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Appointment of the Chief Election Commissioner and Election Commissioners
Context:
The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, marks the first legislative framework enacted by Parliament under Article 324(5) of the Constitution.
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- This law governs the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs).
- It was introduced in response to a Supreme Court directive issued in March 2023, which stipulated that these appointments should be based on recommendations from a high-powered committee comprising the Prime Minister, the Leader of Opposition (LoP) in the Lok Sabha, and the Chief Justice of India (CJI).
- This arrangement was intended as an interim measure until Parliament formulated a formal law on the subject.
- Historically, the CEC and ECs were appointed by the President of India on the Prime Minister’s recommendation, a process deemed unsatisfactory by the Supreme Court.
Controversy Over the New Law
- Modification: While the government introduced the new law in compliance with the Supreme Court’s direction, it made a crucial modification: replacing the CJI with a cabinet minister nominated by the Prime Minister in the selection committee.
- The three-member committee now consists of the Prime Minister (as chairperson), the LoP, and a cabinet minister.
- This alteration has sparked legal challenges, as it deviates from the Court’s directive, which had explicitly included the CJI as a member of the selection panel.
- Search Committee: Under the new law, a search committee led by the Law Minister, along with two senior bureaucrats from the Union government, compiles a list of five eligible candidates for consideration.
- The names of these candidates have not been made public.
- In a recent selection, the senior-most EC was appointed as the CEC, with the decision made by the Prime Minister and the Home Minister, despite dissent from the LoP, who advocated delaying the process until the Court adjudicated on the law’s validity.
- Nevertheless, the government proceeded with the appointments in accordance with the procedure outlined in the legislation.
Concerns Over the Selection Process
- Article 324: The Constitution entrusts the Election Commission of India with the responsibility of conducting elections to Parliament and State legislatures, overseeing presidential and vice-presidential elections, and preparing electoral rolls under Article 324.
- Plenary Powers: To effectively discharge these duties, the ECI is granted plenary powers.
- In the landmark case Election Commission of India vs. State of Tamil Nadu and Others (1993), the Supreme Court emphasised that the ECI is a high constitutional authority with the mandate to ensure free and fair elections and maintain the purity of the electoral process.
- Selection Committee: A significant issue with the new law is the composition of the selection committee.
- According to Section 7 of the Act, the President must appoint the CEC and ECs based on the committee’s recommendations, effectively making the selection committee the final authority in these appointments.
- Government-Majority: The most glaring flaw in this arrangement is that the law structurally ensures a government-majority within the selection panel.
- Since the third member is a cabinet minister under the Prime Minister, the government effectively controls two out of the three votes, thereby eliminating any real deliberation or objective assessment.
- PM’s Powers: Furthermore, allowing the Prime Minister to nominate one of the committee members creates an inherent conflict of interest.
- Members of the selection committee should be independent and capable of exercising free judgment. However, a cabinet minister, being directly accountable to the Prime Minister, is unlikely to oppose the Prime Minister’s decision.
Implications for Free and Fair Elections
- These structural deficiencies render the law constitutionally questionable.
- The law compromises the fairness and objectivity of the selection process.
- This raises concerns under Article 14 of the Constitution, which guarantees equality before the law.
- If the selection process ensures a perpetual majority for the government in power, the independence of the ECI is at risk, thereby jeopardising the credibility of elections in India.
