Background: Why Was This Law Needed?
India’s Election Commission is the constitutional body responsible for overseeing free and fair elections across the country. Until now, the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) was governed by the older Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. The 2023 Bill repeals that older law and replaces it with a more structured, transparent framework — largely in response to a Supreme Court ruling calling for a clearer selection process.
How Will Election Commissioners Be Appointed?
The new law introduces a two-tier selection process to bring more transparency to appointments.
First, a Search Committee — headed by the Union Law Minister and two senior bureaucrats of Secretary rank — shortlists a panel of five candidates. From that panel (though not limited to it), a Selection Committee then makes the final recommendation to the President.
The Selection Committee consists of:
- The Prime Minister (Chairperson)
- The Leader of Opposition in the Lok Sabha (Member)
- A Union Cabinet Minister nominated by the Prime Minister (Member)
The President formally appoints the CEC and ECs based on this recommendation. Crucially, the Selection Committee retains the right to consider names beyond those on the shortlisted panel.
Who Is Eligible?
Candidates must have held — or currently hold — a post equivalent to Secretary to the Government of India. Beyond rank, they must demonstrate integrity and have knowledge and experience in managing and conducting elections.
Term of Office
Each Commissioner serves for a six-year term, or until they turn 65 years of age, whichever comes first. There is no re-appointment. If an Election Commissioner is elevated to Chief Election Commissioner, the combined total tenure across both roles cannot exceed six years.
Pay and Benefits
The CEC and ECs will be paid a salary equivalent to that of a Supreme Court Judge. They are also entitled to dearness allowance on par with Supreme Court Judges and can encash up to 50% of their earned leave at the end of their tenure. Serving officials who move to these roles are deemed to have retired from their previous service upon appointment, and may draw pension from that date if they choose.
Importantly, the Bill protects existing officials: those already serving cannot have their pay or benefits reduced by the new law.
Resignation and Removal
Any Commissioner may resign by writing to the President. The Chief Election Commissioner can only be removed in the same manner as a Supreme Court Judge — a very high bar, requiring a motion passed by a special majority in both Houses of Parliament. Other Election Commissioners cannot be removed without a recommendation from the Chief Election Commissioner.
Legal Protection
The Bill grants immunity from civil and criminal proceedings to sitting and former Commissioners for acts done in the discharge of their official duties. This is intended to insulate them from legal harassment while performing their constitutional functions.
How Decisions Are Made
The Election Commission is expected to work by unanimous agreement wherever possible. If the CEC and ECs disagree on a matter, the decision falls to the majority opinion.
Why Does This Matter?
The Election Commission is the guardian of India’s democratic process. The composition of the Selection Committee — and in particular, whether the inclusion of the Chief Justice of India (as directed by the Supreme Court in 2023) is reflected here — has been a subject of significant political and legal debate.
Critics have argued that a committee dominated by the ruling government undermines the independence of the appointment process, while supporters say the involvement of the Leader of Opposition provides a meaningful check. The law as passed does not include the Chief Justice of India in the Selection Committee, departing from the Supreme Court’s direction.
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Steve Ovett, the famous British middle-distance athlete, won the 800-metres gold medal at the Moscow Olympics of 1980. Just a few days later, he was about to win a 5,000-metres race at London’s Crystal Palace. Known for his burst of acceleration on the home stretch, he had supreme confidence in his ability to out-sprint rivals. With the final 100 metres remaining,
[wptelegram-join-channel link=”https://t.me/s/upsctree” text=”Join @upsctree on Telegram”]Ovett waved to the crowd and raised a hand in triumph. But he had celebrated a bit too early. At the finishing line, Ireland’s John Treacy edged past Ovett. For those few moments, Ovett had lost his sense of reality and ignored the possibility of a negative event.
This analogy works well for the India story and our policy failures , including during the ongoing covid pandemic. While we have never been as well prepared or had significant successes in terms of growth stability as Ovett did in his illustrious running career, we tend to celebrate too early. Indeed, we have done so many times before.
It is as if we’re convinced that India is destined for greater heights, come what may, and so we never run through the finish line. Do we and our policymakers suffer from a collective optimism bias, which, as the Nobel Prize winner Daniel Kahneman once wrote, “may well be the most significant of the cognitive biases”? The optimism bias arises from mistaken beliefs which form expectations that are better than the reality. It makes us underestimate chances of a negative outcome and ignore warnings repeatedly.
The Indian economy had a dream run for five years from 2003-04 to 2007-08, with an average annual growth rate of around 9%. Many believed that India was on its way to clocking consistent double-digit growth and comparisons with China were rife. It was conveniently overlooked that this output expansion had come mainly came from a few sectors: automobiles, telecom and business services.
Indians were made to believe that we could sprint without high-quality education, healthcare, infrastructure or banking sectors, which form the backbone of any stable economy. The plan was to build them as we went along, but then in the euphoria of short-term success, it got lost.
India’s exports of goods grew from $20 billion in 1990-91 to over $310 billion in 2019-20. Looking at these absolute figures it would seem as if India has arrived on the world stage. However, India’s share of global trade has moved up only marginally. Even now, the country accounts for less than 2% of the world’s goods exports.
More importantly, hidden behind this performance was the role played by one sector that should have never made it to India’s list of exports—refined petroleum. The share of refined petroleum exports in India’s goods exports increased from 1.4% in 1996-97 to over 18% in 2011-12.
An import-intensive sector with low labour intensity, exports of refined petroleum zoomed because of the then policy regime of a retail price ceiling on petroleum products in the domestic market. While we have done well in the export of services, our share is still less than 4% of world exports.
India seemed to emerge from the 2008 global financial crisis relatively unscathed. But, a temporary demand push had played a role in the revival—the incomes of many households, both rural and urban, had shot up. Fiscal stimulus to the rural economy and implementation of the Sixth Pay Commission scales had led to the salaries of around 20% of organized-sector employees jumping up. We celebrated, but once again, neither did we resolve the crisis brewing elsewhere in India’s banking sector, nor did we improve our capacity for healthcare or quality education.
Employment saw little economy-wide growth in our boom years. Manufacturing jobs, if anything, shrank. But we continued to celebrate. Youth flocked to low-productivity service-sector jobs, such as those in hotels and restaurants, security and other services. The dependence on such jobs on one hand and high-skilled services on the other was bound to make Indian society more unequal.
And then, there is agriculture, an elephant in the room. If and when farm-sector reforms get implemented, celebrations would once again be premature. The vast majority of India’s farmers have small plots of land, and though these farms are at least as productive as larger ones, net absolute incomes from small plots can only be meagre.
A further rise in farm productivity and consequent increase in supply, if not matched by a demand rise, especially with access to export markets, would result in downward pressure on market prices for farm produce and a further decline in the net incomes of small farmers.
We should learn from what John Treacy did right. He didn’t give up, and pushed for the finish line like it was his only chance at winning. Treacy had years of long-distance practice. The same goes for our economy. A long grind is required to build up its base before we can win and celebrate. And Ovett did not blame anyone for his loss. We play the blame game. Everyone else, right from China and the US to ‘greedy corporates’, seems to be responsible for our failures.
We have lowered absolute poverty levels and had technology-based successes like Aadhaar and digital access to public services. But there are no short cuts to good quality and adequate healthcare and education services. We must remain optimistic but stay firmly away from the optimism bias.
In the end, it is not about how we start, but how we finish. The disastrous second wave of covid and our inability to manage it is a ghastly reminder of this fact.