The Election Commission Bill, 2023: The Way Far Away From Independence

ECI: An Independent Constitutional Body

Independence of a constitutional body from external influences, especially from the executive, can be safeguarded by ensuring fairness in appointment, security of tenure and conditions of service and removal from service only on account of established grounds and through due process of law.[ii] The nature and scope of the power vested with the Election Commission under Article 324 of the Constitution demands nothing more than it be a truly independent body. The Commission is vested with exclusive powers, sometimes uncontrolled, regarding preparing electoral rolls and conducting elections to Parliament, State legislatures and the Office of the President and Vice President of India. The words ‘superintendence, direction and control’ and ‘conduct of all elections’ appeared in Article 324 (1) are given wider scope by the Supreme Court in Mohinder Singh Gill v. The Chief Election Commissioner[iii], and declared that such power can 'operates in area left occupied by legislations'. The Commission can even postpone a scheduled election or order a re-poll, if found necessary. It was also given a quasi-judicial power of registration of political parties under the Representation of the People Act, 1951, recognition and de-recognition of parties and allotment of election symbols and resolving of disputes that arose therefrom and power to ensure fair conduct of elections by implementing Model Code of Conduct. The Commission is also vested with the power of giving the President or Governor an opinion regarding the disqualification of a sitting member of Parliament or State legislature, as the case may be. It can also give directions and instructions to political parties to file election expenditure reports, annual audited reports, reports of the voluntary contributions received by the party, declarations regarding pending criminal cases against its candidates, etc.

Appointment of CEC and EC

The system of appointment of CEC and ECs provided by the Bill is that the President, by warrant under his hand and seal, appoint on the recommendation of the Selection Committee consisting of the Prime Minister as its Chairman, the Leader of Opposition in the House of the People and a Union Cabinet Minister as members. The leader of the single largest party in opposition in the House of the People will be deemed as the Leader of Opposition if it is otherwise not recognized in the House. The Union Minister to the Committee to be nominated by the Prime Minister. This Selection Committee will consider the panel of five persons prepared by a Search Committee headed by Cabinet Secretary. Bill also empowers the Selection Committee to consider any person outside the panel prepared by the Search Committee for appointment. Moreover, the Bill also provides that the appointment of CEC or EC shall not be invalid due to any vacancy or defect in the constitution of the Selection Committee. From its very composition, the upper hand of the Central Government in the Selection Committee is clear that the appointment of CEC and ECs shall only be in accordance with the interest of the executive.

Though Article 324 (2) of the Constitution authorizes Parliament to make a law for the appointment of the CEC and EC, there was no such law made by the Parliament in this regard. In the absence of such a law, the President made the appointment of CECs and ECs so far on the Prime Minister's recommendation. This is contrary to the concept of an independent Commission, as the appointees were all the nominees of the Government, irrespective of their excellent career records before or after the appointment. In this backdrop, the constitution bench considered the appointments of CEC and ECs in Anoop Baranwal. According to the Supreme Court,

“The Founding Fathers clearly contemplated a law by Parliament and did not intend the executive exclusively calling the shots in the matter of appointments to the Election Commission. Seven decades have passed by. Political dispensations of varying hues, which have hold the reigns of power have not unnaturally introduced a law. A law could, not be one to perpetuate what is already permitted namely appointment at the absolute and sole discretion of the Executive. A law, as Gopal Sankaranarayan points out, would have to be necessarily different. The absence of such a law does create a void or vacuum. This is despite a chorus of voices even cutting across the political divide urging diversity of the exclusive power of appointment from the Executive.”[iv]

The Court, in its strong words, criticized as:

“As long as the party that is voted into power is concerned, there is, not unnaturally a near insatiable quest to continue in the saddle. A pliable Election Commission, an unfair and biased overseer of the foundational exercise of adult franchise, which lies at the heart of democracy, who obliges the powers that be, perhaps offers the surest gateway to acquisition and retention of power.”[v]

The Court highlighted the need for a law by the Parliament to fill this vacuum and to replace the ‘mere transient or stop gap arrangement’ exclusively exercised by the executive. This law, according to the Court, shall take away the exclusive power of the executive. Until the Parliament makes such a law, the Supreme Court constituted an ad-hoc system for appointing CEC and ECs. The committee consisted of the Prime Minister, the Leader of Opposition in the Lok Sabha (in his vacancy, the leader of the largest opposition party in Lok Sabha) and the Chief Justice of India, who gave recommendations to the President for the appointment of CEC and ECs. This appointment system is similar to the recommendations made by the Law Commission in its 255^th Report in 2015. Its composition ensures equal representation from the Government and opposition and Chief Justice of India as a neutral member, thus guarantee appointments free from executive influences.

