The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 in its present form violates the basic principles of democracy. Appeal to Members of the Parliament to align the Bill fully with the norms prescribed by the Supreme Court
We understand that the government has reintroduced the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023. The Bill is likely to come up for a discussion at the winter session of the Parliament to be convened shortly.
Considering past experience, the Bill is likely to be passed by the Parliament with little discussion. If enacted, the proposed legislation in its present form will cut at the very root of India’s democracy, leading to a one-party rule, which the framers of the Constitution would never have visualised.
The urgency underlying this appeal arises from reports that one of the incumbents of the office of the Commission, Shri Anup Chandra Pandey will retire in February 2024 and if the Bill gets enacted in its existing form, the process of appointment of his successor will become completely non-transparent, making it possible for the NDA government to have a candidate exclusively of its choice appointed a few months before the dates on which elections to the Parliament and several States are scheduled to be held.
The Election Commission of India has a pivotal role to play in maintaining India as a true democracy. As such, not only the Union but also the States, all political parties and in particular the people at large have a direct stake in its being a vibrant and reliable instrument for promoting democracy. The fact that the NDA government has rushed through with the Bill without holding any consultation with the political parties, both national and regional, without consulting the States and without a wider public discussion and debate, displays its scanty respect for the spirit of federalism and its insensitivity to the democratic values that lie at the heart of our Constitution.
The present incumbents of the office of the Election Commission of India (ECI) are appointees of the political executive and the Supreme Court, in their order of March 2, 2023 [WP(Civil) No.104/2015] directed the government to consider introducing a more transparent system of their appointment. It is therefore imperative that the government, with the approval of the Parliament, puts in place at the earliest a transparent selection process for the ECI members. For this to be possible, the government ought to have drafted a Bill in line with the norms proposed by the apex court. The Bill presently introduced in the Parliament runs counter to the apex court’s suggestions and it negates the very idea of having a Commission that can function as an apolitical, independent body.
Article 324 of the Constitution under which the Election Commission of India (ECI) is set up and the laws enacted thereunder envisage the Commission to act as an apolitical authority to be able to conduct elections in a free and fair manner. Many provisions of the latest Bill negate that concept, rendering the Commission subservient to the political executive at the cost of the other political parties, which in the long run will erode the public trust in it and dilute its credibility, a situation that will not augur well for the nation.
On June 15, 1949, when the Constituent Assembly discussed the provisions included in the draft of the Constitution for setting up an independent Election Commission, Dr B R Ambedkar explained the background of the draft provision as it stood at that time as follows:
“in a very early stage in the proceedings of the Constituent Assembly, a Committee was appointed to deal with what are called Fundamental Rights. That Committee made a report that it should be recognised that the independence of the elections and the avoidance of any interference by the executive in the elections to the Legislature should be regarded as a fundamental right and provided for in the chapter dealing with Fundamental Rights. When the matter came up before the House, it was the wish of the House that while there was no objection to regard this matter as of fundamental importance, it should be provided for in some other part of the Constitution and not in the Chapter dealing with Fundamental Rights. But the House affirmed without any kind of dissent that in the interests of purity and freedom of elections to the legislative bodies, it was of the utmost importance that they should be freed from any kind of interference from the executive of the day. In pursuance of the decision of the House, the Drafting Committee removed this question from the category of Fundamental Rights and put it in a separate part containing articles 289, 290 and so on. Therefore, so far as the fundamental question is concerned that the election machinery should be outside the control of the executive Government, there has been no dispute. What Article 289 does is to carry out that part of the decision of the Constituent Assembly. It transfers the superintendence, direction and control of the preparation of the electoral rolls and of all elections to Parliament and the Legislatures of States to a body outside the executive to be called the Election Commission”
The primary intent underlying the provisions in the Constitution, as later approved by the Constituent Assembly, was thus based on the fundamental premise that the Election Commission should be outside the control of the executive, as any element of influence by the executive would result in an authority that would fail to inspire sufficient confidence among the political parties and the public in the impartiality of the Commission and its ability to hold elections in a free and fair manner.
