Just five months ago in March 2023, a five-judge constitution bench of the Supreme Court (SC) gave a judgment on selection of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs) in which it specified that the selection committee should comprise of the Prime Minister, the Chief Justice of India and Leader of the Opposition in Lok Sabha ( in the absence of the LOP, the leader of the largest opposition party in the Lok Sabha). This procedure would be in vogue till such time as a law is enacted by Parliament.
Probably due to the forthcoming general elections in April 2024 and the fact that one EC would be retiring in Feb 2024, the Govt has introduced the CEC and other ECs (Appointment, Conditions of Service and Terms of Office) Bill, 2023, last week in the Parliament. Considering the fact that a law had not been made in this regard even 73 years after the adoption of the Constitution, the introduction of the Bill is a welcome step even though the Government has been pushed into doing it by the SC.
A Mixed Bag
The Bill appears to be a mixed bag as some of the orders of the SC have been included in the Bill and other aspects have been omitted. The collegium system has been introduced but the major change is that the CJI has been dropped from the selection committee and replaced by a Union cabinet minister to be nominated by the PM.
A search committee has been suggested which will put up names of five candidates for selection. However Clause 8(2) of the Bill states that the Selection Committee may also consider any other person than those included in the panel by the Search Committee. Earlier, only the CEC had protection from removal but now the other two ECs will enjoy the same safeguards.
A retired CEC opined that the status of ECs has been downgraded from equivalence with a SC judge to the Cabinet Secretary. However, this has been refuted by the Government, stating that there is no change in the order of precedence. Other matters pertaining to service, pay and pension, leave, retirement and transaction of business of the Election Commission of India (ECI) have been laid down in the Bill.
Longstanding Collegium Demand
The Bill has generated debate and invited criticism due to the replacement of the CJI by a Union cabinet minister. Has this change compromised the SC judgment? Will this ensure that the ECI is insulated from interference by the Executive? If the selection is to be done by majority vote, then is the LOP rendered irrelevant?
A study of the SC judgment reveals a great deal of emphasis on the independence of the ECI and selection of ECs to be done by a collegium. Various reports and commissions (Dinesh Goswami report 1990, National Commission to Review the Working of the Constitution 2002, the ECI-proposed reforms 2004, Report of the Second Administrative Reforms Commission 2009, Background paper on Electoral Reforms by the Law and Justice Ministry 2010, the 255th Law Commission Report 2015) have recommended need for reform in the working of the ECI, removal of ECs, establishment of a collegium for selection, independence of the ECI, insulation from interference of the Executive, establishment of an independent secretariat of the ECI and charging of the expenditure on the Consolidated Fund of India.
The Congress Party has posted in the public domain a letter written by LK Advani in 2012 to then PM Manmohan Singh: "People want to see only persons with competence, integrity and impeccable record of service to these organisations whose functioning greatly determines the quality of governance.....keeping these important decisions as the exclusive preserve of the ruling party renders the selection process vulnerable to manipulation and partisanship.....the CEC and ECs should be appointed by a collegium".
What SC Judgment Said
The constitution bench of SC made the following important points in its judgment of March 2023:
* Decisions by the ECI need to generate trust of the people so that the sanctity of the democratic process is maintained. Therefore the ECI needs to be independent and fully insulated from any external disrupting environment.
* Both Article 324 of the Constitution and Election Commission (Conditions of Service and Transaction of Business ) Act 1991, are silent on the selection of the CEC and ECs. There also appears to be a lacuna in ensuring independence.
* Hence it is the duty and obligation of the Court to protect and nurture the independence of the ECI.
* The selection process of a constitutional post cannot be equated with the selection process of a bureaucratic functionary. If the Executive is left with the exclusive discretion to select the candidate, it may destroy the fabric of the constitutional institution.
* The ECI and various Committee reports have recommended an independent Secretariat for the ECI and charging of the expenditure on the Consolidated Fund of India. The SC judgement, while acknowledging the GoI stand that this is a policy matter, had nevertheless made an urgent appeal to GoI to implement this long standing demand, which remains silent on this issue.
And What The Bill Does
The moot question now is that has the Bill nullified the SC judgment’s aim of an impartial selection committee? Since the decision of the selection committee is not going to be unanimous, the Executive will still retain control on the selection process.
Does the Clause 7(2) of the Bill which states "the appointment of the CEC and other ECs shall not be invalid merely by reasons of any vacancy in or any defect in the constitution of the selection committee” mean that if the LOP is absent, the PM and the nominated cabinet minister can go ahead with the selection process?
In the Supreme Court judgment, it is mentioned that the SC has plenary powers under Article 142 of the Constitution to issue directions to do "complete justice". The court has created a jurisprudence where it has exercised its power under Article 142 to fill legislative gaps.
Will someone challenge the constitutionality of these provisions in the SC? Let’s wait and watch.
Maj Gen Anil Verma (Retd) heads the Association for Democratic Reforms. Views are personal, and do not represent the stand of this publication.
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