NEED FOR AN INDEPENDENT AND TRANSPARENT SYSTEM FOR THE APPOINTMENT OF ELECTION COMMISIONERS.

Dr. B.R. Ambedkar had warned that ECs can be compromised under the executive thumbs, so it is of utmost importance to ensure that the appointment should not merely be fair but appear to be fair.   

1. Appointment of CEC in India: 

   
   

Recently, Gyanesh Kumar has been made chief election commissioner of India in accordance with the Chief Election Commissioner and other Election Commissioners (Appointment, conditions of Services and Terms of Offices) Act 2023. Members of opposition parties are now more sceptical of the Election Commission's independence and transparency as a result of this appointment. Since the Chief Election Commissioner and other Election Commissioners (Appointment, conditions of services, and terms of offices) Act 2023 removed the Chief Justice of India from the panel for choosing election commissioners, vocal TMC MP Mohua Moitra has petitioned the Supreme Court to uphold the constitutionality of the act. As per section 7 of the CEC and OECs Act, the election commissioners shall be appointed by the president on the recommendation of a Selection Committee consisting of the Prime Minister - as chairperson, the Leader of the Opposition or the leader of the single largest party in opposition of the government- as a member and a Union Cabinet minister nominated by the Prime Minister – as a member.

2. Appointment Procedure in India: 

   
   

As India is the largest democracy in the world. The election process is an integral feature of a democracy, and same goes with India. The Election Commission of India (hereafter, referred to as ECI) is accountable for conducting free and fair elections in the country. ECI derives its power from Article 324 of the Indian constitution. Article 324(2) states that ECI shall consist of one Chief Election commissioner and other election commissioners as the president may fix from time to time. The Chief Election Commissioners and other election commissioners would be appointed by the President, subject to the law made by parliament. 

Exercising the power granted under article 324, parliament has enacted a new law for the appointment of Election Commissioners.  Under this law, the Search Committee, headed by the Law Minister, would suggest five names to the selection Committee and then the Selection Committee would recommend any of the names to the President for the appointment of Chief Election Commissioner and the other election Commissioners. In addition to that, the act empowered the Selection Committee to consider any other person than those included in the panel by the Search Committee.

This entire selection process of appointment has raised serious concerns over the independence and procedural fairness of the Election Commission. The new Act has replaced the old one named, the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act 1991.  

The new act covers aspects such as the appointment, salary, and removal of the CEC and other election commissioners. Under the new act, the salary of the CEC and other election commissioners have been set to be equivalent to that of a cabinet secretary as opposed to that of the old act, where the conditions of services and salary of the election commissioners were set to be equivalent to the judges of Supreme Court. However, after concerns were raised over the pay disparity by former CECs, who asserted that the status of election commissioners has been downgraded by equating them with cabinet secretary, then this provision was amended and the status of CEC and other election commissioners has been restored to the prior position equivalent to that of SC judges.

3. Need of Judicial Pronouncement:

   
   

The CEC and other election commissioners (Appointment, Conditions of Services and terms of offices) Act 2023 have potential risks of executive dominance. On 2 March 2023, The Hon’ble Bench of SC led by Justice K.M. Joseph in the case of Anoop Barnwal v. UOI , 2023 SCC Online SC 2016 delivered a judgement on the Selection panel of the appointment of CEC and other election commissioners and said that the committee should consist of a PM, LOP or leader of the single largest opposition party and the Chief Justice of India. This provisional composition was to be continued until Parliament passed a new law. In December 2023, Parliament came up with this new bill that has become an act now. The act set up its own committee to nominate members to ECI consisting of PM, LOP and Union cabinet ministers therefore removing the CJI from the panel. The bill met up with instant criticism and many claimed that it goes against the spirit of the SC judgement in the Anoop Bernwal case. The Court’s judgement was to ensure that ECs are appointed in an independent, unbiased and fair so that transparency and accountability are ensured in the commission and it becomes free from executive influence.

4. Conclusion:

   
   

 Keeping in mind the importance of transparency and independence of the ECI, there must be a balanced approach while dealing with the issue. If the act of 2023 has not been re-considered by the SC, it can violate the basic structure of the Indian Constitution. As held in the Raj Narayana case 1975 SCC (2) 159,  that free and fair election is a part of the basic structure of the constitution. 

This article is authored by Layba Rana. She was among the Top 40 performers in the Corporate Law Quiz Competition organized by Lets Learn Law.