The existing system of appointment of the Election Commissioners is based on the Executive considering a panel of candidates and selecting one considered acceptable from its point of view, for approval by the President. As a result, there have been complaints from several political parties about the Commission’s independence as a Constitutional authority and its effectiveness to be able to function as an apolitical body.
For example, Shri L K Advani, in a letter of June 2, 2012, addressed to the then Prime Minister, Dr Manmohan Singh, questioned the credibility of the existing system in which the members of the Commission were appointed by the President solely on the advice of the Prime Minister. He said that it would not “evoke confidence among the people”. He therefore proposed that the committee that selects candidates for appointment to the Commission should be more “broad-based” to include the Leader of Opposition and the Chief Justice of India, among others as members.
More recently, as referred earlier, the Supreme Court, directed the government to consider introducing a more transparent system of appointment of the Election Commissioners and made the following observations:
“keeping in view the importance of maintaining the neutrality and independence of the office of the Election Commission to hold free and fair elections which is a sine qua non for upholding the democracy as enshrined in our Constitution, it becomes imperative to shield the appointment of Election Commissioners and to be insulated from the executive interference. It is the need of the hour and advisable, in my view, to extend the protection available to the Chief Election Commissioner under the first proviso to Article 324(5) to other Election Commissioners as well until any law is being framed by the Parliament” …………”Until the Parliament makes a law in consonance with Article 324(2) of the Constitution, the following guidelines shall be in effect: (1) We declare that the appointment of the Chief Election Commissioner and the Election Commissioners shall be made on the recommendations made by a three member Committee comprising of the Prime Minister, Leader of the Opposition of the Lok Sabha and in case no Leader of Opposition is available, the Leader of the largest opposition party in the Lok Sabha in terms of numerical strength and the Chief Justice of India”
Apparently, it is in pursuance of the above observations of the apex court, that the government has introduced the present Bill in the Parliament. However, its provisions tend to run counter to the norms proposed by the apex court as analysed below.
Section 7 of the Bill seeks to set up a Selection Committee headed by the Prime Minister to select candidates to be appointed as Election Commissioners. While the proposed committee includes the leader of the largest party in opposition, it also includes a Union Minister to be nominated by the Prime Minister as its third member. It does not include anyone else, including either the Chief Justice of India. Section 6 provides for a Search Committee headed by the Cabinet Secretary with two other Secretaries as its members. The Search Committee would consider candidates eligible to be appointed as Election Commissioners and recommend a panel of five such candidates for the Selection Committee’s consideration.
The salutary provisions of the Bill include a fixed term for each Election Commissioner [Section 9(1)], prohibition of an Election Commissioner being reappointed [Section 9(2)] and a rigorous and transparent procedure for the removal of the Chief Election Commissioner, as envisaged in Article 324(5) of the Constitution [Section 11(2)].
However, there are other provisions that cause serious concerns. The Bill in its present form fails to meet the requirement that Dr Ambedkar had specifically referred to, namely, “that the election machinery should be outside the control of the executive Government”, as explained below.
The Selection Committee referred to in the Bill, as provided in Section 7 is dominated by the representatives of the political executive and the mere presence of the leader of the largest party in opposition would not evidently alter that position, as he/she can be summarily overruled, being out-voted two-is-to-one.. The Search Committee itself is dominated by civil servants who are under the administrative control of the political executive and the procedure adopted by it for considering eligible candidates to be included in the panel remains totally non-transparent. Section 8(2) empowers the Selection Committee to “consider any other person than those included in the panel by the Search Committee”. Considering that Section 5 provides that candidates for appointment to the office of the Election Commission “shall be persons of integrity, who have knowledge of and experience in management and conduct of elections”, the term “integrity” and the other criteria not having been defined adequately, it permits the Selection Committee to override the panel recommended by the Search Committee and select any other candidate of its choice. The leader of the largest party in opposition, as its member, would not have enough access to the background information on the candidates and, in any case, can be overruled by the rest of the members who are a part of the political executive.
