Analysis of The Hindu Editorial: A Process Where Free and Fair Elections Will Be a Casualty

Analysis of The Hindu Editorial: A Process Where Free and Fair Elections Will Be a Casualty

Published in The Hindu on February 28, 2025

Author: P.D.T. Achary

 Introduction (Context and Background)

• The editorial discusses the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023.
• This bill was enacted following a Supreme Court order (March 2023) that mandated a high-power committee for the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs).
• Earlier, the CEC and ECs were appointed solely on the recommendation of the Prime Minister, which the court found unsatisfactory as it compromised the impartiality of the Election Commission of India (ECI).
• The new law replaces the Chief Justice of India (CJI) with a Cabinet Minister nominated by the Prime Minister, raising concerns about fairness and impartiality.

 Key Arguments and Analysis

(i) Challenges to the New Law

• The law has been challenged as violating the Supreme Court's ruling since it excludes the CJI and instead gives dominance to the ruling government in the selection panel.
• The composition of the selection committee is now:
• Prime Minister (Chairperson)
• Leader of the Opposition (LoP)
• Cabinet Minister (Nominated by PM)
  This creates a built-in majority for the government, making the process non-neutral.

(ii) Selection Process and Its Infirmities

• Search Committee: The bill establishes a search committee led by the Law Minister and two senior bureaucrats, who shortlist five candidates for the selection panel to consider.
• Predictable Selection: The Prime Minister and the Cabinet Minister together form a majority, ensuring that the government-backed candidate is always selected.
• Dissent from the Opposition: The LoP expressed dissent, arguing that selection should be postponed until the Supreme Court reviews the law.

(iii) Constitutional Concerns

• Article 324: The Election Commission of India (ECI) is constitutionally responsible for conducting free and fair elections under Article 324.
• Article 14 (Equality Before Law): The law violates Article 14 as it arbitrarily creates an advantage for the ruling party, removing the possibility of a fair and merit-based selection.
• Basic Structure Doctrine: The editorial argues that free and fair elections are a part of the basic structure of the Constitution, and this law compromises that fundamental principle.
• Judicial Precedents: Refers to the case Election Commission of India vs. State of Tamil Nadu (1993), which emphasized the plenary powers of the Election Commission to ensure the purity of the electoral process.

(iv) Impact on Electoral Democracy

• The selection committee lacks independence, favoring the executive.
• The Prime Minister’s control over nominations weakens impartiality.
• The credibility of elections is at risk as the CEC and ECs must be impartial to uphold democratic values.
• The law weakens public trust in the electoral process and could lead to biased election oversight.

 Conclusion and Way Forward

• Judicial Review Needed: The Supreme Court must closely examine the law and uphold constitutional principles.
• Ensuring Independence: The selection process should involve independent members rather than government-appointed officials.
• Maintaining Electoral Integrity: Without a neutral Election Commission, democracy could be undermined.
• Future Implications: If the law remains unchanged, it may set a precedent for future erosion of independent institutions.

Relevance for Competitive Exams

This editorial is crucial for UPSC, SSC, and other government exams under topics such as:

1.     Indian Polity (Election Commission of India, Article 324)

2.     Constitutional Law (Article 14, Basic Structure Doctrine)

3.     Separation of Powers (Judiciary vs. Executive)

4.     Governance and Electoral Reforms

5.     Current Affairs (Recent Legislation and Supreme Court Cases)

An Alternative View: A Step Toward Institutional Reforms

The editorial strongly criticizes the CEC and ECs appointment law, arguing that it creates an inherent bias in favor of the ruling government. However, another perspective considers this reform as a step toward institutionalizing the selection process, replacing the earlier informal and opaque method with a structured legal framework.

1. The Law Brings Legislative Clarity

Previously, the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) was done at the discretion of the Executive (Prime Minister’s recommendation to the President), without any parliamentary law governing the process. The Supreme Court, in its March 2023 judgment, directed that a temporary mechanism be put in place, involving the PM, LoP, and CJI in the selection panel. However, the Constitution allows Parliament to legislate on this matter (Article 324(5)), which the new law does. Instead of executive discretion, it brings a clear legal framework that can be debated, amended, and refined over time.

2. Selection Committee Reflects Political Reality

The primary criticism is that the selection committee—comprising the PM, LoP, and a cabinet minister nominated by the PM—ensures a government-backed majority. However, this structure mirrors India’s parliamentary system, where the government, having a majority in the legislature, plays a major role in key appointments. In democracies worldwide, such executive dominance in appointments is not uncommon. For instance, in the United States, the President appoints Supreme Court judges, subject to legislative approval.

Thus, while the law creates a majority for the ruling government in the selection process, it does not deviate from established practices in other democracies. The inclusion of the Leader of the Opposition (LoP) ensures that the process remains consultative, even if not fully bipartisan.

3. Executive Oversight is Necessary for Accountability

The Election Commission is a constitutional body, but it is not completely independent of democratic accountability. Unlike the Judiciary, which has strict separation from the Executive, constitutional bodies like the Election Commission interact closely with the government during elections. Therefore, having some level of executive involvement in its appointments ensures that the institution remains aligned with democratic governance rather than operating in complete isolation.

Moreover, critics argue that judicial involvement (as suggested by the Supreme Court’s earlier ruling) may blur the separation of powers. Judicial presence in executive appointments raises concerns about judicial overreach, as courts are meant to interpret laws rather than participate in administrative functions.

4. Independence of the Election Commission is Defined by Its Actions, Not Just Appointments

A common concern is that a government-backed selection committee may lead to politically biased appointments, threatening free and fair elections. However, historical evidence suggests that past Chief Election Commissioners (CECs) have maintained autonomy, even when appointed solely on the Prime Minister’s recommendation.

