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Rajya Sabha Passes Bill on Election Commission Appointment


The Rajya Sabha has passed a bill aimed at regulating the appointment of the Election Commission of India. The bill maintains the status of the Chief Election Commissioner (CEC) and two Election Commissioners (ECs) on par with judges of the Supreme Court. This comes as a modification from the earlier bill, which sought to downgrade their service conditions to align with those of a Cabinet Secretary.


GS II: Polity and Governance

Dimensions of the Article:

  1. Bill on Election Commissioners’ Status: Amendments and Key Highlights
  2. About Election Commission of India
  3. Supreme Court’s Stance on Election Commission Appointment

Bill on Election Commissioners’ Status: Amendments and Key Highlights

Passage in the Upper House:
  • The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, received approval in the Upper House of Parliament through a voice vote.
  • The bill was initially introduced in the Rajya Sabha on August 10.
  • It aimed to amend constitutional provisions equating Election Commissioners (ECs) with Supreme Court judges.
  • The proposed changes sought to align ECs’ service conditions with those of a Cabinet Secretary.
  • The bill was reintroduced on December 12, incorporating amendments to restore the status of ECs.

Key Amendments and Highlights:

Removal of CJI from Selection Panel:

  • The bill proposes replacing the Chief Justice of India with a Cabinet Minister nominated by the Prime Minister in the committee for selecting CECs and ECs.
  • Adds the Leader of Opposition in Lok Sabha as a committee member.

Selection Criteria:

  • Requires members of the ECI to have held a post equivalent to the Secretary to the Government of India.
  • Emphasizes integrity, knowledge, and experience in the management and conduct of elections.

Selection Process:

  • A Search Committee, chaired by the Law Minister, proposes a panel of names to the selection committee.
  • The Selection Committee, led by the PM, includes the Leader of Opposition and a nominated Cabinet Minister.
  • The committee may consider candidates beyond the Search Committee’s panel.

Terms and Tenure:

  • CEC and ECs’ terms remain unchanged at six years or until reaching the age of 65.
  • Salaries equate to those of Supreme Court judges.

Repeal of 1991 Act:

  • The bill repeals the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.

Decision Making in ECI:

  • Stipulates that ECI business should be transacted unanimously.
  • In case of differences, the majority’s opinion prevails.

Removal Process:

  • CEC’s removal mirrors that of an SC judge, while ECs can only be removed on CEC’s recommendation.

Protection for CECs and ECs:

  • New provision shields current and former CECs and ECs from civil or criminal proceedings related to official duties.

About Election Commission of India

  • The Election Commission of India is an autonomous constitutional authority responsible for administering Union and State election processes in India.
  • The body administers elections to the Lok Sabha, Rajya Sabha, and State Legislative Assemblies in India, and the offices of the President and Vice President in the country.
  • It is the Commission that decides the election schedules for the conduct of elections, whether general elections or by-elections.
  • ECI decides on the location of polling stations, assignment of voters to the polling stations, location of counting centers, arrangements to be made in and around polling stations and counting centres and all allied matters.
  • In the performance of its functions, the Election Commission is insulated from executive interference.
  • Part XV of the Indian constitution deals with elections, and establishes a commission for these matters.
  • The Election Commission was established in accordance with the Constitution on 25th January 1950, hence it is a constitutional body. Article 324 to 329 of the constitution deals with powers, function, tenure, eligibility, etc., of the commission and the member.

Litigations against EC

  • The decisions of the Commission can be challenged in the High Court and the Supreme Court of India by appropriate petitions.
  • By long-standing convention and several judicial pronouncements, once the actual process of elections has started, the judiciary does not intervene in the actual conduct of the polls.

Structure of the Election Commission

  • Originally the commission had only one election commissioner but after the Election Commissioner Amendment Act 1989, it has been made a multi-member body.
  • The commission consists of one Chief Election Commissioner and two Election Commissioners.
  • The secretariat of the commission is located in New Delhi.
  • At the state level election commission is helped by Chief Electoral Officer who is an IAS rank Officer.
  • The President appoints Chief Election Commissioner and Election Commissioners.
  • They have a fixed tenure of six years, or up to the age of 65 years, whichever is earlier.
  • They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court of India.
  • The Chief Election Commissioner can be removed from office only through a process of removal similar to that of a Supreme Court judge for by Parliament.

Issues with ECI

  • Flaws in the composition: The Constitution doesn’t prescribe qualifications for members of the EC. They are not debarred from future appointments after retiring or resigning.
  • No security of tenure: Election commissioners aren’t constitutionally protected with security of tenure.
  • Partisan role: The EC has come under the scanner like never before, with increasing incidents of breach of the Model Code of Conduct in the 2019 general elections.
  • Political favor: The opposition alleged that the ECI was favoring the ruling party by giving clean chit to the model code of conduct violations made by the PM.
  • Non-competence: Increased violence and electoral malpractices under influence of money have resulted in political criminalization, which ECI is unable to arrest.
Some Powers:
  • The Election Commission of India is considered the guardian of free and reasonable elections.
  • It issues the Model Code of Conduct in every election for political parties and candidates so that the decorum of democracy is maintained.
  • It regulates political parties and registers them for being eligible to contest elections.
  • It publishes the allowed limits of campaign expenditure per candidate to all the political parties, and also monitors the same.
  • The political parties must submit their annual reports to the ECI for getting tax benefit on contributions.
  • It guarantees that all the political parties regularly submit their audited financial reports.
Other powers handled by the Election Commission of India are as follows:
  • The Commission can repress the results of opinion polls if it deems such an action fit for the cause of democracy.
  • The Commission can recommend for disqualification of members after the elections if it thinks they have violated certain guidelines.
  • In case, a candidate is found guilty of dishonest practices during the elections, the Supreme Court and High Courts consult the Commission.
  • The Commission can postpone candidates who fail to submit their election expense accounts timely.

Supreme Court’s Stance on Election Commission Appointment

  • Constitution Bench Hearing:
    • A five-judge Constitution Bench of the Supreme Court was addressing multiple petitions seeking a selection process similar to that of the Director of the Central Bureau of Investigation (CBI).
  • Comparison with CBI Director’s Selection:
    • The Director of the CBI is chosen by a committee comprising the Prime Minister, Leader of the Single Largest Opposition Party, and the Chief Justice of India.
  • Court’s Disapproval in March 2023:
    • In March 2023, the Supreme Court unanimously expressed disapproval of the existing system where the Centre appoints members of the election watchdog.
  • Reference to Constitution Article 324(2):
    • Pointing to Article 324(2) of the Constitution, the Court urged Parliament to enact a law defining the criteria for selection, conditions of service, and tenure of the Chief Election Commissioner (CEC) and Election Commissioners (ECs).
  • Interim Measures by the Apex Court:
    • Until such legislation is in place, the Supreme Court established an interim arrangement.
    • Formed a panel consisting of the Prime Minister, Chief Justice of India, and the leader of the opposition to make appointments to the Election Commission.

-Source: The Hindu

March 2024