TOPIC: THE ELECTION COMMISSION OF INDIA BILL AND THE CHALLENGES TO ITS INDEPENDENCE

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THE CONTEXT: Recently, the Government has introduced the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 in the Rajya Sabha aiming to change the process of appointing the Chief Election Commissioner (CEC) and Election Commissioners (ECs). The Bill seeks to remove the Chief Justice of India (CJI) from a panel to select the CEC and ECs. This article analyses the provisions of the Bill and its implications for the independence of the ECI.

THE SALIENT FEATURES OF THE BILL

Election Commission

• As per Article 324 of the Constitution, the Election Commission consists of the Chief Election Commissioner (CEC) and such number of other Election Commissioners (ECs), as the President may decide.
• The CEC and other ECs are appointed by the President. The Bill specifies the same composition of the Election Commission.
• It adds that the CEC and other ECs will be appointed by the President on the recommendation of a Selection Committee.

Selection Committee

• The Selection Committee will consist of:

(i)        the Prime Minister as Chairperson

(ii)      the Leader of the Opposition in Lok Sabha as member

(iii)     a Union Cabinet Minister nominated by the Prime Minister as member.

• If the Leader of Opposition in Lok Sabha has not been recognised, the leader of the single largest opposition party in Lok Sabha will assume the role.

Search Committee

• A Search Committee will prepare a panel of five people for the consideration of the Selection Committee.
• The Search Committee will be headed by the Cabinet Secretary.
• It will have two other members, not below the rank of Secretary to the central government, having knowledge and experience in matters related to elections.
• The Selection Committee may also consider candidates who have not been included in the panel prepared by the Search Committee.

Qualification of CEC and ECs

• Persons who are holding or have held posts equivalent to the rank of Secretary to the central government will be eligible to be appointed as CEC and ECs.
• Such persons must have expertise in managing and conducting elections.

Salary and allowances

• The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 provides that the salary of the ECs will be equal to that of a Supreme Court judge.
• The Bill provides that salary, allowance, and service conditions of the CEC and other ECs will be the same as that of the Cabinet Secretary.

Term of office

• The 1991 Act mandates that the CEC and other ECs will hold office for a term of six years or until they reach the age of 65 years, whichever is earlier.
• If an EC is appointed as the CEC, his total term cannot exceed six years.
• The Bill retains the same tenure.  Further, under the Bill, the CEC and other ECs will not be eligible for re-appointment.

Conduct of business

• All business of the Election Commission is to be conducted unanimously.
• In case of difference of opinion between the CEC and the other ECs on any matter, it shall be decided through majority.

Removal and resignation

• Under Article 324 of the Constitution, the CEC can only be removed from his office in a manner similar to that of a Supreme Court judge.
• This is done through an order of the President, based on a motion passed by both Houses of Parliament in the same session.
• The motion for removal must be adopted with:

(i)        majority support of total membership of each House

(ii)      At least two-thirds support from members present and voting.

• An EC can only be removed from office on the recommendation of the CEC.  The Bill retains this removal procedure.
• Further, the 1991 Act provides that the CEC and other ECs may submit their resignation to the President.  The Bill has the same provision.

THE BACKGROUND OF THE BILL

• On 2^nd March 2023, a five-judge constitution bench of the Supreme Court of India directed that the appointment of the chief election commissioner (CEC) and other election commissioners (ECs) shall be made by a “three-member committee” consisting of the Prime Minister, the leader of the opposition in the Lok Sabha (or the leader of the largest opposition party [LOP]), and the Chief Justice of India (CJI).
• This “practice” of the appointment of the CEC and the ECs on the advice of a committee was to remain in force till a law was enacted by Parliament.
• The directions came in response to a 2015 Public Interest Litigation (PIL) filed under Article 32 of the Constitution, challenging the constitutional validity of the practice of the Centre-appointed members of the Election Commission.
• PIL requested the court to “consider the true effect of Article 324,” especially Article 324(2), which provides for the appointment of the CEC and other ECs by the President “subject to any law made by Parliament.
• The petitioners sought a law for ensuring a fair, just and transparent process of selection by constituting a neutral and independent collegium/ selection committee.

The Petitioners Highlighted:

√ Appointment done solely by the Executive; practice incompatible with Article 324(2)

√ No law to regulate appointment of Election Commissioners

√ There has been inaction by the government in not making appropriate law.

√ Financial independence is not enough to ensure overall independence.

• Earlier in 2018, a two-judge bench of the SC referred the case to a larger bench since it required a close examination of Article 324 of the Constitution, which deals with the role of a Chief Election Commissioner.
• Article 324(2) reads: “The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time-to-time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.”
• However, since there was no law made by Parliament as prescribed by the Constitution, the Court stepped in to fill the “constitutional vacuum”.
• The Bill now seeks to address this vacuum and set up a legislative process to make appointments to the EC.

