Govt set to table Bill to exclude CJI from panel which appoints top election commission officers

The Union government is set to introduce a Bill in Rajya Sabha on Thursday that is set to exclude the Chief Justice of India from the committee to appoint the country's top election commission officers.

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Services and Term of Office) Bill, 2023, about to be introduced in Rajya Sabha on Thursday, proposed that the Chief Election Commissioner and the other Election Commissioners shall be appointed by the President on the recommendation of a Selection Committee comprising the Prime Minister, Leader of Opposition in Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister. The Prime Minister will chair the panel, states the proposed Bill.

The draft reportedly underlines that where the leader of the Opposition in Lok Sabha has not been recognised as such, the leader of the largest party in Opposition of the Government in Lok Sabha shall be deemed to be the Leader of the Opposition.

The Bill states, “The appointment of Chief Election Commissioner and other Election Commissioners shall not be invalid merely by reason of any vacancy in or any defect in the constitution of the Selection Committee." This means even if all the three persons are not present while deliberating on the election commissioners, the decision of the selection committee will stand.

The Chief Election Commissioner and other Election Commissioners (Appointment Conditions of Service and Term of Office) Bill also seeks to set up a procedure for transaction of business by the Election Commission.

The Bill specifies that a search committee headed by the cabinet secretary and comprising two other members not below the rank of secretary to the Government of India, having knowledge and experience in matters relating to elections shall prepare a panel of five persons for the consideration of the Selection Committee, for appointment as the Chief Election Commissioner.

The Chief Election Commissioner and other Election Commissioners (Appointment Conditions of Service and Term of Office) Bill, 2023, states the "CEC and the other Election Commissioners shall be appointed from amongst persons who are holding or have held a post equivalent to the rank of the secretary to the government of India and shall be persons of integrity, who have knowledge of and experience in management and conduct of elections”.

Until now, according to 324(2) of the Constitution, “The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President”.

The Bill dilutes the Supreme Court's judgment in March 2023 where a Constitution bench held that the appointment of Chief Election Commissioners and Election Commissioners shall be done by the President on the advice of a panel comprising the Prime Minister, Leader of Opposition and the Chief Justice of India.

The judgment, however, mentioned that practice would be enforced until a law in this regard is made by the Parliament. A five-judge constitution bench headed by Justice KM Joseph had stated that if Leader of Opposition was not there, then leader of single largest opposition party in Lok Sabha will be in committee to appoint the ECs and CEC.

The bench, also comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar, made it clear that “this will be subject to any law to be made by Parliament”. They were ruling on petitions seeking an independent mechanism to appoint the CEC and ECs, so as to insulate the appointment of Chief Election Commissioner and election commissioners from the interference of the executive.

The Constitution Bench had stated that where there was no Leader of Opposition, the committee would include the leader of the largest Opposition party in Lok Sabha in terms of numerical strength.

A vacancy will arise in the poll panel early next year when Election Commissioner Anup Chandra Pandey demits office on February 14 on attaining the age of 65 years. His retirement will come just days before the likely announcement of the 2024 Lok Sabha polls' scheduled by the Election Commission. On the past two occasions, the commission had announced parliamentary polls in March.

The National Herald reached out the Election Commission for comments, but got no response. The article will be updated if and when the officials respond.