On December 21, the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, was passed in the Lok Sabha, which aims to regulate the appointment and service terms of the Chief Election Commissioner (CEC) and Election Commissioners. The Bill dropped Chief Justice of India from the selection panel, which is against the Supreme Court ruling in March.
As per the judgment, “Until the Parliament makes a law in consonance with Article 324(2) of the Constitution, the following guidelines shall be in effect:
“We declare that the appointment of the Chief Election Commissioner and the Election Commissioners shall be made on the recommendations made by a three-member Committee comprising the Prime Minister, Leader of the Opposition of the Lok Sabha and in case no Leader of Opposition is available, the Leader of the largest opposition party in the Lok Sabha in terms of numerical strength and the Chief Justice of India,” the 5-judge bench of the Supreme Court said in Anoop Baranwal vs Union of India on March 2, 2013.
The Law Commission, in its 255th Report, emphasized that the Commission should be completely insulated from political pressure or executive interference to maintain the purity of elections, inherent in a democratic process, and recommended: “Appointment of Chief Election Commissioner and Election Commissioners – (1) The Election Commissioners, including the Chief Election Commissioners, shall be appointed by the President by warrant under his hand and seal after obtaining the recommendations of a Committee consisting of: (a) the Prime Minister of India – Chairperson (b) the Leader of the Opposition in the House of the People(Member), (c) the Chief Justice of India (Member).”
According to Sanjay Hegde, a senior Supreme Court lawyer, “The selection of the Election Commissioners by a multi-member, high-level body, with an inherently neutral design was mandated by a Supreme Court judgment. Parliament has sought to undo the judgment by making a law, which provides for two members of the cabinet (including the PM) and the leader of the opposition. This legislation may be vulnerable to constitutional scrutiny as manifestly arbitrary and directly undoing a Supreme Court judgment, without removing the constitutional infirmities noticed in the judgment.”
S.Y. Quraishi, former Chief Election Commissioner, said, “It’s wrong to do that because of the neutrality of the Election Commission and Collegium will be in question because of 2 to 1 equation in selection panel after CJI being dropped. There is already Collegium in place for the selection of CJI, CIC, CVC and CBI and therefore it will be challenged in the Supreme Court and it will not stand judicial scrutiny because the reason behind SC judgment of transparency in appointment and that logic is still there. How it can be transparent when the PM and cabinet member will outvote opposition leader? It is a mockery of Collegium system and it will not stand against judicial scrutiny.”
Jagdeep S. Chhokar, one of the founders of Association for Democratic Reforms (ADR), said, “The government has not only undone the judgment of the Supreme Court but it also goes against all the provisions of the judgment. Making an Election Commission a truly independent body was discussed at a great length in the Constituent Assembly.”
“Irrespective of consequences to the individual, an honest person would, ordinarily, unrelentingly take on the high and mighty and persevere in the righteous path. An Election Commissioner is answerable to the Nation. The people of the country look forward to him so that democracy is always preserved and fostered. Independence must be related, finally, to the question of ‘what is right and what is wrong’. A person, who is weak-kneed before the powers that be, cannot be appointed as an Election Commissioner. 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,” said Prof Chhokar, quoting an earlier judgment.
He added, “Earlier there were two conflicting positions in the Constituent Assembly but Dr.BR Ambedkar proposedtaking a middle line that this should be left to the Parliamentto make a law on the issue butthe Parliament has not made any law even after 75 years. All the governments in the past have appointed the CEC and the ECs themselves. It is written in the SC judgment that no political parties want to dilute its power and all parties want to have absolute power.”
“It goes against the fundamental premise of the democracy which is that the election body should be completely independent of the government of the day. We (ADR) will challenge it in court. There is no doubt about it because it is against the democracy. It is a settled principlethat if the government wants to correct any judgment of Supreme Court, it can do that by correcting the basis of the judgment but the government and the Parliament cannot make a law only to undo the SC judgement,” argued Prof Chhokar.