The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023

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Context: The government has tabled a new Bill in the Parliament that seeks to amend the Constitution and change the way the Election Commission of India (ECI) is constituted.

Details

• The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, was introduced in the Rajya Sabha to amend the process of appointing and determining the conditions of service for the Chief Election Commissioner (CEC) and other Election Commissioners (ECs) in India.
• The Bill proposes to exclude the Chief Justice of India (CJI) from the three-member committee that recommends the names of the Chief Election Commissioner (CEC) and the Election Commissioners (ECs) to the President.
• Currently, the committee consists of the Prime Minister, the Leader of the Opposition in Lok Sabha and the CJI. The Bill suggests that the committee should comprise only the Prime Minister and the Leader of the Opposition.

Key provisions outlined in the bill

• Composition of the Election Commission: The bill maintains the existing structure of the Election Commission, consisting of the CEC and other ECs. The CEC and ECs are appointed by the President of India. However, the bill introduces the requirement that their appointments will be made on the recommendation of a Selection Committee.
• Selection Committee: The Selection Committee will comprise the Prime Minister as the Chairperson, the Leader of the Opposition in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister. If there is no recognized Leader of the Opposition, the leader of the largest opposition party in the Lok Sabha will take on this role.
• Search Committee: A Search Committee will be responsible for preparing a panel of five potential candidates for the Selection Committee's consideration. The Search Committee will be headed by the Cabinet Secretary and will have two other members who are senior government officials with expertise in election-related matters. The Selection Committee can also consider candidates who were not included in the panel prepared by the Search Committee.
• Qualification of CEC and ECs: Individuals who hold or have held positions equivalent to the rank of Secretary in the central government will be eligible for appointment as CEC and ECs. Additionally, these individuals should possess expertise in managing and conducting elections.
• Salary and Allowances: The bill stipulates that the salary, allowances, and service conditions of the CEC and other ECs will be the same as those of the Cabinet Secretary.
• Term of Office: The bill maintains the current tenure provisions. Both the CEC and other ECs will serve for a term of six years or until they reach the age of 65, whichever comes first. If an EC is elevated to the position of CEC, its total term cannot exceed six years. The bill also specifies that the CEC and ECs will not be eligible for reappointment.
• Conduct of Business: The Election Commission's business will continue to be conducted through unanimous decisions. If a difference of opinion arises between the CEC and other ECs on any matter, it will be resolved through a majority vote.
• Removal and Resignation: The bill maintains the existing procedure for removing the CEC and ECs from office. The CEC can only be removed through a process similar to the removal of a Supreme Court judge, requiring a motion passed by both Houses of Parliament with majority support of the total membership and at least two-thirds support from members present and voting. The recommendation of the CEC is required for the removal of an EC. Resignation provisions remain the same as well.

This bill's introduction has sparked controversy due to concerns about potential political influence over the selection process and the subsequent functioning of the Election Commission. The proposed changes will have implications for the independence and neutrality of this crucial institution in the democratic process.

Government Stand

• The government has justified this move by saying that it will ensure more transparency and accountability in the appointment process of the ECI, which is responsible for conducting free and fair elections in the country.
• The government also claimed that this will reduce the scope of judicial interference in the functioning of the ECI and that it will bring India in line with other democracies where the judiciary has no role in selecting the election commissioners.

Criticism

• Many experts and opposition parties have criticized the Bill as an attempt to undermine the independence and autonomy of the ECI, which is a constitutional body. They have argued that removing the CJI from the selection panel will make the ECI more vulnerable to political influence and manipulation and that it will erode public trust in the institution.
• They have also pointed out that the judiciary has played a crucial role in upholding the integrity and impartiality of the ECI, and that there is no need to change a system that has worked well for decades.

Why does the independence of the Election Commission need to be ensured?

About

• The Election Commission of India (ECI) is a constitutional body that is responsible for conducting free and fair elections in the world's largest democracy. It has the power to supervise, direct and control the entire process of elections, from the announcement of dates to the declaration of results. It has the authority to register political parties, allot symbols, monitor campaign expenditures, enforce the model code of conduct, and resolve disputes related to elections.
• The independence of the ECI is crucial for ensuring the credibility and legitimacy of the electoral process, and thereby strengthening the democratic system in India. The ECI's autonomy enables it to act impartially and effectively, without being influenced by any external pressure or interference from the government, political parties, or other vested interests. The ECI's independence also ensures that the voters' rights are protected and that they can exercise their franchise freely and fearlessly.

However, the ECI's independence is not absolute, and it faces several challenges that can undermine its autonomy and effectiveness.

Challenges

Appointment and removal of election commissioners

• The Chief Election Commissioner (CEC) and two other election commissioners are appointed by the President of India on the advice of the Prime Minister. There is no transparent or consultative process for selecting the commissioners, and there is no fixed tenure or age limit for them. The CEC can only be removed by impeachment by Parliament, but the other two commissioners can be removed by the President on the recommendation of the CEC. This creates a possibility of political interference or bias in the appointment and removal of commissioners and also affects their security of tenure and accountability.

Lack of financial autonomy

• The ECI does not have its budget and depends on the government for its funds. The ECI has to seek approval from the government for its expenditure, which can affect its operational efficiency and flexibility. The ECI also does not have any control over its staff, who are mostly deputed from other government departments. This can hamper its administrative capacity and institutional memory.

Legal loopholes and challenges

• The ECI's powers and functions are derived from the Constitution and various laws, such as the Representation of the People Act, 1951, and the Election Symbols (Reservation and Allotment) Order, 1968. However, these laws have several gaps and ambiguities that limit the ECI's scope and authority. For example, the ECI does not have the power to deregister or de-recognize political parties that violate the law or the code of conduct.
• The ECI also does not have any punitive power to enforce its orders or directions and has to rely on other agencies, such as the courts or the police, for their implementation. Moreover, the ECI's decisions are often challenged in courts by aggrieved parties, which can delay or disrupt the electoral process.

Possible steps to ensure the independence and effectiveness of the ECI

• Reforming the appointment and removal process of election commissioners: There should be a broad-based and transparent mechanism for selecting the election commissioners, involving representatives from different branches of government, political parties, civil society, and experts. There should also be a fixed tenure and age limit for the commissioners, and a uniform procedure for their removal, based on objective criteria and due process.
• Enhancing the financial autonomy of the ECI: The ECI should have its budget, independent of the government's approval. The ECI should also have more control over its staff, and be able to recruit and retain qualified and experienced personnel.
• Amending and updating the legal framework: The existing laws governing the electoral process should be revised and updated to address the gaps and ambiguities that hamper the ECI's powers and functions. The ECI should also be given more statutory powers to regulate political parties, enforce its orders and directions, and impose sanctions for violations.

Conclusion

• The independence of the ECI is vital for preserving the integrity and sanctity of elections in India. Preserving the autonomy of the Election Commission is not only crucial for maintaining the integrity of elections but also for upholding the very foundation of democracy. An independent Election Commission ensures that the democratic process remains transparent, fair, and trustworthy, empowering citizens to actively participate in shaping the nation's future through free and unbiased elections.

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