Should the CJI be part of the committee selecting the CEC?

Why in the News?

The Rajya Sabha has introduced the Chief Election commissioner and other Election Commissioners (Appointment, conditions of service and Term of office) Bill, 2023 seeking to dilute the SC verdict on composition of the Selection committee.

Appointment of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs):

Constitutional Provision: Article 324(2)

• The Election Commission shall consist of the CEC and such number of other ECs as the President shall determine from time-to-time.
• The Appointment of the CEC and other ECs shall be subject to the provisions made in that behalf by Parliament, be made by the President.

The process of Appointment done so far:

• The Law Minister shall suggest a pool of candidates from the database of serving / Retired officers of the rank of Secretary to the GoI/ Chief Secretaries to the PM
• The President shall make appointment on the recommendations of the PM.

What was the Supreme Court ruling?

1. The SC ruled that a high-power committee shall choose the CEC and ECs. It shall consist of:
   1. The Prime Minister
   2. Leader of Opposition in the Lok Sabha
   3. The Chief Justice of India (CJI)
2. The unanimous judgement was delivered by a 5-judge bench led by Justice KM Joseph.
3. A 2015 PIL challenged the constitutional validity of the appointment of members of ECI by the Centre before a two-judge bench.
4. This was later referred to a larger bench for the want of close examination of Article 324(2) of the Constitution that delas with the ECI.

What did the ruling seek to achieve?

1. The ruling found a mechanism to maintain the independence of the Election commission by keeping the Executive in a minority with the Leader of the Opposition and the Chief Justice of India offering a balance.
2. The Court stepped on to fill the “Constitutional Vacuum” for the appointment of members of the ECI as no Parliamentary law governed the appointment process.
3. The presence of CJI in the selection process was made to usher impartiality in the appointment process of members of EC.

The Chief Election commissioner and other Election Commissioners Bill, 2023:

1. Search committee for choosing a panel of five persons for the consideration of the Selection committee:
   1. 1. The Cabinet secretary – head
      2. Two other members not below the rank of the Secretary to the GoI having experience and knowledge related to election matters.
2. Selection committee consisting of
   1. 1. The Prime Minister – Chair Person.
      2. The Leader of the Opposition in the Lok Sabha
      3. A cabinet minister nominated by the PM for selection of the CEC and ECs (replacing the Chief Justice of India).
3. The term of the CEC and ECs shall be 6 years or till they attain the age of 65 years. However, the tern shall be considered a composite term meaning, the total tenure of an EC including a candidate later became CEC would be 6 years.
4. The ECs can be removed only through a process of impeachment like that of a SC judge, bringing them at par with the CEC.

Positive features of the Bill:

1. A Search committee headed by the Cabinet Secretary to the government to prepare for a panel of 5 members for consideration of the Selection committee.
2. Qualification of the member to be appointed as member of EC has been mentioned

“Amongst persons who are holding or who have held a post equivalent to the rank of secretary and shall be persons of integrity, knowledge and experience in management and conduct of Election”.

3. The other ECs will also have the same removal procedure as the CEC or the Supreme Court judge, bringing independence to the office of ECs and undermines the discretionary power of the CEC.

Concerns associated with the bill:

1. Executive is given a central role in the appointment of CEC and other ECs that may lead to a partisan person to be appointed. This was the concern that was raised by the SC in its March ruling.
2. It affects the independence of the election Commission as the Constitution mandates that the Judiciary, EC and even investigative agencies be independent from the Executive.
3. In a selection panel that consists of the PM and a minister nominated by the PM in the three-member panel, the role of Leader of opposition becomes irrelevant even before the process begins.
4. The Composition of the Selection Committee shall do disservice to the to the newly appointed ECs as they suffer from risk of being seen through lens of partisanship even while carrying out institutional actions in good faith and course of their duty.
5. The bill has followed the letter of the judgment i.e., to frame a law regarding the appointment process but it has not followed the spirit of the judgment i.e., existence of Election Commission independent of the executive.

Way forward:

The inclusion of unanimous verdict as a precondition shall enable more credibility to the appointment process.

The collegium of either the SC ruling or the Bill is not perfect.

1. 1. SC verdict consisting of the CJI contains concerns:
      1. He can be a legal luminary but is hardly likely for him to know the candidates
      2. How can he sit in a judgment if an appointment is challenged in the SC.
   2. The Bill’s collegium gives an upper hand to the executive and role of LoO has been diluted which increases risk of partisanship in the appointment process.