The story so far: On December 12, the Rajya Sabha passed The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Office and Terms of Office) Bill, 2023. It is likely to be enacted into a law after being passed by the Lok Sabha in the current winter session. It provides for the procedure for appointment of the Chief Election Commissioner (CEC) and the other two Election Commissioners (ECs).
What does the Constitution say?
Article 324 provides for the composition of the Election Commission of India (ECI). It consists of the CEC and two other ECs. The Constitution provides that the appointment of the CEC and EC shall, subject to the provisions of any law made by Parliament, be made by the President. While the existing parliamentary law provides for their conditions of service, it is silent with respect to appointments. The appointments till date are made by the President, that is the Central Government and there is no mechanism for ensuring independence during the appointment process.
What did the Supreme Court rule?
A Public Interest Litigation (PIL) filed by Anoop Baranwal in 2015 pleaded for the Supreme Court to issue directions to set up an independent, collegium-like system for the appointment of the CEC and ECs. The Supreme Court in this case, in March 2023, held that there has been a legislative vacuum due to the absence of any law by Parliament in the last 73 years (since the adoption of the Constitution) with respect to the appointment of the CEC and EC. The independence of the ECI is essential for ensuring free and fair elections that is paramount for a vibrant democracy. The Supreme Court drew reference to various other institutions supporting constitutional democracy that have independent mechanisms for the appointment of its head/members like the National and State Human Rights Commission, the Central Bureau of Investigation (CBI), Information Commission, Lokpal etc.
In the past, the Dinesh Goswami Committee on Electoral Reforms (1990) and the Law Commission in its 255th report on Electoral Reforms (2015), had suggested that the CEC and ECs should be appointed by a committee consisting of the Prime Minister, the Chief Justice of India (CJI) and the Leader of the Opposition or the largest Opposition party in the Lok Sabha. Considering these recommendations, the Supreme Court, exercising its powers under Article 142 (to issue directions for doing ‘complete justice’ in any matter), laid down that the CEC and ECs shall be appointed by a committee consisting of the Prime Minister, the CJI and the Leader of the Opposition or the largest opposition party in the Lok Sabha. It said that this mechanism shall be in place till Parliament enacts a law on this matter.
What does the proposed law provide?
The CEC and other ECs shall be appointed from persons who are holding or have held a post equivalent to the rank of Secretary to the Government of India. There shall be a search committee headed by the Minister of Law and Justice, who shall prepare a panel of five persons for consideration to the selection committee. The CEC and EC shall be appointed by the President on the recommendation of this 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. It is for the first time that the Parliament is proposing a structured mechanism for identification of suitable persons for the post of CEC and EC. However, this bill removes the CJI from the selection process that was laid down in the Anoop Baranwal case.
What are the best practices globally?
The international practices for selection and appointment of members to the electoral body varies between different democracies. In South Africa, the President of the Constitutional Court, representatives of the Human rights Court and gender equality are involved. In the U.K., the House of Commons approves the candidates, whereas in the U.S., the appointment is by the President and confirmed by the Senate.
While the proposed Bill moves the appointment process from just an executive decision to a committee-based selection, it is still tilted in favour of an incumbent government. The Supreme Court had considered the recommendations of various committees and also the mechanism for appointment to certain independent bodies like the CBI (where the CJI is involved) before laying down its selection procedure. While it is the prerogative of Parliament to legislate on this subject, it may have been appropriate to retain the CJI in the selection committee to ensure utmost independence. However, in all likelihood the Bill is likely to be enacted into a law in its present form. It would be laudable and instil a great deal of confidence in the public about the functioning of the ECI, if at least the selections under the new law are made by unanimous decisions by the proposed selection committee.
Rangarajan R is a former IAS officer and author of ‘Polity Simplified’. He currently trains civil-service aspirants at ‘Officers IAS Academy’. Views expressed are personal.
