The amended bill on the appointment of the Chief Election Commissioner (CEC) and other Election Commissioners (EC), which was passed by the Rajya Sabha, falls far short of the best standards for making appointments to constitutional offices. Some provisions of the bill, first introduced in August, were changed by the government, apparently in response to criticism, but crucial defects in it have not been rectified. It has restored, for instance, the protocol of the CEC and the ECs on par with that of Supreme Court judges, as against the earlier proposal to put them on par with the Cabinet Secretary. But the chief defect – that the CEC and ECs will be appointed solely by the government of the day and hence will be political appointees – remains.
The government claimed that the bill was prepared on a direction from the Supreme Court. That is only a half-truth, and it goes against the letter and spirit of the court’s directions. There was no procedure prescribed in the Constitution or the earlier 1991 law for the CEC’s appointment and that was a loophole that earlier regimes may have exploited. In March this year, the Supreme Court suggested a process whereby the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India (CJI) would make the selection, which would have strengthened confidence in the appointments and the commission’s credibility in the eyes of the voter. But in contravention of this, the government has kept the CJI out of the process, and the selection committee will consist of the Prime Minister, a Union cabinet minister, and the leader of the largest opposition party in the Lok Sabha. Another amendment safeguards the CEC and ECs from legal proceedings, giving them immunity from the courts for any action however wrong or unlawful.
Though there is an Opposition presence in the committee, the appointments will be controlled by the government at all stages. The Opposition leader’s involvement will only be a formality, an eyewash. Since the government can appoint anyone it wants and will certainly exercise its power to the ruling party’s advantage, the Election Commission will be a body beholden to it. The Election Commission’s independence and impartiality are crucial for free and fair elections, which is the heart of a robust democracy. One way to increase the credibility of the appointments to the commission would be to include the CJI in the process. Another way would be to stipulate, even within the current bill, that the selection has to be unanimous so that the commission thus appointed is acceptable to the Opposition, too. The bill, as it exists, does not enact the idea of an apolitical and independent Election Commission. Rather, it is a bill to make the appointment of puppet Election Commissions the law.