What’s the news?

• The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Bill, 2023, introduced in the Rajya Sabha on August 10, seeks to alter the control dynamics of the Election Commission (EC) by increasing political executive influence.

Central idea

• The proposed legislation establishes a Selection Committee for appointing the Chief Election Commissioner (CEC) and Election Commissioners (ECs), with the Prime Minister, the Leader of the Opposition in the Lok Sabha, and a nominated Cabinet minister as its members. This change excludes the Chief Justice of India (CJI) from the committee and overturns a prior Supreme Court ruling.

Background

• To ensure the EC’s impartiality and independence in conducting free and fair elections, a five-judge bench of the Supreme Court, in the case of Anoop Baranwal vs Union of India on March 2, established interim guidelines.
• This mandates a three-member committee composed of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India for appointments.
• The Court specified that this composition would remain until a corresponding law is passed by Parliament.

Historical Context

• The Constituent Assembly aimed to ensure the EC’s independence. B. R. Ambedkar stressed that elections must be conducted by an independent body separate from the government.
• While the Constitution left legislative room for future parliamentary intervention, it was expected to uphold fairness and reason.

Constitutional Provisions and Autonomy

• Article 324 Authority: The Constitution assigns the Election Commission (EC) the crucial responsibility of Superintendence, direction, and control of elections, granting it the power to oversee and manage various aspects of the electoral process.
• Composition Defined: Article 324, clause 2, outlines the composition of the EC, comprising the Chief Election Commissioner (CEC) and a determined number of other Election Commissioners (ECs) as determined by the President.
• Autonomy Safeguarded:

• Article 324(5) serves as a crucial safeguard to ensure the autonomy and independence of the EC. It stipulates that the removal process for the CEC mirrors the procedure applicable to a judge in the Supreme Court.
• By mirroring the removal process of a Supreme Court judge, the Constitution seeks to shield the EC from arbitrary or partisan influences.

• EC Member Removal: While the same level of security of tenure is not extended to other Election Commissioners, their removal remains contingent on the recommendation of the Chief Election Commissioner. This provision reflects the intent to uphold an EC that operates independently and free from external political pressures.
• Precedent and Autonomy: The case of T N Seshan vs Union of India (1995) further establishes the notion that any removal of EC members must be grounded in intelligible and cogent considerations.

Concerning Provisions of the Bill

• Shift in Selection Committee Composition: The proposed bill introduces a new Selection Committee responsible for appointing the CEC and ECs. However, the composition of this committee excludes the CJI, a departure from established practices. This shift raises concerns about reduced judicial participation in the appointment process.
• Quorum Dynamics and LoP’s Role: The bill sets a quorum requirement for the Selection Committee, consisting of two members – the Prime Minister and a Cabinet Minister. This setup potentially diminishes the Leader of the Opposition’s (LoP) role to a mere formality, impacting the balanced representation and input from all relevant stakeholders.
• Consideration Beyond Search Committee Recommendations: Section 8(2) of the bill allows the Selection Committee to consider candidates not recommended by the Search Committee. This provision conflicts with the transparency objective set out in Section 8(1) and raises concerns about the potential for arbitrary appointments and favoritism.
• Procedure Regulation and Lack of Transparency: Section 8(1) empowers the Selection Committee to regulate its own procedure. This provision introduces the possibility of an unregulated decision-making process lacking transparency and potentially leading to an opaque and subjective appointment process.

Potential adverse impact of the bill

• EC Autonomy Erosion: The proposed bill threatens to undermine the autonomy of the EC. The changes in the appointment process and composition of the SC could expose the EC to increased political influence, potentially compromising its impartiality.
• Reduced Judicial Oversight: Exclusion of the CJI from the SC reduces judicial oversight in appointments. This could lead to a lack of checks and balances, eroding the credibility of the appointment process.
• Executive Dominance: The quorum dynamics favoring the PM and CM could result in executive dominance over appointments. This could weaken the EC’s ability to function independently and impartially.
• Impaired Democracy: If the EC’s autonomy and credibility are compromised, the democratic process itself could be undermined, with elections losing their impartiality and fairness.
• Precedent from the Ashok Lavasa Case: The case of Ashok Lavasa, whose independent stance led to cases against his family members, illustrates the potential repercussions of dissenting voices within the EC. In the context of such cases, the proposed bill could further discourage independent decision-making within the EC, impacting its ability to operate freely.

Way Forward

• Reconsider Composition: Reevaluate the composition of the Selection Committee for appointing the Chief Election Commissioner (CEC) and Election Commissioners (ECs). Consider reintroducing the Chief Justice of India (CJI) to ensure balanced participation and uphold checks and balances.
• Balanced Quorum: Revise the quorum requirement of the Selection Committee to include the LoP as a full participant. This balanced representation will ensure a comprehensive decision-making process.
• Transparency in Selection: Implement measures to maintain transparency in the appointment process. Avoid considering candidates not recommended by the Search Committee, preserving the fairness and credibility of appointments.
• Clarity in Procedure: Establish clear and transparent procedures for the Selection Committee. Providing well-defined guidelines will ensure an objective and equitable appointment process.
• Parliamentary Scrutiny: Subject any proposed changes to thorough scrutiny by the Parliament. A comprehensive debate involving various political parties will help ensure the legitimacy of the amendments.
• Uphold Constitutional Values: Prioritize adherence to constitutional principles when considering changes to the appointment process. Upholding the autonomy and integrity of the EC is paramount.

Conclusion

• The CEC and Other ECs (Appointment, Conditions of Service, and Term of Office) Bill, 2023, threatens the fundamental autonomy of the Election Commission. Upholding the EC’s independence is vital for maintaining the integrity of India’s democratic process and ensuring the equal representation of all citizens and political parties in elections.

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