Glaring Omission: On The Import Of Executive Majority In ECI Selection Process

Context: 

Recently, a bill named the “Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023” was introduced in Rajya Sabha to make changes in the process of appointing the Chief Election Commissioner (CEC) and Election Commissioners (ECs). 

Background: 

• A recent judgment by the Supreme Court called for  an independent selection committee that included the Chief Justice of India. 
  • Basis of the Judgment: The judgment was also in line with the recommendations of the Dinesh Goswami Committee in 1990 and the Justice Tarkunde Committee in 1975.

Provisions in the Bill: 

• A Search Committee: 
  • Mandate: It will prepare a panel of five persons for the consideration of the Selection Committee. 
  • Headed by: The Cabinet Secretary. 
  • Composition: The Cabinet Secretary and two other members, not below the rank of Secretary to the central government.
  • Qualifications: Having knowledge and experience in matters related to elections.
• A Selection Committee: 
  • Mandate: The Bill specifies that the CEC and other ECs will be appointed by the President on the recommendation of a Selection Committee. 
  • Composition: 
    • The Prime Minister as Chairperson
    • The Leader of the Opposition in Lok Sabha as member
      • If the Leader of Opposition in Lok Sabha has not been recognised, the leader of the single largest opposition party in Lok Sabha will assume the role. 
    • A Union Cabinet Minister nominated by the Prime Minister as member 
  • Consideration: It may also consider candidates who have not been included in the panel prepared by the Search Committee.
• Qualification of CEC and ECs: Persons who are holding or have held posts equivalent to the rank of Secretary to the Central Government will be eligible to be appointed as CEC and ECs. Such persons must have expertise in managing and conducting elections. 
• Salary and Allowances: The Bill provides that salary, allowance, and service conditions of the CEC and other ECs will be the same as that of the Cabinet Secretary. (The 1991 Act provides that the salary of the ECs will be equal to that of a Supreme Court judge).
• Term of office: The Bill retains the same tenure, however, the CEC and other ECs will not be eligible for re-appointment. (The 1991 Act mandates that the CEC and other ECs will hold office for a term of six years or until they reach the age of 65 years, whichever is earlier).
• Conduct of Business: All business of the Election Commission is to be conducted unanimously. In case of difference of opinion between the CEC and the other ECs on any matter, it shall be decided through majority. 
• Removal and Resignation: Like earlier, the CEC can only be removed from his office in a manner similar to that of a Supreme Court judge (either on the ground of proved misbehavior or incapacity).
  • An EC can only be removed from office on the recommendation of the CEC. 

Concerning Points:

• Regarding with the Bill:
  • Against the Judgment of Judiciary: The Bill seems to counter that judgment of a Constitutional Bench that envisaged an independent selection committee.
  • Selection Committee: Choosing anyone from outside the shortlist is undesirable and will undermine the authority of the shortlisting committee.
• Regarding with the EC:
  • Delay in Elections: In the run-up to the 2019 general election, the announcement of elections was delayed for a month between February and March, allowing the government to inaugurate many projects. 
  • Lack of Autonomy: The independent V-Dem Institute in Sweden, which compares democracies worldwide, has downgraded India to an “electoral autocracy”, citing the loss in autonomy of the ECI. 

Arguments for the Inclusion of the Chief Justice of India in the Selection Committee:

• Favor: It could provide pre-emptive legitimacy to appointments and affect judicial scrutiny of errors or infirmity in the selections.
• Against: The ECI is a constitutional body that not only conducts elections but also renders a quasi-judicial role.

Conclusion:

A non-partisan and independent ECI is a sine qua non for the robustness of electoral democracy. Before finalizing the Bill, there is a need for debates and deliberations between government, opposition parties, legal experts, and various stakeholders to come up with the best outcome.

News Source: The Hindu