Election Commissioners’ Appointment Bill

Syllabus: GS2/ Constitutional Bodies, Representation of People’s Act

In News

• The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, was recently introduced in Rajya Sabha.

Need for the law

• Appointment of election commissioners:
  • The Supreme Court while examining a series of petitions seeking functional independence for Election Commissioners had ruled that the selection panel should comprise the Prime Minister, the Leader of the Opposition, and the Chief Justice of India (CJI).
  • This selection panel to be continued until Parliament enacts a law on the manner of appointment.
• Issue of incompletion of tenure:
  • The SC also noted that although the CEC’s tenure is six years under ‘The Chief Election Commissioner And Other Election Commissioners (Conditions Of Service) Act, 1991’, no CEC has completed his tenure since 2004.

The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023:

• About:
  • The bill repeals the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.
  • As per Article 324 of the Constitution, the Election Commission consists of the Chief Election Commissioner (CEC) and such number of other Election Commissioners (ECs), as the President may decide.  The CEC and other ECs are appointed by the President.  
  • The Bill specifies the same composition of the Election Commission. 
• Selection Committee:
  • The Bill has proposed that the selection panel for appointing the Election Commission, comprising the Chief Election Commissioner (CEC) and other Election Commissioners (ECs), will consist of 
    • The Prime Minister as the chairperson, 
    • The Leader of the Opposition as a member, and 
    • A Union Cabinet Minister nominated by the Prime Minister as another member. 
  • The bill removed the Chief Justice of India (CJI) from a previously constituted three-member panel to select the Chief Election Commissioner (CEC) and Election Commissioners. 
• Search Committee: 
  • A Search Committee will prepare a panel of five persons for the consideration of the Selection Committee.  
  • The Search Committee will be headed by the Cabinet Secretary.  
• Qualification of CEC and ECs: 
  • Persons who are holding or have held posts equivalent to the rank of Secretary to the central government will be eligible to be appointed as CEC and ECs.   
  • Such persons must have expertise in managing and conducting elections.
• Removal and resignation: 
  • Under Article 324 of the Constitution, the CEC can only be removed from his office in a manner similar to that of a Supreme Court judge.  
  • This is done through an order of the President, based on a motion passed by both Houses of Parliament in the same session. 
  • The motion for removal must be adopted with: (i) majority support of total membership of each House, and (ii) at least two-thirds support from members present and voting.  
  • An EC can only be removed from office on the recommendation of the CEC.
  • Further, the 1991 Act provides that the CEC and other ECs may submit their resignation to the President.
  • The Bill retains this removal & resignation procedure.

Challenges & Criticisms

• Making EC a puppet:
  • This composition of the selection panel puts a question mark on the neutrality of the Election Commission (EC) as the selection panel would effectively have two members of the ruling party— the Prime Minister and the Cabinet Minister.
  • The Opposition has been arguing that the replacement of the CJI with a Cabinet Minister in the Bill indicates that the government is trying to make the poll body a puppet.
• Against the spirit of fundamental rights:
  • The court judgment says that the right to vote is a fundamental right, effectuated by the Election Commission through the conduct of elections. 
  • And therefore, to ensure that this right can be exercised properly, the Election Commission has to be independent of the executive. 
  • So, while the Bill, as proposed, follows the letter of the judgment, it does not at all follow the spirit of the judgment. 
• Counter to a recent judgment:
  • The SC suggested that the least intrusive will be a system where there is a presence of the Chief Justice in the appointment committee.
  • The bill runs counter to this judgment of a Constitution Bench. 
  • The judgment was also in line with the recommendations of the Dinesh Goswami Committee in 1990 and the Justice Tarkunde Committee in 1975. 

Way ahead

• The Election Commission of India is a constitutional body that not only conducts elections but also renders a quasi-judicial role. 
• ECI has played a seminal role in the periodic conduct of elections, which have only seen greater participation from the electorate because of the largely free, fair and convenient nature of the process. 
• The need for a selection process that embodies insulation from executive preponderance makes sense. A non-partisan and independent ECI is a sine qua non for the robustness of electoral democracy. 
• The independent V-Dem Institute in Sweden, which compares democracies worldwide, has downgraded India to an “electoral autocracy”, citing the loss in autonomy of the ECI.