What's the new bill that wants to keep chief justice out of selection process of poll officers?

The Centre has moved a bill that will exclude the Chief Justice of India from a panel advising the President of India on the appointment of the country’s top poll officers.

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Services and Term of Office) Bill, 2023 was listed in the Rajya Sabha on Thursday.

The move is likely to cause fresh friction between the Centre and the judiciary.

But what does the bill do exactly? And what will it change?

Let’s take a closer look:

What does the bill do?

As per NDTV, the bill proposes that the Chief Election Commissioner (CEC) and other Election Commissioners (ECs) be appointed by the president on the recommendation of a panel comprising the prime minister, Leader of Opposition (LoP) in the Lok Sabha, and a Union Cabinet minister nominated by the prime minister.

The bill further proposes that the CEC and other ECs shall be appointed from among the persons who are holding or have held a post equivalent to the rank of Secretary to the Government of India.

They shall be persons of integrity, who have knowledge of and experience in management and conduct of elections, the bill states.

It also proposes that a search committee headed by the Cabinet Secretary and comprising two other members not below the rank of Secretary to the Government of India, having knowledge and experience in matters relating to elections, shall prepare a panel of five persons for consideration of the Selection Committee, for appointment as the CEC and other ECs.

The bill states that the selection committee will act in a “transparent manner” and may even consider any other person apart from those included panel, as per Indian Express.

“The appointment of Chief Election Commissioner and other Election Commissioners shall not be invalid merely by reason of any vacancy in or any defect in the constitution of the Selection Committee,” the bill states.

What will it change?

The bill, in effect, will dilute a March 2023 Supreme Court judgment.

As per NDTV, the apex court constitution bench ruled that the appointment of Chief Election Commissioners and Election Commissioners shall be done by the president on the advice of a panel comprising the prime minister, Leader of Opposition and the Chief Justice of India.

The bench had ruled on a clutch of petitions calling for the selection process to resemble the procedure followed to appoint the CBI director.

A piece in the Indian Express in March called the unanimous ruling by the five-judge constitution bench – comprising Justice KM Joseph and justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C T Ravikumar – an extremely significant verdict that would ‘change the way in which India’s top election officials are appointed’.

As per Scroll, the Supreme Court in its verdict had stated that the poll panel must be free of any interventions from the executive.

“One of the ways it can interfere is cutting of financial support,” the apex court said in its ruling.

“A vulnerable Election Commission would result in an insidious situation and detract from its efficient functioning.”

The court, noting that no chief election commissioner since 1996 has served a full six-year term, said successive governments had “completely destroyed” the independence of the Election Commission.

The Centre, meanwhile, had claimed that the previous process adhered to the Constitution.

It added that the Election Commission was “working in a free and fair manner,” as per Scroll.

According to Indian Express, the Constitution does not spell out the legislative process for appointing CEC and ECs.

The president makes the appointment on the advice of the Union Council of Ministers headed by the Prime Minister.

The apex court had in March said this law would remain in effect until Parliament passed a law governing the appointment of CEC and ECs.

Why does it matter?

Because this comes as a vacancy is set to arise in the poll panel in February when Election Commissioner Anup Chandra Pandey demits office on attaining the age of 65 years.

As per NDTV, the decision also comes in the backdrop of the Centre and the Supreme Court are already at odds over a slew of issues including the appointment of judges and the Delhi Services Act.

The Centre and Supreme Court also do not agree on issues like the basic structure doctrine – which states that Parliament cannot alter the basic structure of the Constitution.

Opposition criticises bill

The Congress, criticising the bill, called it “another attempt to control important institutions,” as per Business Standard.

Congress MP Sushmita Dev said, “The PM will appoint a Union Cabinet Minister to replace the CJI as a member of the selection committee to recommend a Chief Election Commissioner. The Opposition leader will be a member but is bound to be outnumbered. This is yet another way to control an institution that must be independent.”

Meanwhile, Delhi chief minister Arvind Kejriwal posted on X:

TMC MP Saket Gokhale accused the Centre of attempting to rig the 2024 polls:

Constitutional expert Gautam Bhatia wrote on X: “The bill will formalise executive control over appointments to the election commission (2:1 majority in the selection committee) – further moving towards an executive Constitution.”

Congress MP Manickam Tagore, claimed that Prime Minister Narendra Modi and Home Minister Amit Shah want to control the EC by bringing the bill. “Modi and Shah want to control the EC as they are doing now,” Tagore posted on X.

Congress spokesperson Supriya Shrinate called the Bill a “gimmick” to make the Election Commission a “complete puppet”.

“Why does PM Modi need an election commissioner of his choice?  If this arbitrariness is not unconstitutional and unfair then what is,” Shrinate wrote on X.

With inputs from agencies