While deliberating on the amendments to Article 289 the Constituent Assembly, BR Ambedkar confessed that the probable nomination of an “unfit person” to the post of Election Commissioner of India (ECI) “has given me a great deal of headache,” “one of our greatest headaches” and “it is going to give the House equal degree of headache.” Ironically, such worry tends to be perpetual in the long account of the Commission.

The protracted headache has just intensified in the form of stirring and outrage during and after the passage of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill and the subsequent Act, 2023.
Apprehensions have been raised at various fora and in myriad forms. Nine former Chief Election Commissioners in a letter urged the Prime Minister to reconsider the bill for the reason that the “status downgrade” signals that the CEC and other Election Commissioners are “as good as, and no better than, bureaucrats, thus adversely affecting the perception of their being independent of the bureaucracy.”

The opposition political parties cried foul in Rajya Sabha debates and elsewhere and they questioned the motive and mechanism of the Bill.
Congress party leaders con- tended that the envisaged appointment procedure for the election commissioners is arbi- trary, the intent is malicious, and the result is a disaster. The blatant control of the ruling executive over the appointment would crush the autonomy and independent status of the ECI.

AAP leaders maintained that the Bill defies the verdict of the Supreme Court, violates the basic structure of the Constitution ~ free and fair election and bulldozes the neutrality of the EC1.

The crux of the contestation revolves around the shudder that without the non-partisan and impartial character and role of the ECI, the legitimacy and credibility of the elections will suffer irrevocably, and such an eventuality will flatten the fountainhead of Indian democracy.

However, the amendment Act that succinctly charts out the framework for the appointment of the ECI members by prescribing the eligibility and constitution of two committees is surely commendable.

Though the design is not perfect, one parliamentary enactment has at long last been passed. For over seven decades, parliament remained oblivious to the tenet that if the appointing
power rests exclusively with a singular entity and lacks transparency, the functional autonomy of the ‘integrity institution’ like the ECI gets compromised and executive absolutism pervades.

The quiescence of the Parliament was strange, particularly when Parliament has been
authorised toframe appropriate laws for regu- lating appointment, tenure, service conditions of the ECI members and other election regulating matters.

The Constituent Assembly of India unanimously endowed Parliament with the power to frame laws with the credence that the executive needs to be restrained by parliamentary enactment.

Moreover, for over twenty years, the ECI has been urging for the formulation of comprehensive regulations, inter alia on appointment and equal protection for the members.
The Act of 1991 was the first enactment that dealt with the conditions of service and transac- tion of business but it (1993, 1994 amendments as well) skipped the core issue of appointment.

The legal vacuum for long buttressed the inference that the exercise of the appointing power by the ruling executive has no hindrance or fetter as the Supreme Court alluded to in the Anoop Baranwal vs. Union of India, 2 March 2023 judgement. But the ruling executive remai- ned obsessed with handpicking the ECI members.

Nonetheless, the Act tends not to be an outcome of the government’s own volition but an initiative to wriggle out of the predicament triggered by the Supreme Court verdict in 2023.

The Court suggested a Selection Committee with a minority position of the execu tive in order to fortify the independence of the ECl.Without parliamentary laws, such a selection committee would have been obligatory for the government to follow and that could have hedged the handpicking of favourite members for running the ECI.

One alleged provocation for hastening the Act was the impending vacancy due to the retirement of election commissioner Anup Chandra Pandey in February 2024 a critical appointment just before the ensuing parliamentary elections. Paradoxically, the very strength of the Act has turned out to be its weak point, if not its nemesis. The envisaged appointment process is contested. The bone of contention is the composition of the Selection Committee (SC) which will com- prise the Prime Minister, Leader of Opposition (or largest party) in Lok Sabha and one Cabinet Minister to be nominated by
the PM.

The SC will consider the five-member Panel (or anybody else) forwarded by the Search Committee, pick the candidature by majority decision (not unanimously), and then recommend the name to the President for formal approval.
In the SC the ruling executive will have domineering role and control, particularly when 2:1 membership will obviously afford the government a relative preponderance.
The provision that any vacancy or any other defect in the SC will not invalidate the appointment process does ritualize the membership of the LoP and consolidates the sway of the executive.

Thus, it does not matter if the post of LoP remains vacant (in case of dissolution of Lok Sabha), or the LoP abstains or disagrees with the majority decision. Two permanent members of the executive will seal the deal. Does not the prospect of partisan selection pervade when two of the three members hail from the ruling executive and the decision is taken by majority?

In a broader sense, the PM is the kingpin in the selection process; he, together with his minister protégé, will direct the decision.Tersely, the 2023 Act cleverly codifies the erstwhile usage of executive omnipotence, substantiates the steadfastness of the government not to shed its control and skips all the opaqueness concerning the composition and working of the ECI.

The partisan nature of the SC is not what is acceptable or warranted for the ECI which has the constitutional mandate of preserving and fostering the nucleus of the Indian democratic process.

The government in Parliament argued that the Bill had been brought in on the basis of and in accordance with the direction of the Supreme Court.
This insistence is partially factual. The fivejudge Constitution bench said that in order to allow independence in the functioning of the ECI and to maintain its neutrality, it was impera- tive to shield the appointment of ECI members and the office of the commissioner had to be insulated from executive interference.

The judgement was unequivocal: the appointment must not be overshadowed by even a perception that a ‘yes man’ will decide the fate of democracy and a person who is in a state of obligation or feels indebted to the one who appointed him, fails the nation, and can have no place in the conduct of elections.

Concerned with the contin- uation of the “transient or stopgap arrangement” of leaving the appointments in the hands of the Executive, the time was believed to be ripe for the Court to fill the legislative vacuum.

Accordingly, the Supreme Court suggested a committee consisting of the PM, LoP and Chief Justice of India to recom- mend the candidates to the President.
The Act clearly misses, if not defies, the rationale and spirit of the judgement and discounts the emphatic emphasis on the absence of perception of and connection with the executive.

The reconfiguration of the SC by replacing the Chief Justice with a Cabinet Minister indu- bitably entrenches the hold and sway of the executive.

The writer is former Associate Professor of Political Science, Tufanganj College, Cooch Behar