Sanvi Raghuwanshi and Ishita Rajput
Introduction
The recent enactment of the Chief Election Commissioner and other Election Commissioners (appointment, conditions of service and term of office) Act, 2023 has gained significant attention, debate and controversy. This Act pertains to the selection, service terms and tenure of the Chief Election Commissioner (hereinafter, “CEC”) and other Election Commissioners (hereinafter, “ECs”). It replaces the Election Commission (Conditions of Service of ECs and Transaction of Business) Act, 1991. The Supreme Court (hereinafter, “SC”) in Anoop Baranwal v Union of India, 2023 (hereinafter, “the judgement”) asserted that the CEC shall be chosen by a committee including the Prime Minister (hereinafter, “PM”), Leader of the Opposition in the Lok Sabha, and the Chief Justice of India (hereinafter, “CJI”). The new act replaces the post of CJI in the selection committee with a Cabinet Minister nominated by the PM, which raises several issues such as the Election Commission being dominated by the government, making the election process biased.
The basic structure of India’s resilient constitution is a cornerstone of democracy. Free and fair elections form a part of this basic structure, which cannot be amended or violated by any legislation, however, this controversial legislation in question has raised various concerns in this regard. Does the legislation subvert the judgement of the SC? Does the legislation pose a threat to the regulation of free and fair elections? The authors shall analyse these issues in this piece.
Key Provisions of the Legislation
Under the new legislation, the President shall appoint the ECs based on the recommendation of the Selection Committee, as discussed above. The CEC and other ECs constitute the Election Commission, an autonomous constitutional body that regulates and oversees elections at the union and state levels.
The Selection Committee has the discretion to select candidates either from, or other than, the ones proposed by Search Committee. The Act provides that decisions made by the Selection Committee shall be valid regardless of any vacancy within its composition. Furthermore, courts are restricted from instituting criminal or civil proceedings against a current or former EC or CEC for speech or actions exercised during the performance of official duties.
Legal Implications and Constitutional Scrutiny
The Role of the Election Commission
The Election Commission is responsible for regulating free and fair elections, which forms the bedrock of democracy. Part XV of the Indian constitution deals with provisions based on elections. Further, the Election Commission’s authority is vested in Article 324 of the Constitution. “A vulnerable Election Commission would result in an insidious situation and detract from its efficient functioning,” the judges had observed in the judgement. The court’s decision implies that it was against the idea of domination by the ruling party therefore, to ensure independence, it had suggested a way as to how the ECs shall be chosen by an impartial mode.
Concerns over the Selection Committee’s Autonomy
The Act has undermined the autonomy and fairness of the selection committee by predominantly selecting its members from the executive arena. Given the composition of the selection committee, it is likely that the selection body will operate according to the ruling party’s preferences as majority of the members would be from the government at the time.
While there is opposition presence in the Selection Committee, its impact might be minimal considering the potential sway of majority votes, which remains ambiguous. The recent first-ever appointment through this act reinforces our concerns, particularly since the Leader of the Opposition’s opinion in the selection process was not given due importance. He even remarked, “If the Chief Justice of India had been involved, it would have been a different matter.”
Executive Dominance
The unfettered authority of the selection committee is further evident by the fact that the executives can influence appointments whimsically regardless of the proposition by the search committee. The eligibility criteria for ECs is also concerning as it may result in the loss of a qualified candidate. Moreover, if the Lower House of the Parliament is dissolved, leaving the position of the Leader of Opposition vacant, the Selection Committee would solely consist of ruling party members, leading to decisions being considered valid despite a clear bias This situation could result in indirect executive control and local pressure on the Election Commission, violating the principles of free and fair elections.
Flaws in accountability and regulatory oversight
Furthermore, the amendment’s provision to protect these officials from civil or criminal proceedings for actions done under their official duties appears arbitrary as well as lacks accountability and credibility as it goes against the principle of checks and balances. The distinct removal processes of CEC and other ECs lack parity given that they are considered at par with each other as stated by the SC in T.N. Seshan v Union of India and have equivalent share in decision-making.
Conclusion and Way Forward
Considering all factors, the act ultimately vests decision-making influence on the incumbent government. This is apparent in the removal of CJI and the increased representation of ruling party members in the Selection Committee. Allowing the process to move forward regardless of the vacancy in the position of the Leader of Opposition, further substantiates the flaws inherent in the act.
In South Africa, the selection committee comprises of the President of the Constitutional Court, the Public Prosecutor and representatives of the Human Rights Commission and Commission on Gender Equality. This framework highlights the importance of having a diverse and unbiased committee. Similarly, in India, its court rulings and previous legislative suggestions from the Law Commission (2015), the Goswami Committee (1990), and the SC in the judgement (2023), which included the CJI in the selection committee, support the idea of an unbiased Selection Committee.
Although this legislation is contentious, authorities must keep in mind certain points to mitigate further harm to the democratic aspect of elections. The Selection Committee must reach a unanimous decision rather than the decision of the majority to ensure fairness in the decisions taken. While safeguarding ECs from legal proceedings is necessary, an independent review committee or similar arrangement can be formed to ensure that matters are examined, and that ECs do not take unfair advantage of their powers. The selection committee would lack non-partisan authority if the post of Leader of Opposition goes vacant. Therefore, it is imperative that an EC selected during that time be temporary and acquire permanent authority only when all the members are present in the decision-making process. The SC, as the Constitution’s guardian, may effectively implement such solutions to protect the integrity and sovereignty of the Election Commission.
In a democratic country like India, independence and fairness of the Election Commission are of utmost significance as it affects fundamental tenets of the Constitution. Therefore, it is crucial to address these concerns to ensure free and fair elections and maintain the democratic nature of the country.
The Authors are second-year students at National Law Institute University, Bhopal
Image Credit: Live Law
Constitutional Law Society 
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