The proposed Bill is contrary to the directions given by the Supreme Court earlier this year regarding the composition of a committee to appoint members of the Election Commission of India. The Bill replaces the position of the Chief Justice of India with that of a cabinet member. Is this another attempt of the executive to hinder the electoral process?
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IN a move that has stirred the political discourse, the Union government is poised to introduce the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Services and Term of Office) Bill, 2023.
This Bill, although touted as a step towards enhancing efficiency, has sparked concerns that it might undermine the very foundations of fundamental freedoms that form the bedrock of Indian democracy.
The proposed legislation finds its roots in a Supreme Court ruling earlier this year in Anoop Baranwal versus Union of India.
A Constitution Bench, cognisant of the importance of safeguarding the integrity of the electoral process, had decreed that appointments of election commissioners should be guided by the decisions of a “committee”.
According to the judgment, the committee should comprise the Prime Minister, Leader of the Opposition in Lok Sabha and the Chief Justice of India (CJI).
This nuanced selection process was designed to ensure a holistic and transparent approach, shielding the Election Commission of India (ECI) from undue external influence.
The inclusion of judiciary in appointments
The inclusion of the CJI in the committee responsible for selecting election commissioners is not a mere procedural detail, it is a crucial facet of democratic checks and balances.
A Constitution Bench, cognisant of the importance of safeguarding the integrity of the electoral process, had decreed that appointments of election commissioners should be guided by the decisions of a “committee”.
The judiciary, as an independent pillar of governance, ensures that the rights and freedoms of citizens are upheld.
Including the CJI in the selection process serves as a robust safeguard against executive overreach, promoting a more impartial and transparent appointment process.
The judiciary brings a unique perspective to the committee, rooted in its role as the guardian of constitutional principles.
The inclusion of the CJI in the committee underscores the need for non-partisan appointments that transcend political affiliations. This inclusion acts as a counterbalance to potential bias, promoting the selection of individuals who prioritise the integrity of the electoral process over partisan interests.
Furthermore, the CJI’s involvement aligns with the principle of separation of powers, a cornerstone of democratic governance. In a democracy, it is essential to prevent undue concentration of power within any single branch of government.
The judiciary’s presence in the committee ensures that no single branch can dominate the decision-making process, preserving the delicate equilibrium that sustains a healthy democracy.
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However, the proposed Bill aims to replace the position of the CJI in the committee with a nominated member of the cabinet.
This strategic alteration has raised alarm bells, echoing concerns over the erosion of the ECI’s autonomy.
The heart of the matter lies in the delicate equilibrium between the executive’s authority and the commission’s independence— a balance crucial for upholding the fundamental rights guaranteed under the Indian Constitution.
Need for independent members in the ECI
In Anoop Baranwal, Justice K.M. Joseph had pointed out that the fate of political parties and the vitality of democracy lie in the hands of the ECI.
He had emphasised that the crux of a substantive democracy is the formidable power of the vote, which surpasses even the mightiest weapon.
Justice Joseph’s articulation resonates with the idea that a person who lacks the fortitude to remain unbiased in the face of authority or who is indebted to an appointing power is not fit for the role.
The proposed Bill aims to replace the position of the CJI in the committee with a nominated member of the cabinet.
In this context, the role of an honest member of the ECI assumes paramount importance as the guardian of electoral purity. The expectations of the nation are vested in the ECI, as it bears the responsibility of upholding the democratic foundation.
True independence entails an election commissioner who holds an impartial balance, championing the cause of the marginalised while resisting undue influence.
Remarkably, the court, in the judgment, had lamented the absence of a legislative framework guiding appointments to the ECI over the course of 75 years of independence.
This absence is seen as a deliberate attempt by political parties to protect their vested interests by exploiting the ECI for consolidation of power.
The judgment’s fervent plea for a permanent secretariat financed directly from the Consolidated Fund of India echoes the necessity for financial autonomy, further emphasising the imperative to preserve the independence of this cornerstone of democracy.
The Consolidated Fund of India is mentioned under Article 266(1) of the Constitution of India. The government meets all its expenditure from this fund.
All the government revenue generated from taxes, asset sale, earnings from State-run companies, etc. go into the Consolidated Fund of India. The government needs parliamentary approval to withdraw money from this fund.
The fundamental rights issue
This tussle inadvertently delves into the realm of human rights law and the sacrosanct nature of fundamental rights enshrined in the Indian Constitution.
The proposed Bill has the potential to compromise the independence of the ECI as it intersects with the very principles that grant citizens the right to participate in a democratic process, as well as the right to equality before the law.
Also read: Collegium for Election Commissioners: Supreme Court takes away government’s powers
The right to participate, an inherent facet of democracy, hinges upon citizens’ ability to engage in an electoral process that is untainted by bias or manipulation.
Any incursion into the ECI’s autonomy could tarnish this fundamental right, undermining the very essence of democracy itself.
Likewise, the right to equality, a cornerstone of a just society, may be endangered by this Bill’s alteration of the committee composition.
The proposed Bill has the potential to compromise the independence of the ECI as it intersects with the very principles that grant citizens the right to participate in a democratic process, as well as the right to equality before the law.
The shift towards executive influence might skew the appointment process, allowing for potential prejudice in the selection of election commissioners.
Such a departure from impartiality would chip away at the very foundation of equality.
Historical context underscores the significance of safeguarding democratic institutions from partisan influence.
The court’s concern over the prior meddling with the terms of Chief Election Commissioners reminds us that short-term political gains must not take precedence over the long-term health of democratic processes.
The proposed Bill raises questions about its true impact on democratic values— whether it bolsters the principles of transparency and accountability or veers towards undue executive control.
In a nation characterised by its diverse and vibrant political landscape, any legislative change that affects the electoral process must be carefully scrutinised.
The proposed Bill has the potential to determine whether India’s democratic trajectory continues to be shaped by citizens or succumbs to external pressures.
In a nation characterised by its diverse and vibrant political landscape, any legislative change that affects the electoral process must be carefully scrutinised.
As the Bill takes centrestage in legislative discussions, it is imperative that its implications are examined within the broader context of fundamental rights.
The sanctity of the electoral process, the balance between executive influence and independence, and the very soul of democracy are at stake.
The proposed Bill’s journey through the corridors of power will serve as a litmus test for India’s commitment to uphold the principles that underpin its democratic foundations.
