This article is part of the UPSC Daily Editorial Analysis, covering The Hindu editorial – " A process where free and fair elections will be a casualty," published on 28th February, by the best UPSC coaching in Kolkata.

Syllabus: UPSC Mains GS Paper 2 (Governance, Constitution, Polity)

In News: Free and Fair Elections Under Threat Over the New Appointment Process

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 alters the selection process by replacing the Chief Justice of India (CJI) with a Cabinet Minister nominated by the PM, giving the government a majority in the selection panel. This raise concerns over neutrality, transparency and electoral integrity, potentially violating Article 14 and the Basic Structure Doctrine. With a lack of public disclosure and possible political influence, the law threatens the ECI’s independence. The Supreme Court’s review will be crucial in determining its constitutional validity.

Background: Election Commission of India (ECI) and Free and Fair Elections

The Election Commission of India (ECI) is a constitutional and autonomous body responsible for conducting free and fair elections in India. It oversees elections to the Parliament, State Legislatures and the offices of the President and Vice-President but does not handle local body elections, which fall under the State Election Commissions.

Powers and Responsibilities

The ECI exercises administrative, advisory and quasi-judicial powers, including:

• Defining electoral constituencies and revising electoral rolls.
• Supervising elections, scrutinizing nominations and enforcing the Model Code of Conduct.
• Recognizing political parties and allocating election symbols.
• Advising on post-election disqualifications of MPs and MLAs.

Composition of ECI

Initially a one-member body, the ECI became a three-member commission, comprising the Chief Election Commissioner (CEC) and two Election Commissioners. The President appoints them and their tenure and service conditions are determined by the President. They enjoy equal powers and decisions are made by majority vote.

Safeguards for Independence (Article 324)

Article 324 ensures the ECI’s independence:

• The CEC has security of tenure and can be removed only through impeachment, similar to a Supreme Court judge.
• Election Commissioners can be removed only on the CEC’s recommendation.

These provisions uphold the neutrality, autonomy and integrity of the Election Commission, ensuring that elections remain free and fair.

Suggestions by Commissions and Courts on Selection Committee Composition

Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 is the first law enacted by Parliament under Article 324(5) of the Constitution to regulate the appointment of these high constitutional functionaries. The law was introduced following the Supreme Court’s order of March 2023, which directed that the CEC and ECs be appointed based on the recommendation of a high-powered committee consisting of the Prime Minister, Leader of Opposition (LoP) in Lok Sabha and the Chief Justice of India (CJI). However, the government enacted a law modifying the composition of this selection panel.

Why was a new law needed for the appointment of Election Commissioners?

Historically, the CEC and ECs were appointed by the President on the recommendation of the Prime Minister. But this process raises concerns over impartiality and independence. The Supreme Court found this process unsatisfactory and argued that it could undermine the autonomy of the Election Commission of India (ECI) as ECI is responsible for ensuring free and fair elections.

What changes does the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 introduce?

The Government complied with the Court’s directive to introduce a law. But it altered the composition of the selection committee by replacing the CJI with a Cabinet Minister nominated by the Prime Minister. This decision has raised concerns about the neutrality and fairness of the selection process.

What are the key provisions of the new law?

Appointment Process:

• The President will appoint the CEC and ECs based on the recommendations of a Selection Committee.

Composition of the Selection Committee:

• Prime Minister (Chairperson)
• Union Cabinet Minister
• Leader of the Opposition (or leader of the largest opposition party) in Lok Sabha
• Additionally, a search committee which is headed by the Law Minister and two senior bureaucrats, prepares a list of five eligible candidates which is then reviewed by the selection committee.

Eligibility Criteria:

• Candidates must have integrity, experience in election management and should have served as a Secretary or equivalent to the central government.

Term and Reappointment:

• Members will serve for six years or until the age of 65, whichever is earlier. Reappointment is not allowed.

Salary and Service Conditions:

• The salary and benefits will be equivalent to the Cabinet Secretary, replacing the previous parity with Supreme Court Judges.

