In a significant legislative move, the government introduced a proposed law in the Rajya Sabha that seeks to exclude the Chief Justice of India (CJI) from the panel responsible for appointing the Chief Election Commissioner (CEC) and Election Commissioners (ECs). This comes months after a Supreme Court constitution bench reshaped the selection mechanism.

 The court previously ruled that a panel including the Prime Minister, Leader of the Opposition, and CJI should oversee appointments until a parliamentary law is enacted. The government counters that the CJI's involvement is unnecessary. The proposed law outlines a panel comprising the PM, Lok Sabha's LoP, and a Cabinet minister. The CEC and ECs are appointed by the President, guided by the PM and council of ministers, but with no specific law in place.

The constitution bench said the CJI’s presence can usher in impartiality to a selection process when all governments want “yes men in the poll panel”. The government called it a “fallacious” and “constitutionally impermissible” suggestion that the executive cannot make an honest selection without the help of the judiciary.

Trinamool Congress Rajya Sabha member Sushmita Dev opposed the proposed law saying the CJI should head the collegium. “This bill defies the March 3 order of a five-judge Supreme Court bench. We must insist on CJI heading the selection committee and the PM and Opposition Leader as other members or else CEC may be a puppet,” Dev said.

The bill says CEC and ECs should have held the post equivalent to the secretary to the government of India and “shall be persons of integrity, who have knowledge of and experience in management and conduct of elections”. It says a Cabinet secretary-led search committee with two members not below the rank of secretary “having knowledge and experience in matters relating to elections, shall prepare a panel of five persons” for the posts.

“This [the panel] would then be sent to the Selection Committee chaired by the Prime Minister and including the Leader of Opposition or leader of the single largest Opposition party in the Lok Sabha and a Union Cabinet minister nominated by the PM.”

The bill says the term of the CECs and ECs remained unchanged at six years or until they reach the age of 65 or whichever is earlier. “The salary of the CEC and ECs would be the same as the Cabinet Secretary. 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,” says the bill.

In March, the Supreme Court ruled that the Election Commission of India (ECI) must have an independent secretariat, rule-making authority, and an autonomous budget to ensure its independence. The judgment also equated the removal process of Election Commissioners (ECs) with that of the Chief Election Commissioner (CEC), resembling the impeachment procedure for a constitutional court judge.

This decision aligned the selection of CEC and ECs with the appointment of the Central Bureau of Investigation chief, utilizing a similar collegiums composition.

The court's ruling stemmed from four public interest litigations, which urged the establishment of an impartial selection panel to propose names for CEC and EC appointments to the President. The petitions highlighted Parliament's failure to enact legislation despite the mandate outlined in Article 324(2).

In November of the previous year, a five-judge bench raised concerns over the government's lack of regulations guiding CEC and EC appointments. It questioned whether this oversight contradicted the intentions of the Constitution's framers.

The court indicated its potential review of the necessity for an improved system, citing an "alarming trend" due to the absence of a law governing Election Commissioner (EC) appointments. The government argued that fairness isn't solely guaranteed by the Chief Justice of India's (CJI) involvement in the selection process.

During proceedings, the court directed the government to present the file related to Arun Goel's appointment as an election commissioner, a matter already before the bench. The file was provided on November 24, raising questions about the rapidity and urgency of Goel's appointment.

Inquisitively, the court questioned whether former Union law minister Kiren Rijiju employed any criteria to select Goel from a group of four officers. Notably, Rijiju had criticized the apex court's collegium system for judge selection. The court clarified it wouldn't review the accuracy of Goel's appointment.

Image source: TOI