Safeguard the Election Panel’s Independence

This editorial is based on Safeguard the election panel’s independence which was published in The
Hindustan Times on 17/08/2023. It talks about the recent changes in Election Commissioners appointment
and the need to Safeguard the election panel’s independence .

For Prelims: Selection of Chief Election Commissioner, Chief Election Commissioner (CEC) and
Election Commissioners, Supreme Court, Article 324.

For Mains: Selection of Chief Election Commissioner, its Significance and Associated Concerns,
Independence of Election Commission.

The Union government’s introduction of the Chief Election Commissioner and other Election
Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 in the just-
concluded monsoon session of the Parliament has caused significant controversy. A large part of the
discussion is focussed on the fact that the bill replaces the mechanism for selection of the Chief Election
Commissioner (CEC) that was devised by the Supreme Court in Anoop Baranwal vs Union of India
(2023), a verdict delivered a few months ago.

What did the Supreme Court say in the Anoop Baranwal Case?

In that order, the Supreme Court held that the selection of the CEC must be done by a three-
member committee comprising:

1. The Prime Minister (PM)

However, the supreme court itself noted that this arrangement was temporary, until Parliament passed a
law in this regard.

What does the Constitution say in this regard?

Clause 2 of the Article 324 of the Constitution vests the power of appointment of the CEC and other
Election Commissioners in the President, subject to any law that Parliament might make.

However, the Parliament didn’t pass any Law which effectively made the President’s (i.e., the
executive’s) powers permanent to appoint CEC and ECs.
The supreme court then found in the aforesaid case that giving the executive the power to appoint
the CEC was incompatible with the independence of ECI.
The reason for this is obvious: In a parliamentary system, the executive is drawn
 from the ruling party, and is, hence, a player in the electoral game.
Giving the executive the power to appoint the CEC, therefore, is akin to giving a
player the power to appoint the referee.

So, What is the issue with Respect to the new Election Commissioners bill?

Provides Executive Supremacy: The Election Commissioners bill replaces the CJI with a cabinet
minister nominated by the PM. Which again gives the Executive a clear majority — and, therefore,
a decisive say — in the appointment of the Election Commissioners.
Now, the selection committee will consist:
The prime minister (chairperson)
The leader of opposition in the Lok Sabha (member)
A Union cabinet minister nominated by the prime minister (member)
Against the Will of the Constitution Framers:
The intention of the framers of the Constitution was to secure and guarantee the
independence of ECI. Which is why they provided the President (executive) the power to
appoint ECs as a stop-gap arrangement, in the expectation that Parliament would enact a
law that would secure and guarantee the independence of ECI.
The bill giving the executive more power submerges the idea of an Independent ECI
as envisioned by the framers of the Constitution.
An Umpire who is Subordinate to the Team Captain: A former chief election commissioner
said that the most concerning aspect of the new legislation is the downgrading of the status of
election commissioners as well as the CEC from being at par with Supreme Court judges to that of
cabinet secretary.
He also said, “The cabinet secretary is directly under the government. So a
constitutional body like the election commission, that is supposed to call even the ministers
and prime minister to discipline if it comes to it, how can you equate that office with the
cabinet secretary who is clearly subordinate to the government?”

Why is there the Necessity of Independence of the Election Commissioner in

Impartiality and Fairness: The Election Commissioner is responsible for overseeing the entire
electoral process, including the conduct of elections, delimitation of constituencies, voter
registration, and more. It is important that this office remains impartial and free from political
influence to ensure that all political parties and candidates have an equal and fair opportunity to
participate in the electoral process.
As former US President Barack Obama said, “The right to vote is sacred. It’s how we choose
our leaders and determine our destiny.” So, impartial and fair elections are very crucial in a
democracy.
Prevention of Manipulation: An independent Election Commissioner helps prevent any
manipulation or bias in the electoral process. If the office is influenced by the ruling party or any
other political entity, it could lead to electoral malpractices such as voter suppression,
gerrymandering, or tampering with the election results.
For example, in 2018, Pakistan’s Election Commission faced allegations of rigging and
interference from the military establishment, which cast doubt on the legitimacy of the
election results.
Public Confidence: An independent Election Commissioner helps build and maintain public
confidence in the electoral process. When people believe that elections are conducted fairly and
transparently, they are more likely to participate and accept the results, even if their preferred
candidate or party does not win.
For example, in 2007, Kenya witnessed post-election violence that killed over 1,000 people
and displaced over 600,000 people, after a disputed presidential election that was marred
by irregularities and fraud.
Rule of Law: The independence of the Election Commissioner upholds the principle of the rule of
law. It ensures that electoral procedures are carried out according to established laws and
regulations, rather than being subject to arbitrary decisions or political pressure.
Checks and Balances: In a democracy, the separation of powers and the presence of checks and
 balances are essential. An independent Election Commissioner acts as a check on the powers of
the executive and legislative branches of government, ensuring that elections are not manipulated
for political gain.
Long-Term Stability: An independent Election Commissioner can help ensure the long-term
stability of the electoral process. If the office is subject to frequent changes or political
interference, it could undermine the credibility of elections and lead to instability.
For example, T.N. Seshan, who served as the Chief Election Commissioner of India
from 1990 to 1996, is widely credited for ushering in electoral reforms that changed the
face of Indian elections.
He enforced the authority of the Election Commission as per its powers laid out in
the Constitution and introduced a list of 150 malpractices during elections, such as
distribution of liquor, bribing voters, ban on writing on walls, use of religion in
election speeches etc.
He also challenged the political parties and candidates who violated the election
rules and took strict actions against them.
His legacy as an independent and fearless Election Commissioner has inspired
many others to follow his footsteps and uphold the integrity and stability of the
electoral process in India.
International Standards: The concept of an independent election commission is upheld as a
best practice internationally. Many democratic countries have established independent bodies to
oversee elections, and India's Election Commission aims to align with these global standards.

What should be the Way Forward?

The government should review the composition of the Selection Committee and consider
making it more balanced. This might involve giving the opposition more balanced power to ensure
a fair decision-making process.
For example, the opposition could have equal seats, veto power, or rotating
chairmanship in the Selection Committee. This would ensure that the selection
process is not biased or influenced by the ruling party.
To enhance the credibility of the selection process, the government should involve
independent experts, jurists, and civil society representatives in the Search Committee or
as observers in the Selection Committee. Their presence could help maintain the integrity of the
process.
By involving these stakeholders, the government could increase the transparency,
accountability, and public trust in the selection process. They could also provide valuable
insights, feedback, and recommendations to improve the quality and suitability of the
candidates.
Before finalizing the Bill, the government should engage in thorough consultations with
opposition parties, legal experts, and stakeholders to gather diverse perspectives and ensure that
concerns are addressed adequately.

Drishti Main Question:

Highlighting the importance of independence of Election Commissioner, discuss the issues with the
recently introduced Chief Election Commissioner and other Election Commissioners (Appointment,
Conditions of Service and Term of Office) Bill, 2023.

UPSC Civil Services Examination, Previous Year Questions (PYQs)

Q. Consider the following statements: (2017)

1. The Election Commission of India is a five-member body.

(a) 1 and 2 only

Ans: (d)

PDF Refernece URL: https://www.drishtiias.com/printpdf/safeguard-the-election-panel-s-independence

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