New Delhi, Dec 22 (The Street Press India) – On Thursday, a Lok Sabha with fewer Opposition members approved a bill, going against a constitutional bench ruling from March 2. The ruling stated that the group selecting election commissioners and their chief “shall” involve the Chief Justice of India.
The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Bill substitutes the Chief Justice of India with “a Union Cabinet Minister to be nominated by the Prime Minister.”
The remaining two members of the selection committee will remain consistent with the five-judge Supreme Court bench’s recommendation from March, comprising the Prime Minister and the leader of the Opposition (or leader of the single largest Opposition party).
This implies that the government will hold a 2:1 majority on the panel, giving it the ultimate authority in appointing the Chief Election Commissioner and other Election Commissioners. This move is perceived by many as a setback to the autonomy of the election panel, which the Supreme Court aimed to safeguard by involving the Chief Justice of India in the selection process.
The Supreme Court’s decision arose from petitions challenging the government’s practice of independently appointing the Chief Election Commissioner and Election Commissioners. Since the judgment, no appointments have occurred, and no selection panel was formed as per court directives.
The bill was approved by a voice vote amid an exceptional mass suspension of Opposition members. Those not suspended from the Opposition continued slogans during the bill discussion. The Rajya Sabha has already endorsed the bill.
Following the definition of the selection panel, the March 2 judgment emphasized, “This norm will continue to hold good till a law is made by Parliament.” Contacted by The Telegraph, advocate Prashant Bhushan, representing the Association for Democratic Reforms (ADR), a petitioner in the case, stated that the organization plans to challenge the new law once it is officially notified.
Bhushan added, “The constitution bench judgment is based upon the finding that the appointment of the election commissioners being in the control of the government alone poses a threat to free and fair elections and, therefore, democracy.”
“Therefore, any act which again brings the appointment of ECs under government control violates free and fair elections and therefore democracy and therefore violates the Constitution. We will challenge it in court.”
Advocate Kaleeswaram Raj, who submitted an intervention application before the constitution bench, expressed, “The Centre’s move to nullify the radical judgment of the Supreme Court… is deplorable. It’s also vulnerable to legal challenge before the Supreme Court.”
He clarified, “It is incorrect to think that the Supreme Court only prescribed an ad-hoc arrangement for selecting the Election Commission till a new law was made.” Raj continued, stating, “The court also indicated how such a selection should be made so as to ensure the installation of an independent Election Commission in India. This is a precondition for free and fair elections, which is a basic feature of the Constitution. The Centre’s move to overturn the spirit of the judgment is clearly unconstitutional and undemocratic.”
The bench, comprising Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and C.T. Ravikumar, had earnestly appealed to Parliament to establish a permanent secretariat for the Election Commission and enable the poll panel to draw its expenses from the Consolidated Fund of India, ensuring genuine independence.
However, the bill remains silent on these recommendations. In a separate but concurring judgment, Justice Rastogi (now retired) emphasized that the removal of Election Commissioners should only occur through impeachment in Parliament, aligning it with the process for Supreme Court and high court judges. Presently, only the Chief Election Commissioner requires impeachment, while other Election Commissioners can be removed based on the Chief Election Commissioner’s recommendations.
The remaining four judges deferred the decision on granting immunity to Election Commissioners to the discretion of Parliament, considering it a policy matter. The bill specifies the continuation of the previous arrangement.
The Supreme Court issued these directions in response to four PILs filed by Anoop Baranwal, the ADR, advocate Ashwini Kumar Upadhyay, and Madhya Pradesh Congress leader Jaya Thakur, along with the intervention application from Advocate Kaleeswaram Raj.
House Debate
In the House, BJD member Bhartruhari Mahtab supported the bill, highlighting the 2015 Supreme Court decision to strike down the National Judicial Appointments Commission. The court had emphasized the significance of maintaining a separation of powers between the judiciary and the executive.
Mahtab pointed out, “The CJI being in the committee… raises the question of the violation of the doctrine of separation of powers as the appointment falls in the domain of the executive…. In case there is a case of impropriety that comes up against the EC members in court, it would cause embarrassment to the CJI.”
BJP’s Sanjay Jaiswal mentioned the mimicry incident involving suspended Trinamul member Kalyan Banerjee, alluding to Vice-President Jagdeep Dhankhar. Jaiswal highlighted Prime Minister Narendra Modi’s inclusive approach, incorporating the leader of the largest party in the Lok Sabha in the selection panel despite the absence of a qualified leader of the Opposition. He noted that this was done even when the Opposition allegedly did not show respect to the Prime Minister, President, or Vice-President.
Jaiswal further commented, “To break his (former CEC T.N. Seshan’s) powers, two more ECs were appointed…. As soon as he (former CEC M.S. Gill) retired he was made a Rajya Sabha MP (three years after his term as CEC ended) and a minister.”
“They (Congress) never made a (selection committee) because they wanted to run the EC according to their own whims.”
AIMIM member Asaduddin Owaisi voiced his opposition to the bill, criticizing the clause limiting the selection to individuals with experience in conducting polls and those who have served as Union secretaries—a provision disapproved of by former CECs from the Indian Revenue Service.
Owaisi remarked, “The government is basically saying (that) so long as you are faithful to us we will ensure that you get a rightful post…. So, proximity and faithfulness and capitulation are very important for anyone to get all these posts.”
The chair, BJP’s Rajendra Agrawal, expunged Owaisi’s remark comparing B.R. Ambedkar to Mahatma Gandhi.
Both the YSR Congress and the Telugu Desam Party supported the bill, although the Desam accused the YSR Congress of misusing state machinery to remove the names of political opponents from the electoral list in Andhra Pradesh.
Desam member Jayadev Galla suggested considering apex court judges for appointment as ECs.
Law Minister Arjun Ram Meghwal concluded, stating, “The Congress left incomplete in the 1991 act what Babasaheb (Ambedkar) had asked for (that Parliament decide on the appointment procedure for the Election Commission). Now it is Modiji’s term. This is the time, the right time, India’s invaluable time.”
The bill outlines the establishment of a Search Committee, led by the Cabinet Secretary and including two members not below the rank of Secretary to the Government of India, knowledgeable and experienced in matters related to elections. This committee will prepare a panel of five individuals for consideration by the Selection Committee for the appointment of the Chief Election Commissioner and other Election Commissioners.
The Chief Election Commissioner and other Election Commissioners will be appointed by the President based on the recommendation of a Selection Committee, consisting of the Prime Minister as Chairperson, the Leader of Opposition in the House of the People as a Member, and a Union Cabinet Minister nominated by the Prime Minister as another Member.
The bill includes an explanation stating that in cases where the Leader of Opposition in the House of the People is not recognized as such, the leader of the single largest party in opposition to the Government in the House of the People will be considered the Leader of Opposition. Additionally, it emphasizes that the appointment of the Chief Election Commissioner and other Election Commissioners will not be considered invalid due to any vacancy or defect in the constitution of the Selection Committee.
