The Chief Election Commissioner and Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill 2023, which stipulates the process of appointments in the Election Commission of India, fills a lacuna that was left behind by the Constitution-makers with respect to one of the key institutions of our democracy.
The bill was necessitated by an order of a Constitution Bench of the Supreme Court which, disapproving the arbitrary manner in which appointments to the Election Commission were made, put in place a mechanism for the process. That mechanism, which comprised the Prime Minister, the Leader of the Opposition and the Chief Justice of India, however, deprived the government of its unchallenged power to name people to the panel. The judicial order, however, had underscored that its prescription would have a limited life until the Parliament legislated on it.
The new bill, passed by the Rajya Sabha on Tuesday, in effect returns to the government of the day the power to decide who will man the panel. It says a committee comprising the Prime Minister, the Leader of the Opposition or the leader of the largest party in the Lok Sabha and a minister nominated by the Prime Minister will select the Chief Election Commissioner and the other Election Commissioners. It has done away with the presence of a representative of the judiciary in the panel, thereby returning to the executive the choice of the panel. At the end of the exercise, we see no substantive change from the time when the President made the appointments on the recommendation of the Union council of ministers, headed by the Prime Minister.
The government has, however, made some key amendments in the bill, which was presented in August. The status as well as the salary and perks of the CEC and the ECs will be at par with those of a Supreme Court judge; the bill, when introduced, had suggested they will be equal to those of the Cabinet secretary. The search committee to shortlist the names for the EC will now be headed by a Cabinet minister, instead of the Cabinet secretary. The bill also seeks to insulate the commissioners from lawsuits while in office. All these elements are welcome as they will contribute to the independence, autonomy and prestige of the commission.
Despite their periodic display of weaknesses, all the major institutions of our democracy, be it the constitutional courts, the Election Commission or the Comptroller and Auditor-General, have done well to uphold the independence expected of them. Free and fair elections are undoubtedly the key precondition for democracy to thrive, and Election Commission is primarily tasked to ensure that.
A democratic institution must remain independent and fair not just because the people at the wheel are determined to do their job; it must instead have institutional mechanisms to ensure their independence and fairness. It is must be the character of the institution, and not the character of the persons there, that must decide its quality. The Election Commission of India has by and large lived up to people’s expectations, drawing from the power of democracy and in turn empowering it. Of course, allegations have been raised at times that the EC does the bidding of the government in power, but they have mostly ensured that the people’s will is reflected through the election process. Once can only expect that the government will exercise its newly-obtained power to reinforce the Election Commission’s character in such a way that it further strengthens our representative democracy and the parliamentary system.
