The author, Amrapali Gautam, is a 3rd year student at Rajiv Gandhi National University of Law, Patiala.
Featured Artwork: ‘Election Day Celebration of Democracy’, VectorVortex
The recent appointment of Election Commissioner Gyanesh Kumar as Chief Election Commissioner has once again highlighted the discrepancies existing in Selection Committee constituted under Chief Election Commissioner and Other Election Commissioner (Appointment, Conditions of Service and Term of Office) Act, 2023 [ hereinafter ‘the 2023 Act’]. The appointment of Election Commission of India (“ECI”) officials follow the procedure established under the 2023 Act, despite its constitutionality being challenged before the Supreme Court. While the 2023 Act is rigged with various inconsistencies which raise concerns about its neutrality, this blog is constrained to highlight the defects in the Selection Committee, which hinders its ability to act as an impartial and non-partisan body. Additionally, it explores the intent of Constituent Assembly in enacting the provision pertaining to election and compares the appointing procedure followed in different democracies in the world.
The Election Commission of India: Constitutional Framework
The ECI has the power to supervise, direct, and control the electoral process of the Parliament, the State Legislatures, and the offices of the President and Vice President. It is a permanent constitutional body comprising a Chief Election Commissioner (“CEC”) and two Election Commissioners (“ECs”). As per Article 324(2) of the Constitution of India, the President shall appoint the CEC and the ECs on the advice of the Prime Minister. However, the Prime Minister and its Council of Ministers, being political figures and part of the ruling executives, raise concerns regarding neutrality in the appointment process.
Article 327 of the Constitution of India bestows the power upon Parliament to legislate on matters related to elections and other necessary spheres, including the appointment of the ECI officials. In exercise of this power, he Parliament enacted the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 (“the 1991 Act”), which primarily dealt with salary, allowances and service conditions, but did not prescribe the appointment procedure for ECI officials. However, the crux of independence of ECI lies with an appointment of its officials. Thus, the lacunae in the 1991 Act were redressed by the 2023 Act, which governs the appointment, terms of service, and tenure of the CEC and ECs, and establishes procedures for the functioning of the ECI. It aims to resolve the longstanding legislative gap that has existed since the adoption of the Constitution.
The 2023 Act: Undoing Anoop Baranwal’s Judgement
The 2023 Act was enacted in light of the 2023 Supreme Court (“SC”) ruling in Anoop Baranwal v Union of India (“the judgement”). In this case, it was contended by the petitioner that the appointment of the ECI officials by the President of India is made on the recommendation of the Prime Minister, an executive member, which raises questions on the neutrality of the process. The SC held that, in the absence of any specific legislation, the President shall appoint the CEC and the ECs on the advice of the Selection Committee comprising of the Prime Minister, the Leader of the Opposition, and the Chief Justice of India (“CJI”). This composition strikes a balance of power between different organs of the government in the Search Committee. It also affirms the neutrality in the selection mechanism, which was backed by the Goswami Report on Electoral Reforms, 1990 (Chapter II para 1.2) and the Law Commission Report, 2015 (para 6.10.3), both of which recommended CJI position in the panel for appointing electoral officials.
The judgementfurther aligns with the view of the Father of Indian Constitution, Dr. Ambedkar, who remarked that ‘The election machinery should be outside the control of the executive Government, there has been no dispute’. Thus, it is imperative to curb the interference of the executive in the appointment of ECI officials to ensure the independence of the electoral process.
The Selection Committee under the 2023 Act
The Selection Committee is constituted under the 2023 Act, but its composition is departing from what was laid under the judgement. Under Section 7(1) of the 2023 Act, the Selection Committee selects a candidate from the list proposed by the Search Committee and recommends them to the President for appointment as an ECI official. However, the modification made in the composition of the Selection Committee is a point of contention and sparks a possibility of partisan appointment, as it comprises the Prime Minister, the Leader of Opposition, and a Union Cabinet Minister. The removal of the CJI’s position from the Committee, which had ensured fairness by striking down executive supremacy, runs contrary to the spirit of the judgment and effectively reinstates the executive’s overt control.
