Although the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, was passed in the Rajya Sabha on August 10, it has now finally made its way to the Lok Sabha for passage.
Significantly, the Bill attempts to alter constitutional provisions that equate ECs with Supreme Court judges. It also seeks to undo the top court’s recent ruling in ‘Anoop Baranwal vs. Union of India’.
What does the bill say?
Listed for discussion on September 18, the Bill proposes to revise the salary, allowance, and service conditions of the Chief Election Commissioner (CEC) and the two Election Commissioners, to bring it at par with those of a Cabinet Secretary.
Until now, Election Commissioners were at par with Supreme Court judges in this regard, under the Election Commission Act, of 1991. However, the Bill’s passage will result in the 1991 Act’s repeal.
Although the stipulated salary of a Supreme Court judge and the Cabinet Secretary is nearly the same, top court judges are entitled to additional post-retirement benefits, including domestic help and lifetime provision of drivers.
But the issue is that this move seeks to bring Election Commissioners under the ambit of the bureaucracy, which in turn could stifle their authority and independence. The EC’s primary task is that of superintendence, direction, and control of elections, as laid down under Article 324. However, this control of elections is likely to shift if the Election Commissioner, who will now be equivalent to the rank of a Cabinet Secretary tries to discipline a Union Minister for electoral violations.
“At present, when the commissioners call a government officer – say the Law Secretary or Cabinet Secretary at the Centre or the Chief Secretary of a state – for a meeting, or seek their explanation regarding a lapse or deliberate disregard of their direction, their order is perceived to carry the authority of a Supreme Court Judge. They are not their equals. How do you think it will affect their command and control if they are seen as equal to Cabinet Secretary,” a source has informed the Indian Express.
Similarly, the proviso to Article 324 (5) of the Constitution says that a CEC can only be removed in a manner similar to that of a SC judge. The reason behind the EC’s independence and equivalence to SC judges was so that it could freely and fairly decide cases involving the government, the Prime Minister, and Ministers.
Additionally, this Bill seeks to constitute a committee of the Prime Minister, the Leader of the Opposition in the Lok Sabhaand a Cabinet Minister nominated by the PM to select members of the Election Commission of India.
Notably, this committee will not have the Chief Justice of India as a member, contrary to the top court’s suggestion in a ruling delivered in March this year.
What was the SC ruling?
On March 2, a five-judge SC bench unanimously ruled that a high-power committee of the PM, Leader of Opposition in Lok Sabhaand the CJI must pick the CEC and ECs. Pertinently, the ruling said that our founding fathers “did not intend the executive exclusively calling the shots in the matter of appointments” to EC.
Acting on a PIL filed by Anoop Baranwal in 2015 that challenged the validity of the prevailing system of the President appointing the ECI members, on the PM’s advice, as unconstitutional, the bench came up with the idea of having a committee.
In 2018, a two-judge bench of the SC referred this case to a larger bench, adding that it required a close examination of Article 324 which deals with the CEC’s role.
Article 324(2) states, “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.”
However, since no law was made by Parliament as prescribed by the Constitution, the court stepped in.
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Besides this, Article 324(5), allows the President to decide the conditions of service and tenure of the ECs, albeit “subject to a law” made by Parliament. In furtherance of this, the Election Commission Act was passed by Parliament in 1991.
How does the new Bill change the 1991 Act?
The Bill seeks to repeal the 1991 Act. Section 3 of this Act stated, “There shall be paid to the Chief Election Commissioner [and other Election Commissioners] a salary which is equal to the salary of a Judge of the Supreme Court.”
However, Section 10 of the Bill states that the salary, allowances, and service conditions of the CEC and ECs shall be the same as those of the Cabinet Secretary.
