‘The selection of the CEC and other ECs has a vital bearing on the conduct of free and fair elections and in maintaining the purity of the electoral process, which is a part of the basic structure of the Constitution’
| Photo Credit: THE HINDU/RITU RAJ KONWAR
The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 was the first law enacted by Parliament, under Article 324(5) of the Constitution, dealing with the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (EC). This law was made in response to a Supreme Court of India order of March 2023 according to which the CEC and ECs should be appointed on the basis of a recommendation made by a high-power committee comprising the Prime Minister, the Leader of Opposition (LoP) in the Lok Sabha and the Chief Justice of India (CJI). This was to be an interim measure until Parliament made a law on the subject. As a matter of fact, in the past, the CEC and ECs where always appointed by the President of India on the recommendation of the Prime Minister. This was found to be an unsatisfactory situation by the Court as it would affect the impartiality of the Election Commission of India, which is constitutionally tasked with conducting elections in a free and fair manner.
Challenging the new law
Although the government made the new law as per the direction of the Court, in the committee it replaced the CJI with a cabinet Minister to be nominated by the Prime Minister who chairs the three-member committee. The LoP is the other member. This law has been challenged on the ground that the provision relating to the composition of the selection panel violates the direction of the five-judge Bench of the Supreme Court. The Constitution Bench was headed by Justice K.M. Joseph (retired).
The new law provides for a search committee headed by the Law Minister and two senior bureaucrats in the Union government, which will prepare a list of five persons for the committee to consider. The names of persons found eligible by the search committee have not been made public. Anyway, the seniormost EC has been chosen to be appointed as the CEC by the two members of the committee, namely, the Prime Minister and the Home Minister. The LoP put in a dissenting note, wanting the selection to be put off till the Court has considered the challenge to the law. As it happened the decision was taken by the majority in the selection committee. It must be said here that the procedure laid down in the law has been complied with. Subsequently the appointments of CEC and another EC have been officially notified.
Now that the law on the appointment of the CEC and ECs has come up for hearing in the Court, there are certain constitutional issues which need to be highlighted for a proper perspective in the matter of appointment of these high constitutional authorities
Infirmities in the selection process
The Constitution of India has vested the entire responsibility for conducting the elections to Parliament and State legislatures to the offices of the President and the Vice President, and preparing the electoral role for these elections in the Election Commission of India (ECI) under Article 324. Plenary powers for effectively discharging this responsibility have also been conferred on this body. The Court, in Election Commission of India vs State of Tamil Nadu and Others (1993), while dealing with the question of powers of the ECI stated as follows: “the election commission of India is a high constitutional authority charged with the function and the duty of ensuring free and fair elections and of the purity of the electoral process. It has all the incidental and ancillary powers to effectuate the constitutional objective and purpose. The plenitude of the commission[’]s powers corresponds to the high constitutional functions it has to discharge”.
This and many other judgments of the Court lay stress on the duty of the ECI to ensure free and fair elections and to maintain the purity of the electoral process. Around 960 million voters participate in the voting process in India, making it the most gigantic task for an electoral body anywhere in the world. To conduct such a massive election, while ensuring that it is free and fair, demands that the ECI should have persons of unimpeachable integrity, with proven competence and absolute impartiality in heading it. Therefore, it is of utmost importance that such persons are selected through a process which is constitutionally correct and which also inspires great confidence in the citizens of India.
The most crucial part of this law is the composition of the select committee, which is chaired by the Prime Minister and has the LoP and a cabinet Minister nominated by the Prime Minister as members. Section 7 of the Act says that the President shall appoint the CEC and ECs on the recommendation of the select committee. It is mandatory for the President to appoint persons recommended by the select committee. Thus, the select committee has the final say on who should be appointed the CEC and ECs.
The most serious infirmity in this provision is that the law itself creates a majority in favour of the government. When the third member of the committee is a cabinet Minister under the Prime Minister, it is clear that the Prime Minister and the cabinet Minister will at all times constitute the majority, thus making it impossible for the select committee to make an objective assessment of the comparative merit of all the listed candidates. This committee can select only a person whom the government favours. The function of the law is only to lay down the qualification or the status of the members to be brought on the selection committee, and not to ensure through a legal legerdemain a majority for the government’s candidate. A cabinet Minister will always support the Prime Minister’s proposal, so where is the objective assessment of all the listed persons by such a committee? The majority opinion in any committee emerges through discussion among independent members which cannot be predicted beforehand. But in the committee under this law, the outcome can be predicted beforehand.
Another serious infirmity is that the chairperson nominates one of the members, namely, the cabinet Minister. Members of the selection committee which selects the CEC and ECs need to be independent men capable of expressing their free will. When the chairman himself nominates one member, this candidate will undoubtedly be subservient to the chairman. A cabinet Minister cannot take a view that is different from that of the Prime Minister. Thus, the selection committee as it is constituted has an inherent incapacity to select the best person through an objective assessment.
It defeats fairness and objectivity
These infirmities make this law constitutionally unsustainable because the provision relating to the composition of the committee is arbitrary and does not have a rational basis. Further, by creating a majority in favour of the government supported candidate, it does not allow a fair and objective assessment of the merit of other similarly placed candidates. Thus, this provision may violate Article 14 of the Constitution. Besides, the selection of the CEC and other ECs has a vital bearing on the conduct of free and fair elections and in maintaining the purity of the electoral process, which is a part of the basic structure of the Constitution. So, if the composition of the select committee ensures a majority for the government supported candidate always, free and fair elections will be a casualty.
The Supreme Court of India will have to take a hard look at this law.
P.D.T. Achary is a former Secretary-General, Lok Sabha
Published – February 28, 2025 12:16 am IST