THE CONTEXT: The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 introduced a new selection process for appointing the Chief Election Commissioner (CEC) and Election Commissioners (ECs), replacing judicial oversight with a selection committee comprising the Prime Minister, a Cabinet Minister, and the Leader of Opposition. This move has sparked criticism for undermining the independence of the Election Commission, as it deviates from the Supreme Court’s 2023 directive to ensure impartiality in appointments through a high-powered committee including the Chief Justice of India.
THE BACKGROUND:
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- Historical Context: Historically, the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) was solely based on the Prime Minister’s recommendation to the President, raising concerns about executive influence and potential partisanship.
- Supreme Court Intervention (March 2023): In a landmark judgment (Anoop Baranwal v. Union of India, 2023), the Supreme Court sought to enhance the independence and impartiality of the ECI by mandating a more inclusive appointment process. The Court directed the formation of a high-powered committee comprising:
- The Prime Minister
- The Leader of Opposition (LoP) in Lok Sabha
- The Chief Justice of India (CJI)
- This interim measure aimed to balance executive prerogative with judicial oversight, ensuring a more transparent and accountable selection process.
LEGISLATIVE RESPONSE: THE CHIEF ELECTION COMMISSIONER AND OTHER ELECTION COMMISSIONERS ACT, 2023
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- In response to the Supreme Court’s directive, Parliament enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. Key provisions include:
- Selection Committee Composition:
- Prime Minister (Chairperson)
- Leader of Opposition in Lok Sabha
- A Union Cabinet Minister nominated by the Prime Minister
- Search Committee: Chaired by the Law Minister, tasked with proposing a panel of five names for consideration.
- Eligibility Criteria: Restricted to current or former Secretary-level officers, broadening the candidate pool beyond the traditional seniority-based succession within the ECI.
- Term of Office: Six years or until the age of 65, whichever is earlier, with no provision for reappointment.
THE CHALLENGES:
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- Violation of Supreme Court Directions: The 5-judge Constitution Bench (Justice K.M. Joseph) mandated a neutral selection committee (PM + LoP + CJI) to ensure institutional independence of the ECI.
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- 2023 Act’s Deviation: Replacing CJI with a Cabinet Minister (PM’s nominee) diluted judicial oversight, creating an executive-dominated committee (PM + Minister + LoP). Critics argue this undermines the separation of powers (Basic Structure Doctrine) by favoring political majoritarianism over constitutional checks.
- Judicial Backlash: Petitions by ADR and Jaya Thakur highlight the Act’s non-compliance with the SC’s interim order, terming it a “mockery of democracy”.
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- Lack of Objectivity in Selection: The PM and Cabinet Minister (both from the ruling party) form a pre-determined majority, rendering the LoP’s dissent symbolic. Recent CEC appointment (Gyanesh Kumar, 2024) was finalized despite LoP’s objections.
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- Search Committee Opacity: Headed by the Law Minister, the search committee’s non-transparent shortlisting (5 names) lacks public scrutiny, raising concerns about elitist bureaucracy dominating ECI appointments.
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- Global Contrast:
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- South Africa: Selection involves the President of the Constitutional Court and gender advocates.
- UK: House of Commons approves candidates. India’s process lacks such cross-party validation.
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- Arbitrary Composition: A Cabinet Minister (PM’s nominee) is bound by collective responsibility, making dissent improbable. In 2024, the LoP’s dissent was overruled, showcasing rubber-stamp deliberations.
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- Vacancy Clause (Section 8): This clause allows the committee to function even with vacancies, enabling PM and Minister to decide during Lok Sabha dissolution. However, this risks unilateral appointments, as seen in the 2024 EC selections.
- Financial Dependence: Salaries aligned with the Cabinet Secretary (government-decided) instead of Supreme Court judges (Parliament-decided) erode financial autonomy, creating potential for indirect coercion.
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- Violation of Article 14: The selection mechanism lacks a rational nexus between the objective (independent ECI) and means (executive-dominated panel). Legal scholars like Gautam Bhatia argue this violates the equality before law principle by favoring government-backed candidates.
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- Unequal Opportunity: Non-transparent shortlisting excludes candidates from civil society or academia, restricting diversity.
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- Basic Structure Doctrine: SC affirmed that ECI’s independence is vital for free & fair elections, a cornerstone of democracy. The 2023 Act’s structural bias threatens this basic feature, risking judicial invalidation.
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- S.R. Bommai (1994): Any law undermining democratic institutions violates the Basic Structure. Ex: Executive control over ECI could enable electoral authoritarianism.
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INFIRMITIES IN THE LAW
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- Predetermined Outcomes: The selection process under this law lacks genuine deliberation due to government dominance in decision-making. Majority decisions are predictable, undermining merit-based assessments.
- Nomination by Chairperson: Allowing the Prime Minister to nominate one member compromises independence within the panel. A Cabinet Minister cannot act independently when appointed by their superior.
- Impact on Electoral Integrity: An inherently biased selection process threatens free and fair elections. This could erode public confidence in ECI’s impartiality.
THE WAY FORWARD:
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- Reinstating Judicial Oversight: Reintroduce the Chief Justice of India (CJI) or a retired Supreme Court judge in the selection committee alongside the Prime Minister (PM) and Leader of Opposition (LoP). In South Africa, appointments to the Electoral Commission involve recommendations from an independent judicial body.
- Public Scrutiny Mechanism: Introduce public hearings for shortlisted candidates before final appointments. In Canada, parliamentary hearings scrutinize candidates for electoral positions, ensuring bipartisan consensus. The Judicial Appointments Commission in the UK conducts open interviews for judicial candidates, fostering public confidence.
- Balanced Representation in Selection Committee: Expand the selection committee to include eminent persons from civil society, retired election commissioners, or constitutional experts. A multi-stakeholder approach would ensure that appointments are not influenced solely by political considerations.
- Constitutional Safeguards through Amendment: Amend Article 324 to enshrine a balanced appointment process for ECI officials, making it immune to legislative overreach Codifying the selection process within the Constitution would prevent arbitrary changes by future governments. The Dinesh Goswami Committee (1990) and Law Commission’s 255th Report (2015) recommended a collegium-based system to institutionalize impartiality.
- Objective Criteria and Performance Metrics: Establish clear eligibility criteria and performance metrics for candidates being considered for ECI roles. Candidates must have proven expertise in electoral management or governance. Performance reviews based on parameters like voter registration rates, grievance redressal efficiency, and adherence to electoral codes.
THE CONCLUSION:
Lessons from past controversies (e.g., T.N. Seshan era reforms) highlight how strong leadership can transform institutions if backed by robust frameworks. Recommendations from committees like Dinesh Goswami (1990) and Law Commission (2015) provide a foundation for reforming appointment processes.
UPSC PAST YEAR QUESTION:
To enhance the quality of democracy in India the Election Commission of India has proposed electoral reforms in 2016. What are the suggested reforms and how far are they significant to make democracy successful? 2017
MAINS PRACTICE QUESTION:
“The independence of the Election Commission of India (ECI) is critical to ensuring free and fair elections, a cornerstone of India’s democracy.” Critically analyze the provisions of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023 in light of this statement.
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