Fundamental flaw

New Bill can curb election watchdog's independence

The government’s Bill on appointing members of the Election Commission of India (ECI) contradicts in letter and spirit the verdict of the five-judge Constitution Bench just five months ago. Introduced in the Rajya Sabha on August 10, the Bill, prima facie, represents an acceptance of the Supreme Court’s observation, drawn from Constituent Assembly debates, that appointments to the ECI should be subject to laws passed by Parliament. But in its key features, the Bill has compromised the ECI’s institutional independence.

The principal problem lies in the composition of the committee to appoint the chief election commissioner (CEC) and election commissioners (ECs). Under the Bill, this committee will comprise the Prime Minister (PM), the leader of the Opposition in the Lok Sabha, and a Cabinet minister nominated by the PM. It is hard to see how such a selection committee can make an independent judgement when it vests overwhelming powers with the PM, and there is no stipulation for unanimity in the process. It is highly unlikely that a Cabinet minister in the committee will differ with the PM. This composition, therefore, is scarcely an improvement on the extant system in which the appointments are made by the President on the advice of the PM, who chooses from candidates shortlisted by the law ministry.

It makes a travesty of the Constitution Bench’s interim suggestion that appointments of the CEC and ECs be made on the advice of a three-member collegium comprising the PM, the leader of the Opposition in the Lok Sabha (or the leader of the largest party in the House), and the Chief Justice of India. The Supreme Court’s solution was not perfect, not least because it allowed for the judiciary to stray into the executive domain. But it had the virtue of introducing impartiality in the selection process. This issue, in fact, was the subject of the 2015 public interest litigation in the apex court, which resulted in the Supreme Court’s March 2023 ruling. In 2018, the gravity of the question prompted a two-judge Bench to refer it to a larger Bench, saying it required a closer examination of Article 324 of the Constitution, which deals with the role of the CEC.

The bureaucracy-heavy composition of the search committee to shortlist candidates also does little to enhance the ECI’s autonomy. This committee will comprise the Cabinet secretary and two other members of the rank of secretary with knowledge and experience in matters concerning elections. It will prepare a list of five candidates to be considered for appointment. The fact that the Bill allows the selection committee to recommend appointing a candidate outside this shortlist vitiates this exercise. Of equal concern is the downgrade of the ECs’ status. As of now they are on a par with Supreme Court judges. The Bill reduces the ECs’ warrant of precedence, which sets out the relative precedence in the rank of key functionaries in the principal organs of state, to below apex court judges. These provisions overwhelm the positive elements of the Bill, such as specifying the qualifications for EC appointment and raising the bar on their impeachment and removal. Ensuring ECI independence would strengthen the government’s claims of upholding democratic values. A scrutiny of the Bill by a committee before it passes the increasingly debate-free and rapid process of parliamentary passage is critical.