Established on January 25,1950 under Article 324 of the Indian Constitution, the Election Commission of India is an autonomous constitutional authority responsible for administering election processes in India. The Commission ensures the conduct of free and fair elections at various levels of government in the country. It oversees the conduct of elections for the President of India, Vice President of India, Members of Parliament (Lok Sabha and Rajya Sabha), State Legislative Assemblies, and local bodies such as Municipalities and Panchayats. In a recent ruling, the Supreme Court claimed the government pays lip service to the independence of Election Commissioners, pointing out that Chief Election Commissioners’ terms have fallen from over eight years in the 1950s to less than three hundred days since 2004.

A five-judge bench of the Supreme Court (SC) unanimously ruled that the appointment of the Chief Election Commissioner and the Election Commissioners shall be made by the President on the advice of a Committee consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha and Chief Justice of India (CJI). In case no leader of Opposition is available, the leader of the largest opposition Party in the Lok Sabha in terms of numerical strength will be a part of such committee.

The Chief Election Commissioner and other Election Commissioners (Appointment Conditions of Service and Term of Office) Bill, 2023 seeks to replace the CJI with a cabinet minister as one of the three members of the selection panel to choose the CEC and election commissioners — the other two being the prime minister and the leader of the opposition in Lok Sabha. The bill mentions explicit qualifications for the selection of individuals, this ensures the appointment of only relevantly skilled, experienced, and knowledgeable candidates in election management. The introduction of the bill, especially the deletion of CJI from the panel, sparked a fresh standoff between the government and the opposition. “Introduction of this bill will override the Supreme Court Constitution Bench’s judgment regarding the appointment of the chief election commissioner and other election commissioners,” The debates of the constitute assembly on the appointment of the ECI makes clear that all  the members were of the clear view that election must be conducted by an Independent commission.

One of the most commendable features of the bill is the introduction of a Search Committee, led by the Cabinet Secretary. The committee consists of a panel of five eligible candidates and ensures accountability by involving experienced individuals, knowledgeable in election matters. However, it is integral to mention that the impartiality and biases of the committee must be carefully evaluated.

In contrast with the positive changes, there were several concerns that were raised in regard to the independence of the election commission. Like the dominance of the executive as the prime minister and the nominated cabinet minister can easily vote out the leader from the opposition. Similarly, the removal process of the election commissioner along the lines of the impeachment of the Supreme Court Judge marks up the existing challenges faced. Lastly, the decision to allow the selection committee to choose a candidate from outside the shortlisted panel could undermine the purpose of shortlisting. It is suggested that a balance needs to be maintained between independence and accountability. Thus, the potential dominance of the executive in the appointment process must be carefully addressed or require a unanimous verdict as suggested by former Chief Election Commissioner S Y Quraishi.

The Chief Election Commissioner and Other Election Commissioners (Appointments, Conditions of Service, Term of Office) Bill holds the promise of enhancing transparency and accountability in the appointment process of key positions within the Election Commission. However, it must be approached with careful consideration of the potential pitfalls that could compromise the independence of this crucial institution. By seeking broader consultations, addressing concerns about committee composition, and refining the Search Committee’s role, the government can reinforce the Election Commission’s role as a cornerstone of democratic integrity while upholding the principles of transparency, credibility, and impartiality.

Author – Ketan Joshi

Senior Associate

Co-Author – Sandip Ghosh