Rajya Sabha yesterday, passed a bill for appointment the three members of the Election Commission of India (ECI). All of this took place amidst, a walk out from the opposition.
More details about the ECI Official Appointment Bill
The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service And Term of Office) Bill, 2023, was introduced in the Rajya Sabha on August 10, 2023 and moved for consideration and passage on Tuesday by law minister Arjun Ram Meghwal in the upper house.
The government proposed some amendments to the Bill, which repeals the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 to provide for the appointment process and conditions of services for the chief election commissioner (CEC) and two election commissioners (ECs).
The biggest concession made by the government is to retain the status of the CEC and the ECs on par with judges of the Supreme Court, following protests by opposition parties and former chief election commissioners. The Bill had earlier proposed to downgrade their status to that of the cabinet secretary.
The elephant in the room, however, is about the members of the selection committee. The Supreme Court had earlier this year ruled that a committee comprising the prime minister, the leader of the opposition and the chief justice of India (CJI) approve the appointment of members to the ECI. In the new law that was proposed by the government, the CJI was substituted by a minister nominated by the PM.
ECI as a constitutional body
Election Commission of India is a permanent Constitutional Body. The Election Commission was established in accordance with the Constitution on 25th January 1950. The Commission celebrated its Golden Jubilee in 2001. Originally the commission had only a Chief Election Commissioner. It currently consists of Chief Election Commissioner and two Election Commissioners.
For the first time two additional Commissioners were appointed on 16th October 1989 but they had a very short tenure till 1st January 1990. Later, on 1st October 1993 two additional Election Commissioners were appointed. The concept of multi-member Commission has been in operation since then, with decision making power by majority vote.
The President appoints Chief Election Commissioner and Election Commissioners. They have tenure of six years, or up to the age of 65 years, whichever is earlier. They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court of India.
The Chief Election Commissioner can be removed from office in like manner and on like grounds as a judge of the Supreme Court.
How did the opposition react to the Rajya Sabha’s latest bill?
RJD MP Manoj Jha moved an amendment seeking to retain the CJI, it was defeated and the Bill passed by voice vote.
Comparisons of the two Bills indicate a clear climb down in several quarters. The selection committee, which was earlier proposed to be headed by the cabinet secretary and two secretary-level officers, will now be headed by the law minister.
A new clause has been added to the Bill protecting the officers against civil or criminal proceedings, something that was omitted earlier. The courts are “prohibited from entertaining civil or criminal proceedings against a current or an ex-CEC or EC for acts done, or words spoken in the discharge of official duty or function”, the new clause says.
But it was protection from political interference that opposition MPs were more concerned about. While the CEC has the immunity of a Supreme Court judge as far as removal from office is concerned, the two ECs can be removed at the orders of the CEC.
TMC MP Jawahar Sircar sought to extend this protection to the two ECs as well by amending Article 324 (5) of the constitution. Giving the example of ex-EC Ashok Lavasa – who resigned after various investigative agencies filed several cases against him – Sircar said, “Election Commissioners can be removed at will and their tenure remains unprotected. Look at the case of Lavasa. Institutions are being weakened and destroyed. And it’s not just the Election Commission, look at the CAG [Comptroller and Auditor General] as well. The PM’s right-hand man [G.C. Murmu] is the CAG. Now we don’t get any reports.”
The opposition has been calling this an opaque legislation. A.D. Singh, RJD MP commenting on the “state of democracy” said, “A Russian oligarch told me recently that I am more unsafe in India as compared to Russia.”
“Any legislation should be brought in to cleanse the system but look at electoral bonds that is making the system opaque,” said CPM MP John Brittas.
Congress MP Amee Yagnik said, “During the model code of conduct the EC needs to be most vigilant, the ruling dispensation tries to influence the voter, at this time the EC is not governed by laws but by rules. There is a constitutional vacuum especially where the composition of the select committee is concerned.”
When Congress MP Randeep Singh Surjewala referred to the top court’s judgment on the appointment of election commissioners, Rajya Sabha chairman Jagdeep Dhankhar responded, “The parliament is the supreme body when it comes to lawmaking. We cannot suffer interventions of any other organ, be it executive or judiciary. Reflections in the Supreme Court are not binding on the parliament”.
“By replacing CJI with a minister, the control of the selection committee has come in the hands of the government. Now the government has two votes in the panel. It can take all decisions with the majority of 2:1. Now a yes man or a party man can become an election commissioner,” Raghav Chadha said, opposing the bill as a “mockery of democracy.”
DMK’s T Siva opposed the bill calling it “undemocratic, unjustifiable and unacceptable,” while Trinamool MP Sukhendu Sekhar Ray said it suffered from “unreasonableness and arbitrariness.”