HOW THE MEMBERS OF THE ECI HAVE BEEN APPOINTED SO FAR?

The appointment of EC members has historically been a central government privilege. The President appoints the CEC and other ECs on the recommendation of the Council of Ministers. So essentially, the ECI selection panel has always been an executive domain. There is a database of serving/retired officers of the rank of Secretary to the Government of India/Chief Secretaries. The appointees are selected from the said database.  The Law Minister suggests a pool of suitable candidates to the Prime Minister for consideration. The President makes the appointment on the advice of the PM.

 THE ECI BILL AND THE INDEPENDENCE OF ELECTION COMMISSION

The new Bill has a clause that indicates LoP will either be disregarded or ignored when choosing the Chief Election Commissioner (CEC) and other Election Commissioners (ECs) and would be selected by the political executive belonging to the ruling party.  This primacy of executive can undermine the independence of the institution which is enshrined in the constitution. As per the provisions, Section 6 of the Bill establishes a search committee composed of two secretaries and the Cabinet secretary as its chairman. This provision of the search committee and the five candidates that it has been mandated to shortlist is matter of concern. Because it indicates that only a handful of high-level bureaucracy hold its control over commission.

Another provision, Section 8(2) of the Bill lays down that the selection committee can regulate its own procedure for selecting the CEC or other ECs. It authorises this committee to consider any other person than those included in the panel by the search committee. This means the selection committee can go beyond the search committee’s recommendations and appoint anyone it wants as CEC/EC thus making the entire search process meaningless. When the process is opaque like that and only few people controlling the procedure, it compromises with the independence of the commission as they tend to be subservient to the people selecting them.

As per current provision, The CEC’s status and salary are equivalent to those of a SC judge. However, the Bill seeks to downgrade it, making it equivalent to a cabinet secretary. The primary intent of the constitution makers was based on the fact that Election commission should be outside the control of the executive to ensure its independence and efficiency. However, the proposed bill is not aligned to this and thereby endangering the very purpose for which the commission is being constituted. The ECI needs to be independent and fully insulated from any external or internal disruption environment to instill sufficient confidence among the political parties and the public and allow the commission to hold elections in a free and fair manner.

DOES THE BILL VIOLATE SC JUDGEMENT?

• The Supreme Court in March ordered the formation of a panel to advise on the appointments to the Election Commission until Parliament makes a law for the establishment of an independent selection panel.
• To insulate the panel from political pressure or executive overreach, the SC said the panel will comprise the prime minister, the Lok Sabha’s leader of opposition (LoP), and the Chief justice of India (CJI) until a law is enacted.
• However, the Bill replacing the CJI with a Union Cabinet minister seems to compromise the independence of the Election Commission.
• The question arises here that can the Parliament undo a decision of the Supreme Court or is it a violation of the SC Judgement?
• Though, the Parliament has the power to nullify the effect of a Court ruling by addressing the concerns flagged in the judgement. The law cannot simply be contradictory to the ruling.
• In this case, the arrangement prescribed by the Supreme Court was specifically because the Court noted that there was a “legislative vacuum.” Filling that vacuum is well within the purview of Parliament. However, the idea of an independent body that conducts elections permeates through the judgement that the Court that repeatedly stated that to be the objective of the framers of the Constitution which the bill does not seems to follow.

INTERNATIONAL EXPERIENCE OF APPOINTMENT OF ELECTION COMMISSION

• United States: In United States, six-member Federal Election Commissioners are appointed by the President and confirmed by the Senate. By law, no more than three Commissioners can represent the same political party, and at least four votes are required for any official Commission action. This structure was created to encourage nonpartisan decisions.
• Canada: In Canada, the position of Chief Electoral Officer (CEO) was created in 1920 by the Dominion Elections Act. The Chief Electoral Officer is appointed for a 10-year non-renewable term by a resolution of the House of Commons. He or she reports directly to Parliament and is thus completely independent of the government of the day and all political parties. He or she can be removed from office only for cause, by the Governor General after a joint request following a majority vote by the House of Commons and Senate.
• United Kingdom: In United Kingdom, it has been the usual practice of the Speaker’s Committee (whose membership drawn from MPs within the Parliament) to recommend the appointment of Electoral Commissioners for a four-year term and, if re-nominated by the party leader and found appropriate by the Committee, to recommend re-appointment for a further four-year term, giving an ordinary maximum term of eight years. There is no presumption in the statute either for or against re-appointment. The candidates for these posts are then approved by the House of Commons and further appointed by the Monarch.
• France: In France, the nine-member Constitutional Council oversees the election of the President of the Republic and referenda. The French President and the presidents of each of the houses of Parliament (National Assembly & Senate) appoint three members each.

