The EC’s Guardrails: How to Make Election Commission Credible

Why in News?

• The day before the Monsoon Session is set to end, the government tabled the Chief Election Commissioner and other Election Commissioners(Appointments, Conditions of Service, Term of Office) Bill in the Rajya Sabha.
• The bill comes after the Supreme Court’s verdict in March on the appointment process of polling officials.
• The bill has both positive and negative aspects attached to it, therefore, it is important to comprehend how this will maintain the transparency of the appointments of CEC and ECs.

 

The SC Verdict on the Appointment of CEC and ECs

• A five-judge Constitution Bench of the SC was hearing a bunch of petitions seeking a selection process similar to what is followed in the case of the Director, Central Bureau of Investigation (CBI).
• The Director of CBI is selected by a committee which consists of Prime Minister, Leader of the Single Largest Opposition Party, and the Chief Justice of India.
• In March 2023, the Court had unanimously disapproved the present system of the Centre appointing members of the poll watchdog.
• Pointing to Article 324(2) of the Constitution, the Court has called upon Parliament to make a law regarding the criteria for selection, conditions for service and tenure of the CEC and ECs.
• Until then, the apex court formed a panel of Prime Minister, Chief Justice of India, and the leader of opposition to make these appointments.

 

Significance of the SC Verdict

• To Insulate the Appointment Process from Executive’s Interference
  • The court had said that the purity of the election process must be maintained to preserve democracy, else it would lead to disastrous consequences.
  • The presence of the CJI was required to add impartiality and insulate the appointment process from the Executive’s interference.
  • Further the court said that the CJI’s presence could quell the executive’s unchecked and unaccounted hold over appointments, as all governments will want “yes men in the poll panel.” 
• To Maintain Partisanship and Institutional Autonomy
  • The current selection process; by the President on the advice of the PM and the Cabinet, does a grave disservice to newly appointed ECs.
  • No matter how illustrious and impeccable their backgrounds, they still suffer the risk of being seen through the lens of partisanship.
  • For this reason, it was important to have a collegium to improve the public perception of the Commission’s neutrality and independence.

 

Criticism of the Collegium Model of the SC Verdict

• Even the collegium model is not perfect. The CBI directors have also been appointed through collegium, and some of them have not proved themselves up to the expectations.
• Another criticism is that the CJI’s inclusion in the collegium. Critics pointed out that the CJI may be a legal expert but is hardly likely to know the candidates.
• Secondly, if an appointment is challenged in the SC how he can sit in judgement.

 

The CEC and other ECs (Appointment, Conditions of Service and Term of Office) Bill, 2023

• With the view of overturning the effect of the SC verdict on the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs), the government has tabled the bill in the Rajya Sabha.
• The Centre’s Bill seeks to establish a committee of the Prime Minister, the Leader of Opposition in the Lok Sabha and a Cabinet Minister nominated by the PM for selecting members of the Election Commission of India (ECI).

 

Key Features of the Bill

• Removal of CJI from the panel
  • The bill seeks to replace the Chief Justice of India with a Cabinet Minister nominated by the PM in the committee for selection of the CECs and ECs.
  • It also makes the Leader of Opposition in Lok Sabha a member of the selection committee.
• Criteria
  • The ECI will consist of a CEC and other ECs from among people:
    • Who hold or have held the post equivalent to Secretary to the Government of India; and
    • Shall be persons of integrity, who have knowledge of and experience in management and conduct of elections.
• Process
  • First, a Search Committee, headed by the Cabinet Secretary and including two members not below the rank of Secretary, having knowledge and experience in matters relating to elections, shall prepare a panel of five persons.
  • This will then be sent to the Selection Committee.
  • The selection committee (chaired by the PM) may consider any other person apart from those included in the Search Committee’s panel.
• Terms & tenure
  • The terms of the CEC and ECs remain unchanged, at six years or until they reach the age of 65 years, whichever is earlier.
  • The Bill says the salary of the CEC and ECs would be equivalent to the Cabinet Secretary.
  • As of now their salary as per the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, is equated with a SC judge.The amount, however, is the same.
• Repeals the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991
  • Business of the ECI was guided through this act.
  • The Bill says that the business of the ECI should, as far as possible, be transacted unanimously and if there is a difference of opinion, the majority’s opinion will prevail.

 

Positive Highlights of the Bill

• Induction of a Search Committee
  • The bill proposes a welcome addition; a search committee, headed by the Cabinet Secretary, with two other members not below the rank of secretary to the government.
  • They will prepare a panel of five members for the consideration of the Selection Committee.
• Priority to Officers Having Experience in Conduct of Elections: Earlier, there was no rule prescribing the qualifications for appointment to the posts, which was a major matter of concern with the risk of appointment from some other catchment area.
• Protection of ECs from Removal
  • One extremely important provision of the Bill is that it seeks to protect the two Election Commissioners from removal, bringing them on par with the CEC.
  • They can be removed through a process of impeachment like a SC judge. This has been a demand for two decades.

 

Concerns Around the Bill

• The clause that the Selection Committee can choose anyone from outside the shortlist is undesirable and will undermine the authority of the shortlisting committee.
• The Commissioners, who were equated with SC judges since the Act of 1991, are being downgraded.
• While the salary of the EC then and now is the same as that of Cabinet Secretary (and the SC judge), the rank in the warrant of precedence is being reduced.

 

Suggestion to Make the Appointment Process More Credible: A Unanimous Verdict

• To perfect the model, whether it is the collegium model from the SC verdict or the one proposed in the Rajya Sabha Bill, the collegium system will be all the more credible if a unanimous verdict is added as a precondition to the appointment.
• The concern arises here that it can give the Leader of Opposition a veto power.
• But this concern can be addressed if the choice is limited to the five candidates shortlisted by the Cabinet Secretary-led committee.

 

Conclusion

• The Election Commission of India has for long been a shining symbol of democracy all over the world.
• To save this reputation, the lawmakers must ensure all the safeguards are in place to quell the possibility of any question mark on its credibility and status.

 

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Q1) Can the Parliament undo a decision of the Supreme Court on the appointment of CEC and ECs?

Parliament has the power to nullify the effect of a Court ruling by addressing the concerns flagged in the judgement. The law cannot simply be contradictory to the ruling. In the case of appointment of CEC and ECs, 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.

 

Q2) What is article 324(2)?

The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time-to-time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.

 

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Source: The Indian Express