Appointment of Election Commissioners: New government Bill does not nullify Supreme Court verdict, but is against its spirit

The Central government on Thursday introduced a Bill in the parliament to govern the appointment and conditions of service of Election Commissioners (ECs), including the Chief Election Commissioner (CEC)..The Bill titled Chief Election Commissioner and other Election Commissioners (Appointment Conditions of Service and Term of Office) Bill, 2023, has raked up controversy since it prescribes that the committee for selection of CEC and the ECs will be chaired by the Prime Minister (PM) and will also consist of a Union Cabinet Minister and the Leader of Opposition in the Lok Sabha (LoP).Since two of the members of the selection panel are from the executive, it effectively gives the government a unilateral say in making appointments to the Election Commission..It has been widely reported that the Bill seeks to dilute a Supreme Court judgment from earlier this year which prescribes that the selection committee should comprise the PM, the LoP and the Chief Justice of India (CJI). By replacing the CJI's place on the panel with a Cabinet Minister, the Bill nullifies the apex court verdict, critics and opposition law makers have said.So does the Bill annul the verdict of the Court? On a closer look, that might not exactly be the case..The Supreme Court judgment in question is Anoop Baranwal v. Union of India. It was delivered on March 2, 2023 by a Constitution Bench of Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar.This judgment noted that there was a complete vacuum in law when it came to appointment of the CEC and ECs.It, therefore, proceeded to order that until Parliament enacts a law, appointments to the ECI should be done on the advice of a committee comprising the PM, the CJI and the LoP."We declare that as far as appointment to the posts of Chief Election Commissioner and the Election Commissioners are concerned, the same shall be done by the President of India on the basis of the advice tendered by a Committee consisting of the Prime Minister of India, the Leader of the Opposition in the Lok Sabha and, in case, there is no such Leader, the Leader of the largest Party in the Opposition in the Lok Sabha having the largest numerical strength, and the Chief Justice of India. This norm will continue to hold good till a law is made by the parliament," the operative part of the judgment said..Thus, the panel mandated to be constituted by the Supreme Court was to operate only until Parliament enacts a law.The government has now chosen to bring about such a law which, once passed in Parliament, would bring the Supreme Court's mandamus to an end.Hence, enactment of such a law cannot be considered as being contrary to the Court's judgment. .That said, this move does violate the spirit of the apex court verdict. The Constitution Bench judgment is founded on the premise that the Election Commission should be fiercely independent and insulated from the government in power. "The fate of the political parties and its candidates, and therefore, of democracy itself to a great measure is allowed to rest in the hands of the Election Commission. While there may be officers who assist the Commission, vitally important decisions have to be taken by those at the helm of the affairs. It is the Chief Election Commissioner and the Election Commissioners at whose table the buck must stop," the Court had noted.The Court had further said that challenging a concluded election is not an easy task and that the delay by the courts in deciding on the same would affect free and fair polls and democracy itself."Awaiting the outcome of the poll to question the election before the tribunal may result in many illegal, unfair and mala fide decisions by the Election Commission passing muster for the day. Once the election results are out, the matter is largely reduced to a fait accompli. In fact, many a time an omission or a delay in taking a decision can itself be fatal to the holding of a free and fair poll," the judgment had stated.Hence, the Court saw a need to take the appointment of the members of the Election Commission out of the exclusive hands of the executive, namely, the party that has an interest in perpetuating itself in power."The Election Commissioners including the Chief Election Commissioner blessed with nearly infinite powers and who are to abide by the fundamental rights must be chosen not by the Executive exclusively and particularly without any objective yardstick," the Court had said..Thus, while the Bill may not be in violation of the judgment per se, the inclusion of two persons from the ruling government would go against the spirt of the verdict, which is to ensure that the government does not sully the electoral process. As the Court forewarned,"An unrelenting abuse of the electoral process over a period of time is the surest way to the grave of the democracy....the propensity for the electoral process to be afflicted with the vice of wholly unfair means being overlooked by those who are the guardians of the rights of the citizenry as declared by this Court would spell disastrous consequences.".[Read Bill].[Read Supreme Court Judgment]