Chief Election Commissioner appointment Bill: The good, the debatable

In question: Though certain aspects of proposed law have been appreciated, members of Oppn and civil society have flagged infringement of independence of top poll officers. Aditi Phadnis explains

The Rajya Sabha last week passed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023. Some aspects of the Bill have elicited widespread approval, including maintaining the salary and perks of the CEC and ECs at the level of a Supreme Court judge, rather than aligning them with that of a cabinet secretary. But doubts and apprehensions about its broader implications persist.
 

One change proposed by the Bill —which still needs to be passed by the Lok Sabha to become law — has seen limited disagreement. This is the clause that safeguards the CEC and ECs from legal proceedings related to actions taken during their tenure, provided such actions were carried out in the discharge of official duties. This change means that courts cannot hear either civil or criminal cases against a current or former CEC or EC for acts done or words spoken in the discharge of official duty or function.
 

The need for this protection arose from a criminal case filed in Telangana in August this year against the current CEC, Rajiv Kumar, relating to the role of the returning officer (RO). A special session court for MP/MLA in Nampally, Hyderabad, ordered a local police station to investigate a constitutional authority following a dispute between two candidates over affidavits filed by one. The court held the Election Commission of India liable in the case.

Almost immediately, the Telangana High Court suspended the special sessions court judge for showing “undue haste” in issuing the FIR. The swift action by the high court has led some lawyers and others to question whether the amendment passed in the Rajya Sabha is a case of using a hammer to swat a fly, especially when other remedies exist. However, given that another case was filed in the Madras High Court against Kumar questioning the wisdom of holding elections during the Covid pandemic, many assert that the time for protection for ECs from legal overreach has come.
 

The more serious issue is the central aim of the Bill. It seeks to regulate the appointment, conditions of service, and term of office for the chief election commissioner and other election commissioners, as well as outline the procedure for the functioning of the Election Commission. This comes against the backdrop of a Supreme Court order in March this year that election commissioners “shall be selected by a committee comprising the prime minister, the leader of the Opposition, and the chief justice”, until Parliament frames a law prescribing the selection process. The Bench led by Justice K M Joseph passed the direction to ensure the independence of election commissioners.

In passing the current law, the government has only partially followed the Supreme Court’s directive. The new law removes the chief justice of India from the selection committee. Instead, a search committee, headed by the law minister, would propose a panel of names to the selection committee, with eligibility criteria requiring candidates to have held a position equivalent to the secretary to the central government.
 

Jagdeep Chhokar, founder member of the Association for Democratic Reform (ADR), India’s foremost democracy watchdog and petitioner in the case, says: “The eligibility criteria for EC and CEC appointments (Section 5 of the Bill) state that only current and former secretaries to the Government of India (GoI), that is, only those who have been part of the executive for a long time, are to be considered for these positions. How independent such persons can be of the executive is a matter of opinion.”
 

 He further says: “The composition of the selection committee [Section 7(1) of the Bill] is also an issue. Whereas the Supreme Court judgment had suggested a committee comprising the prime minister, the leader of the Opposition, and the chief justice of India, the Bill replaces the non-executive element of the chief justice of India with "a Union  Cabinet minister to be nominated by the PM”, in this case, the law  minister. With two of the three members of the selection committee hailing from the executive, how can anyone even dream of the Election Commission acting independently of the executive?”

Though Manoj Jha, Rashtriya Janata Dal (RJD) MP in the Rajya Sabha, moved an amendment seeking to retain the CJI, it was defeated and the  Bill passed by voice vote.
 

MPs are also concerned about the process of the removal of ECs. While the CEC has the immunity of a Supreme Court judge and can only be removed via impeachment, the other two ECs can be removed on the orders of the CEC.
 

In his speech, Trinamool Congress MP Jawahar Sircar raised this issue and sought an extension of this protection to the two ECs by amending Article 324 (5) of the constitution. Giving the example of ex-EC Ashok Lavasa, who resigned from the Election Commission after various investigative agencies filed several cases against him, Sircar said: “Election commissioners can be removed at will and their tenure remains unprotected. Look at the case of Lavasa”.
 

There is hardly any doubt that given the majority the government enjoys in the Lok Sabha, the amended Bill will pass easily in the Lower House. But that does not mean civil society is sanguine about some of the new provisions. Chhokar, for instance, says the search committee to constitute the EC should send recommendations to Parliament, which should pass all the names by a two-thirds majority. The ongoing debate will likely throw up some new suggestions.