In March last year, when the Supreme Court ordered the constitution of a selection committee for the Election Commission of India (ECI) with the Chief Justice of India (CJI) as a member, there were no vacancies in sight in the ECI. Just over a year later, and three months after Parliament passed a law excluding the CJI from the committee, there are two vacancies in the ECI and the time to test the law and its spirit is here.
Since the introduction of The Chief Election Commissioner And Other Election Commissioners (Appointment, Conditions Of Service And Term Of Office) Bill, 2023 in Parliament, I have been trying to understand the thought behind some of its provisions and the final amendments. The words belong to law professionals but is the wisdom theirs?
The Indian Constitution provides for many institutions that form the spine of our democracy. Although each institution has a different purpose and character, it has a relationship with the government either supportive or regulatory, or as a counterweight.
Parliament exercises checks on the government through its legislative jurisdiction. The courts scrutinise laws passed by the legislature and examine the legality of the government’s decisions. A somewhat similar function is performed by the tribunals. The Attorney General advises the government, occasionally representing it in courts. The Comptroller and Auditor General maintains government accounts and audits government expenditure. The Public Service Commission carries out recruitment for the government and advises it on certain service matters.
The Constitution also provides for other institutions, some of which do not have a permanent existence, such as the Finance Commission or the Delimitation Commission, constituted periodically to make recommendations as independent organs of the state. The Finance Commission proposes a financial framework for the fiscal relationship between the Centre and states, the devolution of taxes and other modes of central transfers. The Delimitation Commission proposes the delineation of boundaries of assembly and parliamentary constituencies.
Two institutions perform a function that is not directly related to government action. One is the Delimitation Commission, and the other, of course, is the ECI. The ECI’s vital function is to ensure free and fair elections leading to the formation of a democratically-elected political system responsible for running the government till the next elections. Unlike the other aforementioned bodies, the ECI’s responsibility is in no way dependent on government actions. It neither scrutinises government policy or action nor regulates it except while enforcing the Model Code of Conduct. Its compact is with the voters and its responsibility is to safeguard their rights.
It is in this context that one should examine the government’s intent in introducing certain provisions in the CEC Bill and later amending them. The provisions on the equivalence of CEC/ECs with Supreme Court judge/Cabinet Secretary, the composition of the Search Committee, and the procedure of removal of CEC/ECs and subsequent amendments stand out. One should also try to understand the thinking behind the provision about the composition of the Selection Committee.
Let us first look at the composition of the Selection Committee, originally constituted in an ad hoc manner by the SC order of March 2, 2023, till Parliament enacted a law. It is hard to fathom why the government altered the composition by excluding the CJI, thereby creating a predetermined bias in the Committee’s majority view. It is difficult to recall instances where the CJI disagreed with the Prime Minister in any similar selection committee and his exclusion may seem like an attempt to ensure a majority rather than relying on consensus building.
The issue of equivalence seems more intriguing. The status of CEC was never in question as Article 324 (5) provided that “the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment.” Subsequently, the Election Commission (Conditions of Service Of Election Commissioners And Transaction Of Business)] Act, 1991 granted the CEC and ECs salary “equal to the salary of a Judge of the Supreme Court” and provided that the conditions of service relating to allowances, and other perquisites would be “as are…applicable to a Judge of the Supreme Court”.
It is, therefore, difficult to understand what prompted the government to equate the CEC and ECs with the Cabinet Secretary (sections 10 and 15 of the original Bill). This was opposed by critics who were pleasantly surprised by the provision (section 11 (2) in the original Bill) that brought about parity in the removal process of CEC and ECs, as in the extant provision, the CEC could be removed through a process of impeachment, like an SC Judge, but ECs could be removed by the President on the recommendations of the CEC.
In its order of March 2, 2023, the SC had observed that “it is desirable that the grounds of removal of the Election Commissioners shall be the same as that of the Chief Election Commissioner that is on the like grounds as a Judge of the Supreme Court, subject to the ‘recommendation of the Chief Election Commissioner’ as provided under the second proviso to Article 324(5) of the Constitution of India.”
However, the amendments in the final version betray muddled thinking. The government seems to have struck a bargain by restoring the equivalence of CEC/ECs with SC judges and at the same time reversing its position on the issue of parity in the removal process and letting the disparity between CEC and ECs persist. The thought process behind this is baffling because the two issues are not related.
Equally confounding is the replacement of the Cabinet Secretary by the Law Minister as the chair of the Search Committee. The original provision also provided for “two other members… having knowledge and experience in matters relating to elections.” The purpose of changing the chairmanship and dropping “having knowledge and experience in matters relating to elections” in the case of the members, and the thought process behind the other provisions as proposed and amended beats my bureaucratic understanding, evolved during four decades in the government.
The writer is a former Election Commissioner
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It's hard to fathom why government altered composition by excluding the CJI, creating a predetermined bias in Committee’s majority view
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12.03.2024
In March last year, when the Supreme Court ordered the constitution of a selection committee for the Election Commission of India (ECI) with the Chief Justice of India (CJI) as a member, there were no vacancies in sight in the ECI. Just over a year later, and three months after Parliament passed a law excluding the CJI from the committee, there are two vacancies in the ECI and the time to test the law and its spirit is here.
Since the introduction of The Chief Election Commissioner And Other Election Commissioners (Appointment, Conditions Of Service And Term Of Office) Bill, 2023 in Parliament, I have been trying to understand the thought behind some of its provisions and the final amendments. The words belong to law professionals but is the wisdom theirs?
The Indian Constitution provides for many institutions that form the spine of our democracy. Although each institution has a different purpose and character, it has a relationship with the government either supportive or regulatory, or as a counterweight.
Parliament exercises checks on the government through its legislative jurisdiction. The courts scrutinise laws passed by the legislature and examine the legality of the government’s decisions. A somewhat similar function is performed by the tribunals. The Attorney General advises the government, occasionally representing it in courts. The Comptroller and Auditor General maintains government accounts and audits government expenditure. The Public Service Commission carries out recruitment for the government and advises it on certain service matters.
The Constitution also provides for other institutions, some of which do not have a permanent existence, such as the Finance Commission or the Delimitation Commission, constituted periodically to make recommendations as independent........
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