New Delhi: The Bill to appoint the three members of the Election Commission of India (ECI) was passed by the Rajya Sabha on Tuesday, December 12, amidst a walkout by the opposition.
The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service And Term of Office) Bill, 2023, was introduced in the Rajya Sabha on August 10, 2023 and moved for consideration and passage on Tuesday by law minister Arjun Ram Meghwal in the upper house.
The government proposed some amendments to the Bill, which repeals the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 to provide for the appointment process and conditions of services for the chief election commissioner (CEC) and two election commissioners (ECs).
The biggest concession made by the government is to retain the status of the CEC and the ECs on par with judges of the Supreme Court, following protests by opposition parties and former chief election commissioners. The Bill had earlier proposed to downgrade their status to that of the cabinet secretary.
The elephant in the room, however, is about the members of the selection committee. The Supreme Court had earlier this year ruled that a committee comprising the prime minister, the leader of the opposition and the chief justice of India (CJI) approve the appointment of members to the ECI. In the new law that was proposed by the government, the CJI was substituted by a minister nominated by the PM.
Though RJD MP Manoj Jha moved an amendment seeking to retain the CJI, it was defeated and the Bill passed by voice vote.
Comparisons of the two Bills indicate a clear climb down in several quarters. The selection committee, which was earlier proposed to be headed by the cabinet secretary and two secretary-level officers, will now be headed by the law minister.
A new clause has been added to the Bill protecting the officers against civil or criminal proceedings, something that was omitted earlier. The courts are “prohibited from entertaining civil or criminal proceedings against a current or an ex-CEC or EC for acts done, or words spoken in the discharge of official duty or function”, the new clause says.
But it was protection from political interference that opposition MPs were more concerned about. While the CEC has the immunity of a Supreme Court judge as far as removal from office is concerned, the two ECs can be removed at the orders of the CEC.
TMC MP Jawahar Sircar sought to extend this protection to the two ECs as well by amending Article 324 (5) of the constitution. Giving the example of ex-EC Ashok Lavasa – who resigned after various investigative agencies filed several cases against him – Sircar said, “Election Commissioners can be removed at will and their tenure remains unprotected. Look at the case of Lavasa. Institutions are being weakened and destroyed. And it’s not just the Election Commission, look at the CAG [Comptroller and Auditor General] as well. The PM’s right-hand man [G.C. Murmu] is the CAG. Now we don’t get any reports.”
The opposition has been calling this an opaque legislation. A.D. Singh, RJD MP commenting on the “state of democracy” said, “A Russian oligarch told me recently that I am more unsafe in India as compared to Russia.”
“Any legislation should be brought in to cleanse the system but look at electoral bonds that is making the system opaque,” said CPM MP John Brittas.
Congress MP Amee Yagnik said, “During the model code of conduct the EC needs to be most vigilant, the ruling dispensation tries to influence the voter, at this time the EC is not governed by laws but by rules. There is a constitutional vacuum especially where the composition of the select committee is concerned.”
When Congress MP Randeep Singh Surjewala referred to the top court’s judgment on the appointment of election commissioners, Rajya Sabha chairman Jagdeep Dhankhar responded, “The parliament is the supreme body when it comes to lawmaking. We cannot suffer interventions of any other organ, be it executive or judiciary. Reflections in the Supreme Court are not binding on the parliament.”
The vice president has been vocal in the past about the ‘basic structure’ doctrine established by the Supreme Court. He said he does not agree with the court’s interpretation that parts of the constitution are beyond the reach of the legislature.
The election commissioners bill was passed by the upper house, even as members of opposition parties staged a walkout today in protest against what they have described as executive overreach and a chipping away of the independence of the election commission.
There was an urgency in aligning the terms of service of the ECs with norms prescribed by the Supreme Court, 13 signatories had said in a recent letter to members of parliament.
“The urgency underlying this appeal arises from reports that one of the incumbents of the office of the Commission, Shri Anup Chandra Pandey will retire in February 2024 and if the Bill gets enacted in its existing form, the process of appointment of his successor will become completely non-transparent, making it possible for the NDA government to have a candidate exclusively of its choice appointed a few months before the dates on which elections to the parliament and several States are scheduled to be held,” read the statement.
“The present incumbents of the office of the Election Commission of India (ECI) are appointees of the political executive and the Supreme Court, in their order of March 2, 2023 [WP(Civil) No.104/2015] directed the government to consider introducing a more transparent system of their appointment.
