Answer

The Election Commission of India (ECI), a constitutional body under Article 324, ensures free and fair elections. The recent Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023 has replaced the Chief Justice of India with a Cabinet Minister in the selection panel, raising concerns over executive influence in electoral autonomy.

Positive Constitutional and Governance Implications

• Legislative Backing to Selection Process: The new law provides a statutory framework for the appointment of Election Commissioners, ensuring clarity and procedural consistency in appointments.
  For example: Earlier, CEC and ECs were appointed solely on the Prime Minister’s recommendation without formal legislative oversight.
• Continuity in Electoral Management: A defined selection process ensures timely appointments, preventing institutional vacancies and maintaining the smooth functioning of the Election Commission.
  For example: The 2023 Act institutionalised a structured appointment mechanism, preventing disruptions during elections.
• Increased Parliamentary Oversight: The process aligns with Article 324(5), as it was enacted by Parliament, giving a democratic mandate to election-related appointments.
  For example: The Supreme Court’s 2023 judgment called for a law to regulate appointments rather than leaving it to executive discretion.
• Executive Accountability through Selection Committee: The Leader of the Opposition’s (LoP) inclusion ensures some degree of scrutiny over government-backed selections.
  For example: The LoP’s dissent in the recent CEC appointment brought transparency to the selection process.
• Alignment with Global Practices: Many democracies allow executive discretion in appointing election officials, ensuring policy continuity and administrative efficiency.
  For example: While the U.S. President appoints election officials, many European democracies have independent commissions, offering a more nuanced comparison.

Negative Constitutional and Governance Implications

• Majority Control with the Government: The Prime Minister and a nominated Cabinet Minister create a permanent executive majority, reducing selection objectivity.
  For example: In the recent CEC selection, the two government members outvoted the LoP’s dissent.
• Potential Violation of Article 14: The selection mechanism institutionalizes favoritism by ensuring government-backed candidates always secure the position.
  For example: Critics argue that the composition of the panel lacks a rational basis, making it challengeable under Article 14.
• Risk to Free and Fair Elections: An executive-controlled Election Commission may lack independence, undermining public trust in the electoral process.
  For example: The 1993 Supreme Court judgment emphasized that ECI must remain impartial and independent to uphold democracy.
• Erosion of the Basic Structure Doctrine: Electoral integrity is a part of the Constitution’s basic structure, and any dilution may invite judicial intervention.
  For example: In Kesavananda Bharati case (1973), the Court ruled that the basic structure cannot be altered by Parliament.

Concerns of Selection Committee on Safeguarding Electoral Democracy

• Lack of Institutional Balance: With no independent member, the selection committee cannot ensure fair, merit-based appointments.
  For example: The LoP’s dissent in the recent appointment had no legal impact on the decision.
• Compromised Institutional Autonomy: A politically appointed Election Commission risks losing credibility and public confidence in electoral processes.
  For example: Allegations of partisan favoritism in electoral decisions can reduce voter trust.
• Absence of Judicial Oversight: The removal of the CJI from the panel limits external checks on executive overreach in EC appointments.
  For example: The Supreme Court’s 2023 directive sought judicial representation to uphold neutrality.
• Predictable Government Dominance: The Cabinet Minister’s nomination by the PM ensures a permanent majority for the ruling government.
  For example: The 1991 EC Reforms Report recommended bipartisan selection panels to maintain credibility.
• Selective Transparency in Appointment Process: The Search Committee’s candidate list is undisclosed, restricting public accountability in selection.
  For example: Transparency advocates argue that public scrutiny of shortlisted candidates can prevent favoritism.

Reforms to Balance Executive Prerogative with Institutional Autonomy

• Consensus-Based Selection Model: Introduce a three-fourths majority rule for selections, preventing government unilateralism.
  For example: The CIC (Chief Information Commissioner) selection process requires a majority consensus among panel members.
• Public Disclosure of Shortlisted Candidates: Ensure greater transparency by publishing candidate lists and inviting expert feedback.
  For example: The UK Electoral Commission appointments involve a public nomination and review process.
• Fixed Tenure and Removal Safeguards: Grant CEC and ECs a secure tenure with removal protections, akin to Supreme Court judges.
  For example: The Goswami Committee Report (1990) recommended that ECs should not be removable at executive discretion.
• Independent Search Committee for Shortlisting: Establish a non-partisan expert committee to propose candidates to the selection panel.
  For example: The Lokpal selection process involves a search committee independent of the government.

Democracy thrives when institutions remain beyond reproach.  A transparent, bipartisan selection process, backed by constitutional safeguards, can ensure institutional independence while respecting executive prerogative. Strengthening parliamentary oversight, adopting a collegium model, and ensuring judicial review will uphold constitutional morality and fortify electoral democracy against undue influence.

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