The Chief Election Commissioner And Other Election Commissioners Act, 2023: Implications For Electoral Independence

Policy Update
Qazi Furooz Shamas

Background

Free and fair elections are fundamental to the functioning of a democratic system. In India, the Constitution under Article 324 establishes the Election Commission of India (ECI) as an independent body responsible for overseeing the conduct of elections to Parliament, State Legislatures, and the offices of the President and Vice-President. Clause 2 of this article further provides for the appointment of ECI members by the President of India, subject to any law enacted by Parliament .

Until recently, there was no specific legislation detailing the procedure for the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs). This legal gap was addressed in 2023 with the passage of The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023. However, the introduction of this Act has raised several concerns.

Functioning of the Act

The 2023 Act replaced the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, and governs the appointment, salary, and removal of the CEC and ECs. Under the 1991 Act, the salaries and conditions of service for the CEC and ECs were equivalent to those of a Supreme Court judge. The new Act, however, stipulates that their remuneration will be equivalent to that of the Cabinet Secretary.

While the 1991 Act specified the salaries of the CEC and ECs, it did not provide a clear process for their appointment, leaving this decision to be made by the President, based on recommendations from the Prime Minister. This lack of clarity was challenged in the 2023 case Anoop Baranwal v. Union of India, in which the petitioners argued that under Article 324 of the Constitution, Parliament was obligated to enact a law governing the appointment of ECI members. In the absence of such legislation, the petitioners contended that the President’s appointments, based on the recommendations of the Prime Minister, undermined the independence of the ECI and threatened the fairness of elections.

In response, a five-judge Constitution Bench led by Justice K.M. Joseph delivered a judgement directing the formation of a committee, comprising the Prime Minister, the Leader of the Opposition, and the Chief Justice of India, to advise the President on appointments to the ECI. This committee was to remain in place until Parliament enacted a law addressing appointments.

The CEC and ECs Act, 2023, responded to this judicial directive by establishing a Selection Committee to recommend appointments to the President. The committee consists of 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.

Challenges to Free and Fair Elections

The landmark 1973 judgement in Kesavananda Bharati v. State of Kerala introduced the ‘basic structure doctrine,’ which asserts that certain fundamental features of the Indian Constitution cannot be amended by the Parliament in the exercise of its powers under Article 368. Free and fair elections are recognised as part of the basic structure of the Constitution.

In Anoop Baranwal v. Union of India (2023), the Bench emphasised that the impartiality of the ECI is crucial to ensuring free and fair elections. However, the provisions of the new CEC Act, which concentrate appointment powers within the Union Executive, threaten the independence of the Election Commission. The composition of the Selection Committee, which has the exclusive authority to recommend appointments of the CEC and ECs, makes the process susceptible to executive dominance. Such dominance over the body responsible for overseeing elections to the very government in power risks undermining the fairness of the electoral process.

The constitutionality of the CEC Act is currently being challenged in the courts, with petitioners arguing that the Act contravenes the principles established by the Constitution Bench in Anoop Baranwal. They contend that the Selection Committee should be insulated from political and executive interference. Following the resignation of an Election Commissioner in the run-up to the 2024 general elections and the appointment of new ECI members by the President, the case is set to be heard in January 2025.

Other Concerns

Beyond the composition of the Selection Committee, several other provisions of the Act have raised significant issues regarding the independence of the Election Commission.

One key issue is the unchecked power granted to the Selection Committee. The Act stipulates that the committee’s recommendations will remain valid even in the event of a vacancy within the committee. This provision is particularly concerning as it may enable the selection of candidates without a fully constituted committee, thereby giving disproportionate influence to the government members within the committee. Such a situation could lead to a potential monopoly of the executive in the selection process, undermining the neutrality of the appointments and increasing the risk of political influence.

The Act also provides for the salaries of the CEC and the ECs to be aligned with that of the Cabinet Secretary, which is set by the government. This is a departure from the previous system, where their salaries were pegged to those of Supreme Court judges, which is fixed through an Act of Parliament and is therefore insulated from executive control.

The shift to a salary structure determined by the government opens the door for executive influence over the financial terms of officeholders, which could indirectly impact the autonomy of the Election Commission. The independence of the Commission is not only tied to its functional autonomy but also to its financial independence. The new arrangement may be perceived as a mechanism for exerting pressure on the functioning of the ECI.

