Introduction

The impending retirement of Election Commissioner Anup Chandra Pandey on February 14 signals a significant shift in India’s electoral procedures.
For the first time, his successor will be selected through a consultative process, departing from past practices of government discretion as per the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

EC Appointments: Judicial Imperative

Supreme Court Intervention: In March 2023, the Supreme Court intervened to address the longstanding legislative gap surrounding the appointment of Chief Election Commissioner (CEC) and Election Commissioners (ECs).
Emphasis on Independence: The Court emphasized the need for an independent Election Commission, paralleling other constitutional bodies with autonomous appointment mechanisms.

Appointment Process: The Law establishes a Selection Committee comprising the Prime Minister, Union Cabinet Minister, and the Leader of the Opposition or the largest opposition party’s leader in the Lok Sabha.
Eligibility and Conditions: Eligible candidates must have held or hold positions equivalent to the Secretary to the central government, with salary parity to the Cabinet Secretary.
Removal Mechanism: The Law outlines the removal process, retaining the constitutional provision for the CEC’s removal akin to a Supreme Court Judge and ECs’ removal upon the CEC’s recommendation.

[A] Constitutional Provisions:

Part XV (Elections) of the Constitution outlines Articles 324-329, governing electoral processes.
The Constitution does not prescribe a specific legislative procedure for appointing the CEC and ECs.
Article 324 vests the responsibility of overseeing elections in an Election Commission comprising the CEC and other ECs, as determined by the President.
President appoints them based on the Union Council of Ministers’ advice, led by the Prime Minister.
Law Minister proposes suitable candidates to the Prime Minister, who advises the President on the appointments.

[B] Removal:

Commissioners have the liberty to resign or be removed before completing their term.
The removal process for the CEC mirrors that of a Supreme Court judge, necessitating parliamentary action.
Removal of any other EC can only occur upon the CEC’s recommendation.

Transparency and Independence: Concerns arise over the potential monopolization of the Selection Committee by ruling party members, undermining diversity and independence.
Executive Influence: Equating the salary of Election Commissioners with that of executive officials raises apprehensions regarding government influence.
Eligibility Criteria: Restricting eligibility to civil servants may limit diversity and expertise within the Election Commission.
Lack of Parity: Disparities in the removal process between the CEC and ECs raise questions about fairness and institutional autonomy.

Safeguarding Independence: Upholding the integrity and independence of the Election Commission remains paramount, necessitating robust oversight mechanisms.
Addressing Concerns: Mitigating concerns surrounding transparency, executive influence, and eligibility criteria is essential to foster public trust and confidence.
Continued Judicial Vigilance: Ongoing judicial oversight is crucial to ensure the effective implementation of electoral reforms and uphold democratic principles.

The transition towards a consultative process for appointing Election Commissioners reflects a significant milestone in India’s electoral governance.
While the reform bill marks a commendable step towards enhancing transparency and inclusivity, addressing current challenges and safeguarding institutional independence will be pivotal in fostering public trust and strengthening democratic institutions.