The Centre on Thursday is set to introduce a bill in the Rajya Sabha that seeks to exclude the Chief Justice of India from a committee that will select members of the Election Commission. The bill, though retaining the three-member committee, replaces the CJI with the Prime Minister’s nominee.
In the run-up to the 2024 General Elections, this bill will prove to be important and instrumental in the upcoming elections.
In March 2023, the Supreme Court ruled that the President may appoint Chief Election Commissioners (CEC) and Elections Commissioners (ECs) based on the recommendations of a committee comprising the Prime Minister, the leader of the Opposition, and the CJI. However, the top court had clarified that this system would remain in place till such time the Parliament comes out with a law. “A person in a state of obligation to the State cannot have an independent frame of mind. An independent person will not be servile to those in power,” the bench had said.
So now, the Law Ministry’s ‘The Chief Election Commissioner and other Election Commissioners (Appointment Conditions of Service and Term of Office) Bill, 2023’ subverts the top court’s ruling as it envisions the replacement of the CJI with a cabinet minister nominated by the Prime Minister. With this change in the committee’s composition, the Prime Minister effectively secures 2-1 votes – one theirs, and the other their nominee’s.
The new bill essentially goes against the essence of the Supreme Court's March 2023 order which outlined a process where the concentration of power to appoint CEC, EC was not solely vested with the Executive. The top court had said that the Executive's dominance in appointing election commissioners was unconstitutional. Parliamentary legislation cannot breach this principle, it had added.
What did the Supreme Court say?
A five-judge Constitution Bench of the Supreme Court on March 2 unanimously that the CECs and the ECs must be appointed by a high-power committee comprising the Prime Minister, the Leader of Opposition in Lok Sabha, and the Chief Justice of India must pick the CEC and ECs.
The system proposed by the top court was similar to that of the committee constituted for the appointment of the Central Bureau of Investigation (CBI) Director.
The top court’s ruling came on a 2015 public interest litigation (PIL), that sought to change the process of the appointment process. The verdict was a bid to ensure independence in the selection of poll panel members. While delivering their verdict, the Supreme Court noted that while Article 324(2) of the Indian constitution spoke about the role of the CEC and the EC, there was no law that defined the process of their appointment.
The verdict thus plugged in this “constitutional vacuum”. In its verdict, the top court referred to constitutional debates and concluded that the Founding Fathers “did not intend the executive exclusively calling the shots in the matter of appointments to the Election Commission.”
“An Election Commission that does not guarantee the rule of law is against democracy. In its wide spectrum of powers, if exercised illegally or unconstitutionally, it has an effect on the outcomes of political parties,” the bench said. The Election Commission must be independent, it added. It cannot claim to be independent and then act in an unfair manner, the court pointed out.
“A law cannot be a perpetuation of what is existing where the Executive has the absolute say in appointments…Political parties would have a reason to not seek a law, which is clear to see. A party in power will have an insatiable quest to remain in power through a servile Commission,” the bench said.
In a separate but concurring opinion, Justice Ajay Rastogi said, Election Commissioners must enjoy the same security as that of their chief. Service conditions should not be varied, he said adding, “Election Commissioners have to be kept free from executive interference.”
What does the Law Ministry’s bill say?
The top court’s verdict outlined a process or a system that would be in place till such time the Centre brought in a law. The bill now seeks to address this shortfall and outlines a legislative process for the appointments to the EC.
Under the new bill, the Law Minister will submit a pool of suitable candidates for the Prime Minister’s consideration. The bill says that a Election Commissioner must be a person who is or has held a post equivalent to the Secretary to the Government of India.
This list of five candidates will be compiled by a Search Committee headed by the Cabinet Secretary and will also comprise two other members who are not below the rank of Secretary to the government and are proficient in matters relating to the elections.
The panel of five candidates will then be forwarded to the high-powered committee for deliberations. The President will then, on the Prime Minister’s advice, make the appointment.