Ensuring Electoral Integrity - The Controversy Over Election Commission Appointments

Context:

• India, as the world’s largest democracy, relies on the Election Commission of India (ECI) to conduct free and fair elections.
• Concerns have been raised regarding the appointment process of Election Commissioners (ECs) and its impact on the independence of the ECI.
• Civil society organizations (CSOs) and political leaders have long demanded a transparent and bipartisan appointment process.

The Role of Civil Society Organizations in Electoral Reforms:

• Several CSOs, including Association for Democratic Reforms (ADR), Internet Freedom Foundation, etc. have been advocating for electoral reforms.
• ADR has been at the forefront, filing legal challenges to reform the EC appointment process.

Legal Battle for a Transparent Appointment Process:

• 2015: ADR filed a petition challenging the executive’s exclusive control over EC appointments, citing concerns over independence.
• 2018: The case was referred to a Constitution Bench, but hearings were delayed.
• March 2, 2023:
  • In Anoop Baranwal vs Union of India, the Supreme Court (SC) noted that no legislation outlining the appointment process for these positions had been passed in more than 70 years.
  • This is in spite of the constitutional provision under Article 324(2) that required Parliament to pass a law.
  • It ruled that, until Parliament enacts a law, the Chief Election Commissioner (CEC) and ECs should be appointed by a committee comprising:
    • The Prime Minister
    • The Leader of the Opposition (LoP) in the Lok Sabha
    • The Chief Justice of India (CJI)
  • The ruling aimed to reduce executive dominance and ensure transparency.

The 2023 Legislation and Its Controversies:

• The government passed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023, modifying the SC’s ruling.
• The Act excluded the CJI from the selection panel. Instead, it created a new selection committee comprising:
  • The Prime Minister
  • A Union Cabinet Minister (nominated by the PM)
  • The Leader of the Opposition
• Critics argue that this change undermines impartiality, as the executive holds a majority in the selection panel.

Judicial Review and Government Action:

• January 2024: ADR and other petitioners challenged the 2023 Act in the SC, arguing it allowed the ruling party to dominate the selection process.
• March 2024: Despite the pending judicial review, the government appointed two new ECs under the new selection framework.
• February 18, 2025: The incumbent CEC retired, and the government made new appointments via a midnight order.
• February 19, 2025: The SC was scheduled to hear the case but adjourned it without a new date, prolonging uncertainty.

Global Best Practices in EC Appointments:

• United States: Commissioners appointed by the President with Senate approval.
• South Africa: President appoints on the recommendation of the National Assembly.
• Brazil: Appointments made by the Federal Supreme Court.
• United Kingdom: The Speaker’s Committee on the Electoral Commission (cross-party) makes appointments.
• France: Joint appointments by the President, Legislature, and Judiciary.
• Nepal: President appoints CEC and ECs based on recommendations from the Constitutional Council, followed by a parliamentary hearing.

Way Forward:

• The integrity of India’s electoral process hinges on the independence and impartiality of the Election Commission, real and visible.
• The need of the hour is to embrace a bipartisan and neutral collegium-based appointment system, drawing from global best practices.
• This would not only fortify the ECI’s autonomy but also bolster public confidence in the democratic process.

Conclusion:

• The 2023 Act has been criticized for reintroducing executive control over EC appointments, despite the SC’s attempt to ensure impartiality.
• If the government reinstates the CJI in the selection panel, legal challenges could be resolved.
• The issue remains unresolved, with the judiciary’s role in safeguarding democratic institutions under scrutiny.

Q1. What was the ruling of the Supreme Court in the Anoop Baranwal vs Union of India case (2023)?

Ans. The SC ruled that the Chief Election Commissioner (CEC) and Election Commissioners (ECs) should be appointed by a committee comprising the PM, the LoP, and the CJI.

Q2. How did the CEC and Other ECs (Appointment, Conditions of Service, and Term of Office) Act, 2023 alter the appointment process?

Ans. The 2023 Act excluded the CJI from the selection panel and replaced them with a Union Cabinet Minister nominated by the PM.

Q3. What are the main concerns raised by civil society organizations (CSOs) regarding the appointment process of Election Commissioners?

Ans. CSOs argue that the appointment process lacks transparency, allows excessive executive control, and compromises the independence and impartiality of the ECI.

Q4. How do election commission appointment processes in other democracies ensure neutrality and transparency?

Ans. Various democracies follow different models - for example, appointments in the U.S. require Senate approval, South Africa relies on parliamentary recommendations, etc.

Q5. Why is an independent ECI critical for India’s democratic integrity?

Ans. An independent ECI ensures free and fair elections, maintains public trust in the democratic process, and upholds constitutional principles of impartiality and transparency. 

Source:IE