Centre Moves New Bill on Appointment of Election Commissioners, CJI Excluded From Panel

The panel will be led by the prime minister, with the leader of the opposition in the Lok Sabha and a Union cabinet minister as members. Opposition parties slammed the move as bulldozing of the constitutional independence of the Election Commission of India.

New Delhi: The Union government introduced a Bill on Thursday which proposes that election commissioners will be selected by a panel led by the prime minister, with the leader of the opposition in the Lok Sabha and a Union cabinet minister as members.

The move comes after a constitution bench of the top court in March this year ruled that election commissioners should be appointed by the president based on advice from a committee comprising the prime minister, the leader of opposition in the Lok Sabha and the chief justice of India (CJI). That verdict was delivered in a batch of pleas seeking reforms in the process of appointing election commissioners since the executive enjoyed the power to make appointments in violation of Article 324(2) of the constitution.

While passing the order, the bench noted that there is no parliamentary law in place to lay down the selection procedure for election commissioners – and that its order was meant to fill the constitutional vacuum.

The Chief Election Commissioner and Other Election Commissioners (Appointment Conditions of Service and Term of Office) Bill, 2023 was introduced in the Rajya Sabha on Thursday by Union law minister Arjun Ram Meghwal even as opposition parties claimed that it would destroy the constitutional independence of the Election Commission of India (ECI).

Crucially, the Bill proposes to replace the CJI in the selection committee with a Union minister who is nominated by the prime minister – giving effective control of the appointment of election commissioners to the executive once again.

According to Indian Express, while parliament has the power to nullify the effect of a court ruling by addressing the concerns flagged in the judgment, the law cannot be contradictory to the ruling.

“In this case, the arrangement prescribed by the Supreme Court was specifically because the court noted that there was a ‘legislative vacuum’. Filling that vacuum is well within the purview of the parliament,” the newspaper said.

The report added that since the court repeatedly emphasised the idea of an independent body to conduct elections in the judgment, the fact that the LoP is outvoted even before the process begins may raise eyebrows.

Constitutional lawyer Gautam Bhatia said that the SC verdict held that executive dominance in the appointment of election commissioners was unconstitutional and that parliamentary law can’t breach that principle.

As per the Bill, the chief election commissioner and other election commissioners shall be appointed by the president on the recommendation of a Selection Committee consisting of:

(a) the prime minister, chairperson;
(b) the leader of opposition in the House of the People, member;
(c) a Union cabinet minister to be nominated by the prime minister, member.

The Bill adds that the search committee for election commissioners will be headed by the cabinet secretary, with two members who are not below the rank of secretary to the Government of India. They will prepare a panel of five persons for consideration by the Selection Committee.

“The appointment of Chief Election Commissioner and other Election Commissioners shall not be invalid merely by reason of any vacancy in or any defect in the constitution of the Selection Committee,” the Bill states.

Opposition sees bid to control poll panel

Reacting to the Bill, Congress leader Randeep Singh Surjewala said that through the Bill, the BJP wants to make the Election Commission of India a ‘Modi Election Commission’. He decried the move as a ‘Black Day’ for Indian Democracy and as a “brazen assault on India’s democracy and bulldozing of the Constitutional independence of ECI”.

“ECI will now be among the last Constitutional institutions to fall at the altar of usurpation of power by any or all means by an autocrat Prime Minister.

The Bill is an assault on the Constitution, the Judiciary & people’s rights to elect their own government in a fair and impartial manner,” he tweeted.

He said that the proposed selection committee does not constitute a check and balance and will be an “empty formality” since not a single cabinet minister will vote against the prime minister who nominated him or her.

Trinamool Congress leaders Saket Gokhale and Sushmita Dev said that it betrayed the BJP’s efforts to control an independent panel like the ECI.

“Shocking. BJP is rigging the 2024 election openly. Modi government has again brazenly trampled upon an SC judgment and is making the Election Commission its own bunch of stooges. In the (EC appointment) Bill the Chief Justice has been replaced by a Union Minister in the selection committee to appoint the Chief Election Commissioner and the two Election Commissioners,” Gokhale tweeted.

“The Supreme Court in its judgment had clearly noted that the Committee should be (A) the Chief Justice of India, (B) the PM and (C) the Leader of the Opposition. In the Bill, the Modi government has replaced the CJI with a union minister. Basically now, Modi and one minister will appoint the entire Election Commission. This is a clear step towards rigging the 2024 elections after fear has been struck into BJP’s heart by the united INDIA alliance,” he said.

Dev said said that while the leader of the opposition will be a member of the selection panel, they are bound to be outnumbered by the prime minister and a Union cabinet minister. “This is yet another way to control an institution which must be independent.” she tweeted.

AAP MLA Saurabh Bharadwaj said that the Bill shows that Modi “does not trust the Chief Justice of India”. He said at a press conference, “That’s why [Modi] took the CJI out of the panel and presented a Bill that now says the prime minister, a minister chosen by the PM and the leader of the opposition will be appoint election commissioners.”

Note: This article was first published at 12:30 pm on August 10, 2023 and republished at 4:20 pm on the same day.