Another issue arises from the Search Committee, which is tasked with recommending five candidates to the Selection Committee for the roles of CEC and ECs. The Search Committee is headed by the Cabinet Secretary and includes two additional members of at least Secretary rank. This structure may lead to undue bureaucratic influence in the selection of candidates, potentially excluding individuals who are not part of the bureaucratic elite but who may possess the requisite qualities for the role.

Another issue is the composition of the Search Committee, which is responsible for recommending a list of five candidates to the Selection Committee for the positions of CEC and ECs. The Search Committee is headed by the Cabinet Secretary and includes two additional members, all of whom must be of at least Secretary rank. This composition raises concerns about the potential for excessive bureaucratic influence in the search process.

Given that the Cabinet Secretary is a senior bureaucrat and the committee members are drawn from the same elite bureaucratic ranks, there is a real risk that the process will favour candidates with a bureaucratic background, potentially sidelining individuals from other sectors who may be equally qualified or more suited to the role. The inclusion of such a narrowly defined pool of candidates may therefore limit the diversity and the range of expertise that could be brought to the Election Commission, further compromising its independence and impartiality.

Furthermore, while the Constitution does not specify qualifications for ECI members, the Act stipulates that one of the key qualifications for a candidate to be considered for the post of CEC or EC is that they must have held a position equivalent to that of a Secretary in the central government. While this criterion might aim to ensure administrative competence, it is overly restrictive. Both CEC and ECs perform quasi-judicial functions, requiring not just administrative experience but also a broad understanding of legal and constitutional matters. The imposition of such narrow qualifications could further entrench the dominance of the bureaucratic elite and undermine the credibility of the Commission in the eyes of the public.

Way Forward

The Election Commission plays a pivotal role in safeguarding the democratic process by ensuring that elections are conducted fairly, transparently, and impartially. Any perception of bias or undue influence could severely damage the credibility of the electoral process itself.

In 1990, the Dinesh Goswami Committee Report recommended that the CEC and the other ECs be appointed by a collegium consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India. This proposal was reiterated in the 255th Law Commission Report (2015). However, these recommendations have yet to be implemented, and the new Act fails to address these concerns, bringing the issue back to square one.

It is clear that the provisions of the CEC and Other ECs Act could potentially erode the autonomy of the Election Commission, undermining its ability to function impartially and independently. The concentration of power in the hands of the Union Executive and the influence of government members in the appointment process risks undermining the integrity of India’s electoral system.

The independence of the Election Commission can only be assured through a transparent, impartial, and apolitical process for the appointment of the CEC and ECs. The current framework, which grants significant discretion to the Union Executive, threatens this independence and, by extension, the fairness of elections in India.

References

(1991, January 25). Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. Indian Kanoon. https://indiankanoon.org/doc/1435091/
(2015, March 12). GOVERNMENT OF INDIA LAW COMMISSION OF INDIA Electoral Reforms. https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081635.pdf
(2023, December 21). THE CHIEF ELECTION COMMISSIONER AND OTHER ELECTION COMMISSIONERS (APPOINTMENT, CONDITIONS OF SERVICE AND TERM OF OFFICE) ACT, 2023. India Code. https://www.indiacode.nic.in/bitstream/123456789/19721/1/a2023-49.pdf
(2023, March 2). ANOOP BARANWAL vs. UNION OF INDIA. Supreme Court of India. https://main.sci.gov.in/supremecourt/2015/1458/1458_2015_3_1501_42634_Judgement_02-Mar-2023.pdf
(2023, September 27). Legislative Brief “The CEC and Other Election Commissioners Bill, 2023”. PRS India. https://prsindia.org/billtrack/prs-products/prs-legislative-brief-4256
Bureau, T. H. (2024, March 21). How were the new Election Commissioners selected, and why is the new law being criticized? The Hindu. https://www.thehindu.com/elections/lok-sabha/watch-how-were-the-new-election-commissioners-selected-and-why-is-the-new-law-being-criticized/article67975248.ece‌

About the Contributor: Qazi Furooz Shamas, a recent Political Science graduate from the University of Delhi, currently serves as a Research Intern at IMPRI.

Acknowledgement: This article was reviewed by IMPRI experts and other collaborators.