In the bad old days, cricket umpires were hand-picked by the host side—which led to all sorts of bad decisions and hard feelings. We’ve long changed these absurd rules for the game—but not for our elections—which arguably matter more. Here’s a quick guide to the Election Commission bill—aimed at giving any ruling party a free hand in rigging the refs.
Umm, I’m a bit hazy on the Election Commission…
Article 324 of the Indian Constitution lays out the details of the Election Commission of India—which is charged with ensuring free and fair elections. It consists of three members—one Chief Election Commissioner and two other commissioners. They are appointed—on paper—for a period of six years. The Commissioners cannot be removed from office except by impeachment by the Parliament. This legal immunity presumably makes them more likely to remain independent—without fears of reprisal.
What the EC does: First established in 1950, the commission has a number of critical duties:
- Supervise and control the entire electoral process for parliament and state legislatures—and the offices of president and vice president.
- Prepare and maintain electoral roles of eligible voters.
- Determine the territorial area of constituencies.
- Notify election dates and schedules.
- Verify nomination papers of candidates.
- Grant recognition to a political party and allocate their election symbols.
- Advise on the disqualification of members of Parliament and state Assemblies.
- Issue and enforce the Code of Model Conduct—to ensure that no party violates the rules—especially the one in power.
In other words, the ECI governs every area that is core to being a representative democracy.
The big loophole: The framers of the Constitution laid out provisions for an Election Commission—but did not specify how the commissioners will be selected. It merely said that the process will be determined by laws passed by Parliament. Thanks to this gap, no law was ever made to ensure an independent election process. It has instead been entirely controlled by the ruling party. The union government proposes its candidates—and they’re dutifully confirmed by the President.
Key point to note: Until 1989, there was only a single Chief Election Commissioner—who had sweeping powers. Worried about the CEC at the time—R V S Peri Sastri—Rajiv Gandhi arbitrarily added two more commissioners—to overrule him in case of a tie. The incoming VP Singh government undid the move—but it was put back in place in 1993. This time, PM Narsimha Rao reinstated a three-member body to keep yet another fiercely independent Chief Commissioner in check: TN Seshan. In other words, membership of the Election Commission has long been subject to the whims of the government.
Ok, so why the big fuss now?
Because in March, the Supreme Court delivered a ruling that put in place a new selection process—and set the cat among the pigeons.
The case: A Public Interest Litigation filed in 2015 asked the Supreme Court to issue directions to set up an independent, collegium-like system to select members. In March 2023, the five-judge constitutional bench finally issued a ruling.
The ruling: The Court noted that for 73 years—since the adoption of the Constitution—the Parliament has not made any law to ensure the selection of an independent EC. In allowing the ruling party to call all the shots, the Parliament has failed to fulfil the original intent of the framers:
The Founding Fathers clearly contemplated a law by Parliament and did not intend the executive exclusively calling the shots in the matter of appointments to the Election Commission. Seven decades have passed by. Political dispensations of varying hues, which have held the reigns of power have not unnaturally introduced a law. A law could not be one to perpetuate what is already permitted namely appointment at the absolute and sole discretion of the Executive.
Therefore, the Supreme Court proposed a new selection process—that reflected the framers’ intent to establish a fully independent EC.
The new rules of selection: The commissioners will be picked by a selection committee. It will have three members: the Prime Minister, the Chief Justice of India (CJI) and the Leader of the Opposition or the largest Opposition party in the Lok Sabha. But the ruling also made clear that these directions are a short-term fix. It will only remain in place until Parliament passes a law.
Point to note: The Court ruling was squarely aimed at ensuring an independent Election Commission—freeing it from the clutches of any ruling party. The justices underlined the fact that it was the original intent of the framers.
I assume Parliament is finally passing a law…
Yes, but it is unlikely to make either our Founding Fathers or the Supreme Court happy.
The new, new selection process: works something like this. The Law Ministry will constitute a search committee—and identify five likely candidates. The final decision will be made by a three-person selection committee—made up of the Prime Minister, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister to be nominated by the Prime Minister. Kicked out of the picture: the Chief Justice of India—who presumably would have been the neutral member—not subject to the influence of any political party.
The final result: Since the majority wins in a three-person commission—so will the ruling party—which now gets two votes. In sum, the bill sets up a hilariously convoluted process that does exactly what ruling parties have always done.
A key point to note: The bill turns the Supreme Court ruling on its head, as legal experts point out:
The verdict by no means gave the government a free pass to overturn the entire judgement - all it said was, until you bring in a law to this effect, we are doing it for you. But that doesn’t mean the executive throws away all the principles that the judgement is based on.
The bottomline: Governments—with the right authoritarian bent—have been able to easily bend the EC to its will. See: the Emergency era. Over the past decade, we’ve seen a similar slide toward the BJP. The commission has been accused of giving hate speech a pass, scheduling elections to suit the party’s needs, turning a blind eye to the misuse of government resources to woo voters etc etc. We hardly need its hold over the commissioners written in stone—right before a national election.
Reading list
The Hindu offers the best overview of the bill—while PRS India has the details. Indian Express has more on the Supreme Court ruling—and how previous governments have messed with the EC. The Quint, The Wire and Deccan Herald offer detailed critiques.
