Rajya Sabha passes bill to regulate appointment of top election officials
The new bill replaces CJI with a Cabinet minister, effectively giving the government a 2-1 majority in the panel.
A controversial bill regulating the appointment and conditions of service of India’s top election officials was passed by the Rajya Sabha on Tuesday, reaffirming the executive’s grip on the Election Commission of India (ECI) months before the 2024 Lok Sabha polls and sparking protests from the Opposition.
The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, comes months after the Supreme Court laid down a temporary selection procedure that included the Chief Justice of India (CJI) as a member of the selection panel, along with the Prime Minister and the Leader of the Opposition. The new bill replaces CJI with a Cabinet minister, effectively giving the government a 2-1 majority in the panel.
Before the top court’s March 2 verdict, CEC and ECs used to be appointed by the Prime Minister and the council of ministers, under the seal of the President. The court, in its order, had called for a law on how the CECs and ECs should be picked, saying no such mechanism existed at the time.
While the court’s formula appeared to loosen the hold of the executive in the process, the government, while bringing the new bill, argued that framing laws was the responsibility of the legislature, drawing attention to Article 50 that deals with the separation of powers between the legislature, executive, and judiciary.
“The functioning of ECI was and will remain impartial and transparent, and the government is committed to ensuring that. We are committed to ensuring that all institutions of the country work in an impartial way,” said minister of state for law and justice Arjun Ram Meghwal in his reply to the discussion on the bill.
But the Opposition — which staged a walkout before the voice vote passing the bill — criticised the proposed law, alleging that its undemocratic provisions will destroy one of country’s last remaining independent institutions.
The bill — introduced in the Upper House on August 10, the penultimate day of the monsoon session — was moved on Tuesday with some amendments.
Earlier, clause 6 laid down that the cabinet secretary would head the search committee but now it is under the law minister with two secretaries as its members, Meghwal said. Another amendment to clause 15 related to protecting the top election officials from legal proceedings while discharging their official duties, Meghwal said.
The salary and status of the election officials will be the same as a Supreme Court judge, he said. There was some concern that an earlier version of the bill equated the status of CECs and ECs with that of a cabinet secretary, which might have led to the perception that their status was lowered.
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 till now, CEC and ECs used to be appointed by the PM and the council of ministers, under the seal of the President, through the 1991 Transaction of Business Act, which the top court had noted, lacked objective standards regarding the selection and qualification of the CEC and ECs.
On March 2, a five-judge Constitution bench said 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 passed a law on appointments. The court noted that the making of a law for such appointment was a “constitutional imperative” and an “unavoidable necessity”, but since Parliament had failed to do so, there was a vacuum that needed to be filled through the intervention of the highest court. But on August 10, the central government moved the new bill, which, with amendments, was passed on Tuesday.
A vacancy will arise in the poll body 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 ECI. In the past two occasions, ECI had announced parliamentary polls in March.
During the debate in the Upper House, the Opposition said the bill would bulldoze the independence and fearlessness of ECI.
“The bill’s intent is malicious and the result is disastrous. Our democracy is above the ruling regime. The Constitution cannot be subjugated, bulldozed, or trampled upon by the government. We are defenders of the Constitution, and we will continue to do so,” said Congress leader Randeep Surjewala.
The government, however, dismissed the Opposition’s allegations, and said the bill was in line with the directions of the top court.
“There was a shortcoming in the 1991 law, so the SC said bring a new law. And till the time the law is not there, SC put in place a stopgap arrangement...the selection committee that the Opposition is talking about. They were talking about bulldozing the Constitution. The bill is in consonance with Article 324 and Article 50. No one is above the Constitution,” Meghwal said.
Rajya Sabha chairman Jagdeep Dhankhar said Parliament was the supreme body when it came to making laws and reflections made by SC were not binding on it. He said there could be no interference either by the executive or the judiciary.
Meghwal attacked the Congress in his speech. “Why is PM in the panel, the Opposition asked. What kind of argument is this? The citizens of the country have chosen the PM. Does the PM have no role in the executive’s functioning? Also, no one spoke about the leader of the Opposition’s role in the selection panel,” he asked.
Amar Patnaik of the Biju Janata Dal supported the bill and argued that the independence of CEC was maintained and there is “no affront to the independence and interference in the election process”.
AAP MP Raghav Chadha alleged that the bill was “a bulldozer with which the government has finished the Election Commission’s impartiality”.