“Unveiling the Dynamics of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act 2023”

INTRODUCTION:

A significant development occurred on Thursday, December 28, 2023, when the President approved the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill 2023.[1] The Bill was Introduced in Rajya Sabha on the 10^th of August 2023 and passed by both Houses of Parliament on December 12 and 21 respectively. The Act sets the terms of service and processes for CEC and EC appointments, repealing the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act of 1991 in the process which didn’t contain any such provisions relating to the appointment of these officials.[2]

BACKGROUND: WHAT WAS THE NEED TO BRING THE NEW ACT?

According to Article 324(2) of the Constitution, the President has the power to appoint CECs and ECs with the assistance and advice of the Council of Ministers until Parliament passes a statute establishing the requirements for selection, terms of office, and tenure. For a long period, no such law related to the appointment of such officials was present.[3]

The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 had chapters inculcating Salaries, other terms of conditions of Election Commissioners, and Transaction of business of Election Commissioners but no provisions were present regarding their Appointment. [4]

It had been noted that the CEC and ECs were appointed through a different procedure than other high-ranking constitutional posts. Regarding the same Anoop Baranwal filed a Public Interest Litigation (PIL) in January 2015 named Anoop Baranwal vs Union of India[5], arguing that the existing Election Commission of India (ECI) member appointment process is unlawful. The PIL claimed that over time, the Executive’s ability to designate people has weakened the ECI’s independence. The PIL requested that the Court order the establishment of an autonomous system for ECI appointments that is akin to the Collegium. It alleged that Article 324(2) of the Constitution is broken by the current appointment method.

The Judgement for the same PIL was given in March 2023 wherein Justice KM Joseph held that The Prime Minister, the Leader of the Opposition, and the Chief Justice will form a committee to choose the election commissioners until the parliament passes a law specifying the procedure.[6]

“The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill 2023” was then Introduced in Rajya Sabha on the 10^th of August 2023 and passed from the Rajya Sabha on December 12, 2023.

In order to establish the appointment procedure and terms of service for the chief election commissioner (CEC) and the two election commissioners (ECs), the government proposed some changes to the bill that repealed the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.[7]

As per the Judgement given in Anoop Baranwal vs Union of India that the Prime Minister, the Leader of the Opposition, and the Chief Justice will form a committee to choose the election commissioners, the new bill had certain changes, as the CJI was substituted by a minister nominated by the PM in the Bill. Despite the opposition’s refusal the Bill was passed from Lok Sabha on December 21 and received the assent of the president on the 28^th of December.[8]

WHAT MAJOR CHANGES ARE BROUGHT BY THE NEW ACT?

1. APPOINTMENT AND TERM OF CHIEF ELECTION COMMISSIONER AND OTHER ELECTION COMMISSIONERS

The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 had no provisions regarding the appointment of the Chief election commissioner and other Election Commissioners, however, the new act provides for the same, Chapter II of the Act pertaining sections 3-9 describes the process for appointing these officers. A Search Committee, chaired by the Minister of Law and Justice and consisting of two additional members not lower than the rank of Secretary to the Government of India, would develop a list of five applicants and refer them to the Selection Committee, led by the Prime Minister, the Leader of the Opposition, and a cabinet minister appointed by PM, to review to expedite the appointment process and they will be referring the officials to President, the final decision would be of President.

After taking office, the Chief Election Commissioner and the other Election Commissioners will serve six-year terms until they become sixty-five, whichever comes first. Election commissioners are not eligible for reappointment, and if they are appointed as chief election commissioners, their combined tenure cannot exceed six years.[9]

2. PROTECTION FROM CIVIL AND CRIMINAL PROCEEDINGS

Section 16 of the Act provides that no court can hear or proceed with any legal case, whether civil or criminal, against a current or former Chief Election Commissioner or Election Commissioner. This immunity applies to any actions, deeds, or words spoken by them while performing their official duties or functions, which was also not present in the 1991 Act. However, no immunity has been granted from political interference in order for these officials to work in a free and fair manner which was also the concern of the opposition when the bill was lying with the parliament.[10]

3. SALARY, ALLOWANCES, AND OTHER CONDITIONS OF SERVICE OF CHIEF ELECTION COMMISSIONER AND OTHER ELECTION COMMISSIONERS

The pay and other terms of service for these officials are covered in detail in Chapter III of the code. Provisions 10 to 16 provide specifics about the Chief Election Commissioner’s and other Election Commissioners’ pay and benefits.

