Election Commissioners Bill Affects Independence Of ECI, Will Make Free & Fair Elections A Chimera : Justice RF Nariman

Former Supreme Court Justice Rohinton F Nariman opined that the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, passed by Rajya Sabha two days ago, should be struck down as it severely imperils the independence the Election Commission.

“We have to now see how this bill becomes an act and I am certain that it is going to be challenged. According to me, it should be struck down for asking as an arbitrary piece of legislation because it severely imperils the independence of the working of the Election Commission.”

Nariman stressed that this bill is fraught with the greatest danger and hoped that the same gets struck down.

"The Election Commission also, when this matter comes up before the SC, I hope this bill (which now will become an act) will be struck down. I sincerely hope. Because if it is not, then it is fraught with the greatest danger to democracy that I can see."

Nariman made these strong assertions while delivering the Smt Bansari Sheth Endowment Lecture titled "The Constitution of India: Checks and Balances."

Initially, he spoke about the Supreme Court decision passed by its constitutional Bench in Anoop Baranwal's matter. In this landmark judgment, the Court ordered that, until parliament passes a law, Election Commissioners will be appointed by the President of India on the advice of a Committee consisting of the Prime Minister, and leader of Opposition in the Lok Sabha (or leader of largest opposition party), and the Chief Justice of India. Sharing his insights on the same, Nariman stated:

“Later in the year, you had the Supreme Court decide as to how the Election Commissioner should be appointed. Something very very crucial. Because if Election Commissioners happen to be partisan, there is no free and fair election, and there is no democracy. So, the Supreme Court stated in an interim order that until the parliament decides (because Article 324, which speaks of the conduct of election, specifically says that until the parliament so decides, it shall be the president) then went on to say that it would be fair if you are going to independent persons as Election Commissioner, to have the prime minister, chief justice of India, and have the leader of the opposition as three persons who will now appoint election commissioners.”

However, with respect to this, a bill was passed by the Rajya Sabha on December 12, which changed the composition of the selection committee for appointing election commissioners. As per the bill, the president would appoint the chief election commissioner (CEC) and other election commissioners based on the recommendation of a selection committee. This committee shall comprise of the prime minister, a union cabinet minister, and the leader of the opposition or the leader of the largest opposition party in the Lok Sabha. Thus, substituting the Chief Justice of India with the Union Minister. 

Explaining how the said composition lies on the teeth of the free and fair election, Nariman said:

“Most unfortunately, we find that the bill was moved in the Rajya Sabha, which has now become an Act, (of, course it will go to the Lok Sabha and become an Act in no time) in which the Chief Justice is substituted by a Minister appointed by the Prime Minister. Now, this is the 2nd most disturbing feature, because, if you are going to get the Chief Election Commissioner and other Election Commissioners appointed in this fashion, free and fair elections are going to become a chimera. So, this is the second disturbing fact that we found this year itself.”

Notably, Nariman also spoke about how the suggestion made in Anoop Baranwal's case was picked up from the parliament's own practice of appointing a CBI director.

“You remember I told you that the Supreme Court suggested that you have this collegium of three consisting of the PM, leader of the opposition and the Chief Justice. By the way, the Supreme Court did not pick up a rabbit from the hat. The Supreme Court picked up parliament's own practice. Because parliament in 2014, when you appointed the CBI director, somebody of far less relevance than the Election Commission, when you appointed the CBI director, you had the same three, by legislation. And look at what has happened today. The Supreme Court looking at the CBI legislation…suggested these three and these three gets subverted instantly by now passing a bill and it will become an act in no time, where you will have two from the executive against the leader of the opposition. Which is 2 to one always and outgoes the EC. So, there is not much point saying that you are going to appoint a person when you are not sure is going to be independent.”

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The video of the lecture can be watched here.