A Process Where Free and Fair Elections Will Be a Casualty

The appointment process of Election Commissioners has been revised through a new law in 2023

Chief Election Commissioner and Other Election Commissioners  Bill, 2023

• New Law: The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 is the first law enacted by Parliament under Article 324(5) of the Constitution.
• Objective: It establishes the procedure for appointing the Chief Election Commissioner (CEC) and Election Commissioners (ECs).
• Background: The Bill was introduced in response to the Supreme Court’s March 2023 order, which directed that the CEC and ECs should be appointed based on the recommendation of a high-power committee.
  • Previously, the CEC and ECs were appointed solely by the President of India on the recommendation of the Prime Minister, which the Court found to be unsatisfactory.
• Court Directive: The Supreme Court ruled that the appointment of the CEC and ECs should be made by a high-power committee consisting of:
  • The Prime Minister
  • The Leader of the Opposition (LoP) in the Lok Sabha
  • The Chief Justice of India (CJI)
• Legislative Action: This was meant as an interim measure until Parliament legislated on the matter.
• Concerns: The Court emphasized that executive control over appointments could compromise the independence of the Election Commission.

Challenges against the Law

• Modification of Court Directive: The new law replaces the Chief Justice of India (CJI) with a cabinet Minister nominated by the Prime Minister in the selection committee. The committee now consists of:
  • The Prime Minister (Chairperson)
  • The Leader of Opposition (LoP) in Lok Sabha
  • A cabinet Minister (nominated by the Prime Minister)
• Violation: This change has been challenged in the Supreme Court for violating the original directive of the Constitution Bench led by Justice K.M. Joseph (retired).
• Selection Process Concerns: A search committee, headed by the Law Minister, shortlists five candidates for consideration. 
  • The lack of transparency in disclosing shortlisted names adds opacity, raising concerns about potential bias.
• Predetermined Outcomes: The senior-most EC was appointed as CEC by the two government-backed members, despite dissent from the Leader of Opposition (LoP).
  • This reinforces concerns that the process lacks genuine evaluation and serves the ruling government’s interests.
• Role of ECI: Article 324 vests the Election Commission of India (ECI) with the responsibility to ensure free and fair elections.
  • The Supreme Court in Election Commission of India vs State of Tamil Nadu (1993) reaffirmed that the ECI must be independent and impartial to uphold electoral integrity.
• Pre-determined majority: The cabinet Minister is nominated by the PM, creating a predictable 2:1 majority in favor of the government.
  • This pre-determined majority ensures that the government’s choice will always prevail, making objective assessments meaningless.
• Undermining Neutrality: The Prime Minister appointing a committee member (cabinet Minister) undermines neutrality.
  • A cabinet Minister is bound to support the PM, eliminating free and independent decision-making in the selection process.
• Lack of Objective Evaluation: Independent members in a committee should debate and assess candidates based on merit. However, in this setup, the outcome is predetermined, making the selection process a mere formality rather than a genuine evaluation.

Constitutional Viability

• Arbitrary: The composition of the selection committee is arbitrary and lacks a rational basis, making the law constitutionally unsustainable.
• Preventing Objective Assessment: By ensuring a majority for the government’s candidate, the law prevents an objective assessment of other qualified candidates.
• Violation of Article 14: This undermines equal opportunity, potentially violating Article 14 (Right to Equality) of the Constitution.

Impact on Electoral Integrity

• Threat: The selection of the CEC and ECs directly influences the conduct of free and fair elections in India.
• Undermining Basic Structure: Electoral purity is a fundamental part of the Constitution’s basic structure, ensuring democracy remains impartial and transparent.
• Threatening Neutrality: A selection committee that always favors the government’s candidate threatens this neutrality, potentially undermining the credibility of elections.

Conclusion

Given the high constitutional significance of the Election Commission, the Supreme Court must carefully examine the validity of this law.

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