| Context Source: IE The Supreme Court declined a request for an interim stay on the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. |
About
- The Act replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.
- The Act set the salary of the CEC and ECs at the same level as a Supreme Court judge.
- It did not provide for their appointment process, which continued to be decided by the President.
Background
- In 2023, while examining the appointment of the CEC and ECs, the Supreme Court declared that their appointment should not be done solely by the Executive.
- The Court noted that the ECI should be independent of Executive control.
- It mandated a selection process, which would hold until Parliament made a law.
- The Court directed that the appointment should be done by the President on the recommendation of a Selection Committee.
- The Selection Committee will consist of: (i) the Prime Minister, (ii) the Leader of Opposition in Lok Sabha, and (iii) the Chief Justice of India.
Article 324 of Constitution
- Article 324 of the Constitution states that the Election Commission will comprise the Chief Election Commissioner (CEC) and such number of Election Commissioners (ECs), as the President may decide.
- The Election Commission of India (ECI) is responsible for managing the preparation of electoral rolls and conducting elections to Parliament, State Legislatures, and the offices of the President and Vice-President.
- The Constitution specifies that the President will appoint the CEC and ECs, subject to the provisions of an Act of Parliament.
Key Features of the CEs and ECs Appointment Act, 2023
- Election Commission: The Election Commission will consist of a Chief Election Commissioner (CEC) and other Election Commissioners (ECs). The President will periodically fix the number of ECs.
- Appointment of the Commission: The Commission will be appointed by the President upon the recommendation of the Selection Committee.
- The Selection Committee will include the Prime Minister, Cabinet Minister, and Leader of Opposition in Lok Sabha (or leader of the single largest opposition party).
- A Search Committee headed by the Cabinet Secretary will suggest five names to the Selection Committee.
- The Selection Committee may consider any person other than those suggested by the Search Committee.
- Eligibility criteria: The CEC and ECs must: (i) be persons of integrity (ii) have knowledge and experience in the management and conduct of elections, and (iii) be or have been Secretary (or equivalent) to the government.
- Term: Members of the Election Commission will hold office for six years, or until they attain the age of 65 years, whichever is earlier.
- Reappointment: Members of the Commission cannot be re-appointed. If an EC is appointed as a CEC, the overall period of the term may not be more than six years.
- Salary and Pension: The salary, allowances, and other conditions of service of the CEC and ECs will be equivalent to that of the Cabinet Secretary.
- Removal: Retains the manner of removal of CEC and ECs as specified in the Constitution.
- The CEC may be removed in the same manner and on the same grounds as a Supreme Court judge.
- ECs may be removed only upon the recommendation of the CEC.
Concerns of the Act
- Independence of the Election Commission: The Constitution envisages the Election Commission (ECI) as an independent body that is responsible for conducting free and fair elections. Allowing the Selection Committee’s recommendations to be valid even with a vacancy could result in a monopoly of ruling party members during certain circumstances, undermining the diversity and independence of the committee.
- Salary: Equating the salary of the CEC and ECs with that of the Cabinet Secretary, whose salary is determined by the executive, raises concerns about potential government influence.
- Lack of Parity: CEC to be removed like a Supreme Court Judge, while ECs can only be removed on the recommendation of the CEC.
Selection Committee is Dominated by the Government:
The Selection Committee will consist of the Prime Minister, a Cabinet Minister, and the Leader of Opposition in Lok Sabha which means majority of members are from the government of the day.
- Validity of Selection Committee: The Act upholds the validity of the Selection Committee even if there is a vacancy or defect in constituting the Committee.
- Role of Search Committee: The Selection Committee selects names from a panel of five people suggested by the Search Committee.
- The Selection Committee may go beyond the names suggested by the Search Committee, and choose any other candidate which may undermine the role of the Search Committee.
- Eligibility Criteria: Only a person who is or has been at a rank equivalent to Secretary to the government will be eligible.
- By limiting the eligibility criteria of the CEC and ECs to civil servants, the Bill may exclude other qualified individuals from such posts.
- Salaries: The Act equates the salary of the CEC and ECs to that of the Cabinet Secretary of the government. Earlier, it was equated to the salary of the Supreme Court Judge.
- Both salaries are currently equivalent but they are regulated differently.
- The salary of a Cabinet Secretary salary is fixed by the government upon the recommendation of the Central Pay Commission which allows the greater control of the Executive in determining the salary of the CEC and ECs.
Suggestions for Composition of the Selection Committee
Goswami Committee (1990)
- CEC appointed by the President in consultation with the Chief Justice + Leader of Opposition of Lok Sabha.
- For other EC: Appointed by the President in consultation with the Chief Justice + Leader of Opposition of Lok Sabha + CEC.
The Constitution (Seventeenth Amendment) Bill 1990
- Chairman of Rajya Sabha + Speaker of Lok Sabha + Leader of the Opposition in Lok Sabha.
- The CEC was further made a part of the consultative process in the appointment of the Election Commissioners.
National Commission to Review the Working of the Constitution Report (2002)
- Prime Minister + Leader of the Opposition in Lok Sabha + the Leader of the Opposition in Rajya Sabha + the Speaker of Lok Sabha + the Deputy Chairman of Rajya Sabha.
Law Commission (2015)
- Prime Minister + the Leader of Opposition of Lok Sabha + the Chief Justice.
Supreme Court (2023)
- Prime Minister + Leader of Opposition in Lok Sabha + Chief Justice.
| How are the CEC and ECs Currently Appointed? Constitutional Provisions: There are just five Articles (324-329) in Part XV (Elections) of the Constitution. The Constitution does not lay down a specific legislative process for the appointment of the CEC and ECs. Article 324 of the Constitution vests the “superintendence, direction and control of elections” in an Election Commission consisting “of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix”. The President makes the appointment on the advice of the Union Council of Ministers headed by the Prime Minister. The Law Minister suggests a pool of suitable candidates to the Prime Minister for consideration. The President makes the appointment on the advice of the PM. Removal: They can resign anytime or can also be removed before the expiry of their term. The CEC can be removed from office only through a process of removal similar to that of a SC judge by Parliament. Any other EC cannot be removed except on the recommendation of CEC. |
Global Practices in the Appointment of Electoral Body Members
| United States Procedure | In the U.S., the President appoints members to the electoral body, and the appointments require confirmation by the Senate. The dual-check system ensures a balance of power and prevents unilateral decisions. |
| South African Model | In South Africa, the selection process involves key figures such as the President of the Constitutional Court, representatives of the Human Rights Court, and advocates for gender equality. Emphasis on diverse representation ensures a broader perspective in the electoral body. |
| United Kingdom Approach | In the U.K., candidates for the electoral body are subject to approval by the House of Commons. Parliamentary involvement adds a layer of scrutiny and accountability to the selection process. |
Conclusion
- The CEC and EC Appointment Act 2023 shows reform in the selection process for the ECI, but it also raises concerns about the potential hijacking of the process of appointment of CEC & EC in the hands of the executive.
- The suggested alterations could potentially impact the autonomy and operations of the Election Commission of India .
- The independence of the Election Commission is paramount to guarantee impartiality and integrity in the execution of electoral processes.
- Addressing these concerns and upholding the non-partisan nature of the Election Commission is essential for maintaining public trust in the electoral system and ensuring fair and unbiased elections.