Bill keeps CJI out of panel to select CEC

The March 2 judgment by the Constitution bench was delivered in the absence of a law to regulate the appointment of CEC and ECs, as mandated by the Constitution

The central government on Thursday tabled in the Rajya Sabha a proposed law, effectively displacing a Supreme Court judgment that had sought to divest the executive of the absolute power to appoint the chief election commissioner (CEC) and election commissioners (ECs) by including the Chief Justice of India (CJI) as a member of the selection panel.

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According to the Chief Election Commissioner and other Election Commissioners (Appointment Conditions of Service and Term of Office) Bill, 2023, the President will ratify the appointments following the recommendation of a selection body consisting of the Prime Minister, the Leader of the Opposition (LoP), and a Union cabinet minister who would be nominated by the PM.

Even as the Constitution bench judgment of March 2 was clear that the selection panel proposed by it “will continue to hold good till a law is made by Parliament”, the apex court had extensively referred to a similar mechanism for selection of the director of the Central Bureau of Investigation (CBI) and the Lokpal while underlining the “devastating effect of continuing to leave appointments in the sole hands of the Executive”.

The bill, moved by law minister Arjun Ram Meghwal, stated that a search committee, headed by the cabinet secretary and comprising two other secretaries to the Government of India, shall shortlist a panel of five names for consideration of the selection committee for appointment as CEC and ECs. The selection panel can, however, also consider names other than those shortlisted by the search committee. It also clarified that when an EC is appointed as a CEC, they will get a maximum cumulative tenure of six years.

Commenting on the qualification of the CEC and ECs, the bill says they should either be holding or have held a post equivalent to the rank of secretary to the Government of India and shall be persons of integrity, who have knowledge of and experience in management and conduct of elections. While the maximum term of CEC and ECs will be six years or until they attain the age of 65 years, the bill added that they shall not be eligible for reappointment.

The bill, however, will not come up for discussion and passage in the monsoon session that culminates on Friday.

The March 2 judgment by the Constitution bench was delivered in the absence of a law to regulate the appointment of CEC and ECs, as mandated by the Constitution. Instead, the appointments were carried out through the 1991 Transaction of Business Act, which the court had noted, lacked objective standards regarding the selection and qualification of the CEC and ECs.

The five-judge bench verdict in March laid down that CEC and ECs will be chosen by a panel comprising the PM, LoP (or the leader of the single largest Opposition party in Parliament) and CJI, till Parliament passes a law on appointments.

In making CJI one of the members of the selection panel for CEC and ECs, the Constitution bench, led by justice KM Joseph (since retired), had taken note that CJI was also one of the members in the selection panel to pick the CBI director as well as the chairperson and members of the Lokpal – the anti-corruption ombudsman. “We make it clear that this will be subject to any law to be made by Parliament,” said the judgment. The inclusion of CJI was done dismissing the Centre’s objection that the participation of CJI in picking ECs cannot be the only guarantee of fairness in the selection process.

The bench maintained at the time that it was “imperative” for the apex court to step in and put in place a mechanism because political dispensations of varying hues had failed in discharging their constitutional obligation under Article 324(2) that talked about framing a law to guide such appointments.

Under Article 324(2) of the Constitution, the President is empowered to appoint CEC and ECs. This provision further stipulates that the President, who acts on the aid and advice of the Prime Minister and the council of ministers, will make the appointments “subject to the provisions of any law made on that behalf by Parliament”.

However, with no such law having been framed, CEC and ECs used to be appointed by the PM and the council of ministers, under the seal of the President. The rules for such appointments were also silent on the qualification of a candidate, prompting the top court to come down heavily on the Centre for making such appointments without there being any objective criteria.

The court in its judgment noted that the making of a law for such appointment was a “constitutional imperative” and an “unavoidable necessity”, but since Parliament has failed to do so, there is certainly a vacuum that needs to be filled through the intervention of the highest court of the land.

“Political parties undoubtedly would appear to betray a special interest in not being forthcoming with the law. The reasons are not far to seek. There is a crucially vital link between the independence of the Election Commission and the pursuit of power, its consolidation and perpetuation,” rued the top court in the March verdict.

In its judgment, the court stressed that a person, who is weak-kneed before the powers that be, cannot be appointed an EC. “A person, who is in a state of obligation or feels indebted to the one who appointed him, fails the nation and can have no place in the conduct of elections, forming the very foundation of the democracy... It is important that the appointment must not be overshadowed by even a perception, that a ‘yes man’ will decide the fate of democracy and all that it promises,” it said.

While the part of the judgment recording “the final relief” mentioned only about the interim arrangement, at one point in the judgment, the bench said: “A law could not be one to perpetuate what is already permitted namely appointment at the absolute and sole discretion of the Executive. A law, as Gopal Sankaranarayanan (one of the lawyers appearing in the batch of matters demanding an objective and transparent mechanism to appoint ECs) points out, would have to be necessarily different.”

Reacting to the development, Delhi chief minister Arvind Kejriwal alleged that the Prime Minister is “weakening Indian democracy with one decision after another”.

“I had already said that the Prime Minister does not believe in the Supreme Court of the country. His message is clear – whatever order of the Supreme Court he does not like, he will bring a law in Parliament and overturn it. If the PM openly does not accept the Supreme Court, then it is a very dangerous situation,” Kejriwal posted on X (formally Twitter).

The BJP, however, said the government is well within its right to bring the bill.

“Read the Supreme Court judgment. It had suggested a transient method for appointment of the CEC in absence of a statutory mechanism. The government is well within its right to bring in a bill for the same,” BJP’s IT department head Amit Malviya posted on X (formerly Twitter).

Trinamool Congress Rajya Sabha MP Sushmita Dev said it is yet another attempt to control an institution which must be independent. “The prime minister will appoint an union cabinet minister to replace the CJI as a member of the selection committee to recommend a chief election commissioner. The leader of the opposition will be a member (of the selection panel) but is bound to be outnumbered. This is yet another way to control an institution which must be independent.” she said on X.

A vacancy will arise in the poll panel early next year when election commissioner Anup Chandra Pandey demits office on February 14 on attaining the age of 65. His retirement will come just days before the likely announcement of the 2024 Lok Sabha polls scheduled by the Election Commission. In the past two occasions, the commission had announced parliamentary polls in the month of March.