On August 10, just a day before the Monsoon Session of the Parliament came to an end, the Law minister of India, Arjun Ram Meghwal tabled the Chief Election Commissioner and other Election Commissioners (Appointment, Condition of Service, Term of Office) Bill in the Rajya Sabha. This bill comes in the backdrop of the ruling of the five-judge bench of the Supreme Court that called for a “high power committee” consisting of the Prime Minister, the Leader of Opposition in the Lok Sabha, and the Chief Justice of India for the selection of Chief Election Commissioners and other Election commissioners until a law is enacted by Parliament on their appointments.
In this regard, the Chief Election Commissioner and other Election Commissioners (Appointment, Condition of Service, Term of Office) Bill 2023 attempts to re-structure the selection procedure of the Election Commissioners. As of now, the President makes the appointment on the advice of the Union Council of Ministers headed by the Prime Minister since the Constitution does not lay down a specific legislative process for the appointment of the CEC and ECs. The bill provides for a two-step process where while in the initial process, the screening is done by a search committee headed by the Cabinet Secretary and two other members, the selection is done by the committee consisting of the Prime Minister, Leader of opposition in the Lok Sabha and a cabinet minister nominated by the Prime Minister.
It is this Select Committee that raises the controversy as it replaces the Chief Justice of India (in the Supreme Court recommended committee for appointments of CEC and other ECs) with the cabinet minister nominated by the Prime Minister. The opposition fears that politicized appointments will lead to the loss of institutional autonomy, thereby threatening of purity of the election process as the selection committee is dominated by the government in power and the dissent of the Leader of the opposition may go unheard.
Also, the existence of the clause that the Selection Committee may also consider any other person than those included in the panel by the Search Committee, further enhances the chances of interference of the political executive in the functioning of the Election Commission of India. Since free and fair elections are the prerequisites for the success of representative democracy like India, the independence of organizations like the Election Commission is a must. This selection process makes the appointment look politically biased and the Election Commissioners despite being honest and responsible towards their work, may suffer the risk of being seen through the lens of partisanship.
Moreover, in recent times the credibility of the Election Commission is increasingly being questioned and their actions are often being projected as ones favoring a particular party- be it the incidents of breach of Model Code of Conduct not only in state elections but also in the Lok Sabha elections, transfer of top officials, pointing of the crisis of credibility of the Commission by the retired bureaucrats and allegations of bias in the scheduling of elections and arbitrary deletion of names of registered voters.
Even the democracy reports published by Economist Intelligence Unit have described India as a flawed democracy in the backdrop of the growth in electoral autocracy. The judgment of the Supreme Court in this light, attempt to bring more transparency in the appointment process and uphold the image of the Election Commission as an independent and neutral institution. In this regard, the court said that an Election Commissioner should be a person who could take a stand even risking his life, and not a docile “yes-man” whom the government knew would do its bidding.
However, some constitutional experts view this formation of collegium by the Supreme Court for the appointment of Election Commissioners as a classic case of “Judicial Overreach”, as according to the Constitution under Article 324 it is the prerogative of the Executive and the Legislature to make appointment and rules and regulation in relation to the Election Commission. Despite the existence of lack of transparency in the appointment process, the previous Chief Election Commissioners who were solely appointed by the executive like T N Sheshan, and S Y Quereshi have been men of integrity and are widely credited for ushering in electoral reforms that changed the face of Indian elections.
The Electoral Integrity Project ranks Indian electoral management as one of the most trusted across the globe. The India International Institute of Democracy and Election Management under the aegis of the Election Commission of India has trained more than 100 countries including the officials of the Commonwealth on electoral management. The need is to understand that the inclusion of the judiciary in the executive process not only violates the basic principle of Separation of Power but also creates chances of conflict of interest as the Chief Justice being a part of the appointment committee shall not be able to address the grievances arising from the appointment. Even the existing collegium system which includes judges, is far from perfection, the appointment of the Director of CBI being a classic example (Rakesh Asthana case) where the Chief Justice was the part of the collegium.
Also, till date it was only the government of the day that recommended names of the Election Commissioners and Chief Election Commissioner to the President. The inclusion of the Leader of the Opposition (as per the new bill) in addition is a step towards making the selection process appear fairer and consensus-based, thereby helping to create a public perception that the person is acceptable across the party lines.
Moreover, the bill for the first time prescribes the required qualification for the post of Chief Election Commissioner and other Election Commissioners which is that the person should have held a post equivalent to the rank of secretary and shall be a person of integrity, who has knowledge of and experience in the management and conduct of elections. These rules thus bring more objectivity to the appointment process of the Election Commissioners.
Another important provision of the bill is that it brings the two other Election Commissioners at par with the Chief Election Commissioner in terms of the removal procedure. As of now, while the Chief Election Commissioner was removed in a manner similar to the impeachment of the Supreme Court judge, the other Election Commissioners were removed merely on recommendations of the Chief Election Commissioner, thus the other Election Commissioners lacked security of tenure. The bill in this regard strengthens the position of other Election Commissioners
One of the major concerns in the bill is the degradation of the status of Election Commissioners, who as per the rank in the warrant of precedence are being reduced to the level of Cabinet Secretary from the status equivalent to the Supreme Court judge. Though the salary and the conditions of service remain the same as that of a judge of the Supreme Court, the downgrading of ranks is not good optics. Election Commission by conducting free and fair elections lays down the foundation of representative democracy. Since the Election Commission is the bulwark of the democratic system, its status needs to be restored to preserve not only institutional credibility but also to uphold the global status of India as the largest democracy in the world.
The success of India’s democracy depends heavily on the electoral process, and hence the purity of the election process and the reputation of the Election Commission must be safeguarded. As rightly said by former Prime Minister Atal Bihari Vajpayee- “governments will come and go. But this country should remain, this country's democracy should remain eternally”. The way forward lies in protecting the independence and credibility of these institutions from undue political interference. The government needs to build consensus across the party lines about the bill, thereby resolving all doubts and questions arising, concerning reforms in Election Commission.
(The views expressed are personal)