Will the referee join the Game? The ECI Act 2023 and the Uncertain Questions

Georgekutty M V

The Indian Parliament passed the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill on December 21, 2023. The Bill replaced the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.

The BJP government hurriedly drafted and passed the Bill in Parliament due to a recent Supreme Court judgment in Anoop Baranwal versus Union of India (2023) on the lack of a constitutional mechanism for appointing Chief Election Commissioners (CEC) and Election Commissioners (EC) and related matters.

Even though the constitutional provisions mandated it, no government drafted an act that set the procedure for appointing CECs and ECs. With the newly passed act, the BJP government made a straightforward procedure for appointing CECs and ECs and rejected some of the significant recommendations by the Supreme Court of India. However, rather than solving the concerns, it further extended the difficulties.

The appointments to the Election Commission of India (ECI) are the Union executives’ prerogative. Article 324(2) reads: “The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.”

In other words, it is solely an executive-led process whereby the current law minister suggests a pool of suitable candidates to the Prime Minister for consideration. The President makes the appointment on the advice of the Union Council of Ministers headed by the Prime Minister.

The difficulty arises when Article 324(2) does not make a specific constitutional process to appoint CEC and ECs. It only states that the President will appoint members of the ECI, and the process shall be subject to a law made by Parliament. However, Parliament did not make a law to govern the process in the last 70 years.

In the absence of a constitutional mechanism for the appointment of CEC and ECs, the Supreme Court of India, in its judgement on March 2, 2023, recommended the creation of a selection committee comprising the Prime Minister, the Leader of the Opposition, and the Chief Justice of India. The three-member constitutional body would advise the President on CEC and EC appointments.

As per the judgement, the committee will function until Parliament enacts a law to govern the appointment process. Besides, Justice Ajay Rastogi also suggested extending the protection guaranteed to the CEC under Article 324(5) to the ECs. Article 324(5) states that a CEC can only be removed in the same manner as a Supreme Court Judge.

This means that an SC Judge can only be removed if two-thirds of both houses of Parliament vote in favour and the President passes an order of removal. In a nutshell, the new recommendations by the Supreme Court would enhance the independence and protection of the ECI from potential attempts by the executive to undermine it.

The court recognised that the executive dominated the CEC and EC appointments, which is detrimental to the independence of the ECI. Further, the court ruling linked arbitrary appointments by the executive in ECI with violating the Right to Equality under Article 14 of the Constitution.

The court also observed that free and fair elections are part of the basic structure of the Constitution, and an arbitrary system of ECI appointments destroys it. In addition, the court pointed out the lacuna in the present appointment system, in which the executive has complete dominance. It might lead to a subservient ECI and potential appointments favouring the party that appoints them.

During the deliberations, the Constituent Assembly members aired their apprehensions regarding the appointment of CEC and ECs. However, the Constituent Assembly did not prescribe a specific constitutional process but left it to the future Parliament to legislate. Nevertheless, this constitutional aspiration was never fulfilled, and the executive enjoyed the benefit of appointing people as they were chosen.

By not taking up this legislation, the primary concern then and now in the Supreme Court also was the potential bias in favour of the ruling party. Dr B R Ambedkar explicitly told this in the Constituent Assembly that an “unfit person” becoming CEC gave him a “headache”. Ambedkar moved the amendment to include the line that the President shall appoint CEC and ECs “subject to the provisions of any law made on this behalf by Parliament”.

This was intended to check the potential Presidential highhandedness and the central government’s influence over the President. Unfortunately, no government in independent India tried to legislate on the matter. Hence, the recent Supreme Court ruling attempted to correct the decades-old practice of union executives’ prerogative in appointing CECs and ECs.

The Supreme Court judgement touched upon the core issue of the appointment of CEC and EC and intervened to make it more independent from the Union executive control. To that effect, the recommendation of the court to constitute a selection committee comprising the Prime Minister, the Leader of Opposition in Lok Sabha/Leader of the largest party in the Lok Sabha and the Chief Justice of India was to ensure that the Union executive should not dominate the appointment process.

It was devised to keep the independent character of the ECI. However, the new law rejected the court’s above suggestion and instead created a selection committee dominated by the Union executive. As per the new law, the selection committee comprises the Prime minister, a Union Cabinet minister, and the opposition leader in Lok Sabha/Leader of the largest opposition party in Lok Sabha.

The selection committee will be aided by a search committee headed by the Minister of Law and Justice and comprising two other members not below the rank of Secretary to the Government of India. The search committee will prepare a panel of five persons for the consideration of the Selection Committee. However, the selection committee can choose candidates outside of the recommendations made by the search committee. In other words, the executive dominates both the selection and search committees.

Clause 7(2) of the Act upholds the validity of the selection committee recommendations even if there is a vacancy or any defect in the Constitution of the selection committee. Among the three members of the selection committee, the Prime Minister and a Union Cabinet minister posts cannot be vacant.

However, if the Lok Sabha is dissolved, the Leader of the Opposition post may be vacant. If a vacancy in CEC or EC arises before the general election and the Lok Sabha is dissolved, then the selection committee will exclusively consist of ruling party members. Clause 7(2) makes the presence of the Leader of the Opposition irrelevant in certain conditions.

Furthermore, the selection committee typically works as per the principle of consensus. Given the structure of the selection committee, if no consensus emerges on a candidate, the majority opinion will always favour the executive decision. The choice of Prime Minister and the Union Cabinet minister will have an easy ride in selecting CEC and ECs.

Hence, practically, the presence of the Leader of the Opposition in the selection committee will not make any difference. As a result, in ordinary or extraordinary situations, the executive will dominate the selection of CECs and ECs. In other words, this act will create a subservient ECI, which can be manipulated according to the whims and fancies of the executive.

Another danger in the act is the eligibility criteria for CEC and ECs. Under the act, only a person who is or has been at a rank equivalent to Secretary to the government will be eligible to be the CEC and ECs. The act excludes other qualified individuals by restricting the eligibility criteria for civil servants. The executive can exert more control over the potential appointees by limiting it to civil servants since bureaucracy functions under the political control of the executive.

The ruling party nominees may get special patronage in the selection process. This patronage system will create a dependent bureaucracy in the service of the political executive. Specifically, in countries where authoritarian parties have been in power for a long time, all the independent democratic institutions will be packed with party nominees.

The literature on the subject gives ample evidence to prove that bureaucracy actively colluded with authoritarian governments to kill independent democratic institutions. Hence, by limiting the eligibility criteria for CEC and EC to civil servants, the act may enable the executive to erode the independent character of the ECI further.

The Supreme Court rightly observed in its judgement that free and fair elections are part of the basic structure of the Constitution. Moreover, if the selection process of CEC and ECs is arbitrary, it violates the Right to Equality under Article 14 of the Constitution.

Hence, a robust, independent and transparent ECI is a prerequisite for the legitimacy of the election process in India. The new act dilutes the independent character of the ECI and, in the long run, will create a subservient ECI to the political executive of the day. As a result, as Dr B R Ambedkar feared, an “unfit person” becoming the CEC of ECI will become a reality. Moreover, if the referee joins the Game, it will lose legitimacy.