To
Chief Ministers
Respected Chief Minister,
The ECI Bill in its present form is going to run counter to the idea of an Election Commission that remains non-political in its functioning. It is inconsistent with the vision of the Constituent Assembly as evident from its debate on the subject. It also runs counter to the guidelines indicated by the apex court.
By dropping the Chief Justice of India from the Selection Committee and making the leader of the largest party in opposition a minority member, the Bill has reduced the selection process to a mere ritual.
Even if the CJI were to be included in the Selection Committee, in addition to the Leader of the largest party in opposition, it would not help, as a Secretaries’ Committee will prepare the panel from which the Search Committee will have to choose a candidate.
In my view, the whole process starting with the criteria for selection, preparation of the panel and final selection should be visible to all political parties and the public.
To facilitate transparency, the following legislative measures may have to be incorporated:
- Section 7 of the Bill should be modified to enlarge its composition to include the Chief Justice of India (CJI) as one of its members, as suggested by the apex court, as a part of the interim arrangement, in their order of March 2, 2023 and, in addition, further include two eminent jurists to be suggested by the CJI.
- The status of the members of the ECI should be elevated to that of a judge of the Supreme Court. Section 10 of the Bill should be appropriately amended for this.
- The procedure for the removal of the Election Commissioners should be such that they cannot be removed from their office except in a manner similar to that for the Chief Election Commissioner, that is, that applicable to a Judge of the Supreme Court. This needs to be explicitly stated in Section 11(2).
- Considering that the Search Committee, as provided in Section 6, consists exclusively of Secretaries to the Government who are under the administrative control of the political executive, in order to render the search process more transparent, the details of the candidates considered by the Search Committee for inclusion in the panel and the eligibility criteria on the basis of which their candidature was taken into account should be placed before the Selection Committee and also in the public domain for the political parties and the public to see. Section 6 needs to be amended to take this into account.
- Section 8(2) which empowers the Selection Committee to consider persons other than those included in the panel should be suitably amended to require the Selection Committee to spell out the grounds for it. Section 8(2) should be further amended to require the proceedings of the Selection Committee to be placed in the public domain. The proceedings should specifically reflect the dissenting views of individual members.
- Section 17(2) should be amended to require the ECI to place in the public domain the proceedings of the decisions taken, including the dissenting views of individual members
In this connection, I have also prepared a more comprehensive note indicating the loopholes and suggesting specific improvements. I have enclosed a copy of that note for your reference.
Since the Bill will be referred to the Parliamentary Committee on the Ministry of Home Affairs, perhaps some members can move suitable changes. Also, since this matter will have wide ramifications for the future of our democracy, all political parties may have to take it up in a concerted manner.
I hope that all political parties will take this up in order to safeguard the integrity of our democracy.
Regards,
Yours sincerely,
E A S Sarma
Former Secretary to the Government of India
Visakhapatnam
