The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of service and Term of Office) Bill, 2023 has now become an Act after being passed by both Houses of the Parliament. The Act replaces the Election Commission Act, 1991 which was the primary legislation regulating service tenures of such election officers. However, the Act has been arraigned for the appointment procedure laid down and the impact it might have on the independence and the efficiency of the Election Commission which is a constitutional body under Article 324 vested with the “superintendence, direction and control” of elections across the country.

The new three-tier appointment mechanism entails names being forwarded by a Search Committee headed by a Cabinet Secretary (Section 6) to a Select Committee (Section 7). This Select Committee would comprise the Prime Minister as the Chairperson, the Leader of the Opposition of the Lok Sabha, and another Union Cabinet Minister as members. Finally, the names will be provided to the President for appointment. This article deals with the constitutionality of appointments to the Election Commission vis-à-vis the new Act as well as the alleged hampering of independence and interference into a body that must inherently remain unbiased and impartial in its functioning.

Constitutionality of Appointments to the Election Commission

The Election Commission is presently recognized as a constitutional body under Article 324 of the Constitution of India. It comprises a Chief Election Commissioner (CEC) and two other Election Commissioners (ECs). The first version of the erstwhile Article 298 of the 1948 draft Constitution was amended to substitute a Commission that would function as an independent, autonomous body where all officers would report to the Commission instead of the Provincial Government. If this idea were to be extended today, it would entail an understanding of the previous and present appointment mechanisms of these officers, which in turn must be based on an impartial, unarbitrary functioning enforced through strict separation of powers.

In Anoop Baranwal v. Union of India, the Supreme Court while deciding the constitutionality of the appointment of the CEC and ECs solely on executive advice held it to be unconstitutional and instead appointed a committee of the Prime Minister, Leader of Opposition, and the Chief Justice of India to render advice to the President in this matter. The Court’s attention was also drawn to the 255^th Law Commission Report which suggested this collegium-like system to strengthen the office of the Election Commission. However, the Court made an exception that any Parliamentary law to be laid down in the future could alter the same. The current enactment exploits this lacuna of the Apex Court judgement, wherein through the exception carved in the form of a future legislation, the executive has claimed its domain in appointment of these commissioners. Thus, a law-making obligation stressed upon the Parliament backed by an explicit exception recognizing the same has led us to this crossroads.

Until the 2023 Act, no legislation regulated the procedural aspects of the appointment of the CEC and ECs. Instead, it was a widely executive decision and domain. Later, through the Anoop Baranwal judgement, the Court put in place the collegium-like system where independent and presumably impartial voices were present through the Leader of Opposition and the Chief Justice of India. However, the present Act removes the Chief Justice from the list and adds a Union Cabinet Minister, giving the union executive a 2/3 majority in the Committee. In addition to this, the Search committee, which is to be headed by a Cabinet Secretary, would also be plagued with the same problem of unchecked executive power. This raises questions about the credibility and fairness of an institution that is entrusted with holding elections in the world’s largest democracy. As per Section 8 of the Act, the Selection Committee has unbridled powers in regulating its own functioning which could serve as a potential shield from any form of judicial questioning. Section 8(2) also empowers the Selection Committee to “consider any other person” beyond those already on the panel, ultimately asserting executive prowess in decision-making on the Committee.

Executive Interference: Auguring the Collapse of an Independent Institution?

The issue of excessive executive interference in the appointment of officers to a constitutionally set-up body was vociferously debated and supported by various members of the Constituent Assembly. It is pertinent to understand that while separation of powers has been a prominent argument in this issue, while “creation and abolition” of posts of election commissioners was recognized as a power of the executive through the President in T.N. Seshan v. Union of India, the “appointment” to these posts might be a whole new playing field. In S.S. Dhanoa v. Union of India, while determining the relationship between the Commission and its officers and their relationship inter se, the court’s stance was different than in Seshan later. The Court categorically stated that it is the executive’s job to make such appointments and the Court could not nudge them into enacting any law.

In T.N. Seshan where the multi-member nature of the Election Commission was challenged as unconstitutional, the Court stressed upon the need for an “independent body which would be insulated from political and/or executive interference.” The present Act goes a step further by not only allowing executive interference but giving it a majority voice.

This lack of independence and agency is also a violation of Article 324(5), which equates the method of removal of the Chief Election Commissioner to a Judge of the Supreme Court and recognizes that no provision shall be “varied to the disadvantage” of such office. In Anoop Baranwal, the Court proactively defended the need to maintain the independence of this institution by extending the first proviso to the Election Commissioners.

The Commission performs a quasi-judicial function by not only handling electoral rolls and regulating the process of election but also resolving disputes that arise during this period. This merits a serious attempt to keep the appointments free of any concentrated influence by any one organ of the State. Thus, the new act tries to regulate the procedural aspect of an institution without considering the substantive nature and impact of its influenced or discordant functioning on the basic structure of the constitution and the nation.

In N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency, the Apex Court had, as far back as 1952, established the importance of an “executive” for securing fair conduct of elections across the country, but it ousted any judicial or quasi-judicial role to be played by such Commission, giving it separately to “judicial body.” It is safe to assume that the term “executive” meant the act of execution and not a body which would be a mere offshoot of the executive organ of the State.

Conclusion

The Courts have, of late, inclined towards infusing democratic principles and transparent mechanisms in conducting and governing elections in the country. The Apex Court, through a string of judgements, has deemed reforms in this arena a worthy cause, albeit with legislative and judicial cooperation. However, such reforms will remain infructuous unless both the organs interpret each other’s intentions and obligations as efforts to address a larger problem.

The Apex Court has already dismissed a plea seeking a stay on the Act for purported violation of the Anoop Baranwal judgment in light of the upcoming Lok Sabha election. The question remains whether a grave impending effect on the conduct of free and fair elections constitutes an “extraordinary circumstance” that could merit such a stay.

Vrinda Chaturvedi is a fourth year law student at HNLU, Raipur. She has keen interest in constitutional and criminal laws.

[Ed Note: This piece was edited by  Vishnu  Bandarupalli and published by Baibhav Mishra from the Student Editorial Board]