Is Govt Seeking More Control Over the Election Commission With Its New Bill?

Experts say that this bill will undo key features of a crucial Supreme Court ruling & threaten fair elections.

In a ruling in March this year, the Supreme Court had made essential notes on democracy, elections and how crucial they are to each other:

“Democracy is inextricably intertwined with power to the people. The ballot is more potent than the most powerful gun.”

“Democracy facilitates a peaceful revolution at the hands of the common man if elections are held in a free and fair manner.”

But, how does one maintain the potency of the ballot? How does one ensure that elections are held in a free and fair manner? The top court had answered that too: 

“...the Election Commission of India is to perform the arduous and unenviable task of remaining aloof from all forms of subjugation by and interference from the Executive.”

Four months later, the central government tabled a bill on Thursday, 10 August, in the parliament which proposes that the members of the Election Commission of India (EC) be selected by a committee comprising the Prime Minister, the Leader of Opposition in the Lok Sabha, and a Union cabinet minister nominated by the PM. 

Legal experts in conversation with The Quint, have pointed out that if passed, this bill -- The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 -- will not only undo the principles of the Supreme Court’s judgment but in effect, will give more power to the executive over the Election Commission. Here’s How.

The SC Verdict & Why Was It Needed?

To ensure that Election Commissioners remain free from the holds of the executive, the Constitution bench of the Supreme Court on 2 March, had ordered that the Chief Election Commissioner and the Election Commissioners be selected by a three-member Committee comprising:

•  the Prime Minister

• the Leader of the Opposition (or the leader of the largest opposition party in Parliament)

•  and the Chief Justice of India (CJI)

The Supreme Court noted that this was necessary because several political parties had come into power but none of them framed a law/process for the appointment of the Election Commission.

So, who selected the election commissioners before the verdict?

The part of the Constitution (Article 324 (2)) that deals with the Election Commission, in fact, said that “...appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.”

“But, the parliament did not make a law since 1950 on this. There was a legislative gap when it came to the selection of the election commissioners. So, the Supreme Court did have the right to step in and fill in that gap,” Advocate-on-Record at the top court Paras Nath Sing said.

An example of this would be the Vishakha Guidelines – procedural guidelines formulated by the Supreme Court in 1997 – for use in cases of sexual harassment. They were, however, superseded in 2013 when the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act came into the picture.

So Then Why Is The New Bill Raising Eyebrows?

In this case too, while delivering its verdict, the top court did conclude that the mandates mentioned will be enforced until a law in this regard is made by the Parliament.

Experts, however, say that the meaning of the line isn’t that simple and holds the key to understanding the debate around the bill.

“Procedurally, what the government did is sound i.e. bringing in a law that will fill in the gap. This can’t be questioned because not only did Article 324 say this but the Supreme Court said it too," Supreme Court lawyer Shrutanjaya Bhardwaj told The Quint.

Yes, but...

“The verdict by no means gave the government a free pass to overturn the entire judgment - all it said was, until you bring in a law to this effect, we are doing it for you. But that doesn’t mean the executive throws away all the principles that the judgment is based on,” Advocate Tanya Srivastava, who practices at the Supreme Court, pointed out.

The principle behind the top court’s judgment, according to Srivastava, was that whoever appoints the election commissioners has to be an independent body – it cannot be controlled by the executive. This is because democracy is part of the basic structure of the Constitution of India.

“And now that the new bill proposes that the union cabinet minister become a part of the selection committee instead of the CJI, it becomes problematic because that makes the composition in the favour of the executive,” AOR Singh noted.

He also said that it is crucial to remember here that the problem isn’t that the new bill proposes to remove the CJI, but that it tilts the balance of the committee to favour the executive.

“The point of having the CJI  was to ensure the neutrality of the selection process and the  CJI is presumed to be an independent authority,” he added.

So, What Now?

Out of the three members that the bill proposes to be part of the selection committee, the one who could potentially dissent  while picking the Chief Election Commissioner and the Election commissioners is the leader of the opposition (or the leader of the largest opposition party in Parliament).

“But the leader of the opposition has been included to give a token consultative nature to the process and that’s all it is – token,” Advocate Bhardwaj said.

Why?

“The committee will clear all appointments by 2:1 vote i.e. majority voting – so the principle of having a free and fair election, that goes out of the picture,” Advocate Srivastava said.

The bill (Section 8 (1)) says “The Selection Committee shall regulate its own procedure in a transparent manner for selecting the Chief Election Commissioner or other Election Commissioners.”

“So either the act should specify that appointment will be by way of unanimous voting i.e. the decision can only be finalised when each member in the committee agrees to it or they have to add a member who is independent of the executive,” AOR Singh said.