In the recent monsoon session, the Centre presented a bill in Rajya Sabha recommending a new formula to select the Chief Election Commissioner (CEC) and Election Commissioners (ECs). The government has proposed that the CEC and ECs be selected by a panel comprising the Prime Minister, the Leader of the Opposition, and a Union Cabinet minister. The proposal to replace the Chief Justice of India by a Cabinet Minister recommended by the PM in the three-member selection panel has provoked the anger of opposition parties and experts, as it gives the government a decisive say in the appointment of ECs, thus compromising the independence of the Election Commission.
In March this year, a five-judge Constitution bench headed by Justice KM Joseph unanimously ruled that the appointment of top election officers would be done by the President on the recommendation of a committee comprising the Prime Minister, the Leader of Opposition in Lok Sabha, and the Chief Justice. The bench also pronounced that its direction would hold good until parliament made a law. This ruling emerged from a 2015 Public Interest Litigation (PIL) and a group of related pleas challenging the appointment process.
The proposed bill seeks to drop the Chief Justice from the selection process and override the Constitution bench judgment.
Experts feel the tripartite panel, as recommended by the Supreme Court bench, looked objective and had scope for impartiality, but with the PM and cabinet minister on the panel, as the bill recommends, the Leader of the Opposition would always be a minority in the selection process.
The Constitution does not lay down a specific legislative process for the appointment of the CEC and ECs. There are just five Articles (324-329) dedicated in Part XV (Elections) for reference. Article 324 of the Constitution vests the "superintendence, direction, and control of elections" in an Election Commission consisting of the CEC and other ECs as determined by the President from time to time. Before the March Supreme Court order, the President made the appointment of a CEC and ECs on the advice of the Union Council of Ministers headed by the Prime Minister.
The bill recommends a Search Committee that will prepare a panel of five persons for the positions of CEC and ECs. The cabinet secretary will head the Search Committee, which will also include two members not below the rank of Secretary with knowledge and experience in matters related to elections. The proposed Bill, once a law, shall rescind the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. The bill also downgrades the status and standing of the CEC and two ECs from that equivalent to a Supreme Court judge to that of the Cabinet secretary.
"The ECs or CEC don't get power from their mode of selection. They draw their power from the Constitution and election laws. An election is one of the few exercises of the government or constitutional or statutory bodies that is undertaken as per the rule book with every aspect, big or small, provided in the election code. As administrators, we had the least discretion in decision-making in elections. The ECI is an independent Constitutional body mandated to conduct elections with all necessary powers. Whether the person occupying the chair uses those powers or cedes his autonomy in decision-making depends on his choice," says Rajiva Sinha, IAS (Retd), West Bengal cadre.
"The election laws were there before TN Seshan also. But it was he who discharged his duties independently without any fear or favour. His tenure was a game changer and his actions led to further codification of norms. Every CEC and the ECs follow these detailed rules. But if the person concerned chooses to look the other way, it is not an issue as to who has or which committee has appointed him or what rank he enjoys in the order of precedence," Mr Sinha explains.
The institution of the Election Commission has to be impartial, independent, and shielded from any influence - be it real or perceived - from the executive. In the present form, the balance is tilted towards the government, with the opposition a token presence in the selection process.
Another perspective is to view this as the judiciary trying to interfere with the powers of the executive. But the Supreme Court judgment lays down the selection panel as one that will function till parliament enacts a law specifying the composition of the panel.
A section of experts feel the Election Commission should focus on ensuring its job of conducting elections in a fair and impartial manner and the brouhaha about the proposed selection panel can be ignored. "Despite all the fuss about the selection panel, the ground reality is that even today, poll-related violence takes place in some states. The focus should be more on how the elections are conducted at the grassroots level working together with the state machinery," says Krishnanand Pandey, advocate, Supreme Court.
Though it is parliament's mandate to enact laws, the changes proposed to the selection panel can easily be interpreted as the government's attempt to pick a more pliable Election Commission. It will not only have far-reaching implications but also generate short-term political heat in the run-up to the 2024 general election. The government should tread cautiously as any move considered 'out-of-step' will certainly draw uproar, with people questioning the timing and intent of the move, especially with elections due in months.
(Bharti Mishra Nath is a senior journalist)
Disclaimer: These are the personal opinions of the author.