Centre moves new Bill on appointment of Election Commissioners (ECs)

The government recently tabled the Chief Election Commissioner and Other Election Commissioners Bill, 2023.

Key-highlights of the Bill:

• Selection Panel: The Bill seeks to establish a committee for selecting members of the Election Commission of India (ECI).
  • Prime Minister
  • Union Cabinet Minister to be nominated by the Prime Minister
  • Leader of Opposition in the Lok Sabha. Though the LoP has not been recognised as such, the leader of the single largest opposition party shall be deemed to be the LoP.
• 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.
• Other Key Contours:
  • The Bill proposes to not include the judiciary from the Election Commission selection panel.
  • Persons holding or have held posts equivalent to the rank of secretary to the central government will be eligible to be appointed.
  • The salary, allowances and other service conditions shall be the same as that of a Cabinet Secretary.
    • Previously, as per the 1991 act, their salary was equal to that of a judge of the Supreme Court.
  • 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.
  • Rationale behind the Bill: The Statement of Objects & Reasons states that the Election Commission Act 1991 do not contain provisions regarding the qualifications, search committee for preparing panel of persons for consideration and recommendation.

Present structure to appoint CEC and ECs:

• The Election Commission of India (ECI) is a three-member body, comprising a CEC and 2 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 directed for the formation of an independent panel which will advise on appointments of ECs, including the CEC.
• As per the apex court, the panel would comprise:
  • Prime Minister of India
  • Leader of Opposition in Lok Sabha or the leader of the largest opposition party
  • Chief Justice of India
• The Supreme Court in its order quoted the Law Commission Report 2015 that highlighted that the "Commission should be completely insulated from political pressure or executive interference to maintain the purity of elections, inherent in a democratic process".
• The Supreme Court order highlighted that the guidelines shall be in effect until the Parliamentmakes a law in consonance with Article 324(2) of the Constitution.

What does Article 324(2) of the Constitution cover?

• It provides for the Election Commission of India. Clause 2 states that "the appointment of the CEC and other ECs shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President".
• A law that was never put in place.

Why did the Supreme Court step in?

• A clutch of writ petitions filed under Article 32 of the Constitution sought among other things, a law for ensuring a fair, just and transparent process of selection by constituting a neutral and independent collegium/ selection committee.
• The petitioners highlighted:
  • Appointment done solely by the Executive, practice incompatible with Article 324(2)
  • No law to regulate appointment of Election Commissioners
  • There has been inaction by the government in not making appropriate law
  • Financial independence not enough to ensure overall independence

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.