According to Section 8(2), the Selection Committee can also consider candidates not recommended by the Search Committee. It renders the whole process of proposing the names by the Search Committee fictitious, and enables the executive-dominated Selection Committee to appoint any official of their choice conveniently. It truly endangers transparency in the selection mechanism by giving the executive supremacy in the electoral process, which the judgement highlighted (para 222) “As long as the party that is voted into power is concerned, there is, not unnaturally a near insatiable quest to continue in the saddle. A pliable Election Commission, an unfair and biased overseer of the foundational exercise of adult franchise, which lies at the heart of democracy, who obliges the powers that be, perhaps offers the surest gateway to acquisition and retention of power.”
Furthermore, Section 16 grants immunity to the CEC and ECs from any civil or criminal proceeding for any actions taken in their official capacity while discharging their duty. If an ECI official, appointment through the Selection Committee where 2/3rd members are executives, makes a decision potentially favouring the ruling party, this provision saves them being held responsible or accountable, which further leaves enough room for officials to act in partisan manner. Kuldeep Kumar v U.T. Chandigarh exemplified the potential for malpractice, wherein the returning officer defaced eight ballot votes. Such instances emphasize the need for a transparent and independent decision-making process.
Unconstitutionality of the Section 7(1) of the 2023 Act
Although the judgement recommended the Selection Committee as a “pro-tem measure” intended to function until Parliament enacted legislation, the 2023 Act contradicts the judgment by excluding the judiciary from the appointment process. This discrepancy was challenged in Jaya Thakur v. Union of India, wherein the petition contested the non-alignment of the appointment of ECs before the 2024 General Elections with the selection mechanism prescribed in the judgement. The hasty appointment of ECs a day before the stay order hearing appears to make it infructuous. Furthermore, the Leader of Opposition was notified about the appointment just ten minutes beforehand constituted a procedural anomaly, leading to a severe lack of transparency.
The stay order was refused owing to the balance of convenience, which favoured the respondents and consequently prevented any disturbance to the schedule of the 18th Lok Sabha General Election. The court also upheld the “concept of plurality” by validating the impugned EC appointment. The three-member Commission was deemed essential for conducting the general elections as it ensures “balance and checks”, a principle underscored in the TN Sheshan case.
The bench highlighted in Jaya Thakur case (para 10) “Unless the provision is ex-facie unconstitutional or manifestly violates fundamental rights, the statutory provision cannot be stultified by granting an interim order. Stay is not ipso facto granted for mere examination or even when some cogent contention is raised. Suspension of legislation pending consideration is an exception and not the rule.” But, the history of the provision of Election is been outlooked, whichthe judgementextensively analysed.
Elections in democratic India is considered inherently fundamental, if not explicitly been mentioned under Chapter III (Fundamental Rights) of the Constitution of India. The Constituent Assembly established a committee to identify the elements that constitute Fundamental Rights. Dr. BR Ambedkar asserted, “The independence of the elections and the avoidance of any interference by the executive in the elections to the Legislature should be regarded as a Fundamental Right and provided for in the chapter dealing with Fundamental Rights. When the matter came up before the House, it was the wish of the House that while there was no objection to regard this matter as of fundamental importance, it should be provided for in some other part of the Constitution and not in the Chapter dealing with Fundamental Rights.”
Moreover, the Preamble to the Constitution proclaims India a Democratic Republic. The Preamble and its elements formulate the “basic structure” of the Indian Constitution as proclaimed by Keshvananda Bharti v. State of Kerela. In Indira Nehru Gandhi vs Shri Raj Narain & Another, the Allahabad High Court ruled (para 124) “If the democratic way of life through parliamentary institutions based on free and fair elections is a basic feature which cannot be destroyed or damaged by amendment of the Constitution, it cannot similarly be destroyed or damaged by any legislative measure.” Any legislation that dilutes the free and fair elections, an essential component of the “basic structure”, shall stand ultra vires to the Constitution.