While the procedure prescribed in the Bill for removal of the incumbent of the office of the Chief Election Commissioner, as provided in Section 11(2) of the Bill, is no doubt rigorous enough, as provided in Article 324(5), that Article itself does not explicitly lay down a similar procedure for removing the other Election Commissioners. From the point of view of ensuring the independence of the Election Commission, though not explicitly stated, the intention underlying Article 324(5) should be deemed to provide a similar procedure being adopted for the removal of the other Election Commissioners. Against the background of the discussions in the Constituent Assembly and the overarching objective of ensuring the independence of the Commission, the Bill ought to have explicitly extended a similar procedure of removal of the other Election Commissioners. This assumes utmost importance in view of the provision in Section 17(2) which states, “if the Chief Election Commissioner and other Election Commissioners differ in opinion on any matter, such matter shall be decided according to the opinion of the majority”. Considering that the other Election Commissioners can be removed at the pleasure of the political executive, the mere fact that the procedure for removing the Chief Election Commissioner is rigorous does not confer sufficient autonomy on the Commission as a whole. Since the procedure of appointment of an Election Commissioner in the first instance is such that the political executive has an overriding role in it and since the appointment itself constitutes a post-retirement benefit conferred on selected candidates, the independence of the Commission as a whole, stands compromised. In view of this, if the Bill is enacted in its present form, the other political parties and the public will perceive the Commission to be subservient to the political executive.
Even though Article 324(5) of the Constitution indirectly treats the Chief Election Commissioner’s status as equivalent to that of a judge of the Supreme Court, Section 10 of the Bill downgrades his/ her status and that of the other Commissioners to that of the Cabinet Secretary. This provision indirectly diminishes the stature of the Commission.
To sum up, the Bill in its present form does not do sufficient justice to the Constituent Assembly’s vision that the “election machinery should be outside the control of the executive Government”. An Election Commission that is pliant to the political executive will erode the credibility of India’s democracy.
In order to uphold the integrity of the Election Commission, the following legislative measures need to be considered.
- Section 7 of the Bill should be modified to enlarge the composition of the Selection Committee to include the Chief Justice of India (CJI) as one of its members, as suggested by the apex court.
- The status of a member of the ECI should be elevated to that of a judge of the Supreme Court. Section 10 of the Bill should be appropriately amended.
- The procedure for the removal of the Election Commissioners should be 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 considering such persons. 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, if any.
- 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, if any.
We appeal to ALL the Members of Parliament, irrespective of the parties to which they belong, to consider the above concerns, keeping in view the long-term well-being and credibility of our democracy and make sure that the provisions of the Bill are so altered as to make the Election Commission a genuinely apolitical authority, totally independent of the political executive, capable of conducting elections in a free and fair manner, eliciting the trust of all political parties and, most importantly, invoking the trust of the people of India.
E A S Sarma
Former Principal, Administrative Staff College of India (Hyderabad)
Jagdeep S. Chhokar
Former Professor, IIM, Ahmedabad
Mazdoor Kisan Shakti Sangathan (MKSS)
Professor Emeritus, JNU New Delhi
S P Shukla
Former Member of Planning Commission
Mediaperson, Broadcaster, Documentary Filmmaker and Activist.
Maj Gen S.G.Vombatkere (Retd)
Admiral Vishnu Bhagwat
Former Chief of the Naval Staff
Former Professor, JNU New Delhi
K P Fabian
Former Indian Ambassador
A Hindi poet-critic and culture activist, Recipient of the Sahitya Akademi Award
Meeran Chadha Borwankar
Former Director General of Police (Maharashtra)
Former Professor, JNU New Delhi