Govt May Skip Bill On Appointments To Election Commision In Special Session, May Refer To Standing Committee: Report

The Narendra Modi government may not take up the bill on the appointment to the Election Commission of India (ECI) during the ongoing Special Session of the Parliament, according to a report. 

The bill was introduced by the Modi government in the Rajya Sabha on August 10 and came under criticism for downgrading Election Commissioners (ECs). 

Currently, Election Commissioners are equivalent to the Supreme Court judges, but the proposed law equates them to the Chief Secretary of the Government of India, which has been seen as downgrading their authority.

One view within the government is to not take up the bill for passage in the Special Session and refer it to the Standing Committee on Law and Justice, reported PTI, citing sources.

"The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 had featured among the four bills listed by the government a few days back for being taken up in the session. However, criticism, including from a few former CECs and ECs, of some of its provisions might have made the government reconsider its decision," reported PTI.

What does the bill propose?

The bill, formally called The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, equates the Election Commissioners to the Chief Secretary in terms of salary. 

Currently, the Election Commissioners are equivalent to Supreme Court judges.

"The salary, allowances and other conditions of service of the Chief Election Commissioner and other Election Commissioners shall be the same as those of the Cabinet Secretary," says Section 15 of the new bill, according to a copy of the bill uploaded by PRS Legislative Research.

The equivalent part of the proposed law, the existing Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, reads: "There shall be paid to the Chief Election Commissioner 2 [and other Election Commissioners] a salary which is equal to the salary of a Judge of the Supreme Court."

The main focus of the bill, however, is not on the salary or the authority of the Election Commissioners but their appointment. The bill states that a committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha, and a nominated minister would appoint persons to the Election Commission. This is in contrast to a suggestion by the Supreme Court that said the Chief Justice of India (CJI) should be on the committee. 

Why is it controversial?

While the salaries would be nearly identical if the bill is passed, the real issue is the downgrading of the authority of the Election Commissioners.

Currently, the orders of the Election Commissioners are seen as coming from a person equivalent to a Supreme Court judge, so they carry weight. But when the Election Commissioners are equated to the Chief Secretary, who are below government ministers in the precedence, the weight of that order would fall.

"Being seen as an equal of the Cabinet Secretary means you are even below an MoS (minister of state) in stature. How do you think that will play out when the Commission tries to discipline a Union minister for violations during an election," said a source to The Indian Express. 

The source further said, "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 former Chief Election Commissioner (CEC) described the downgrading to The Express as "dilution of the authority" of ECI as the changes would equate the ECs with civil servants and the "political class cannot be disciplined by civil servants". Another former CEC, anonymously, told The Express that the independence like SC is needed for Election Commissioners and downgrading is a "wrong message".

"Judges are given an independent stature under the Constitution because they have to decide cases that involve the government, the Prime Minister and Ministers. That kind of independence is needed for the Election Commission too. This is sending the wrong message about the independent character of the EC,” said this former CEC to The Express. 

The Opposition has also criticised the bill and had raised the issue at the all-party meeting held on Sunday ahead of the Special Session of the Parliament.