On August 10, 2023, the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, Term of Office) Bill 2023 was presented in the Rajya Sabha.
If approved by Parliament, this Bill will supersede the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.
Salient Features Of The Bill
Titled as such, the bill seeks to establish regulations for the appointment, terms of service, and tenure of the chief election commissioner (CEC) and other election commissioners (EC). It also outlines the procedures for conducting the poll body’s business and addresses related matters.
No specific qualifications were required to be a candidate for the position of Chief Election Commissioner (CEC) or Election Commissioner (EC). However, according to the proposed bill, the CEC and other ECs should be appointed from individuals who currently hold or have previously held a position equivalent to the rank of secretary at the Centre.
These individuals should possess integrity, as well as knowledge and experience in election management and conduct.
Find the salient features of the CEC Appointment Bill 2023 below:
Election Commission
According to Article 324 of the Constitution, the Election Commission comprises the Chief Election Commissioner (CEC) and a number of other Election Commissioners (ECs) determined by the President.
Both the CEC and ECs are appointed by the President.
The proposed Bill maintains this composition of the Election Commission but introduces a provision for the President to make appointments based on the recommendation of a Selection Committee.
Selection Committee
The Selection Committee will consist of: (i) the Prime Minister as Chairperson, (ii) the Leader of the Opposition in Lok Sabha as member, and (iii) a Union Cabinet Minister nominated by the Prime Minister as member.
If the Leader of the Opposition in Lok Sabha has not been officially recognized, the responsibility will be assumed by the leader of the largest opposition party in Lok Sabha.
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. It will have two other members, not below the rank of Secretary to the central government, having knowledge and experience in matters related to elections.
The Selection Committee may also consider candidates who have not been included in the panel prepared by the Search Committee.
Term Of Office
The 1991 Act mandates that the CEC and other ECs will hold office for a term of six years or until they reach the age of 65 years, whichever is earlier. If an EC is appointed as the CEC, his total term cannot exceed six years. The Bill retains the same tenure. Further, under the Bill, the CEC and other ECs will not be eligible for re-appointment.
Removal And Resignation
According to Article 324 of the Constitution, the Chief Election Commissioner (CEC) can only be removed from office in a manner similar to that of a Supreme Court judge. This process involves the President issuing an order based on a motion passed by both Houses of Parliament during the same session.
The motion for removal requires: (i) majority support from the total membership of each House, and (ii) at least two-thirds support from members present and voting. It is important to note that an Election Commissioner (EC) can only be removed from office upon the recommendation of the CEC. The proposed Bill maintains this existing removal procedure.
The SC Verdict On The Appointment Of The CEC
In March 2023, the Supreme Court delivered a verdict stating that the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) shall be carried out by a committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India (CJI), until a law is enacted to govern this process. Subsequently, the committee will provide their recommendations to the President, who will then proceed with the appointment of the CEC and ECs.
The Supreme Court acknowledged the necessity of this action as no political party, despite being in power, had enacted legislation or established a proper procedure for the appointment of the Election Commission.
So, who selected the election commissioners before the verdict?
The part of the Constitution (Article 324 (2)) that deals with the Election Commission, in fact, said that “…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.”
However, since 1950, the parliament has failed to enact any legislation on this matter, leaving a legislative void in the selection process of election commissioners. As a result, the Supreme Court rightfully intervened and filled this void, exercising its authority to ensure a proper functioning of the system.
In instances where there is a legislative gap, the Supreme Court has the authority to intervene and address the void. A notable example of this is the Vishakha Guidelines, which were established by the Supreme Court in 1997 to provide procedural guidance in cases of sexual harassment. However, these guidelines were rendered obsolete in 2013 with the implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act.
Appointment Of The CEC: Key Issues And Analysis
The bill proposes the replacement of the Chief Justice of India (CJI) with a Union Minister, who will be nominated by the Prime Minister. Prior to the Supreme Court order, the Law Minister would present a pool of qualified candidates to the Prime Minister for consideration in appointing the Chief Election Commissioner (CEC). Ultimately, it is the Prime Minister who selects the candidate, and the President formalises the appointment.
The presence of the LoP is merely symbolic, and if the committee includes two government members, their influence will be greater.
Including the Leader of the Opposition (LoP) in the appointment process is expected to enhance its representativeness. However, there is an underlying concern. The process’s neutrality is being questioned due to its attempt to bypass the March 2 ruling of a Constitution bench of the Supreme Court.
The ruling unanimously stated that the committee should include the Chief Justice of India instead of a Cabinet minister, as currently proposed, until a law on the selection of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) is enacted.
If approved, this bill, known as The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, not only contradicts the principles established by the Supreme Court’s ruling, but also grants the executive greater authority over the Election Commission.
Although the Commission and its members, who have been appointed by different governments thus far, have performed admirably, there is a growing concern regarding the fairness of this Constitutional body.
In November 2021, the CEC and ECs participated in a meeting with the prime minister’s office to discuss the common electoral rolls. However, this gathering, which took place after a summons from the law ministry, raised concerns about the authority and independence of the ECI. This perceived undermining of the ECI’s autonomy was troubling, as it was observed by many, including constitutional experts.
The Government should carefully consider the findings of the Dinesh Goswami committee’s 1990 report, which aimed to propose electoral reforms and safeguard the autonomy of the Election Commission of India.
In its March ruling, the Supreme Court referred to the Goswami report, which proposed that the President appoint the Chief Election Commissioner (CEC) after consulting with the Leader of the Opposition (LoP) and the Chief Justice of India (CJI). Similarly, the report recommended that the President appoint the Election Commissioners (ECs) after consulting with the LoP, the CJI, and the CEC.
It had also suggested providing legal support for this procedure. In its 255th report (2015), the Law Commission incorporated the Goswami committee’s proposal “with certain modifications,” including the prime minister in the collegium.
This formula could have been genuinely unbiased, ensuring that neither the governing party nor the opposition held a majority in the panel as the judiciary, the guardian of the Constitution, would have had representation in the selection panel.
If the Chief Justice of India (CJI), or a judge nominated as their representative, is involved in the selection process of the Central Bureau of Investigation director, which is not a constitutional body, it seems logical to include the judiciary in the selection of the Chief Election Commissioner (CEC), if the objective is to achieve true impartiality and fairness in the process.