and Election Commissioners (ECs) would be appointed by the President of India, following the advice of a committee comprising the Prime Minister, Leader of Opposition in the Lok Sabha, and the Chief Justice of India.
- This arrangement was to be followed until a proper law was enacted by Parliament to address the appointment process.
Originating from a PIL:
- The legal process began with a 2015 Public Interest Litigation (PIL) challenging the constitutionality of the Centre-appointed members of the Election Commission.
- This PIL raised concerns about the independence of the election body.
Constitutional Article and Legal Complexity:
- Article 324(2) of the Indian Constitution outlines the composition and appointment of the Election Commission.
- It stipulates that the President shall appoint the Chief Election Commissioner and other Election Commissioners, with the provision for a law to be enacted by Parliament regarding these appointments. Since no such law had been enacted, legal ambiguity persisted.
Supreme Court Intervention:
- The case progressed over the years, and in 2018, a two-judge bench of the Supreme Court referred the matter to a larger bench due to the complexity of interpreting Article 324.
- This step was taken as the issue required a thorough examination and analysis of the constitutional article’s nuances.
Addressing the Constitutional Vacuum:
- In the absence of a parliamentary law as mandated by Article 324, the Supreme Court took the initiative to fill the “constitutional vacuum” and provide a temporary framework for CEC and EC appointments through its March 2023 judgment.
Introduction of the Bill:
- The bill introduced in the Rajya Sabha seeks to formalize the appointment process for the CEC and ECs through legislative means, thereby addressing the constitutional gap highlighted by the Supreme Court’s previous interventions.
- This legislative approach aims to establish a structured and statutory procedure for these appointments.
Current Process of Appointment for CEC and ECs
The appointment process for the Chief Election Commissioner (CEC) and Election Commissioners (ECs) in India currently lacks a well-defined legislative framework. The existing process can be summarized as follows:
- Part XV (Elections) of the Indian Constitution encompasses five articles (Article 324 to Article 329) that pertain to the conduct of elections in the country.
- Article 324 specifically grants the Election Commission the authority of “superintendence, direction, and control of elections.”
Composition of the Election Commission:
- Article 324 establishes the Election Commission as a body responsible for overseeing elections.
- It consists of the Chief Election Commissioner and other Election Commissioners, whose number can be determined by the President as required.
- Prior to the Supreme Court’s intervention in March 2023, the process of appointing the CEC and ECs was vested in the President of India.
- The President made these appointments based on the recommendations presented by the government.
Key Features of the Bill Aiming to Alter the Appointment Process of CEC and ECs
The proposed bill to amend the appointment process of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) contains several significant features:
Composition of the Selection Committee:
- The Selection Committee for appointing the CEC and ECs will comprise:
- The Prime Minister as the Chairperson
- The Leader of the Opposition in Lok Sabha (or the leader of the largest opposition party in Lok Sabha if the Leader of the Opposition position is vacant)
- A Union Cabinet Minister nominated by the Prime Minister
- The bill introduces the establishment of a Search Committee responsible for preparing a panel of five individuals to be considered for the roles of CEC and ECs.
- The Search Committee will be led by the Cabinet Secretary and include two members of the rank of Secretary, knowledgeable and experienced in electoral matters.
Non-Invalidation due to Vacancy:
- The appointments of the CEC and other ECs will not be nullified due to any vacancies or shortcomings in the composition of the Selection Committee.
Repealing of Previous Act:
- The bill proposes the repeal of the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.
- Upon passing of the new Act, the functioning of the Election Commission will be governed by the new legislation.
- The 1991 Act currently stipulates that the salary of ECs should be equivalent to that of a Supreme Court judge.
- The bill aligns the salary, allowances, and service conditions of the CEC and other ECs with those of the Cabinet Secretary.
Unanimity and Majority Decision:
- The proposed bill retains the provision that the affairs of the Election Commission should be conducted unanimously whenever feasible.
- In the event of a difference of opinion, the view supported by the majority will prevail.
Concerns Regarding the Proposed Changes to the Appointment Process of CEC and ECs
The proposed changes to the appointment process of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) have sparked concerns on several fronts:
Imbalance in Selection Committee:
- The inclusion of the Prime Minister and a Cabinet Minister nominated by the Prime Minister in the three-member committee raises concerns about the committee’s balance of power.
- With the Leader of the Opposition potentially holding a minority vote, the composition of the committee might not ensure equitable decision-making from the outset.
Impact on Independence:
- The proposed changes could potentially impact the autonomy and independence of the Election Commission of India (ECI).
- A committee with a significant representation from the Executive branch might raise questions about the ECI’s ability to function independently and free from undue influence.
Integrity of the Election Process:
- The independence of the Election Commission is paramount to ensure a fair and impartial electoral process.
- Any perception of the Executive’s involvement or influence in the selection process might undermine the ECI’s credibility in conducting elections without bias.
- The Supreme Court’s previous ruling highlighted that the framers of the Constitution intended for an independent body to oversee elections.
- Critics argue that the proposed changes might deviate from this intent by potentially giving the Executive more influence in the appointment process.
Questions About Impartiality:
- The composition of the new Selection Committee might raise questions about whether the process will lead to the appointment of individuals who can maintain impartiality and act in the best interests of conducting free and fair elections.
-Source: Indian Express