Mentor’s Comment: UPSC mains have always focused on the Election Commission of India (2017) and role of the Election Commission of India (2022).

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, is the first law made under Article 324(5) of the Constitution for appointing the CEC and ECs. It was introduced after the Supreme Court’s March 2023 order, which aimed to ensure fair appointments through a high-power committee.

Today’s editorial discusses about the selection process of Election commissioners which is currently in news. This content would help in GS Paper2 mains.

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Why in the News?

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill is flawed because it favors the candidate chosen by the government.

Why has the new law been challenged?

• Deviation from Supreme Court’s Directive: In March 2023, a five-judge Bench of the Supreme Court, headed by Justice K.M. Joseph, directed that appointments should be made by a high-powered committee comprising the Prime Minister, LoP, and the Chief Justice of India (CJI). The new law replaces the CJI with a Cabinet Minister, weakening the independence of the selection process.
• Lack of Transparency: The search committee’s list of eligible candidates is not made public, reducing accountability.
• Government’s Dominance: The composition ensures a built-in majority for the government’s preferred candidate, undermining free and fair selection.

What constitutional infirmities have been identified in the selection process?

• Government-Controlled Majority in the Selection Committee: The selection committee consists of the Prime Minister (Chairperson), a Cabinet Minister nominated by the Prime Minister, and the Leader of the Opposition (LoP).
  • This structure inherently creates a 2:1 majority in favor of the government, allowing the Prime Minister and the Cabinet Minister to dominate the decision-making process, undermining an independent and impartial selection.
• Lack of Independent Oversight: Replacing the Chief Justice of India (CJI) with a Cabinet Minister weakens judicial oversight. This reduces checks and balances, as a Cabinet Minister is subordinate to the Prime Minister and unlikely to challenge the government’s preferences.
• Violation of Fair and Objective Assessment: The process does not ensure objective evaluation of candidates due to the predetermined government majority. This may violate Article 14 (Right to Equality) as it denies a fair chance to qualified candidates outside the government’s favor and threatens the basic structure doctrine by compromising the independence of the Election Commission.

What are the key observations of the Supreme Court? 

• Independence of the Election Commission is Vital: The Supreme Court emphasized that the Election Commission of India (ECI) must be independent and impartial to ensure free and fair elections, which is a fundamental feature of democracy.
  • Example: In the Election Commission of India vs. State of Tamil Nadu (1993), the Court held that the ECI has plenary powers to conduct free and fair elections, reinforcing the need for independent appointments.
• Need for a Neutral Selection Process: The Court highlighted that appointments to constitutional bodies like the ECI should be made through a neutral and independent process to prevent executive dominance.
  • Example: In March 2023, the Constitution Bench directed that, until a law is enacted, the Prime Minister, LoP, and the CJI should select the CEC and ECs to ensure balanced decision-making.
• Concerns over Executive Overreach: The Court warned that allowing the executive to control appointments could undermine the institution’s autonomy and jeopardize the integrity of the electoral process.
  • Example: The Court observed that the historical practice of Prime Minister-led appointments was unsatisfactory, as it compromised the Commission’s independence.
• Violation of Article 14 (Right to Equality): The Court observed that a selection process favoring the government could violate Article 14 by denying an equal opportunity to eligible candidates.
  • Example: The current law creates a government-majority panel, allowing political bias in appointments and limiting fair competition.
• Upholding the Basic Structure Doctrine: The Court reiterated that free and fair elections are part of the basic structure of the Constitution, which cannot be compromised by biased appointment procedures.
  • Example: In S.R. Bommai vs. Union of India (1994), the Court affirmed that any law threatening the democratic process would violate the basic structure doctrine and could be struck down.

Way forward: 

• Restore Judicial Oversight: Reintroduce the Chief Justice of India (CJI) in the selection committee to ensure impartiality and independent oversight.
• Enhance Transparency: Make the search committee’s candidate list public and adopt objective criteria for fair and unbiased selection.

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