New Delhi: The Union government’s move to introduce a legislation proposing 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, has raised concerns about the overriding executive control over the poll body.
The legislation, The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, was introduced on Thursday (August 10) by the Union Ministry for Law and Justice in the Rajya Sabha, just a day before the parliament’s monsoon session was to draw to a close.
The Bill was introduced as opposition members protested, calling the legislation an attempt by the ruling Bharatiya Janata Party (BJP) to control the election body.
It comes months after a constitution bench of the Supreme Court ruled in March 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).
The bench noted that its order was meant to fill a constitutional vacuum in the absence of a parliamentary law to lay down the selection procedure for election commissioners.
What the Bill states
The Bill repeals the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.
According to Article 324 of the constitution, the election commission will consist of the chief election commissioner (CEC) and such number of other election commissioners (ECs) as the president may decide.
The CEC and other ECs are appointed by the president.
The new Bill, while keeping the same composition of the election commission, adds that the CEC and other ECs will be appointed by the president on the recommendation of a selection committee.
The Bill states the selection committee will consist of the prime minister as the chairperson; the leader of opposition in the Lok Sabha, as member; and a Union cabinet minister to be nominated by the prime minister, also as a member.
It adds that a 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.
While the 1991 Act stated that the salary of the ECs will be equal to that of a Supreme Court judge, the new Bill states that salary, allowance, and service conditions of the CEC and other ECs will be the same as that of the cabinet secretary.
The bill also provides that the CEC and other ECs will not be eligible for re-appointment.
The business of the election commission will be conducted unanimously and if a difference of opinion arises, it will be decided through a majority.
Supreme Court judgement ‘interim’ was in ‘spirit of Constituent Assembly’
While opposition members have raised concerns that the new legislation will allow the BJP government to rule the poll body by removing the CJI as suggested in the SC-appointed panel, former election commission officials and judges said that the apex court order was always meant to be replaced by a parliamentary law.
Former Supreme Court judge Madan B. Lokur said to The Wire that the “spirit of the judgement of the Supreme Court was an expression of the views of the Constituent Assembly.”
“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. The Supreme Court attempted this in its judgement but while enacting a law, the wisdom of parliament was otherwise,” he said.
He added that the Supreme Court order had also stated that that the norm by which the CJI is a member of the selection committee “will continue to hold good till a law is made by the parliament.”
“In one sense, therefore, it would not be correct to say that the chief justice of India has been replaced by a cabinet minister, since the arrangement made by the Supreme Court was only interim,” he said.
‘Cannot have umpire subordinate to the team captain’
A former chief election commissioner who did not wish to be named said that the most concerning aspect of the new legislation is the downgrading of the status of election commissioners as well as the CEC from being at par with Supreme Court judges to that of cabinet secretary.
“The fact is that the cabinet secretary is directly under the government. So a constitutional body like the election commission, that is supposed to call even the ministers and prime minister to discipline if it comes to it, how can you equate that office with the cabinet secretary who is clearly subordinate to the government?” he asked.
“[The] cabinet secretary may be the highest civil servant in the country, but is directly under the government. Giving election commissioners the status of judges of the Supreme Court gives them a lot more leverage vis-a-vis the political class with which they are to deal, which is not so when they are equated as cabinet secretary.
“You cannot have an umpire who is subordinate to the team captain,” he added.
Former chief election commissioner T.S. Krishna Murthy further said that this reduction in status for election commissioners has not been explained in the Bill.
“Reduction of the status of election commissioners from that of Supreme Court judge to cabinet secretary has not been explained. This is a small matter financially, but it is likely to generate controversy,” he said to The Wire.
Checking executive control
Krishna Murthy added that while the Bill “seems to comply with the Supreme Court directions”, some changes could have been made to it.
“The collegium is an improvement, but instead of having a cabinet minister, they could consider having the speaker [of the Lok Sabha], a retired CJI or an eminent jurist if there is any objection to having the CJI or his nominee,” he said.
Former chief election commissioner N. Gopalaswami said that the inclusion of the leader of opposition in the selection committee is an “improvement”.
“Earlier, only the government used to decide, now there is the leader of the opposition being brought in. This is an improvement over the earlier arrangement, as there is a chance for someone to agree or disagree,” he said.
Krishna Murthy added, however, that as the Bill provides for selection from ‘secretaries with election experience’, it will give an impression that it is open to only a certain section of bureaucracy.
Independence dependent on political climate
According to a former election commissioner, the presence of the CJI on the selection panel does not assure independence.
“The director of the CBI is appointed by a committee in which the CJI is a member. Can you say that the CBI is independent in its operations? His presence only makes a difference at the time of initial appointment. After that that person has to work with the government,” he said.
“If you see Ashok Lavasa, just for insisting that his dissent be recorded, he lost the chance to be CEC. Has any tremor been felt anywhere? [The] result is that people who came after him have seen it as an example and they will be more careful. That is the climate that has been created,” the former election commissioner said.
Lavasa was the only member of the three-member election commission to rule that Prime Minister Narendra Modi had violated the model code of conduct while campaigning for the 2019 general election.
Lavasa’s demand that dissent notes should be recorded in the commission’s orders on model code violations was rejected with a majority vote.
Later that year, Lavasa’s wife, son and sister were placed under the scanner of various investigative agencies.
Even though he was due to take over as chief election commissioner as per norms of seniority that have been followed for years, Lavasa opted to quit the Election Commission and join the Asian Development Bank as vice-president, where he currently works.
According to the former election commissioner, the commission can only be independent depending upon the political climate in the country.
“In the last few years, has any show cause notice been issued to any central minister? Earlier commissions have also show caused the law minister, who is the minister concerned for handling the election commissioners,” he said in an apparent reference to former law minister Salman Khurshid, who was issued a show cause notice in 2012 for violating the model code of conduct ahead of the Uttar Pradesh elections that year.
“Notices have also been issued to Sonia Gandhi for calling Modi ‘merchant of death’,” he said referring to notices issued to both Gandhi and Modi in 2007.
“They [the election commission] had no hesitation in doing that. People are independent depending upon the climate. Every institution is the product of the environment. If the environment itself is different, how do you expect independence?
“Now in the last few months or so, you are finding some kind of assertion by the Supreme Court. So every institution will have its day and things will pick up,” he added.
‘Further changes in legislation’
According to Lokur, there is a need to look at further changes in legislation.
“I quite like the idea propounded by Prof Shibban Lal Saxena in the Constituent Assembly that the appointment should be confirmed by a two-thirds majority of both the Houses [of parliament]. Dr Ambedkar felt that this would be a dilatory and difficult process, but did not reject a similar process laid out in the American Constitution.
“Dr Ambedkar left it open for consideration at [a] later stage to recommend the adoption of the American provisions in our constitution. He also stated that this had given him ‘a great deal of headache’ and he had no doubt that it would also give the House a great deal of headache.
“The headache is now ours and we need to discuss the selection and appointment procedure threadbare,” he said.