The Rajya Sabha on Tuesday passed a Bill to regulate the appointment of the Election Commission of India by constituting a three-member selection committee comprising the Prime Minister, Leader of the Opposition and a Cabinet Minister. Till now, the Chief Election Commissioner (CEC) and two Election Commissioners (ECs) were appointed by the President on the advice of the government, as there was no law enacted for the purpose.
Significantly, the Centre also moved amendments which sought to retain the status of the CEC and two ECs on par with judges of the Supreme Court. The earlier Bill sought to downgrade their service conditions, aligning them with those of a Cabinet Secretary – a move which saw protests by former CECs and Opposition parties.
First introduced in Rajya Sabha by Law Minister Arjun Ram Meghwal on August 10, the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, was discussed and passed by voice vote in just over four hours, after the Opposition staged a walk-out. The Bill is yet to be introduced in Lok Sabha.
Replying to the discussion in the House, Meghwal said the government brought the Bill as the existing law, the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, had a “shortcoming” as it did not address the issue of appointment of the ECI. The Bill seeks to repeal the 1991 Act.
Meghwal said the Supreme Court had, on March 2, ordered the setting-up of a committee comprising the PM, Leader of Opposition and the Chief Justice of India for the purpose, till Parliament enacts a law. Meghwal did not address questions raised by several Opposition MPs on why the CJI had been replaced with a Cabinet Minister. However, he said it was an “executive function”.
Meghwal said the Bill was in accordance with Article 324 (2) of the Constitution which states that the President will appoint the CEC and ECs till Parliament enacts a law, as well as the Supreme Court’s March 2 order.
“The working of the Election Commission is unbiased, will remain unbiased. The government is also committed to keep it unbiased,” he said.
Meghwal also moved an amendment, which was passed, to keep the salary and perks of the CEC and ECs equivalent to that of a Supreme Court Judge, as is the case under the 1991 Act. In the earlier Bill, the government had proposed downgrading the service conditions, aligning them with those of a Cabinet Secretary.
As first reported in The Indian Express on September 17, a group of former CECs had decided to write to the Prime Minister to express their concerns about the potential “downgrade” of the status of the ECI. It is learnt that the letter was sent to the PMO on September 16.
In an apparent reference to the concerns, Meghwal said some issues had cropped up in discussions after the Bill was introduced, leading to the amendment.
The earlier Bill had proposed a search committee headed by the Cabinet Secretary to shortlist names of candidates. In another amendment that was passed, the head of the search committee was changed from the Cabinet Secretary to the Law Minister. The search committee will prepare a list of five names, of current and former Secretaries to the Government of India, for the selection committee. However, the selection committee can consider “any other person” apart from the panel of names.
Meghwal also brought an amendment, which was passed, to provide “protection” to the ECI, referring to the case where former CEC Sunil Arora was summoned by a court in Karnataka in connection with a poll-related case. The amendment added a new clause that would provide protection to the CEC and ECs for actions taken while in office.
“Notwithstanding anything contained in any other law for the time being in force, no court shall entertain or continue any civil or criminal proceedings against any person who is or was a Chief Election Commissioner or an Election Commissioner for any act, thing or word, committed, done or spoken by him when, or in the course of acting or purporting to act in the discharge of his official duty or function,” the amendment read.