For example:

• T.N. Seshan (1990-96): Though appointed by the government, he took strong measures to curb electoral malpractices.
• S.Y. Quraishi (2010-12): Implemented major electoral reforms despite being selected through the previous appointment system.

Thus, the independence of the Election Commission is determined by the individuals who hold office, their integrity, and the institutional safeguards in place, rather than just the selection process.

5. Future Reforms Can Strengthen the Process Further

While the law is not without flaws, it provides a foundation for future improvements. Some possible reforms include:

• Making the Search Committee’s recommendations public to enhance transparency.
• Introducing a confirmation process (like parliamentary hearings) for the final selection.
• Rotational selection committees to ensure fairness over successive governments.

Rather than rejecting the law outright, a more balanced approach would be to work toward refining it.

Conclusion: A Step Forward, Not a Step Back

While concerns about government dominance in the selection process are valid, the law institutionalizes what was previously an ad hoc process, making it more transparent and structured. The focus should be on ensuring strong institutional norms and improving the selection criteria, rather than assuming that executive involvement automatically undermines free and fair elections.

Ultimately, free and fair elections depend on multiple factors, including voter awareness, judicial oversight, media scrutiny, and civic participation—not just the appointment process of the Election Commission.

Brief Explanations on articles mentioned in the editorial

1. Article 324 (Superintendence, Direction, and Control of Elections)

• Empowers the Election Commission of India (ECI) to conduct free and fair elections to Parliament, State Legislatures, and the offices of the President and Vice President.
• Grants plenary powers to ensure the purity of the electoral process.
• The Supreme Court has upheld that the ECI must function independently and remain free from executive interference.

2. Article 14 (Right to Equality)

• Ensures equality before law and equal protection of laws for all citizens.
• Prohibits arbitrary and discriminatory state actions.
• Judicial Interpretation: Any law or executive action favoring one group over another arbitrarily can be struck down as unconstitutional under Article 14.

3. Separation of Powers

• The Indian Constitution divides power among the Legislature, Executive, and Judiciary to prevent the concentration of authority.
• Ensures checks and balances so that no organ of the government oversteps its role.
• The judiciary can review laws to ensure they do not violate constitutional principles (Judicial Review).

4. Electoral Reforms

• Aim to strengthen democracy, transparency, and fairness in elections.
• Examples include:
• Introduction of VVPAT & EVMs for voting accuracy.
• Capping election expenditure to curb money power.
• Disclosure of candidate criminal records for informed voting.
• State funding of elections (proposed) to reduce undue corporate influence.
• Independent selection of Election Commissioners to ensure neutrality.

Major Electoral Reforms in India with Years

1. Representation of People Act, 1950 & 1951

• Year: 1950 & 1951
• Key Reform: Established election procedures for Parliament and State Legislatures and qualifications for voters.
• Significance: Defined election conduct, dispute resolution, and disqualifications of candidates.

2. Introduction of Electronic Voting Machines (EVMs) - 1982

• Year: 1982 (First used in Kerala)
• Key Reform: EVMs replaced paper ballots to ensure faster and more transparent elections.
• Significance: Reduced electoral fraud, counting errors, and ballot stuffing.

3. Anti-Defection Law (52nd Amendment) - 1985

• Year: 1985
• Key Reform: Disqualified MPs/MLAs who defected to another party.
• Significance: Reduced political instability caused by party-switching.

4. Lowering of Voting Age (61st Amendment) - 1988

• Year: 1988
• Key Reform: Reduced the voting age from 21 to 18 years.
• Significance: Empowered youth participation in elections.

5. Voter ID Cards Introduced - 1993

• Year: 1993
• Key Reform: Election Commission introduced EPIC (Electors Photo Identity Card) for all voters.
• Significance: Reduced duplicate voting and electoral fraud.

6. Introduction of None of the Above (NOTA) - 2013

• Year: 2013
• Key Reform: Allowed voters to reject all candidates.
• Significance: Gave citizens the right to express dissatisfaction with candidates.

7. Electoral Bonds Introduced - 2018

• Year: 2018
• Key Reform: Allowed anonymous political donations through electoral bonds.
• Significance: Aimed at reducing black money in elections but criticized for lack of transparency.

8. Linking Aadhaar with Voter ID - 2021

• Year: 2021
• Key Reform: Allowed voluntary linking of Aadhaar with Voter ID to prevent duplicate voters.
• Significance: Aimed at cleaning up electoral rolls and reducing bogus voters.

Recent Proposals for Electoral Reforms

• One Nation, One Election (2023) – Proposal for simultaneous Lok Sabha and State Assembly elections.
• State Funding of Elections – Suggested to reduce corporate influence on political parties.
• Compulsory Voting – Discussed as a way to increase voter turnout but not implemented.

·         Additional Resources for Learners (English): 🌐

·         📚 AchieversHunt Foundation Courses:

·         👉 Explore our IAS, NEET, RRB, and Banking foundation courses at https://achievershunt.com/.

·         👉 For exam preparation strategies: https://achievershunt.in/

·         🧠 Quiz Practice (Unlimited Topic-Wise Quizzes):

·         👉 Practice quizzes for every topic at https://www.quiz.achievershunt.com/.

·         Download the Quiz App: https://play.google.com/store/apps/details?id=com.achievershunt.quiz&pcampaignid=web_share

·         📖 E-Books and Study Materials:

·         👉 Download our e-book app for study materials and learning resources: https://play.google.com/store/apps/details?id=com.achievers.books&pcampaignid=web_share