Context

• The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 is a landmark legislation that establishes a legal framework for the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs).
• This law was introduced in response to the Supreme Court of India's March 2023 directive, which emphasised the need for an independent and transparent selection process.
• However, despite its intent to uphold democratic principles, the law has been met with considerable criticism due to concerns about government influence in the appointment process.

Historical Context, Judicial Intervention and Challenges to the New Law

• Historical Context and Judicial Intervention
  • Historically, the CEC and ECs were appointed solely by the President of India based on the recommendation of the Prime Minister.
  • This system raised concerns about the impartiality of the Election Commission of India (ECI), which is responsible for ensuring free and fair elections.
  • Recognising these concerns, the Supreme Court ruled that the appointment process should involve a high-powered committee consisting of the Prime Minister, the Leader of the Opposition (LoP) in the Lok Sabha, and the Chief Justice of India (CJI).
  • This arrangement was intended as an interim measure until Parliament enacted a law on the subject.
  • While the new Act adheres to the requirement of parliamentary legislation, it significantly alters the composition of the selection committee.
  • Instead of including the CJI, the new Act introduces a cabinet minister nominated by the Prime Minister.
  • This change has raised serious constitutional and democratic concerns regarding the independence of the selection process.
• Challenges to the New Law
  • The primary objection to the new law is that it deviates from the Supreme Court’s recommendation by replacing the CJI with a cabinet minister.
  • This alteration effectively ensures a government majority in the selection committee, as both the Prime Minister and the cabinet minister are members of the ruling party.
  • As a result, the appointment process risks becoming a mere formality, with the government having the final say in selecting the CEC and ECs.
  • Furthermore, the process involves a search committee led by the Law Minister, which shortlists five candidates for consideration.
  • The secrecy surrounding the shortlisted names adds another layer of opacity to the process, potentially undermining public trust.
  • The recent selection of the senior-most EC as the CEC by the two government-appointed members of the committee, despite the LoP’s dissent, highlights the predetermined nature of the selection process.

Constitutional Concerns and Infirmities in the Selection Process

• The Constitution of India, under Article 324, entrusts the Election Commission with the responsibility of conducting free and fair elections.
• The Supreme Court, in Election Commission of India vs. State of Tamil Nadu (1993), reaffirmed that the ECI must function independently to preserve the integrity of the electoral process.
• Given that India has nearly 960 million voters, the appointment of election commissioners must be devoid of political influence to maintain public confidence in the electoral system.
• The major flaw in the new Act lies in the composition of the selection committee.
• By ensuring a built-in majority for the government, the law undermines the fundamental principle of independent decision-making.
• The inclusion of a cabinet minister, who is bound to align with the Prime Minister—prevents any genuine deliberation over the candidates' merits.
• Unlike a truly independent committee where decisions emerge through debate, the current structure makes the outcome predictable in favour of the government’s preferred candidate.
• Another significant issue is the Prime Minister’s power to nominate one of the members, the cabinet minister.
• Ideally, the selection committee should consist of individuals capable of making independent and unbiased decisions.
• However, a cabinet minister is inherently loyal to the Prime Minister and is unlikely to oppose their decision.
• This setup further reduces the scope for an objective evaluation of candidates.

Broader Implications of the Law: Violation of Constitutional Principles

• The arbitrary composition of the selection committee raises concerns about the new Act’s compatibility with Article 14 of the Constitution, which guarantees the right to equality.
• By creating an appointment process that structurally favours government-backed candidates, the law fails to establish a level playing field.
• The fundamental principle of fairness in selecting high constitutional officers is compromised.
• Additionally, the independence of the ECI is crucial for ensuring free and fair elections, a cornerstone of India’s democratic framework.
• The Supreme Court has repeatedly held that free and fair elections form part of the basic structure of the Constitution.
• If the selection committee is biased in favour of the ruling party, it risks eroding the credibility of the electoral process, thereby weakening democracy

The Role of the Supreme Court

• Given these constitutional concerns, it is imperative for the Supreme Court to critically examine the law.
• The judiciary has a duty to safeguard democratic institutions and ensure that the ECI remains independent.
• The Court may need to reassess whether the current selection mechanism aligns with the constitutional principles of fairness, transparency, and non-partisanship.
• One possible solution would be to reinstate the CJI as a member of the selection committee to balance the decision-making process.
• Alternatively, Parliament could consider a more independent body, possibly including retired judges or neutral experts, to oversee the appointments.

The Way Forward

• To preserve the sanctity of India’s electoral system, it is crucial that the appointment process be reformed to ensure fairness, transparency, and non-partisanship.
• The Supreme Court’s intervention will be crucial in determining whether this law aligns with constitutional values or if it requires significant amendments to uphold the integrity of the electoral process.

Conclusion

• The appointment of the CEC and ECs is a matter of national importance, as it directly affects the conduct of elections and the legitimacy of the democratic process.
• While the 2023 Act fulfils the requirement of a parliamentary law, its provisions compromise the independence of the ECI by granting undue influence to the government in the selection process.
• The inherent flaws in the Act, including the lack of transparency, the government’s guaranteed majority in the selection committee, and the exclusion of the judiciary, make it vulnerable to constitutional challenges.