Context: This article is based on an Editorial “ECI members to have same status as SC judges: Why Govt has chosen to make U-turn on proposed Bill” which was published in the Indian Express. Recently, the Rajya Sabha passed the Chief Election Commissioner (CEC) and Other Election Commissioners (ECs) (Appointment, Conditions of Service and Term of Office) Bill, 2023. 

• Originally the bill was introduced on August 10 and now the bill was moved for consideration and passage and passed the upper house following a thorough debate.

What is the new Election Commissioners Bill and its Background?

• Order of the Supreme Court: On March 2, 2023, a five-judge Constitution Bench of the Supreme Court had ruled that the CEC and ECs should be appointed by a committee comprising the Prime Minister, Leader of Opposition in Lok Sabha, and the Chief Justice of India (CJI).
  • The Supreme Court made it clear that its order would be “subject to any law to be made by Parliament”. 
• Action by the Government: Consequently, the government brought the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023.
  • On Committee: It proposed a committee comprising the PM, the Leader of the Opposition, and, instead of the CJI, a Cabinet Minister nominated by the PM.
  • On Provisions: This Bill also proposed giving the CEC and ECs the same salary, perks, and allowances as that of the Cabinet Secretary. 
    • The Bill would replace The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, under which the CEC and ECs have the same salary as that of a Supreme Court judge.
• Amendment: According to the amendments proposed by the Union Law Minister, the status of the EC would be kept the same as that of a Supreme Court judge, with the same salary, dearness allowance, and leave encashment rules.

Aim of the Bill

• The bill aims to regulate the appointment, conditions of service, and term of office for the CEC and other ECs and outline the procedure for the functioning of the EC. 

Constitutional Provisions relating to the appointment of the Chief Election Commissioner and Other Election Commissioners 

• Article 324 of the Constitution: It vests the “superintendence, direction, and control of elections” in an Election Commission consisting of the Chief Election Commissioner and Other Election Commissioners as determined by the President from time to time.
• Appointment: The Constitution lays down no specific legislative process for the appointment of the CEC and ECs. 
  • The President makes the appointments on the advice of the Union Council of Ministers headed by the Prime Minister.
• Concern: The central government has a free hand in appointing these officials.

Criticisms of the Bill

• Impact on Balance of Power: As the Bill suggests replacing the CJI from the selection committee with a Cabinet Minister. Hence, it would effectively impact the balance of power.
• Downgrading of the Status: The Bill is an apparent downgrading of the status of the ECI.
• Impact on the Ability: The ECI currently has the status of a Supreme Court judge and can summon senior officials and even Ministers; if the status is changed to that of a government official, it would affect their ability to do so.

Conclusion:

Before finalizing the Bill into an act, the government needs to engage and consult with opposition parties, legal experts, and all associated stakeholders to address the concerns.