Rajya Sabha: Govt tables bill to exclude CJI from panel to appoint CEC, ECs
The bill was moved months after a Supreme Court constitution bench ruled a panel comprising the Prime Minister, LoP, and the CJI shall appoint the CEC and ECs until Parliament brings a law
The government on Thursday tabled in the Rajya Sabha a proposed law that seeks to exclude the Chief Justice of India (CJI) from the panel to appoint the Chief Election Commissioner (CEC) and Election Commissioners (ECs) months after a Supreme Court constitution bench revamped the selection mechanism for their appointments.
In March, the court ruled a panel comprising the Prime Minister (PM), the Leader of the Opposition (LoP), and the CJI, shall appoint CEC and ECs until Parliament brings a law while underlining the independence of the Election Commission of India (ECI) requires a collegium. The court said that the purity of the election process must be maintained to preserve democracy or else it would lead to disastrous consequences.
The constitution bench said the CJI’s presence can usher in impartiality to a selection process when all governments want “yes men in the poll panel”. The government called it a “fallacious” and “constitutionally impermissible” suggestion that the executive cannot make an honest selection without the help of the judiciary.
The court lamented that successive governments have “completely destroyed” the independence of ECI by ensuring no CEC gets the full six-year term since 1996.
The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill says the panel for appointments of CEC and ECs shall comprise the PM, LoP in the Lok Sabha, and a Cabinet minister.
It was introduced a day before the monsoon session is set to end. The bill is also not part of the 31 bills listed for passage during the session.
The ECI is a three-member body with a CEC and two ECs. Under Constitution Article 324(2), the President is empowered to appoint the CEC and ECs. This provision stipulates the President, who acts on the aid and advice of the PM and the council of ministers, will make the appointments “subject to the provisions of any law made on that behalf by Parliament”.
With no such law having been framed, the PM and the council of ministers appointed CEC and ECs under the President’s seal. The rules for such appointments were also silent on the qualification of a candidate.
Trinamool Congress Rajya Saha member Sushmita Dev opposed the proposed law saying the CJI should head the collegium. “This bill defies the March 3 order of a five-judge Supreme Court bench. We must insist on CJI heading the selection committee and the PM and Opposition Leader as other members or else CEC may be a puppet,” Dev said.
The bill says CEC and ECs should have held the post equivalent to the secretary to the government of India and “shall be persons of integrity, who have knowledge of and experience in management and conduct of elections”. It says a Cabinet secretary-led search committee with two members not below the rank of secretary “having knowledge and experience in matters relating to elections, shall prepare a panel of five persons” for the posts.
“This [the panel] would then be sent to the Selection Committee chaired by the Prime Minister and including the Leader of Opposition or leader of the single largest Opposition party in the Lok Sabha and a Union Cabinet minister nominated by the PM.”
The bill says the term of the CECs and ECs remained unchanged at six years or until they reach the age of 65 or whichever is earlier. “The salary of the CEC and ECs would be the same as the Cabinet Secretary. The appointment of Chief Election Commissioner and other Election Commissioners shall not be invalid merely by reason of any vacancy in or any defect in the constitution of the Selection Committee,” says the bill.
In its ruling in March, the Supreme Court said ECI must have an independent secretariat, rule-making powers as well as an independent budget to be able to function independently. It added the process of removal of ECs should be on par with CEC, which can be removed only through an impeachment process like a judge of a constitutional court.
The judgment came as the Opposition has questioned the independence of ECI citing the declaration of poll dates and alleged dereliction in acting against the leaders of the ruling party for violation of poll regulations.
It brought on par the selection of CEC and ECs with the appointment of the Central Bureau of Investigation chief, who is also selected through the same composition of the collegium.
The court’s order came on four public interest litigations for directives for setting up a neutral and independent selection panel for recommending names to the President for appointments as CEC and ECs. The petitions complained that Parliament has not framed legislation despite a mandate under Article 324(2).
The five-judge bench questioned the Union government over the lack of regulations to guide the appointment of CEC and ECs while hearing the pleas in November last year. It questioned the government if it was not defeating the wishes of the framers of the Constitution by not framing a law.
The court added it could examine the necessity of having a better system. It said the absence of a law for the appointment of ECs has resulted in an “alarming trend”. The government told the court that the participation of the CJI in picking ECs cannot be the only guarantee of fairness in the selection process.
The court asked the government to produce the file related to the appointment of Arun Goel as an election commissioner on November 18 even as the bench was seized of the matter. The file was produced on November 24 and prompted the bench to question the “tearing hurry” and “haste” shown in appointing Goel.
The court wondered if the then Union law minister Kiren Rijiju followed any yardstick to zero in on Goel from the pool of four officers picked for the selection. This came after Rijiju’s criticism of the apex court’s model of selecting judges through the collegium system. The court clarified that it will not scrutinise the correctness of Goel’s appointment.