Context: The Rajya Sabha passed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, which will guide the appointment of the Chief Election Commissioner (CEC) and the Election Commissioners (ECs) in future.
Issues pertaining to the appointment of Election commissioners
- Absence of Law: The appointment of CEC and other ECs according to the Article 324, shall be done as per the law made by the Parliament in this regard. However, no such law has yet been made which leaves a “gap” and leaves the appointment of such a crucial post solely to the executives.
- Lack of security of tenure for Election Commissioners (ECs)- Article 324(5) of the Constitution protects only CEC from removal, i.e. only if the manner and grounds of removal are the same as a judge of the Supreme Court. However, other ECs can be removed by the government on the recommendation of the Chief Election Commissioner.
- No Qualification criteria - The constitution has not prescribed the qualifications (legal, educational, administrative, or judicial) of the members of the election commission
- Post-retirement appointment - The constitution has not debarred the retiring Election commissioner from any further appointment by the government.
- Power division between CEC and other ECs - There is no clarity regarding the power division between the Chief Election Commissioner and other Election Commissioners.
Some key provisions of the bill
- It says that the CEC and other ECs will be appointed by the President on the recommendation of a Selection Committee which will include
- Prime Minister—Chairperson.
- Leader of Opposition in the House of the People i.e. LS
- a Union Cabinet Minister to be nominated by the Prime Minister Member.
- It provides for a search committee headed by a Cabinet Secretary to find a panel of 5 persons to be appointed as CEC and other ECs. But now this committee will be headed by minister of law and justice.
- The bill provides for the eligibility criteria also and says that Such persons must have expertise in managing and conducting elections also the person must be holding or have held a post equivalent to the rank of Secretary to the Government of India.
- The Bill provides that salary, allowance, and service conditions of the CEC and other ECs will be the same as that of the Cabinet Secretary. After stiff resistance from opposition, bill retains the parity with SC judges.
- Under the Bill, the CEC and other ECs will not be eligible for re-appointment.
Issues with the new bill
- Independence: The bill has excluded the judiciary from the selection process and has majority of the executive. This questions the independence of selection committee as being impartial in the appointing process.
- Constitutional Question: Article 324(5) which deals with the terms of service of the CEC and ECs cannot be amended by ordinary law of Parliament. It will need an amendment of the Constitution by Parliament.
Arguments in favour of the Bill
- In line with Judgement: According to the Supreme Court the direction given was subject to the law made by the parliament, so the bill agrees with the judgement.
- Provide for Qualification: the proposed bill provides for the qualification which reduces the ambiguity and discretion of executive in appointment.
- Constitution of Search and Selection Committees: the bill provides for the constitution of these bodies to streamline the process of selecting and appointing an individual.
- Clarity about Reappointment: initially the act does not have clear provision about the reappointment, the bill tries to remove the ambiguity and clearly states that there cannot be any reappointment which ensure the independence of the election commission of India.
Way forward
- Clear Powers Division: Clearly define roles and responsibilities of Chief Election Commissioner and other Commissioners to prevent conflicts.
- Transparent Selection: Form a diverse selection committee including judiciary and civil society to assess candidates fairly.
- Enhance Independence: Consider amending the Constitution to grant the Election Commission greater autonomy from government influence.
- Capacity Building: Invest in regular training for Commissioners and staff to improve their understanding of electoral processes and technologies.
- Ongoing Review: Periodically review of Commission’s functioning to address emerging challenges and maintain electoral integrity.