The Rajya Sabha has approved the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023. The bill dictates the protocols for appointing the Chief Election Commissioner (CEC) and Election Commissioners (EC). This legislation is designed to enhance transparency in the appointment process. This decision is in response to a directive from the Supreme Court of India following the Anoop Baranwal v Union of India case in 2023.
Supreme Court’s Verdict on CEC and EC Appointment
In March 2023, the Supreme Court emphasized the necessity of an independent Election Commission of India (ECI) to ensure free and fair elections. The court highlighted the need for an established mechanism in place for the appointment of the CEC and ECs since the adoption of the Constitution. The Dinesh Goswami Committee on Electoral Reforms (1990) and the Law Commission’s 255th report on Electoral Reforms (2015) had both recommended a committee for this purpose, consisting of the Prime Minister, Chief Justice of India, and the Leader of the Opposition. Until a law is enacted, the appointment of CEC and ECs will be made by this committee.
Main Provisions of the Bill
The new bill replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. It provides procedures for the appointment, salary, and removal of the CEC and ECs. The CEC and ECs will be appointed by a three-member Selection Committee, referred by a Cabinet Secretary-led Search Committee. The eligibility criteria include having held a position equivalent to the Secretary to the central government.
Changes in Salary and Removal Process
The salary and service conditions of the CEC and ECs will be equivalent to the Cabinet Secretary. The removal process retains the constitutional provision that allows for the CEC to be removed like a Supreme Court Judge, while ECs can only be removed on the CEC’s recommendation. The new amendment also provides legal protection to CEC and ECs against actions taken during their tenure related to official duties.
Current Appointment Process of CEC and ECs
The Constitution does not specify an exact legislative process for the appointment of CEC and ECs. Article 324 of the Constitution empowers the President to appoint the CEC and any other ECs. The President makes the appointment based on the advice of the Union Council of Ministers headed by the Prime Minister. The CEC and ECs can resign anytime or can be removed before the expiry of their term.
Concerns Regarding the Bill
Certain aspects of this bill have raised concerns about its potential impact on the independence and diversity of the election commission. Critics argue that allowing the Selection Committee’s recommendations to be valid even with a vacancy could lead to a monopoly by ruling party members. Concerns have also been raised about restricting eligibility to civil servants, shifting from a judicial benchmark to executive control for salary determination, and the lack of parity in removal processes.
Global Practices in Electoral Body Appointments
In countries like South Africa, the United Kingdom, and the United States, the selection process involves key figures such as the President of the Constitutional Court and representatives of the Human Rights Court. Such diverse representation ensures a broader perspective in the electoral body. In the U.K., candidates are subject to approval by the House of Commons, adding scrutiny and accountability. In the U.S., appointments require confirmation by the Senate, ensuring a balance of power.
