Rahul Gandhi warns election commission of ‘retrospective’ action: controversial 2023 law he was referring to

Amending 1991 law

The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act was passed in Parliament and notified as law in December 2023.

The legislation was meant to update what Law Minister Arjun Ram Meghwal described in Parliament as a “half-baked” 1991 law regarding the ECI. It provided for the appointment, salary, and removal of the Chief Election Commissioner (CEC) and Election Commissioners (ECs).

Appointment process

The law states that the CEC and ECs will be appointed by the President, based on the recommendation of a Selection Committee comprising the Prime Minister, a Union Cabinet Minister, and the LoP in Lok Sabha. Recommendations of this Selection Committee will be valid even when there is a vacancy in this Committee.

The appointment process for the CEC and ECs drew heavy criticism from the Opposition and civil society voices, who said that it effectively allows the Executive to monopolise control over the ECI.

Traditionally, the CEC had been succeeded by the next senior-most EC. In March 2023, before the Centre introduced the controversial Bill in Rajya Sabha, the Supreme Court had noted that the ECI should be independent of Executive control, and directed that appointments should be made on the basis of a Selection Committee that will comprise the PM, the LoP and the Chief Justice of India.

But when the Bill was introduced, the Law Ministry had replaced the CEC with another Union Cabinet Member in the Selection Committee. Rahul Gandhi referred to this change on Tuesday.

“Why is it that the CJI was removed from the selection panel of the ECI? I am there, but I have no voice in the room… Why is the Prime Minister and (Home Minister) Amit Shah so keen on choosing exactly who the election commissioner is going to be?” he said.

Immunity for CEC, ECs

Section 16 of the Act states: “Notwithstanding anything contained in any other law for the time being in force, no Court shall entertain or continue any civil or criminal proceedings against any person who is or was a CEC or an EC for any act, thing or word, committed, done or spoken by him when, or in the course of acting or purporting to act in the discharge of his official duty or function.”

This effectively provides legal immunity for CEC and ECs for actions committed while in office. This too was flagged by Rahul Gandhi in his speech on Tuesday.

“They (CEC and ECs) are under the impression that this law will allow them to get away but that is not the case as we will change the law and do it retroactively,” he said.

ECI vs Opposition

In recent months, the Opposition has frequently accused the ECI of allowing or facilitating electoral manipulation in favour of the ruling dispensation. The INDIA bloc has made allegations of massive electoral fraud pertaining to the 2024 Lok Sabha polls, and a number of state elections, including in Haryana, Maharashtra, and Bihar.

The ECI has dismissed these allegations as “baseless and invalid”. But its responses — or the lack thereof — have not satisfied the Opposition. In August, the INDIA bloc mulled moving a motion to remove CEC Gyanesh Kumar.