By replacing the neutral member with a Union Minister and making the Selection Committee explicitly with executive domination, the Bill reinstated the position of ECI appointments as a matter of the ruling party's discretion and is against the spirit of the decision in Anoop Baranwal.

Qualification and Tenure of Office

For the first time, the Bill is prescribing qualifications for the appointment of CEC and ECs. It provides that a person holding or has hold ‘a post equivalent to the rank of Secretary to the Government of India and shall be person of integrity, who have knowledge of and experience in management and conduct of elections’ is eligible for appointment. Though the Election Commissioners appointed so far had a civil service background, the Bill closed the door to any other person appointed to the post.

Further, Clause 9 of the Bill provides that CEC or ECs can hold the office for six years or till attaining the age of sixty-five years, whichever is earlier. A similar provision can be found in section 4 of the 1991 Act. However, the Bill further states, “Where an Election Commissioner is appointed as Chief Election Commissioner, his term of office shall not be more than six years in aggregate as the Election Commissioner and the Chief Election Commissioner”, which is problematic. Though the 1991 Act contained no such provision, by practice, senior most EC is appointed as CEC and their term of office was calculated in aggregate. It was challenged in Anoop Baranwal as the Government used to appoint Civil Servants with less than six years to complete sixty-five years of age as ECs and they will get less than six years term of office both as EC and CEC. Striking off such practice, the Court held;

“The philosophy behind giving a reasonably long stint to the appointee to the post of Election Commissioner or the Chief Election Commissioner, is that it would enable the officer to have enough time to gear himself to the needs of the Office and to be able to assert his independence. Any assured term would instill in the appointee, the inspiration and the will to put in place any reforms, changes, as also the inspiration to bring out his best. A short-lived stint may drain the much- needed desire besides the time to fulfill the sublime objects of the high Office of the Election Commissioner or the Chief Election Commissioner. Any tendency towards placating the power that be, would wax as also the power and the will to assert his independence may wane, bearing in mind, the short tenure. This apparently is the underlying philosophy of the law made by Parliament, assuring, a term of six years. The term of six years is separately assured to both the Election Commissioner and the Chief Election Commissioner.”[vi]

By incorporating a provision of aggregate calculation of six years tenure as EC and CEC in the Bill, the Government intends to overcome the aforesaid ratio and confine the term to six years only. Besides, the Bill does not contain any provision for appointing senior most EC as CEC. If an EC is appointed as CEC, it is actually a fresh appointment made on the recommendation of the Selection Committee. In such a situation, the aggregate calculation of six years of tenure for a CEC, if he was an EC, is unreasonable and defeats the institutional independence.

Conditions of Service

Another aspect of the Bill is the change brought in the service conditions of the CEC and ECs. The Bill provides that the salary, allowances, dearness allowances and other conditions of services available to the CEC and ECs shall be the same as that of the Cabinet Secretary. This change brought out in the new law is surprising. Unlike that of the provisions for appointment and qualification, the 1991 Act already contained provisions equating the salary, pension, conditions of service relating to travelling allowance, provision of rent-free residence and exemption from payment of income-tax on the value of such rent-free residence, conveyance facilities, sumptuary allowance, medical facilities and such other conditions of service of CEC and ECs similar to that of the Judge of Supreme Court under the Supreme Court Judges (Conditions of Service) Act, 1958 or the rules made thereunder. However, the Bill, without any valid reasons, makes these conditions of services equal to those of the Cabinet Secretary.

Issues Unaddressed

In spite of these changes, the Government could have incorporated certain other measures for strengthening the institutional independence of the Election Commission, which was long demanded by civil society. Since the Election Commission became a multi-member body from 1993 onwards, the protection given to the CEC on removal should be equally applicable to ECs. That is, removal only in the like manner and grounds that of the Judge of the Supreme Court also need to be extended to the office of the ECs and the Constitution is required to be necessarily amended for the purpose. Similarly, a demand for the permanent secretariat of the Election Commission like that of Lok Sabha, Rajya Sabha Supreme Court, etc. and charging its expenditure from the Consolidated Fund of India is a long demand even from the Election Commission itself. Though in Anoop Baranwal similar reliefs were also prayed, the majority of the Bench left it to the consideration of Parliament and Government. However, the Bill has failed to address these core issues.

From all perspectives, the changes brought by the Bill to the institution of the Election Commission of India are regressive. The true independence of the Commission is essential for the survival of democracy and is the primary condition for ensuring free and fair elections in the country. The decision in Anoop Baranwal was a forward step in ensuring such a guarantee of independence, but the Bill seeks to confine the Commission in the hands of the Government.

The author is a Research Scholar, Central University of Kerala. Views are personal.