Is the bill on Election Commission appointments unconstitutional?

The government is not serious about having an ‘independent’ Election Commission; otherwise there would have been no need for it to introduce a bill that seeks to drop the fig leaf of neutrality and hand over the authority to appoint election commissioners to the Prime Minister's Office and bureaucrats.

"Most other democracies ensure a non-partisan appointments committee—they either have a mix of ruling and Opposition parties, with neither having a decisive majority, or multi-stakeholder commissions with members of civil society etc.,” points out constitutional expert Gautam Bhatia.

The bill, however, entrusts the appointments to a committee comprising the prime minister, another Union minister nominated by him and the leader of the Opposition in the Lok Sabha. Effectively, the prime minister will appoint the commissioners with the consent and support of another minister of his choice. He could lawfully choose Smriti Irani, say, as well-known lawyer Sanjay Hegde points out.

The Supreme Court cannot dictate how the appointments are to be made. That is the job of Parliament. But in a 387-page judgement delivered in March this year, a five-judge Constitution bench had ruled that the Election Commission was indeed not independent, that while Parliament was expected to make a law to ensure an independent Election Commission, no government since Independence had done so.

As a stop-gap arrangement till Parliament made such a law, the apex court put in place a collegium comprising the prime minister, leader of the Opposition and the chief justice of India. The new bill has replaced the CJI with a minister nominated by the prime minister.

This is hardly a sterling example of law making or an effective step to secure the independence of the Election Commission. Even when a society or a club is registered, the requirement is that the number of non-office bearers should be higher than the number of office-bearers, to prevent office-bearers from steamrolling the choice through.

The provision of a search committee headed by the cabinet secretary in the new bill has been hailed as a revolutionary change by no less than a former chief election commissioner S.Y. Quraishi. Writing in The Indian Express on Thursday, 10 August, he also hailed the bill as laying down for the first time the qualification for becoming an election commissioner. In fact, the bill proposes to restrict the appointments to bureaucrats who have held ranks similar to a secretary to the Government of India.

The Election Commission of India, with election commissioners effectively appointed by the government, then suffers from dependence on the government for both funds and manpower. Everything flows from the government of the day.

Nor does the ECI have the independence to lay down rules for the conduct of a fair and free election. The rules need to be approved and accepted by the Union government. As a result, a slew of proposals from the ECI have been gathering dust in the Union law ministry and the cabinet secretariat.

In March, the Supreme Court in its judgement held that ‘executive control over the EC was neither the intent of Article 324, nor was it consistent with the EC being an independent body’, says Bhatia.

The executive appointing election commissioners is like a player getting to appoint the referee, he quips.