Introduction
The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 was tabled/introduced in the Rajya Sabha on August 10, 2023 and passed on December 12, 2023. On December 12, 2023, the bill was passed by the Lok Sabha as well. Later it got the presidential assent on December 28, 2023 and became an act. It is an extremely controversial act whose main purpose is to control the appointment, conditions of service, term of office, and removal of the chief election commissioner (CEC) and other election commissioners (ECs), the method for the transaction of business by the Election Commission, etc. For this purpose, a Search Committee and a Selection Committee would be set up, which will make the procedure for the aforementioned activities more transparent. The act replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.
Key Provisions
- Election Commission As per the act, 2023, a CEC and other ECs will constitute the Election Commission of India (ECI). The number of ECs will be determined by the President of India at regular intervals.
- Appointment of the commission The act provides that the president, on the recommendation of the Selection Committee, consisting of the prime minister, a Union cabinet minister, and the leader of Opposition, or leader of the single largest opposition party, in the Lok Sabha, will appoint the commission. Five names will be recommended by a Search Committee, led by the Minister of Law and Justice and consisting of two other members not below the rank of Secretary to the Indian government, to the Selection Committee, which may, however, consider any individual, except for the ones recommended by the Search Committee. The Selection Committee recommendations will be considered legal despite a vacancy in this Committee.
- Eligibility criteria The persons appointed as the CEC and ECs must
- have integrity;
- be knowledgeable and experienced in relation to the management and conducting elections; and
- be serving or have served a post equivalent to the secretary of Indian government.
- Term and reappointment The act provides that the term of office of the members of the election commission will be six years or until they turn 65 years old, whichever is earlier. No reappointment is allowed for the members of the commission. In the case of an EC being appointed as a CEC, his overall term of office may be just six years and not beyond that.
- Salary and pension The act provides that the conditions of service, salary and allowances of the CEC and ECs will be the same as that of a judge of the Supreme Court (SC). However, the CEC and other ECs shall be entitled to dearness allowance as may be admissible to a SC judge.
If a person, immediately before assuming the office as the CEC or an EC, has received or is going to receive a pension (other than a disability or wound pension) for any previous service, his salary in respect of CEC or EC shall be reduced by the amount of that pension or the portion of the pension due to him. Besides, as per the act, they will be allowed to get a pension and other retirement benefits from their previous service. - Removal The procedure for the removal of CEC and ECs, as stated in the Constitution, has been retained in the act. The removal of the CEC will be done on the same grounds and using the same procedure as that for a SC judge. However, the removal of the ECs will be done as recommended by the CEC.
- Protection for CEC and ECs According to the act, CEC and ECs would not have to undertake legal proceedings associated with actions taken during their term of service. But such actions must have been performed while fulfilling official duties. The purpose of this amendment is to protect these officials from undertaking civil or criminal proceedings concerning their official functions.
Key Issues and Analysis
- Hindered independence of the Election Commission According to the Constitution, the ECI should be a self-governing body having the responsibility of conducting free and fair elections. Members of the Constituent Assembly also felt that the people conducting elections should not be affected by local pressures and political influences. They thought that the elections must not be in the hands of the current government in order to make them actually free. The SC observes that the body conducting elections should be fully protected from the dominance of the ruling party and the Executive (central government) alone must not appoint it. However, the act consists of many provisions that may hinder the independence of the ECI.
- Dominance of the Government of India over the Selection Committee Article 324 of the Constitution provides that the CEC and ECs will be appointed on the basis of a law made by Parliament. It was noted by the SC in 2023 that the Constituent Assembly recommended an independent election commission appointed by law and not by the Executive. As per the SC verdict, a Selection Committee, consisting of the PM, the Chief Justice of India, and the leader of the largest opposition party in the Lok Sabha, will give its recommendation on the appointment of CEC and ECs until a law for the same is framed by Parliament.
However, the act provides for this Selection Committee, consisting of the PM as Chairperson, a Union cabinet minister, and the leader of the Opposition in the Lok Sabha or the leader of the single largest party in the Opposition as members. This shows that a majority of the members of this committee belong to the current government, which again obstructs the independence of the ECI.
- Validity of the Selection Committee’s recommendations despite vacancy The act states that the recommendations of the Selection Committee will be valid even if there is a vacancy in this committee. Out of the three members of the committee, there may be a vacancy only for the post of the leader of Opposition in the Lok Sabha, and that will arise in case the Lok Sabha gets dissolved, which will happen only before the upcoming general elections. So, at that time, the committee will comprise only the members of the ruling party.
- Overlooking the suggestions of the Search Committee As per the act, the Search Committee will recommend five people to the Selection Committee which may select any person other than this panel of five people. This has two implications: (i) The role of the Search Committee will be weakened though the committee has been especially formed to find competent and qualified candidates and (ii) the Search Committee, which consists of only civil servants, will not solely decide the candidates for CEC and EC positions.
- Deciding the salary of the CEC and ECs As per the 1991 Act, the salaries of CEC and ECs are the same as that of a SC judge, while the act states that their salaries will be the same as that of the cabinet secretary of the Indian government. Though both the salaries are the same, they are managed differently. An Act of Parliament determines the salary of a SC judge, while the government on the recommendation of the Central Pay Commission decides the salary of a cabinet secretary. Thus, the act gives greater control to the Executive in fixing the salaries of the CEC and ECs.
- Limiting eligibility to civil servants The act states that only those who are equivalent to the secretary to the government will be eligible for the post of CEC and ECs. Thus, other more qualified candidates may be excluded from such posts by restricting the eligibility criteria to individuals holding positions equivalent to civil servants.
- l Other issues regarding the independence of ECI Though several committees along with the SC have given their recommendations so that ECI can be made independent, the act does not address issues such as the removal procedure of the CEC and ECs, and the ECI’s administrative independence through a separate secretariat.
- Lack of parity As per the act, the CEC and ECs have equal status, as both of them have an equal say in decision-making matters and both have the same salary. However, their removal procedure lacks parity because the act has retained the different provisions for removal as specified in the Constitution. This raises doubts regarding fairness. The SC ruled that the EC’s removal process could be changed only with a constitutional amendment.
Conclusion
According to the Indian Constitution, India is a secular, socialist, and democratic republic. Here, democracy can be successful only when free and fair elections are held. Therefore, an unbiased and independent election commission (here, ECI) is essential to strengthen electoral democracy. If the act justly addresses this crucial issue, it will play an important role in the autonomy of the ECI.
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