New Delhi: A new clause inserted in the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 that was passed in Rajya Sabha Tuesday amidst massive protests from the opposition benches, grants immunity to the CEC and the ECs — both serving as well as former — from any civil or criminal proceedings for their action — ‘thing or word committed, done or spoken’ — in discharging official duty or functions.
It extends the protection to the CEC and the ECs even post retirement.
The move, a number of former ECs who did not want to be named said, will “further strengthen” the functioning of the ECI in discharge of its duties in an independent, impartial and effective manner.
The bill, passed through a voice vote, seeks to negate a Supreme Court verdict on the selection in the Commission by replacing the Chief Justice of India (CJI) in the panel with a Cabinet minister to be nominated by the Prime Minister, thus giving greater say to the executive in such appointments.
In its March 2023 order, the Supreme Court had said the selection should be made by the President on the advice of a panel headed by the PM, and comprising the Leader of the Opposition in the Lok Sabha and the CJI.
Opposition parties including Congress, Trinamool Congress, Dravida Munnetra Kazhagam, Aam Aadmi Party, Nationalist Congress Party, Shiv Sena (UBT), Communist Party of India, Samajwadi Party, Janata Dal (United), Jharkhand Mukti Morcha opposed the bill with comments ranging from “worse than emergency” to the bill being “against the very spirit of constitution”.
However, the AIADMK, the YSRCP and the Biju Janata Dal — the three opposition parties friendly to the ruling party — supported the bill.
Congress MP Randeep Singh Surjewala said that the intent of the bill is “malicious and the result is disastrous.” “Our democracy is above the ruling regime. The Constitution cannot be subjugated, bulldozed, or trampled upon by the BJP government. We are defenders of the Constitution of India, and we will continue to do so,” he said, while speaking on the bill.
With opposition members quoting from the Supreme Court’s judgment on EC appointments and citing how the government is circumventing it, Rajya Sabha Chairman Jagdeep Dhankhar said that Parliament is the supreme body when it comes to law-making.
“We cannot suffer the interventions of any other organ, be it the executive or the judiciary. Reflections in the Supreme Court judgment are not binding on Parliament. There cannot be any interference from any other entity, be it the executive or the judiciary, on law-making,” he said.
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Procedure to remove CEC will same as removal of SC judge
In the bill passed by the Rajya Sabha, the government has also proposed an amendment for removal of CEC. Laying down the procedure for the removal, the bill says that the CEC shall not be removed from his office “except in like manner and on the like grounds”, as in the case of a Supreme Court judge. The ECs, on the other hand, shall not be removed from office except on the recommendation of the CEC.
The original bill had said that both the CEC and ECs shall not be removed except in accordance with the provisions contained in clause (5) of Article 324 of the Constitution, which says the removal process has to be similar to that of a Supreme Court judge. However, the amendment prescribes a separate procedure for the removal of EC.
Currently, the CEC and the election commissioners are appointed by the President on aid and advice of the Council of Ministers. The judiciary does not have any say in the appointments.
Law minister to head search panel to shortlist candidates
The amendments include replacing the cabinet secretary with the Union law minister in the search committee appointed to select the CEC and ECs. The two other panel members will be bureaucrats not below the rank of secretary to the Union government.
In the original bill, the search committee was to be headed by the cabinet secretary and two secretaries. It will prepare a list of five people, who will then be considered for selection by the PM-chaired committee.
Salary & other perks of CEC and ECs
The government has also amended the salary of CEC and ECs and made it equal to the salary of a Supreme Court judge. In the original bill, introduced on 10 August, the salary was equivalent to the cabinet secretary.
Besides, the dearness allowance (DA) will also be “in accordance with the rules for the time being applicable to the service to which he belonged before their appointment as CEC or an EC.” In the original bill, the DA that CEC and ECs were entitled too was the same as the cabinet secretary.
Also, in the amended bill, the President will determine the condition of service related to travelling allowance, medical facilities, leave travel allowance, conveyance facilities and any such condition of service relating to CEC and ECs.
In the original bill, the entitlements of CEC and ECs were same as that of the cabinet secretary.
(Edited by Tony Rai)
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