EC appointment Bill can lead to one-party rule: Ex-secy writes to President

The proposed Bill on the appointment of Election Commissioners, if passed as law in its current form, has the potential to slash the very roots of democracy, leading to a one-party rule, former bureaucrat EAS Sarma has told President Droupadi Murmu, requesting her immediate intervention in the matter.

Sarma is a 1965-batch IAS officer of the Andhra Pradesh cadre who served as a secretary in the Ministry of Finance in the Atal Bihari Vajpayee government.

Pointing out the flaws in the proposed Bill, Sarma says it goes against the very tenets of the Indian Constitution, and negates the very idea of keeping the Election Commission of India (EC) as an apolitical and independent body.

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, which was tabled by the Centre in Parliament in the Monsoon Session is expected to come up for discussion at the upcoming Special Session of the Parliament.

“Considering the past experience, it is possible that the Bill will go through both the Houses with little discussion. If enacted, the proposed legislation in its present form will cut at the very root of India's democracy, leading to a one-party rule, which the framers of the Constitution would never have visualised,” Sarma said.

‘Bill flouts SC directive, Constitutional mandate’

In his letter, Sarma said the government clearly flouts the Supreme Court’s (March 2, 2023) directive in which the apex court had asked it to consider a more transparent system of appointing the Chief Election Commissioner (CEC) and the Election Commissioners, who till now have been appointees of the political executive.

“Article 324 of the Constitution under which the Election Commission of India (ECI) is set up and the laws enacted thereunder envisage the Commission to act as an apolitical authority to be able to conduct elections in a free and fair manner. Many provisions of the latest Bill negate that concept, rendering the Commission subservient to the political executive at the cost of the other political parties, which in the long run will erode the public trust in it and dilute its credibility, a situation that will not augur well for the nation,” he says.

Sarma said during the framing of the Constitution, the Constituent Assembly headed by Dr BR Ambedkar had recognised the EC’s freedom from the executive as a fundamental right. While the Constituent Assembly had wanted to keep it under the chapter dealing with ‘Fundamental Rights’, the same was put in a separate chapter at the request of the House.

“In pursuance of the decision of the House, the Drafting Committee removed this question from the category of Fundamental Rights and put it in a separate part containing articles 289, 290 and so on. Therefore, so far as the fundamental question is concerned that the election machinery should be outside the control of the executive government, there has been no dispute. What Article 289 does is to carry out that part of the decision of the Constituent Assembly. It transfers the superintendence, direction and control of the preparation of the electoral rolls and of all elections to Parliament and the Legislatures of States to a body outside the executive to be called the Election Commission,” Sarma said.

Flawed appointment

Stating that while the Constituent Assembly had agreed to keep the EC out of the power-ambit of the executive, to make it a body that has ability to hold elections in a free and fair manner, the same doesn’t reflect in the existing system of appointment of election commissioners.

He said the influence of the government in the appointment exercise has been flagged by the Opposition time and again including the NDA itself when the UPA was in power.

He cited a letter by BJP leader LK Advani to then prime minister Dr Manmohan Singh in 2012 in which the former questioned the credibility of the existing system in which the members of the Commission were appointed by the president solely on the advice of the prime minister, noting that it would not “evoke confidence among the people”. Advani had also called for the inclusion of the Leader of the Opposition and the Chief Justice of India (CJI) as members in the committee that selects candidates for appointment to the commission.

Sarma said the Supreme Court in its recent order, had also directed the government to consider introducing a more transparent system of appointment of the Election Commissioners. However, while the Supreme Court had proposed that the appointment committee to comprise the prime minister, the leader of the opposition in the Lok Sabha and the Chief Justice of India, the Centre while framing the Bill the Centre replaced the CJI with a cabinet minister nominated by the prime minister.

‘Search Committee, leader of Opposition toothless tigers’

He says, the Search Committee entrusted with hunting for eligible candidates for consideration of the Selection Committee is helmed by the cabinet secretary with two other secretaries as its members, who in turn report to the government and can’t act independently.

