The BJP-led NDA government is all set to push for the Chief Election Commissioner and other Election Commissioners (Appointment Conditions of Service and Term of Office) Bill, 2023 that will exclude the Chief Justice of India from the process of appointment. The Bill is likely to be introduced in the Rajya Sabha on August 11. It proposes that the Chief Election Commissioner (CEC) and other Election Commissioners (ECs) shall be appointed by the President on the recommendation of a panel comprising the Prime Minister, Leader of Opposition (LoP) in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister. The Selection Committee will be chaired by the Prime Minister, with the LoP and the Union cabinet minister appointed by the Prime Minister to be the members.
If the Bill is passed by Parliament, the Chief Justice’s position will be given to a Central minister. The Bill also proposes that the CEC and other ECs shall be appointed from among the persons who are holding or have held a post equivalent to the rank of Secretary to the Government of India and shall be persons of integrity, who have the knowledge of and experience in management and conduct of elections. It also proposes that a search committee headed by the Cabinet Secretary and comprising two other members not below the rank of Secretary to the Government of India, having knowledge and experience in matters relating to elections, shall prepare a panel of five persons for consideration of the Selection Committee, for appointment as the CEC and other ECs.
The Bill is likely to trigger a fresh face-off between the executive and the judiciary. The Bill, in effect, aims to dilute the Supreme Court’s March 2023 judgment in which a Constitution bench held that the appointment of CEC and ECs shall be done by the President on the advice of a panel comprising the Prime Minister, LoP and the Chief Justice of India. The Supreme Court order also said until Parliament makes a law in consonance with Article 324(2) of the Constitution, the appointment of the CEC and the other ECs shall be made on the recommendations made by a three-member Committee comprising the Prime Minister, LoP of the Lok Sabha and in case no LoP is available, the leader of the largest opposition party in the Lok Sabha in terms of numerical strength and the Chief Justice of India.
The Supreme Court’s Constitution bench aimed at insulating the appointment of CEC and ECs from the executive’s interference. This directive, led by Justice K M Joseph, aimed to safeguard the autonomy of the Election Commission from undue influence. Justice Joseph underscored the importance of an independent Election Commission for upholding democracy. He stressed that the Commission’s impartiality is crucial, as its actions can affect political party outcomes. The absence of a defined parliamentary law, as per Article 324(2) of the Constitution, necessitated the Supreme Court’s intervention in defining the selection process. The goal is to ensure that those appointed are independent and not subservient to those in power.
