Authored by Adarsh Kumar Mishra, a 3rd year law student and Harshit Chowdhary, a 4th year law student at XIM University, Bhubaneswar. The authors have secured 4th rank in Article Writing Competition organised by The Society For Constitutional Law Discussion
Abstract
In this submission, the authors discuss the paramount significance of fair and free elections in preserving democracy, emphasising the Election Commission's importance in India. The article gives a detailed review of previous election reforms as well as landmark court rulings that have shaped the Commission's framework while highlighting the recently introduced Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 in response to landmark ruling of the Hon'ble Supreme Court in the matter of Anoop Baranwal vs Union of India. The authors critically examine the proposed changes pertinent to the appointment process and service conditions of the election commissioners and Chief election commissioner and contend how these changes may be detrimental to the sanctity of the Indian electoral system.
Introduction
Free and fair elections lay the very foundation of any democracy, and it is imperative for every democratic country to uphold the integrity of the institution regulating it. For over half a century, the Election Commission has maintained the sanctity of the elections in India, playing a pivotal role in preserving the democratic essence of the nation. However, the recent introduction of The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, has painted a bleak future for the Election Commission's autonomy and integrity. The Bill seeks to bring the Chief Election Commissioner (CEC) and other Election Commissioners (EC) within the bureaucratic framework, which could potentially undermine their authority and independence. This article provides an overview of India's electoral history's evolution, navigates through the landmark judgments shaping the legal framework of the Election Commission, and critically analyses the implications of the bill under scrutiny.
A Brief Timeline of Reforms
The Election Commission of India (ECI) was established in 1950 by The Constitution of India to conduct and regulate elections; it has been conferred the powers of superintendence, issuing directions and regulating the elections vide Article 324 of the Constitution of India.
On October 16, 1989, the voting age was reduced from 21 to 18. Consequently, the President appointed two more ECs to manage the expanded responsibilities of the Election Commission effectively. However, in 1990, the President reversed this change, reverting the Election Commission to a single-member body.
This reversal was challenged in S.S. Dhanoa v. Union of India, wherein the Hon’ble Supreme Court upheld the validity of both notifications, citing Article 324(2), which grants the President the power to create or abolish these positions. It was held in the dictum of S.S. Dhanoa that while appointing the CEC is mandatory, appointing additional ECs is discretionary under Articles 324(2) and 324(4). Thus, the President had the authority to abolish the ECs' posts to prevent concentration of power.
In 1991, Parliament passed The Chief Election Commissioner and other Election Commissioners (Conditions of Service) Act, 1991, establishing a 6-year term for these officials. The CEC and EC hold the same status as Indian Supreme Court Judges, receiving equivalent benefits and salaries. Moreover, they can only be removed from office through a parliamentary impeachment process, mirroring the removal process of Supreme Court judges as outlined under Article 124.
In 1993, an Ordinance was issued, later replaced by The Chief Election Commissioner and other Election Commissioners (Condition of Service) Amendment Act, 1993, which introduced two ECs. Under this law, decisions by the commission must be unanimous. In cases of disagreement, the majority opinion prevails. T.N. Seshan, the then CEC, contested for the equalisation of powers between the CEC and Other ECs. In T.N. Seshan v. Union of India, the Supreme Court upheld the “majority opinion's superiority” provision, affirming its compatibility with Article 324. The dictum of this case is relevant to date, and if within the Election Commission unanimity cannot be reached, then the stance of the CEC becomes decisive.
A Paradigm Shift
In the matter of Anoop Baranwal vs. Union of India, a PIL was submitted to the Hon'ble Supreme Court by the petitioner, contesting the procedure used to appoint the CEC and ECs. Due to the need for a thorough analysis of Article 324 of the Constitution, a two-judge panel of the Supreme Court referred the case to a larger bench in October 2018.
The key issues raised were the violation of the right to equality and the contradiction of the right to free and fair elections due to the absence of clear criteria and transparency in the appointment process. The petitioner argued for a more just and transparent selection process and the formation of a selection committee. The government's response emphasised that the judiciary could not invalidate a constitutional provision, and there was no need to fill any gap in Article 324(2).