He says the Search Committee is “dominated by civil servants who are under the administrative control of the political executive and the procedure adopted by it for considering eligible candidates to be included in the panel remains totally non-transparent.”

He said considering that Section 5 provides that candidates for appointment to the office of the EC “shall be persons of integrity, who have knowledge of and experience in management and conduct of elections”, the term “integrity” and the other criteria not having been defined adequately, it permits the Selection Committee to override the panel recommended by the Search Committee and select any other candidate of its choice.

Noting that the Selection Committee (as provided in Section 7 of the Bill) is dominated by the representatives of the political executive, Sarma said the mere presence of the leader of the largest party in Opposition would not evidently alter that position, as he/she can be summarily overruled.

Also, the leader of the largest party in opposition, as its member, would not have enough access to the background information on the candidates and, in any case, can be overruled by the rest of the members who are a part of the political executive, Sarma said.

No space for dissent, downgrade in CEC status

Sarma said while the Bill provides for a rigorous procedure to remove the CEC, the same is absent in case of the other election commissioners. He says a uniformity in the procedure is much needed especially in view of the provision in Section 17(2) which states, “if the Chief Election Commissioner and other Election Commissioners differ in opinion on any matter, such matter shall be decided according to the opinion of the majority”.

“Considering that the other Election Commissioners can be removed at the pleasure of the political executive, the mere fact that the procedure for removing the chief election commissioner is rigorous does not confer sufficient autonomy on the Commission as a whole. Since the procedure of appointment of an election commissioner in the first instance is such that the political executive has an overriding role in it and since the appointment itself constitutes a post-retirement benefit conferred on selected candidates, the independence of the Commission as a whole stands compromised. In view of this, if the Bill is enacted in its present form, the other political parties and the public will perceive the Commission to be subservient to the political executive,” he says.

Sarma said even though Article 324(5) of the Constitution indirectly treats the CEC’s status as equivalent to that of a judge of the Supreme Court, Section 10 of the Bill downgrades his/her status and that of the other commissioners to that of the cabinet secretary. This provision indirectly diminishes the stature of the commission.

Proposed amendments

The former bureaucrat in his letter lists out legislative measures that need to be considered to uphold the integrity of the Election Commission. They are:

· Bill should include CJI as one of the members of the Selection Committee by modifying Section 7. “In addition, it should also include a few eminent jurists to be suggested by the CJI.”

· The status of a member of the EC should be elevated to that of a judge of the Supreme Court. Section 10 of the Bill should be appropriately amended.

· The procedure for the removal of the Election Commissioners should be similar to that for the CEC, that is, that applicable to a Judge of the Supreme Court. This needs to be explicitly stated in Section 11(2).

· Considering that the Search Committee, as provided in Section 6, consists exclusively of Secretaries to the Government who are under the administrative control of the political executive, in order to render the search process more transparent, the details of the candidates considered by the Search Committee for inclusion in the panel and the eligibility criteria on the basis of which their candidature was taken into account should be placed before the Selection Committee and also in the public domain for the political parties and the public to see. Section 6 needs to be amended to take this into account.

· Section 8(2) which empowers the Selection Committee to consider persons other than those included in the panel should be suitably amended to require the Selection Committee to spell out the grounds for considering such persons. Section 8(2) should be further amended to require the proceedings of the Selection Committee to be placed in the public domain. The proceedings should specifically reflect the dissenting views of individual members.

· Section 17(2) should be amended to require the EC to place in the public domain the proceedings of the decisions taken, including the dissenting views of individual members.

Urging President Murmu to use her authority as constitutional head to intervene in the matter, Sarma says if the Bill is passed in the Parliament in its present form, it poses the risk of paving way for a one-party rule, which “negates the very vision of Dr Ambedkar and the other elders who bestowed on us a Constitution that assured the nation a vibrant, representative democracy.”