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Centre’s new Bill on Election Commission members’ appointments

  • Published
    11th Aug, 2023
Context

A Bill is set to be introduced in the Rajya Sabha with the view of overturning the effect of the Supreme Court’s (SC) verdict on the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs).

About the Bill:
  • The Bill seeks to establish a committee of the Prime Minister, the Leader of Opposition in the Lok Sabha and a Cabinet Minister nominated by the PM for selecting members of the Election Commission of India (ECI).
  • Current Procedure: Currently, 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.
  • As per the Bill, a Search Committee headed by the Cabinet Secretary and comprising two other members, not below the rank of Secretary to the government, having knowledge and experience in matters relating to elections, shall prepare a panel of five persons who can be considered for appointment.
  • Then, as per the Bill, a Selection Committee consisting of the Prime Minister, the Leader of Opposition in the Lok Sabha, and a Union Cabinet Minister to be nominated by the Prime Minister will appoint the CEC and other ECs.

Present structure to appoint CEC and ECs:

  • Under Article 324 (2), the President appoints the CEC and other ECs.
  • The President makes the appointment on the advice of the Union Council of Ministers headed by the Prime Minister.
  • The Constitution does not prescribe any qualifications, academic or otherwise, for appointment to these offices.
  • Tenure:
  • The tenure of office and the conditions of service of all the commissioners is determined by the President.
  • The tenure of commissioners is 6 years or up to the age of 65, whichever is earlier.
  • The CEC and the two other ECs have the same powers and emoluments, including salaries, which are the same as a Supreme Court judge.
  • All three commissioners have the same right of taking a decision. In case of a difference of opinion amongst the three members, the matter is decided by the Commission by a majority.

Process of removal:

  • Article 324 of the Constitution of India mentions the provisions to safeguard and ensure the independent and impartial functioning of the Election Commission.
  • The CEC is provided with security of tenure. He cannot be removed from his office except in the same manner and on the same grounds as a judge of the Supreme Court.
  • Any other election commissioner or a regional commissioner cannot be removed from office except on the recommendation of the CEC.

Supreme Courts’ Judgment:

  • On March 2, a five-judge bench of the Supreme Court unanimously ruled that a high-power committee consisting of the Prime Minister, Leader of Opposition in Lok Sabha, and the Chief Justice of India must pick the CEC and ECs.
  • The judgement by a bench came in 2015, challenging the constitutional validity of the practice of the Centre-appointed members of the Election Commission.
  • According to the judgement, the SC has now given the Opposition and the judiciary a say in the matter, ruling that the CEC and ECs must be appointed by the President on the advice of a committee comprising the PM, Leader of Opposition in Lok Sabha, and the Chief Justice of India.
  • Also, 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.

Debate around appointment of CEC and ECs:

  • Article 324(2) reads that “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.”
  • The Parliament has the power to nullify the effect of a Court ruling by addressing the concerns flagged in the judgment.
  • 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 the Parliament.
  • However, the idea of an independent body that conducts elections permeates through the judgement.
  • The Court repeatedly stated that to be the objective of the framers of the Constitution.
  • The composition of the Selection Committee in the Bill raises questions on whether the process is now independent or still rigged in favour of the Executive.
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