On August 10, the Union government introduced a Bill in the Rajya Sabha that proposed that the selection panel for appointing the Election Commission, comprising the Chief Election Commissioner (CEC) and other Election Commissioners (ECs), will consist of the Prime Minister as the chairperson, the Leader of the Opposition as a member, and a Union Cabinet Minister nominated by the Prime Minister as another member. In March, the Supreme Court had ruled that the selection panel should comprise the Prime Minister, the Leader of the Opposition, and the Chief Justice of India (CJI) until Parliament enacts a law on the manner of appointment. The Opposition has been arguing that the replacement of the CJI with a Cabinet Minister in the Bill indicates that the government is trying to make the poll body a puppet. Should the CJI be part of the committee nominating the CEC? O.P. Rawat and Jagdeep Chhokar discuss this issue in a conversation moderated by Sreeparna Chakrabarty. Edited excerpts:
According to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, a Cabinet Minister will be part of the selection panel instead of the CJI. This means that there will be two members from the ruling dispensation on the panel. Does this affect the neutrality of the panel?
O.P. Rawat: The issue before the Supreme Court was not who will be on the selection committee; it was why did you [the government] not enact a law as promised or as laid down in the Constitution. So, [the Court said], you make a law, [but until] then, our suggested panel will select the CEC and ECs. In the Constitution, Parliament is the supreme law-making body and the Supreme Court has the power to judicially review the constitutionality of every law. So, I don’t think there is any issue in this.
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Jagdeep Chhokar: I agree with Mr. Rawat that the Court had said that Parliament should make a law and that until such a law is made, the composition of the committee would be as given in the judgment. But I would also like to add that this was the direction of the Court and in every judgment, the Court is also expected to explain the rationale for its decision. In the [March] judgment, the Court expended a lot of time and energy on why this law needs to be made. And the fundamental rationale was that the Election Commission is a crucial entity for the existence of democracy. As a matter of fact, the judgment says that the right to vote is a fundamental right, effectuated by the Election Commission through the conduct of elections. And therefore, to ensure that this right can be exercised properly, the Election Commission has to be independent of the executive. So, while the Bill, as proposed, follows the letter of the judgment, it does not at all follow the spirit of the judgment. This is a major issue with the Bill.
Is there is any substance to the perception that the Election Commission will now be more amenable to the executive’s wishes?
O.P. Rawat: In another judgment in July 2017, when there was no law and the executive used to appoint the CEC and ECs, the Supreme Court observed that although Parliament has not enacted any law for the appointment of the CEC and ECs, the appointments of the CECs and ECs so far have been fair and politically neutral. It was from the same system that we had Sukumar Sen, who conducted the first election in independent India. Due to Partition, a large number of people had come from Pakistan and electoral rolls had to be prepared. It was a huge issue, for until then, the Government of India’s voter list had just about four crore voters, but in the first voter list after Independence, there were 17 crore voters. Despite all those difficulties and with the literacy level being really low, Sen conducted a sterling election. The British had said that by giving universal suffrage, India will undo itself. He proved them wrong. T.N. Seshan was also a product of the same system.
In case there is apprehension [of the Election Commission being more amenable to the executive’s wishes] after the law is passed, the Supreme Court has the power to judicially review it. So, I don’t think there is any problem.
Jagdeep Chhokar: While there have been sterling examples like Mr. Rawat himself, there have also been many instances where the conduct of the Election Commission has been questionable and far from satisfactory. There was an Election Commissioner, Ashok Lavasa, what happened to him? He was in line to become the CEC and had to resign or decided to resign. And this happened as a result of the system. So, the system of the executive appointing the ECs and that too purely from the bureaucracy, is not the healthiest. And the way this Bill has been prepared is contrary to the intention or rationale or justification of the Supreme Court’s judgment in March. Only time will tell whether the independence of the Election Commission will be compromised or not. But in the last few years, the perception in the mind of at least some people is that the Election Commission is not doing what it ought to be doing.
So, does this Bill in any way override the Supreme Court ruling of March?
O.P. Rawat: Not at all, because the Court had asked why Parliament had not enacted a law. Now, this [Bill] will have to be debated in Parliament. Whether it is passed or not is another issue.
The Bill says that the salary of the CEC would be equivalent to that of the Cabinet Secretary. As of now, the salary is equivalent to that of a Supreme Court judge. Though the amount is the same, does this mean that the rank of the CEC is being downgraded?
O.P. Rawat: I don’t think it is a downgrade in the matter of salary because the salaries are the same for a Supreme Court judge and a Cabinet Secretary. But if you see this in the context of other constitutional bodies like the Union Public Service Commission (UPSC) and the Chief Information Commissioner (CIC), which have been downgraded, you feel that constitutional bodies are being continuously downgraded. A UPSC member is now equal to a Secretary to the Government. The CIC’s tenure has been brought down from five years to three, and they are also equivalent to Secretaries. So, one feels that this will or this may give rise to some sort of dilution in their status and have a commensurate effect on performance.
Jagdeep Chhokar: I agree. The money is not as critical as the status of a position. If the salary is the same, where is the need to say that it will now be equivalent to that of the Cabinet Secretary? I find it mysterious. If you give the same salary but peg the status at a different level, at least in perception, it is unnecessary and undesirable. Unless of course, this is being done with a certain objective, which I am not aware of.
The CEC is removable through the same procedure as a Supreme Court judge, but other ECs don’t have the same security of tenure. They can be removed on the CEC’s recommendation. Does this Bill have any provision on this?
Jagdeep Chhokar: Yes, which is good. It says that the other ECs will also have the same removal procedure as the CEC or the Supreme Court judge. This is one of the two positive provisions in this Bill.
O.P. Rawat: I disagree. The Bill is not capable of amending the Constitution. Article 324, Clause 5 of the Constitution lays down that the terms of service of the CEC and ECs will be as enacted by Parliament provided that the removal of the CEC will be as the removal of the Supreme Court judges. But both the ECs can be removed on the recommendation of the CEC by the President of India. So that proviso cannot be amended by any law of Parliament. It will need an amendment of the Constitution by Parliament. So, I don’t agree with that. The provision remains the same for the removal of the CEC, which will be by impeachment by Parliament, and the removal of both the ECs will remain on the recommendation of the CEC.
The present policy is of a multi-member ECI where an existing member is promoted as a CEC based on seniority. They get a full tenure only as a whole, but usually only for two years or so as CEC. Is there any case to advocate a full tenure for the CEC in this Bill?
Jagdeep Chhokar: I think the CEC must have a six-year tenure, whether or not he has spent two or three years as an EC. The CEC is at a different pedestal than the EC under the current scheme of things. I would even go to the extent of saying that this should be independent of the age of the CEC.
O.P. Rawat is former Chief Election Commissioner; Jagdeep Chhokar is founding member of the Association for Democratic Reforms