EXPLAINER: New Election Commission Bill, 2023 – Danger on Independence of Election Commission?

Who is the current Chief Election Commissioner? Mr. Rajiv Kumar (since 15^th May 2022)

The Rajya Sabha has recently given a nod to a new bill regarding new procedures for appointing the Chief Election Commissioner (CEC( and Election Commissioners (EC) while rejecting the recommendation given by the Supreme Court of India earlier this year.

Current Structure of Election Commission:

The Election Commission is a permanent and independent body under the Indian Constitution.
Part XV (Articles 324 to 329) of the Indian Constitution talks about the Election.
Appointment: The Law Minister recommends suitable candidates for appointment in the Election Commission to the Prime Minister for consideration and then the President makes the appointment on the advice of the Prime Minister, or the President may also consult with the Election Commission. (1)
Removal: Similar to the removal of a Supreme Court Judge given under the Indian Constitution.

New Election Commission Bill, 2023:

The Chief Election Commissioner and Other Election Commissioners Bill 2023 replaces the current Election Commission Act, 1991.
The new Bill introduces modifications to the search committee and the removal process of the Chief Election Commissioner and Election Commissioners.

Appointment: According to the new bill, the President of India will appoint the Chief Election Commissioner and other Election Commissioners upon receiving the recommendation from a Selection Committee. The appointment will be based on a panel of names recommended by the Search Committee headed by the Cabinet Secretary to the Selection Committee. The Selection Committee will consist of the Prime Minister, a Union Cabinet Minister, and the Leader of the Opposition or Leader of the largest opposition party in Lok Sabha. (2) This means that the role (or vote) of the Leader of Opposition is of no importance while selecting the members of the Election Commission. Also, it is important to highlight that the recommendation by the Selection Committee is valid even if there is a vacancy in the Committee. (Search Committee recommends names to Selection Committee > Selection Committee gives recommendation on names > Appointment by the President on recommendation of Selection Committee)
The Bill provides safeguarding to CEC and ECs from legal proceedings.
The Bill safeguards officials of the Election Commission from civil or criminal proceedings related to their official functions.

Parliament vs Supreme Court:

A constitution bench of the Supreme Court of India in the case of Anoop Baranwal vs Union of India (2023) ruled that the election commissioner shall be selected by a committee consisting of the prime minister, the leader of the opposition, and the Chief Justice of India.

The Hon’ble Vice-President of India Jagdeep Dhankar during the debate on the bill said that “…we cannot suffer interventions of any other organ, be it executive or judiciary. Reflections in the Supreme Court are not binding on the parliament…” (3)

Further, raising his eyebrows former Supreme Court Justice Hon’ble RF Nariman called this new bill an “arbitrary piece of legislation as it risks the independence of the Election Commission”. (4)

References:

The CEC and Other ECs (Appointment, Conditions of Service and Term of Office) Bill, 2023, Drishti IAS (2023) Link
The Chief Election Commissioner and Other Election Commissioners Bill 2023, IAS Parliament (2023) Link
Awstika Das, Rajya Sabha Passes Bill on Appointment of Chief Election Commissioner and Election Commissioners, LiveLaw 12^th Dec 2023 Link
Gyanvi Khanna, Election Commissioners Bill Affects Independence Of ECI, Will Make Free & Fair Elections A Chimera: Justice RF Nariman, LiveLaw, 16^th Dec 2023 Link