Context

This editorial is based on the news “Former Election Commissioner Ashok Lavasa writes: With vacancies, Election Commission’s moment of reckoning” which was published in the Indian Express. In March last year, the Supreme Court ordered the constitution of a selection committee for the Election Commission of India (ECI) and now just over a year later, and three months after Parliament passed a law excluding the CJI from the committee, there are two vacancies in the ECI and the time to test the law.

Election Commission (EC): Article 324

• Constitutional Provision: 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.  
• Mandate: The ECI’s vital function is to ensure free and fair elections leading to the formation of a democratically-elected political system responsible for running the government till the next elections. 
• Relation with Government: The ECI’s responsibility is in no way dependent on government actions. 
  • It neither scrutinises government policy or action nor regulates it except while enforcing the Model Code of Conduct. Its compact is with the voters and its responsibility is to safeguard their rights.
• Safeguards: Article 324 (5) provided that “the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment.” 

About Chief Election Commissioner (CEC) And Other Election Commissioners (ECs) (Appointment, Conditions Of Service And Term Of Office) Act, 2023

• Appointment: The CEC and ECs will be appointed by the President upon the recommendation of a Selection Committee, which will consist of the Prime Minister, a Union Cabinet Minister, and Leader of Opposition/leader of the largest opposition party in Lok Sabha.
  • Recommendations of the Selection Committee will be valid even when there is a vacancy in this Committee.   
• Search Committee: A Search Committee headed by the Cabinet Secretary will propose a panel of names to the Selection Committee.  
• Salary and Conditions of Service of the CEC and ECs: They will be equivalent to that of Cabinet Secretary.  
  • Under the 1991 Act, it was equivalent to the salary of a Supreme Court Judge.

Key Issues Within Chief Election Commissioner (CEC) And Other Election Commissioners (ECs) (Appointment, Conditions Of Service And Term Of Office) Act, 2023

• The Selection Process: It may be dominated by the government, which has implications for its independence.
• Government Monopoly: Accepting the Selection Committee’s recommendations in spite of a vacancy in its constitution may effectively lead to a monopoly of government members in selecting candidates.  
• Government Influence: Making the CEC and EC’s salary equivalent to the Cabinet Secretary may lead to government influence as it is fixed by the government. This is unlike the salary of a Supreme Court judge which is fixed through an Act of Parliament.
• Exclusion of Suitable Candidates: CECs and ECs also perform quasi-judicial functions. Limiting these posts to senior bureaucrats may exclude other suitable candidates.

Various Other Significant Institutions in India

• Parliament: It exercises checks on the government through its legislative jurisdiction. 
• Judiciary: It scrutinizes laws passed by the legislature and examines the legality of the government’s decisions.
  • A somewhat similar function is performed by the tribunals. 
• Attorney General: Advises the government, occasionally representing it in courts. 
• Comptroller and Auditor General: Maintains government accounts and audits government expenditure. 
• Public Service Commission: It carries out recruitment for the government and advises it on certain service matters.
• The Constitution also provides for other institutions, some of which do not have a permanent existence, such as the Finance Commission or the Delimitation Commission, constituted periodically to make recommendations as independent organs of the state. 
  • Finance Commission: Proposes a financial framework for the fiscal relationship between the Centre and states, the devolution of taxes and other modes of central transfers. 
  • Delimitation Commission: Proposes the delineation of boundaries of assembly and parliamentary constituencies.

Conclusion

The Indian Constitution provides for many institutions that form the spine of our democracy. Although each institution has a different purpose and character, it is time the actions should be taken to protect and enhance the independence of the EC.