The relationship between democracy and public trust is closely connected. The electoral process is crucial for reaffirming people's faith in democracy through fair and unrestricted voting.
In the recent Monsoon session, a bill called the Chief Election Commissioner(CEC) and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill (2023) was introduced.
This bill has quickly received criticism from opposition groups and various stakeholders as they view it as potentially weakening the Election Commission.
The Legal Void and the SC Judgment
Regarding the appointment of Election Commission members, Article 324 of the Constitution of India provides that the appointment of the Chief Election Commissioner (CEC) and the Election Commissioners (ECs) is to be done by the President, subject to any legislation promulgated in this regard by the Parliament.
This particular provision had evoked considerable contention due to the inherent controversy arising from the appointment of commission members in a manner that involves its selection being orchestrated by the very executive authority from which it is meant to remain detached and independent.
Nonetheless, in the absence of any such legislative enactment by the Parliament, the consequent legal void concerning the appointment procedures governing the ECs and CEC, along with the concomitant considerations regarding their independence and accountability, found resolution through the judgment of the Hon’ble Supreme Court in the matter of Anoop Baranwal vs Union of India (2023).
The court, cognizant of the pivotal significance of maintaining the Election Commission’s independence and recognising the substantial expansion of its prerogatives over time – extends beyond the mere oversight of electoral proceedings.
These encompass the allocation of party symbols, the derecognition of political parties, enforcement of Model Code of Conduct, and the imposition of penalties for non-adherence – directed the Legislature to enact comprehensive legislation to address the issue of appointment
Pending the legislative formulation of such a statute, an interim Selection Committee was established by the court, consisting of the Chief Justice of India (CJI), the Leader of the Opposition, and the Prime Minister (PM), entrusted with the task of making appointments of the CEC.
What Does the Bill Propose?
The proposed Bill, meant to replace the existing Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act of 1991, introduces a "selection committee” framework.
This arrangement substitutes the office of the CJI with a Union Cabinet Minister designated by the PM, for the purpose of constituting the panel entrusted with the appointment of Electoral Commission members.
An inference may thus, be drawn that the presence of a cabinet minister, handpicked by the PM, within this selection committee, in conjunction with the acknowledged constitutional authority wielded by the Prime Minister over the members of the Cabinet under Article 74 of Constitution, engenders a circumstance where the decision-making process regarding appointments becomes substantially influenced by the Executive impacting the independence of Body.
ECI and Independent Functioning: A Republic’s Necessity
Pre-Independence, the elections were conducted under the GOI Act. 1935 by the Executive rendering the whole election process in clout and thus, any meaningful exercise of voting was rendered futile with political interference at the whim of the ruling authority.
The Election Commission was thus, suggested as a safeguard to maintain an independent authority, that could impartially conduct elections at the Union and State level, without any political clout. Hence, the traits of 'Independence' and 'Accountability' are central to the functioning of ECI.
ECI has been a watchdog of electoral and ballot malpractices along with conducting the elections in a peaceful and transient manner. The public trust reposed in the Institution was at par with the Judiciary and Army up until 1999.
However, the credibility of the institution has been put in serious question with allegations of EVM manipulation and flouted violations of the Model Code of Conduct going under the eye of commissions in several states.
Many scholars have classified the Election Commission as a Fourth-Branch Institution which ensures the implementation of the electoral process, the very basic tenet of the Democratic Republic.
Tarunabh Khaitan – a constitutional scholar identifies three design objectives that are ideal for a body to be a successful fourth-branch institution – namely expertise, accountability, and independence.
The appointment of CEC and ECs by the proposed selection committee impinges upon the latter two, the independence of ECI along with its accountability to the electorate.
As observed in Anoop Baranwal's case, “A person may be excellent, ie, at his chosen vocation. He may be an excellent Administrator. He may be honest, but the quality of independence transcends the contours of the qualities of professional excellence, as also the dictates of honesty.”
It is true that retired IAS officers at top rungs have had considerable experience as observers and Election officers during different stages of their careers. However, their expertise and efficiency as CEC and ECs do not help to establish the independent function of the Election Commission.
Let us examine how the appointments of CEC and EC took place between 1990 and 2022 to understand better the reason for the intervention of the Apex Court in the matter.
Pre-Anoop Baranwal and Post-TN Sheshan: The Reality of Appointments
It is noteworthy that prior to the year 1990, singular individual leadership ("CEC”) presided over the commission, in the absence of any legislative enactment by the Parliament to appoint supplementary ECs. This circumstance culminated in an average tenure of 4.5 years distributed among the nine CECs who helmed the institution.
However, subsequent to TN Sheshan’s incumbency (1990-1996) as CEC, which spanned six years marked by the implementation of diverse electoral reforms, including strict implementation of the Model Code of Conduct to guarantee equitable elections, the mean tenure witnessed a reduction from 4.5 years to approximately 1 year and 216 days in aggregate for the 15 CECs who assumed office over merely 26 years, up until the year 2022. (Cited from the case of Anoop Baranwal v Union of India and information accessible via the ECI website).
The primary rationale behind these abbreviated tenures stemmed from the practice of appointing Election Commissioners as Chief Election Commissioners for brief periods, as a preventive measure to avert a recurrence of circumstances akin to the TN Sheshan era.
Prior to the "Anoop Baranwal” case, these appointments were carried out in accordance with the transaction of Business Rules jointly by the Prime Minister and the President, as stipulated in the third schedule.
Consequently, this procedure vested the selection process predominantly in the hands of the Prime Minister, thereby fostering a prudent approach by the ruling party to ensure that no CEC occupied the position for an extended duration surpassing two years.
The Way Forward
The newly proposed bill by the Union law minister makes a minimum eligibility of Secretary for ECs and CEC, meaning thereby, that the Executive can still push through with retired Bureaucrats to ensure short tenures and attain the same position of composition of Election as was before Anoop Baranwal, by removing the CJI from the committee and putting in place, the appointed cabinet minister in his place.
Furthermore, an individual appointed as an EC has an additional impetus to align themselves with the governing majority, aiming to solidify their prospects for assuming the role of CEC, as has been established by convention.
The envisaged Selection Committee outlined in the bill introduces a shift in the equilibrium, potentially preventing Election Commissioners from taking actions that may be unfavorable to the incumbent party, with the objective of bolstering their prospects for ascending to the position of CEC as per convention. This stands in contrast to the pronouncements of the Apex court in the Anoop Baranwal case.
The impact of the proposed Bill is profound on the independence and credibility of ECI and hence, we suggest that these three amendments be placed within the Bill to ensure an impartial and independent Election Commission – i) That any person who is to be appointed as an EC and CEC must have tenure in that post for a minimum of four years; ii) That a person who has been appointed as EC is barred from being re-appointed as CEC or EC; iii) that the selection committee constituted under the Bill must form the decision of appointment through consensus and not by majority.
(Prithvi Raj Chauhan is a Constitutional Law Hons Student at National Law University, Jodhpur. Mihir Nigam is an Intellectual Property Hons Student at National Law University, Jodhpur.)
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