RECOMMENDATIONS BY VARIOUS COMMITTEES REGARDING APPOINTMENTS

There have been a number of committees which have examined the issues pertaining to our electoral system and made a number of recommendations. Few of them are mentioned here:

1. Goswami Committee Report, 1990

• • The Election Commission should be a multi- member body with three members.
  • The Chief Election Commissioner should be appointed by the President in consultation with the Chief Justice of India and the Leader of the Opposition (and in case no Leader of Opposition is available, the consultation should be with the Leader to the largest opposition group in the Lok Sabha).
  • The consultation process should have statutory backing.
  • The appointment of other two Election Commissioners should be made in consultation with Chief Justice of India, the Leader of the Opposition (in case no Leader of Opposition is available, the consultation should be with the Leader to the largest opposition group in the Lok Sabha) and the Chief Election Commissioner.

2. National Commission for reviewing the work of the Constitution, 2002

It was set up under the Chairmanship of the Former Chief Justice of India, M.N. Venkatachaliah. Various recommendations were made by the Commission in relation to electoral processes and political parties. One of the major recommendations regarding appointments is as follows:

• • The Chief Election Commissioner and the other Election Commissioners should be appointed on the recommendation of a Body consisting of the Prime Minister, Leader of the Opposition in the Lok Sabha, the Leader of the Opposition in the Rajya Sabha, the Speaker of the Lok Sabha and the Deputy Chairman of the Rajya Sabha.
  • It was further recommended that similar procedure should be adopted in the case of appointment of the State Election Commissioners.

3. Second Administrative Reforms Commission Report, 2007

          The Commission consisted of Shri Veerappa Moily, the then Law Minister, as its Chairperson and five other Members.

• • It recommended that the Collegium headed by the Prime Minister, with the Speaker of the Lok Sabha, the leader of the Opposition in the Lok Sabha, the Law Minister and the Deputy Chairman of the Rajya Sabha, as Members, should make recommendations for consideration of the President for appointment of the Chief Election Commissioner and the Election Commissioners.

4. 255th Law Commission Report, 2015

• • It recommended the appointments of Chief Election Commissioners (CEC) and all Election Commissioners should be made by the President in consultation with a three-member collegium or selection committee.
  • The collegium or committee shall consist of the Prime Minister, the Leader of the Opposition of the Lok Sabha (or the leader of the largest opposition party in the Lok Sabha) and the Chief Justice of India (CJI).
  • The elevation of an EC should be on the basis of seniority. If senior EC is not appointed due to unfit reasons, the three member collegium or a committee give reasons in writing.
  • It recommends that equal constitutional protection must be given to all members of the ECI in matters of removability from office.

THE WAY FORWARD

• Adhering to SC judgment: The Supreme Court in its order quoted the Law Commission Report 2015 that highlighted that the “Commission should be completely insulated from political pressure or executive interference to maintain the purity of elections, inherent in a democratic process”. Thus the bill needs to be reformed to adhere to SC judgment to ensure efficiency of the Election Commission.
• Ensuring Independence : There is need to secure the independence of the institution for its proper functioning , one way to ensure the independent functioning of ECI members, in the bench’s view, is to ensure that they are able to complete the period of tenure mandated under the EC Act.
• Ensuring transparency: The institutions still continue to operate in an opaque manner. However, to strengthen the democratic processes, the institution of the Election Commission needs to be independent and demonstrate transparency and accountability.
• Implementing committee report: There is need to implement the Goswami committee, report which, besides recommending the ECI to be a multi-member body, said the CEC should be appointed by the President in consultation with the CJI and the Leader of the Opposition (and in case no Leader of the Opposition is available, the consultation should be with the leader to the largest opposition group in the Lok Sabha). It will maintain the neutrality of the ECI and to shield the CEC and Election Commissioners from executive interference.
• Learn from international experience: There is need to learn from international experience as an examination of the practices for appointment of the head of election-conducting bodies across the world shows the trend of including members of the opposition in the process. In addition, some jurisdictions also have Constitutional functionaries such as Speakers of Parliament, and judges of the highest Court in the country, in a multi-member Committee. It not only provides a system of accountability of the ruling party but also ensures a much crucial deliberative process.

THE CONCLUSION: Democracy can only function upon the faith that elections are free and fair, and, the sovereignty of the people rests upon free elections, held on a regular basis through which people choose the representatives. Therefore, the ECI needs to be independent and fully insulated from “any external or internal disrupting environment”.

MAINS QUESTION

1. Discuss the provisions of the Election Commission of India Bill, 2023. Does the Bill undermine the independence of the institution of the Election Commission of India. Examine.
2. “Integrity institutions require independence from the executive for enforcing their watchdog role in a democracy governed by rule of law”. Comment.