Removal Process:

• The CEC can be removed like a Supreme Court Judge, while ECs can only be removed on the recommendation of the CEC.

How does the new law raise legal and constitutional concerns?

Supreme Court’s Directive and the Current Composition

The March 2023 Supreme Court ruling had envisioned a more balanced selection panel, which included the CJI to ensure judicial oversight. By replacing the CJI with a Cabinet Minister, the government has effectively created a majority in favor of the executive, potentially compromising the autonomy of the ECI.

Issues with the Selection Process in a nutshell

Government’s Majority in Selection Committee

Since the Prime Minister and the nominated Cabinet Minister belong to the ruling party they hold a permanent majority in the three-member panel, thereby undermining the role of the LoP and raising concerns about political bias.

Lack of Transparency in Selection

The search committee’s recommendations are not made public, reducing transparency in the selection of candidates.

Violation of Constitutional Principles

• Article 14 (Right to Equality): The pre-determined majority in favor of the government’s candidate makes the process arbitrary and unfair.
• Basic Structure Doctrine: The independence of the ECI is critical to conducting free and fair elections, which is a part of the basic structure of the Constitution. The new law raises doubts about the ECI’s autonomy, thereby potentially violating the basic structure doctrine.

Other issues associated with the new law

Executive Control Over Salaries

Previously the salary of the CEC and ECs was linked to that of Supreme Court Judges. This ensured financial autonomy. Now, this Act’s new provision is linked it to the Cabinet Secretary’s salary. This makes it subject to government revisions potentially compromising institutional independence.

Limited Pool of Eligible Candidates

The eligibility criteria restricts appointments to senior bureaucrats only. It potentially excludes legal experts, academics or retired judges who could bring diverse perspectives. Since the ECI performs quasi-judicial functions, this restriction could limit its effectiveness.

What are the implications of these issues on electoral integrity?

Election Commission plays a crucial role in conducting elections for over 960 million voters, making it one of the most significant electoral bodies globally. Ensuring that CEC and ECs are selected impartially is essential for maintaining public confidence in the electoral process.

Some other Risks Associated with the New Selection Process

• Possibility of Political Influence: A government-backed selection committee could lead to appointments favoring the ruling party.
• Erosion of Electoral Integrity: If appointments become politically motivated, it could affect the neutrality of the ECI in conducting elections.
• Judicial Scrutiny and Potential Reversal: The Supreme Court is likely to closely examine the constitutionality of this law and a possible judicial intervention may lead to its amendment or repeal.

How do other democracies appoint Election Commissioners?

In other democracies, appointments to Election Commissions involve diverse stakeholders:

• United Kingdom: The House of Commons approves appointments.
• South Africa: The President of the Constitutional Court and independent bodies are involved in the selection process.

These models highlight the importance of checks and balances, which the Act in its current form appears to weaken.

Ensuring Free and Fair Elections: The Need for an Independent Selection Process

The CEC and ECs must be appointed through a process that ensures independence, impartiality as well as transparency. The current law by giving the ruling government an undue advantage in the selection process raises serious constitutional and legal concerns. The Supreme Court’s upcoming decision will be crucial in determining whether this law aligns with the principles of democracy, fairness and electoral integrity in India. 

PRACTICE QUESTION Q.Critically analyze the impact of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 on ECI’s independence and electoral integrity. 250 Words.

1. Why is the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 controversial?

It replaces the Chief Justice of India with a Cabinet Minister nominated by the PM, giving the government a majority in the selection panel. This raise concerns over neutrality, transparency and electoral integrity.

2. How does the new appointment process affect the Election Commission’s independence?

With a government majority in the selection panel, the ruling party can influence appointments, weakening the Election Commission’s autonomy and potentially affecting free and fair elections.

3. What constitutional concerns does the law raise?

It violates Article 14 (Right to Equality) by making the selection process arbitrary and Basic Structure Doctrine by undermining the Election Commission’s independence, which is essential for democracy.

4. How does the new law impact electoral integrity?

Politically influenced appointments could compromise the Election Commission’s neutrality, leading to biased election oversight and weakening public trust in India’s electoral process.