4 min readNew DelhiAug 11, 2023 11:47 AM IST
First published on: Aug 10, 2023 at 01:23 PM IST
With the view of overturning the effect of the Supreme Court verdict on the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs), a Bill was listed to be introduced in the Rajya Sabha on Thursday (August 10).
The Centre’s Bill seeks to establish a committee of the Prime Minister, the Leader of Opposition in the Lok Sabha and a Cabinet Minister nominated by the PM for selecting members of the Election Commission of India (ECI).
What was the SC ruling?
On March 2, a five-judge bench of the Supreme Court unanimously ruled that a high-power committee consisting of the Prime Minister, Leader of Opposition in Lok Sabha, and the Chief Justice of India must pick the CEC and ECs.
The judgement by a bench led by Justice KM Joseph came in a 2015 public interest litigation, challenging the constitutional validity of the practice of the Centre-appointed members of the Election Commission. In 2018, a two-judge bench of the SC referred the case to a larger bench since it required a close examination of Article 324 of the Constitution, which deals with the role of a Chief Election Commissioner.
Article 324(2) reads: “The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time-to-time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.”
However, since there was no law made by Parliament as prescribed by the Constitution, the Court stepped in to fill the “constitutional vacuum.”
The Court went through the debates of the Constituent Assembly to conclude that the Founding Fathers “did not intend the executive exclusively calling the shots in the matter of appointments to the Election Commission.”
The Bill now seeks to address this vacuum and set up a legislative process to make appointments to the EC.
What is a new process under the Bill?
Currently, the Law Minister suggests a pool of suitable candidates to the Prime Minister for consideration. The President makes the appointment on the advice of the PM.
As per the Bill, a Search Committee headed by the Cabinet Secretary and comprising two other members, not below the rank of Secretary to the government, having knowledge and experience in matters relating to elections, shall prepare a panel of five persons who can be considered for appointment.
Then, as per the Bill, a Selection Committee consisting of the Prime Minister, the Leader of Opposition in the Lok Sabha, and a Union Cabinet Minister to be nominated by the Prime Minister will appoint the CEC and other ECs.
Can the Parliament undo a decision of the Supreme Court?
Parliament has the power to nullify the effect of a Court ruling by addressing the concerns flagged in the judgement. The law cannot simply be contradictory to the ruling.
In this case, the arrangement prescribed by the Supreme Court was specifically because the Court noted that there was a “legislative vacuum.” Filling that vacuum is well within the purview of the Parliament.
However, the idea of an independent body that conducts elections permeates through the judgement. The Court repeatedly stated that to be the objective of the framers of the Constitution.
The composition of the Selection Committee in the Bill raises questions on whether the process is now independent or still rigged in favour of the Executive. With the PM and a Cabinet Minster nominated by the PM in the three-member panel, the LoP is outvoted even before the process begins.
Earlier on March 2, a five-judge bench of the Supreme Court unanimously ruled that a high-power committee consisting of the Prime Minister, Leader of Opposition in Lok Sabha, and the Chief Justice of India must pick the CEC and ECs. (Express photo by Prem Nath Pandey) 
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