On 2nd March 2023, in the matter of Anoop Baranwal, the Constitutional bench of the Supreme Court unanimously ruled in favor of modifying the selection procedure by establishing a committee comprising the Prime Minister, the Leader of the Opposition, and the Chief Justice of India to advise the President on appointment of CEC and ECs. This case highlighted the importance of an independent Election Commission and set a precedent for reforms, strengthening the Commission's independence and its role in preserving democracy.
The New Bill
Following the judgment propounded by the Hon’ble Supreme Court of India in the matter of Anoop Baranwal, The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 was introduced in the Rajya Sabha. 5 Key features of the Bill purporting to bring cynical changes in the system are as follows:
Altered Composition of the Selection Committee:
The Selection Committee responsible for appointing the CEC and ECs will consist of three key members -
The Prime Minister (Chairperson of the Committee).
The Leader of the Opposition in Lok Sabha, or in the absence of such recognition, the leader of the single largest opposition party in Lok Sabha.
A Union Cabinet Minister, nominated by the Prime Minister.
Establishment of a Search Committee:
The Bill introduces the creation of a Search Committee tasked with presenting a panel of five individuals for consideration for the positions of CEC and ECs.
The Search Committee will be led by the Cabinet Secretary and will additionally include two members holding the rank of Secretary, possessing knowledge and experience in matters related to elections.
Validation of Appointments:
The Bill ensures that the appointments of the CEC and other ECs will remain valid even in cases where there may be a vacancy or defect in the constitution of the Selection Committee.
Salary and Service Conditions:
The Bill aligns the salary, allowance, and service conditions of the CEC and other ECs with those of the Cabinet Secretary.
Eligibility Criteria for CEC & EC:
The Bill mandates that the candidates for the positions of CEC and ECs must have held a post equivalent to the Secretary to the Central Government.
Criticism of the Bill
One of the most significant points of contention revolves around the dominant presence of Government Members within the Selection Committee responsible for recommending the CEC and ECs. This composition may pave the way for a government-controlled nomination process, compromising the independence and autonomy of the Election Commission.
The Bill's provision allowing the Selection Committee to bypass the recommendations of the Search Committee intends to dilute the role of the Search Committee. The Search Committee is specifically established to identify and recommend competent and qualified individuals for these crucial roles, and sidelining its recommendations would certainly weaken its significance.
The Bill’s provision that validates the Selection Committee's recommendations in cases of vacancies within its own constitution also raises material concerns. This provision indicates that in certain circumstances, the Selection Committee could consist solely of members from the ruling party, further fuelling apprehensions of government influence in the selection process in contravention of the Principles of Natural Justice.
The Bill suggests aligning the salaries and service conditions of CEC and ECs with those of the Cabinet Secretary. This provision certainly marks a departure from the established practice of fixing their salaries and service conditions through an Act of Parliament, akin to Supreme Court judges. Allowing the executive branch to determine these key positions' remuneration could open the door to potential executive influence and undue control over the Election Commission.
The Bill's stringent eligibility criteria mandate that candidates for the positions of CEC and ECs must hold a post equivalent to the Secretary to the Central Government. This provision certainly precludes the feasibility of including highly qualified individuals with diverse backgrounds from consideration. A broader eligibility pool would enrich the talent pool and bring a wider range of perspectives to the Election Commission. Moreover, the measures to address the lack of parity in the removal procedures for the CEC and ECs also remain absent.
Conclusion
This statement by Justice K.M. Joseph in the matter of Anoop Baranwal aptly reflects the pivotal role of the Election Commission in safeguarding the essence of our democracy. The proposed Bill, though, purports to bring significant reforms; its juxtaposition to the recent judgment propounded in the matter of Anoop Baranwal reflects a sinister reality.
At the prima facie level, the very substitution of the CJI by a Union Cabinet Minister appointed by the Prime Minister and the provision for bypassing the selection committee's recommendations shifts the process more in favour of the Ruling Party. If passed, the Bill will not only undermine the commission's independence, authority and autonomy but will also tamper with the sanctity of elections.