Further, T.N. Sheshan, CEC v. Union of India (page 623 para 10) strongly stressed the autonomy of ECI, “In order to ensure the purity of the election process it was thought by our Constitution-makers that the responsibility to hold free and fair elections in the country should be entrusted to an independent body which would be insulated from political and/or executive interference.” The executive-dominant Selection Committee thus stands ultra vires to the Constitution, as there exists a potential for subjective appointment of ECI officials. This can easily influence the decision-making capacity of the official, who shielded from any legal actions.
Additionally, the appointing procedure, where two-thirds of members are the executive in the Selection Committee, does not comply with the “procedure established by law” of Article 21 (Right to Life and Personal Liberty). As A.K. Gopalan v State of Madras observed the law must be “jus” that abides by the principles of natural justice, not merely “rex” i.e. an enacted law. Thus, Section 7(1) of the 2023 Act, which enables executive dominance in ECI appointments, is ultra vires to the Constitution.
Further, the 2023 Act does not meet the just, fair and reasonable standard established in Maneka Gandhi v Union of India under Article 21 (Right to Life and Personal Liberty). The appointment process, dominated by the executive, fails the test of procedural fairness under Article 14 (Right to Equality) and Article 19 (Right to Freedom), rendering it ultra vires to the Constitution.
Comparative Practice of Different Democracies
The selection and appointment of members of the electoral body varies among democracies. In South Africa, according to Section 6(3) of the Electoral Commission Act, the panel for the appointing electoral commission comprises four members – the President of the Constitutional Court, a representative of the Human Rights Commission, the Commission on Gender Equality, and the Public Prosecutor. In Canada, the chief electoral officer is appointed by the House of Commons, while in the UK (para 13), the Speaker’s Committee on the Electoral Commission approves the candidate. In the United States of America, the President appoints the Federal Election Commissioner, with the advice and consent of the Senate.
Thus, in democratic countries worldwide, appointing electoral officials is a consultative process that involves the executive, legislator and other independent bodies solidifying neutrality, impartiality, and objectivity of electoral body. The 2023 Act deviates, in this respect, which raises concern about the integrity of the democratic process.
Conclusion
The history and the intentions of the Constituent Assembly demonstrates that free and fair elections are fundamental aspect of India’s constitutional democracy. The independence of ECI is crucial to uphold the Rule of Law. Therefore, the appointment of Electoral officials must be free and without any interference from the execution monopoly as the independence of ECI is linked with the appointing process of its officials.
Although the 2023 Act fills the appointment vacuum that existed for 74 years, its appointment mechanism does not correspond with the judgement’s recommendation. The procedure for appointing the ECI officials as stipulated by the 2023 Act through the Selection Committee, does not only stand ultra vires to the Constitution by harming the basic structure but also violates the fundamental feature of the Constitution to have free and fair elections. This makes the 2023 Act unjust, unfair and arbitrary, thereby bereft of the “procedure established by law” enshrined under Article 21 read with Article 14 and Article 19 of the Indian Constitution, which renders Section 7(1) of the 2023 Act unconstitutional. Thus, it is crucial to restore CJI’s position in the Selection Committee to ensure neutrality, maintain balance, and keep a check on committee’s members as depicted by the selection mechanism of the various democracies.
ECI is a constitutional body, its independence is crucial, any political fidelity towards any political party compromises the free and fair elections in the country. Therefore, the executive must not reign over the appointing process of the ECIofficials through its numerical strength, as doing so risks reinforcing political affiliations and creating an electoral contest with pre-determined winners. Such interference erodes the independence of the electoral process, the ECI, and the democratic framework, which forms part of the Constitution’s basic structure. One must not forget that the Act was passed when 97 opposition Members of Parliament (MPs) were suspended from the Lok Sabha, leaving the ruling majority and its allied parties in control. The absence of proper debate in the house with the opposition is a blatant violation of democratic ethos. The survival of democracy is supreme over the whims and fancies of any ruling political party striving to secure its interest by meddling in the electoral process.
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