Bill proposes LoP & minister, not CJI, in committee to select poll panel chiefs

Context: 

• A Bill was introduced in the Rajya Sabha in order to overturn the impact of the Supreme Court verdict in Anoop Baranwal Case on the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs).

More about the news:

• It seeks to replace the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, which does not contain provisions regarding the candidates’ qualifications, or the search committee.

Supreme Court Verdict in Anoop Baranwal v. Union of India:

• Selection of CEC and EC: A five-judge bench of the Supreme Court unanimously ruled that a high-power committee consisting of the Prime Minister, Leader of Opposition in Lok Sabha, and the Chief Justice of India must select the Chief Election Commissioner (CEC) and (Election Commissioners ECs).
• Issue of funding the EC: The Court left the issue to the government. It recognised the urgent need to provide for a permanent Secretariat and to provide that the expenditure be charged on the Consolidated Fund of India.
• Issue of removal of ECs: On the issue of whether the process of removal of Election Commissioners must be the same as it is for the CEC, the Court ruled that it cannot be the same.

Process of removal of Election Commissioners:  Article 324 (5) of the Constitution safeguards the Chief Election Commissioner (CEC) from arbitrary removal. The CEC can be removed from office only by the order of the President, just like a judge of the Supreme Court. However, the same constitutional provision is silent about the procedure for removal of the two Election Commissioners. It only provides that they cannot be removed from office except on the recommendation of the CEC

Features of the Bill:

• Selection Committee: The Bill seeks to establish a committee of the Prime Minister, the Leader of Opposition in the Lok Sabha and a cabinet minister nominated by the PM for selecting members of the Election Commission of India (ECI).
• Search Committee: A Search Committee will prepare a panel of five persons for the consideration of the Selection Committee.
  • Currently, the Law Minister suggests a pool of suitable candidates to the Prime Minister for consideration. The President makes the appointment on the advice of the PM.
• Appointment Process: Search committee will be headed by the Cabinet Secretary and two officers not below the rank of Secretary to Government of India would prepare a panel of five names for the committee headed by the Prime Minister to decide.
  • Candidates should hold or have held a post equivalent to Secretary to Government of India
• Role of LOP: It also makes the Leader of Opposition (LOP) in Lok Sabha a member of the selection committee. If the LoP in the Lok Sabha has not been recognised as such, then the leader of the largest party in the Opposition shall be deemed the LoP.
• Salary: It says that the salary of the CEC and ECs would be equivalent to the Cabinet Secretary, as opposed to a Supreme Court judge, which is the case now.

Need of the bill: Independence of Election Commission: Demand for an independent system for the appointment of members of the Election Commission goes back nearly 50 years. It has been repeatedly recommended by:

• Justice Tarkunde committee 1975;
• Dinesh Goswami committee, May 1990;
• Second administrative reforms commission, January 2007
• Law Commission of India in its 255th report of March 2015

Addressing legal vacuum: Since there was no law made by Parliament as prescribed by the Constitution for the appointment of CEC and EC, the Bill now seeks to address this vacuum and set up a legislative process to make appointments to the EC. Concerns with the Bill:

• Questions of independence of Select Committee: Composition of the Selection Committee in the Bill raises questions on whether the process is now independent or still rigged in favour of the Executive.
• Departure from Supreme Court Verdict: Introduction of this Bill will override the Supreme Court Constitution Bench’s judgment regarding the appointment of the CEC and other Election Commissioners.
• Protection to Election Commissioners: The judgment has left some critical issues unresolved like granting the same protection to Election Commissioners from being removed as provided by the Constitution to the Chief Election Commissioner.

Article 324(2):  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.”

 Challenges with functioning of Election Commission:

• Non-transparent Selection Procedure: The lack of transparency in the appointment process for the CEC and the ECs which is currently based on the discretion of the ruling government.
• Flaws in Composition: The Constitution does not provide specific qualifications as well as security of tenure for members of the EC. The tenure and post-retirement restrictions of EC members are also not clearly defined.
  • For example, the recent arbitrary appointment of Arun Goel as an Election Commissioner, a day later after he took voluntary retirement as Secretary, Ministry of Heavy Industries.
• Ambiguous Scope of Powers: The Model Code of Conduct (MCC) does not explicitly outline the extent of the Election Commission’s authority. Thus, there is confusion surrounding the nature and scope of the EC’s enforcement powers and decisions.
• Lack of Legal backing for MCC: While the MCC is formulated based on consensus among political parties, it lacks legal backing. It doesn’t hold statutory authority and relies solely on the moral and constitutional influence of the Election Commission.
• Enforcement Challenges: The Election Commission lacks the authority to disqualify candidates involved in electoral misconduct. Its power is limited to directing the initiation of legal proceedings.
• Political Biases: There have been claims that the electoral organization has neglected to address alleged breaches by the governing party.
  • For example, the Opposition accused the ruling party of contravening EC rules by appropriating credit for the heroic actions of armed forces in its campaign and using PM’s TV broadcast on an anti satellite missile test for political gain. In response, ECI took no action.
• Lack of regulatory powers: Election Commission lacks the necessary tools to govern political parties. It has no authority to impose inner-party democracy or regulate party funds. The election commission has no power to interfere in the politics within the parties.
• Election machinery issues: Claims of Electronic Voting Machines (EVM) malfunctioning, being hacked and failing to record votes erode the general public’s faith in ECI.

Way Forward:

• Independent Functioning: ECI should be kept separated from the executive, legislature, and judiciary. No organ should interfere with the working of the ECI because it leads to a reduction in the faith of the public.
• Regulatory Autonomy: It should have the authority to create regulations within the overarching policy guidelines set by the government. These regulations may require government approval before notification, replacing the current method where the government directly formulates regulations for these entities.
• Measures against criminalization of politics: The ECI should take strict measures against political criminalization. they should immediately disqualify that participant of the political party.
• Free and fair Election machinery: Employing Voter Verified Paper Audit Trail (VVPAT) and utilizing Vote Totalizer machines serve the purpose of safeguarding voters from potential harassment by political entities.
• Establishment of bipartisan committees: Concerns regarding malfunctions and possible tampering of EVMs can be effectively addressed by establishing bipartisan committees comprising representatives from all political parties, in conjunction with the insights of international experts.
• Parity among CEC and ECs: There must be similar election and removal procedures for CEC and ECs, and they must exercise the same powers unless specifically prescribed by law.

Additional Information: Best practices from different nations in designating of Election Commissions: South Africa: Election Commissioners are designated by the President on the suggestions of the National Assembly, following assignments by a National Assembly between the party board of trustees, which gets a rundown of at any rate eight applicants. Canada: The Chief Electoral Officer is named by a House of Commons goal for a non-inexhaustible ten-year term, and to shield their freedom from the administration, he/she reports straight to Parliament. US: The six Federal Election Commissioners are delegated by the President with the counsel and assent of the Senate.

 News Source: Indian Express