What Are the Unseen Effects of the Election Commissioner Bill on Electoral Governance

Any perceived influence of the Executive in the selection process of the Chief Election Commissioner and Other Election Commissioners may give rise to apprehensions regarding the Election Commission's capacity to fulfil its duties without prejudice.

On December 12, the Rajya Sabha approved the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Bill. This legislation replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. The primary objective of the Bill is to govern the appointment, terms of service, and tenure of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs), and to establish procedures for the functioning of the Election Commission.

According to the provisions of the Bill, the Election Commission will be composed of a CEC and other ECs. The number of ECs will be determined periodically by the President. The appointment of the Commission will be made by the President based on the recommendations of the Selection Committee.

The Committee consists of the Prime Minister, a cabinet minister, and the Leader of the Opposition in the Lok Sabha (or the leader of the single largest opposition party).

The law minister will head a Search Committee tasked with proposing five names to the Selection Committee. Notably, the Selection Committee also holds the authority to consider individuals beyond those suggested by the Search Committee.

The selection of the CEC and ECs under Article 324 is contingent upon legislation enacted by Parliament. In the case of Anoop Baranwal v Union of India, the Supreme Court emphasised that the framers of the constitution intended to establish an independent Election Commission with appointments governed by law, not subject to executive discretion.

The court ruled that, in the absence of specific legislation from Parliament, the appointment of the CEC and ECs would be contingent on the recommendations of a Selection Committee. As per the court’s vision, this Committee would comprise the Prime Minister, the Chief Justice of India, and the Leader of the Opposition in the Lok Sabha (or the leader of the largest opposition party).

However, the current Bill raises concerns as it modifies this arrangement.

It negates the role of the Supreme Court, and in addition to the Prime Minister, one cabinet minister is included in the Selection Committee. Consequently, the Selection Committee is predominantly composed of members from the ruling government, potentially jeopardising the independence of the Election Commission of India.

The Constituent Assembly members recognised the importance of entrusting the responsibility of conducting elections to individuals free from political influences and local pressures. Dr. B.R. Ambedkar emphasised that true electoral freedom required distancing elections from the control of the ruling government. Both the Goswami report of 1990 and the Law Commission report of 2015 specified that the Chief Justice should be a member of the Selection Committee.

Also read: Election Commissioners’ Appointment Bill: Farewell to Free and Fair Elections?

Other limitations

According to the proposed Bill, only individuals who currently hold or have held a position equivalent to the secretary to the government are deemed eligible for the roles of CEC or ECs.

Aside from their administrative functions, the Election Commission also functions in a quasi-judicial capacity, making determinations on matters such as the disqualification of Members of Parliament and State Legislatures, as well as adjudicating disputes related to symbol allocation and the registration of political parties. The limitation of eligibility criteria to civil servants under the Bill raises concerns as it may exclude qualified individuals from diverse backgrounds.

Comparatively, examining the composition of Election Commissions in other countries reveals a broader eligibility criteria. For example, in the United States, appointees must not be currently elected or appointed officers, nor hold federal government positions in the executive, legislative, or judicial branches at the time of their appointment. In South Africa, the Election Commission is a five-member body, with one member required to be a judge. All members must be South African citizens without prominent party-political affiliations. This highlights a more inclusive approach to eligibility in other countries’ electoral bodies, in contrast to the more restrictive criteria proposed by the current Bill.

The Bill affirms the legitimacy of the Selection Committee even in the presence of a vacancy or an issue in its constitution. However, it’s important to note that a vacancy in this Committee can only occur under specific circumstances. Among the three Committee members, the positions of the Prime Minister and a cabinet minister are inherently secure and cannot be vacant. The only potential vacancy could be in the position of the Leader of the Opposition in the Lok Sabha, which may arise if the Lok Sabha is dissolved.

Consequently, a vacancy may only occur before a general election, and during such a period, the Selection Committee would exclusively comprise members from the ruling party. This scenario raises concerns about the potential lack of opposition representation in the Selection Committee during crucial decision-making processes.

The proposed Bill neglects to address persistent issues that have plagued the Election Commission over the years. Notably, it’s crucial to recognise that no CEC has successfully completed a full six-year term since 2004.

Financial matters concerning the Election Commission are subject to government control, with the funds not being drawn from the consolidated fund of India. This arrangement implies that the Union government wields significant power and authority over the finances of the Election Commission.

Additionally, the Election Commission lacks an independent staff, relying on personnel from both central and state governments whenever elections are conducted. In essence, the Election Commission operates as a largely powerless entity, as it lacks the ability to enforce inner-party democracy or regulate party finances. These shortcomings underscore the need for comprehensive reforms that go beyond the scope of the current Bill in order to address the systemic challenges faced by the Election Commission.

The government overlooked the private member Bill presented by MP Manish Tewari, which purportedly contained solutions to the existing problems within the Election Commission. The Bill argued that the internal structures and functioning of numerous political parties had become excessively opaque and rigid, emphasising the necessity to make their operations transparent, accountable, and rule-based.

The envisioned Selection Committee in the Bill included the Prime Minister as the chairman, alongside the Union home minister, the Leader of the Opposition in the Rajya Sabha, the Leader of the Opposition in the Lok Sabha, the Chief Justice of the Supreme Court, and the two most senior judges of the Supreme Court as its members. This proposed committee aimed to bring a more inclusive and diverse approach to the decision-making process regarding the Election Commission’s structure and functioning.

The Bill also proposed that the regulation, monitoring and superintendence of internal functioning including but not limited to internal election of all registered political parties under the Representation of the People Act, 1951 shall be vested in the Election Commission.

The Bill further said that the Election Commission shall regulate, monitor and superintend the internal election of registered political parties in accordance with their respective constitutions until a Model Internal Code is prescribed by the Election Commission.

The suggested alterations could potentially impact the autonomy and operations of the Election Commission of India . The independence of the Election Commission is paramount to guarantee impartiality and integrity in the execution of electoral processes. Any perceived influence of the Executive in the selection process may give rise to apprehensions regarding the EC’s capacity to fulfil its duties without prejudice. Upholding the non-partisan nature of the Election Commission is essential for maintaining public trust in the electoral system and ensuring fair and unbiased elections.

Bhuvnesh Kumar and Sharad Panwar are fourth year law students at the National Law University, Jodhpur.