The new act introduces several specific provisions and changes, including protection of existing terms, dearness allowance, encashment of earned leave, demission of office criteria, and subscription to the Provident Fund. It also empowers the President to determine specific conditions of service. These changes which were not present in the 1991 Act, have been brought to provide clarity, protection, and additional benefits to the Chief Election Commissioner and other Election Commissioners.[11]

AFTERMATH:

The present act aims to control the process for conducting business by the Election Commission, as well as any issues related to or incidental to it, and to govern the appointment, terms of office, and conditions of service of the Chief Election Commissioner and other Election Commissioners, however, as the Selection Committee for the appointment consists of Prime Minister, a cabinet minister appointed by him and the leader of opposition, this may lead to monopoly of government members in selecting candidates.  The power is now mainly in the hands of executives, which again scrapped the very reason why the PIL was filed by Anoop Baranwal in 2015, The PIL claimed that over time, the Executive’s ability to designate people has weakened the ECI’s independence, hence the judgement passed in March included CJI in the selection committee to overlook the appointment procedure, but the present Act dropped that very idea, which could lead to biasness.

The Act doesn’t just have loopholes, it will also provide clarity, protection, and additional benefits to the Chief Election Commissioner and other Election Commissioners by protecting existing terms, dearness allowance, encashment of earned leave, demission of office criteria, subscription to Provident Fund, and immunity from civil and criminal proceedings. Hence, we can conclude that it combines both good and evil.

CONCLUSION:

India formed the Election Commission of India in 1950 to guarantee free and fair elections. The Chief Election Commissioner, who serves as the commission’s chairman, and the other Election Commissioners together form the Election Commission. Article 324(2) of the Indian Constitution provides that the President may from time to time fix the appointment of the Chief Election Commissioner and other Election Commissioners, subject to the provisions of any law made on that behalf by Parliament. However, since 1950, there has been no law that specified the Appointment procedures. A law named “The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act” came into the picture in 1991but that too lagged in inserting such provisions, hence after several observations about various issues regarding the appointment of such officials a PIL was filed by Anup Baranwal in 2015 which reached to its long-awaited verdict this year, in March, wherein the Supreme Court of India held that a selection committee has to be formed consisting Prime Minister, Leader of Opposition and CJI till any law comes into force, this verdict is what led to the introduction of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill 2023 which recently got assent of the President. The Bill is now an enforceable law of the country which provides for the appointment of Chief Election Commissioner and other Election Commissioners through a three-step procedure, firstly selection of candidates by a Search Committee led by the Law Minister, then referring their candidature to the Selection Committee which as per the new act would be led by PM, A cabinet minister appointed by PM and Leader of the Opposition. CJI would no longer be a part of the committee, which is a debatable issue because now all the powers would again be in the hands of Executives and it could further lead to biases and monopoly of the present government, opposition had also raised similar issues, though the bill provides several benefits to these officials now unlike the old Act, but the question of balance of power has become a controversial topic for discussion, upcoming times would show us whether the Act would be able to fulfill the constitutional requirements and ensure fairness or would just exist as Opaque legislation.

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Written by- Aditi

References:

[1] The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 (Bill No. LVII‒C of 2023)

[2] Sparsh Upadhyay, “Bill to Regulate Appointment of Chief Election Commissioner & Election Commissioners Gets Presidential Assent”, Live Law, Dec. 29, 2023, available at: https://www.livelaw.in/top-stories/bill-regulate-appointment-chief-election-commissioner-election-commissioners-presidential-assent-245490 (last visited on Dec. 30, 2023).

[3] “Appointment of Election Commissioners”, Iasparliament, Nov. 22, 2018, available at: https://www.iasparliament.com/current-affairs/appointment-of-election-commissioners (last visited on Dec. 31, 2023).

[4] The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 (Act No. 11 of 1991)

[5] Anup Baranwal v. Union of India, W.P.(C) 104/2015

[6] Aishwarya Paliwal, “Decoded: What is the New Election Commissioner Bill, and What Does It Propose”, India Today, Dec. 13, 2023, available at: https://www.indiatoday.in/india/story/election-commissioner-bill-2023-decoded-appointment-conditions-of-service-and-term-of-office-bill-2475315-2023-12-13 (last visited on Dec. 31, 2023).

[7] Meetu Jain, “Rajya Sabha Passes Bill to Appoint Election Commissioners, Opposition Walks Out”, The Wire, Dec. 12, 2023, available at: https://thewire.in/government/rajya-sabha-passes-bill-election-commissioners-opposition-appointment (last visited on Dec. 31, 2023).

[8] Ibid

[9] The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 (Bill No. LVII‒C of 2023), Chapter II

[10] The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 (Bill No. LVII‒C of 2023), s 16

[11] The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 (Bill No. LVII‒C of 2023), Chapter III