Election Commissioners' Appointment Bill: Farewell to Free and Fair Elections?

Bringing the Election Commission under the control of the political executive is repugnant to the concept of an independent election commission enshrined in the constitution.

With several state assembly elections and the parliament election coming up in the next one year, the Union government seems to be set on a ‘reform’ mode. On August 10, the Narendra Modi government surreptitiously introduced the ‘Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023’ in the Rajya Sabha. The objective is to replace the present arbitrary system of appointment of election commissioners, which is based on the executive considering a panel of candidates and selecting one considered acceptable from its point of view for approval by the President through a collegium method.

Section 7 of this new Bill seeks to set up a selection committee headed by the prime minister, which will have one Union minister, nominated by the prime minister, and the Leader of the Opposition (LoP) as its members. Neither the Chief Justice of India nor any eminent jurist will find a place in this committee. This means that the chief election commissioner (CEC) and other election commissioners (ECs) would be selected by the political executive belonging to the ruling party with the LoP either ignored or overruled. What kind of “neutrality and independence” can be expected from such appointees?

As if providing a fig leaf to this predatory process, Section 6 of the Bill constitutes a search committee headed by the Cabinet secretary with two other secretaries as its members. This committee would consider candidates eligible to be appointed as ECs who “shall be persons of integrity, who have knowledge of and experience in management and conduct of elections”, and recommend a panel of five such candidates for the selection committee’s consideration.

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But the same Bill removes even this fig leaf with Section 8(1) laying down that the selection committee can regulate its own procedure for selecting the CEC or other ECs. What is worse is that Section 8(2) authorises this committee to consider any other person than those included in the panel by the search committee. This means the selection committee can go beyond the search committee’s recommendations and appoint anyone it wants as CEC/EC thus reducing the entire ‘search’ process to a farce and making it ‘functus officio’ from the very start. In the event, sooner than later the CEC/ECs could become products of the ‘spoils system’ and the Election Commission of India (ECI) may become a den for political practitioners aligned to the ruling party.

Probably in preparation thereof, Section 10 of the Bill downgrades the CEC and EC’s status to that of the Cabinet secretary from the level of the judge of the Supreme Court, as being treated now under Article 324(5) of the constitution. Could this pave the way for the ECI to become an executive authority instead of a constitutional body?

This may not happen as long as the salutary provisions of the Bill – a fixed term for each EC [Section 9(1)], prohibition of an EC being reappointed [Section 9(2)], and a rigorous provision for the removal of  the CEC and ECs except in accordance with the provisions contained in the first and second provisos of clause (5) of article 324 of the Constitution [Section 11 (2)] are in place. But in reality, with the downgrading of the posts of CEC and EC, these provisions can become increasingly tenuous and the ECI’s constitutional status would subsist only by a slim thread.

Also read: Read: Salient Sections From SC’s Judgment on Appointments to Election Commission

The Bill with this triple whammy is in response to the Supreme Court judgment in WP(Civil) NO.104 OF 2015, pronounced on March 2. While directing the government to consider introducing a more transparent system of appointment of the election commissioners, the apex court said:

“We declare that the appointment of the Chief Election Commissioner and the Election Commissioners shall be made on the recommendations made by a three-member Committee comprising of the Prime Minister, Leader of the Opposition of the Lok Sabha and in case no Leader of Opposition is available, the Leader of the largest opposition party in the Lok Sabha in terms of numerical strength and the Chief Justice of India.

Keeping in view the importance of maintaining the neutrality and independence of the office of the Election Commission to hold free and fair election which is a sine qua non for upholding the democracy as enshrined in our Constitution, it becomes imperative to shield the appointment of Election Commissioners and to be insulated from the executive interference….

It is desirable that the grounds of removal of the Election Commissioners shall be the same as that of the Chief Election Commissioner that is on the like grounds as a Judge of the Supreme Court subject to the ‘recommendation of the Chief Election Commissioner’ as provided under the second proviso to Article 324(5) of the Constitution of India.

The conditions of service of the Election Commissioners shall not be varied to his disadvantage after appointment.” 

Instead of ensuring the “neutrality and independence of the office of the Election Commission to hold a free and fair election”, the provisions of the Bill do the very opposite by making it subservient to the whim of the prime minister of the day, thereby endangering the very purpose for which the commission is being constituted.

Repugnant to the concept of an independent election commission 

Bringing the ECI under the control of the political executive is repugnant to the concept of an independent election commission expounded in the Constituent Assembly. In fact, the committee appointed to deal with fundamental rights wanted the independence of the elections and the avoidance of any interference by the executive in the elections to the legislature to be regarded as a fundamental right and provided for in the chapter dealing with the same.

EVM machines, VVPATs and other election material being distributed among polling officers ahead of the first phase of polling in Tezpur, April 10, 2019. Photo: PTI/File

The House affirmed without any kind of dissent that in the interests of purity and freedom of elections to the legislative bodies, it was of the utmost importance that they should be freed from any kind of interference from the executive of the day. Since the House wanted it to be provided for in some other part of the constitution, the drafting committee removed this question from the category of fundamental rights and put it in a separate part containing Articles 289, 290, and so on.

What Article 289 did was to carry out that part of the decision of the Constituent Assembly by transferring the superintendence, direction, and control of the preparation of the electoral rolls and of all elections to parliament and the legislatures of states to a body outside the executive to be called the election commission.

The primary intent underlying the provisions in the constitution – as later approved by the Constituent Assembly, (Article 324, etc.) – was thus based on the fundamental premise that the Election Commission should be outside the control of the executive, as any element of influence by the executive would result in an authority that would fail to inspire sufficient confidence among the political parties and the public in the impartiality of the commission and its ability to hold elections in a free and fair manner.

Reforming the mode of appointing election commissioners to ensure the “neutrality and independence” of the ECI has been a long-standing demand. But the Bill that has been introduced is a mockery of this demand. According to former Supreme Court judge Madan B. Lokur, “The spirit of the judgement of the Supreme Court was an expression of the views of the Constituent Assembly. The Constituent Assembly was quite clear that the election machinery should be outside the control of the executive government.”

It is an irony that the present government’s concept of ‘reform’ is to defy the Constituent Assembly decision and judgment of the Supreme Court. This is because the ECI appears to be more beholden to the Prime Minister’s Office (PMO) than the people of India, thereby raising doubts about the integrity of India’s electoral process. This Bill will make things worse by making the ECI virtually subservient to the PMO. In which case, we might as well bid farewell to free and fair elections in the “world’s largest democracy”.

M.G. Devasahayam is a former Army and IAS officer and coordinator of the Citizen’s Commission on Elections.