Editorial of the Day: Should the CJI be part of the committee selecting the CEC? (The Hindu)

Context: The article is discussing a proposed bill related to the appointment and composition of the Election Commission in India. It starts by highlighting the importance of the Election Commission’s independence to ensure the proper exercise of the right to vote and its necessity for fair and unbiased elections. The central point of discussion is whether the proposed changes in the selection panel for appointing the Chief Election Commissioner (CEC) and other Election Commissioners (ECs) would affect this independence and neutrality of the Election Commission.

Background

The Union Government introduced a Bill removing the Chief Justice of India (CJI) from a three-member panel to select the Chief Election Commissioner (CEC) and Election Commissioners.

• The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, was introduced in the Rajya Sabha.
• Instead of the CJI, the three-member panel, when formed, would consist of a Cabinet Minister besides the Leader of Opposition (LoP) in the Lok Sabha, and the Prime Minister, who would head it.
• In March 2023, the Supreme Court had ruled that the selection panel should comprise the Prime Minister, the Leader of Opposition (LoP) in Lok Sabha and the CJI.
• The court had said the order would hold good until a law was made by Parliament.  Till this SC ruling, Election Commissioners and CECs had been appointed by the President after recommendations from the government.

About the Chief Election Commissioner (CEC):

• Composition of Election Commission of India
  • Originally the commission had only one election commissioner but after the Election Commissioner Amendment Act 1989, it was made a multi-member body.
  • The Election Commission shall consist of the Chief Election Commissioner (CEC) and such number of other election commissioners, if any, as the President may from time-to-time fix.
  • Presently, it consists of the CEC and two Election Commissioners.
• The Chief Election Commissioner:
  • The Chief Election Commissioner of India heads the Election Commission of India.
  • This power of the Election Commission of India is derived from Article 324 of the Constitution of India.
• Appointment of CEC:
  • There is no prescribed procedure for appointing the Chief Election Commissioner and Election Commissioners as per the constitution.
  • Under the Transaction of Business rules, the President shall appoint the CEC and EC based on the recommendations made by the Prime Minister. Therefore, it is the executive power of the President to appoint CEC and ECs.
  • However, according to Article 324(5), the Parliament has the power to regulate the terms of conditions of service and tenure of ECs. It is under this article that the Parliament has made laws to date.
• Tenure:
  • CEC and ECs have a fixed tenure of six years, or up to the age of 65 years, whichever is earlier. (This tenure is fixed as per the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991).
• Removal:
  • He can resign anytime or can also be removed before the expiry of their term.
  •  The CEC can be removed from office only through a process of removal similar to that of a SC judge by Parliament.
• Limitations:
  • The Constitution has not prescribed the qualifications of the members of the Election Commission.
  • The Constitution has not specified the term of the members of the Election Commission.
  •  The Constitution has not debarred the retiring election commissioners from any further appointment by the government.

Decoding the Editorial

The article explains the opinions expressed by the experts on various aspects of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023. Their viewpoints are listed as follows:

• Concerns About Neutrality:
  • The central issue addressed by the Supreme Court was the absence of a law for appointment, rather than the specific composition of the selection committee.
  • On one hand, it is believed that Parliament, as the supreme law-making body, has the power to address this through legislation and thus there is no visible problem with the proposed changes in the selection panel.
  • On the other hand, it is argued that while the Bill might follow the letter of the Supreme Court’s judgement, it doesn’t capture the spirit of the judgement. It is emphasised that the Election Commission’s independence from the executive is crucial for the proper exercise of the right to vote.
• Potential Executive Influence on Election Commission:
• • One school of thought observed that even in the past, appointments made by the executive were fair and politically neutral. For instance, Election Commissioners who upheld their roles effectively despite being appointed through the executive process.
  • This is countered by stating that while there have been good examples, there have also been instances where the conduct of the Election Commission raised concerns.
  • There are concerns that the current system of executive appointment is not the healthiest for maintaining the independence of the Election Commission.
• Bill vs. Supreme Court Ruling:
  • On one side it is argued that the Bill doesn’t necessarily override the Supreme Court’s ruling from March (which ruled that the selection panel should comprise the Prime Minister, the Leader of Opposition (LoP) in Lok Sabha and the CJI).
  • The Court had urged Parliament to create a law.
  • On the other hand, there is skepticism about the Bill’s alignment with the spirit of the Supreme Court’s judgement.
  • It is believed that the Bill doesn’t capture the rationale for the judgement, which stressed the importance of an independent Election Commission.

Overall, both schools of thought agree that while the Bill adheres to the letter of the Supreme Court’s judgement by introducing a new composition for the selection panel, it raises concerns about the independence and neutrality of the Election Commission. The other provisions of the Bill, such as the change in the CEC’s salary, the removal procedure for ECs, and the tenure of the CEC also need rational justification. While there are differing opinions on some aspects, both schools express reservations about the potential implications of the Bill for the independence and effectiveness of the Election Commission.

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