Answer

The Rajya Sabha recently approved the Chief Election Commissioner and Other Election Commissioners Bill, 2023. This bill aims to bring transparency to the process of appointing the Chief Election Commissioner (CEC) and Election Commissioners (EC). The legislation is a response to a directive from the Supreme Court of India in the Anoop Baranwal v Union of India case, 2023.

Previously, both the Dinesh Goswami Committee and the Law Commission in its 255th report on suggested appointing the Chief Election Commissioner (CEC) and Election Commissioners (ECs) through a committee comprising the Prime Minister, Chief Justice of India (CJI), and the Leader of the Opposition or the largest Opposition party in the Lok Sabha. 

Key Provisions of the Bill

• Appointment Process: The Chief Election Commissioner (CEC) and Election Commissioners (ECs) will be appointed by the President based on the recommendation of a Selection Committee comprising the Prime Minister, a Union Cabinet Minister, and the Leader of the Opposition or the leader of the largest opposition party in the Lok Sabha.
  • Recommendations of the Selection Committee will be valid even when there is a vacancy in this Committee. A Search Committee will propose a panel of names to the Selection Committee.
• Term and Reappointment: Members of the Election Commission will hold office for six years or until the age of 65, whichever comes earlier. Reappointment is not allowed.
• Removal Process: The removal process remains in accordance with Article 324(5) of the Constitution. The CEC can be removed in the same manner as a Supreme Court Judge, while ECs can only be removed upon the recommendation of the CEC.
• Safeguards for CEC and ECs: The bill includes provisions to protect the CEC and ECs from legal proceedings related to actions taken during their tenure, provided such actions were in the discharge of official duties. This amendment is aimed at shielding these officials from civil or criminal proceedings associated with their official functions.

Challenges inherent in the Bill

• Transparency in selection process: The validity of the Selection Committee's recommendations even in the event of a vacancy, potentially leading to a dominance of ruling party members. This scenario undermines the committee's diversity and independence.
• Removed CJI from the panel: The bill seeks to replace the Chief Justice of India with a Cabinet Minister nominated by the Prime Minister in the committee for selection of the CECs and ECs.
• Eligibility Criteria: The restriction of eligibility to those who have held a position equivalent to the Secretary to the government may exclude potentially qualified candidates, restricting the diversity of backgrounds and expertise within the Election Commission of India (ECI).
• Absence of Parity :The Bill maintains a constitutional provision allowing the removal of the CEC to be akin to a Supreme Court Judge, while ECs can only be removed on the recommendation of the CEC. This lack of parity in removal processes raises questions about the overall fairness of the system.

While the proposed Bill transitions the appointment process from a purely executive decision to a committee-based selection, it maintains a bias towards the incumbent government. Although Parliament holds the authority to legislate on this matter, retaining the Chief Justice of India (CJI) in the selection committee could have ensured greater independence. However, to bolster public confidence in the Election Commission of India's operations, it would be commendable if selections under the new law are made through unanimous decisions by the proposed committee. 

Thus, transparent and independent appointment of election commissioners is a crucial step in upholding the democratic fabric, ensuring fair play, and safeguarding the integrity of the electoral process.