The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Terms of Office) Bill, 2023 was introduced in the Rajya Sabha in the Monsoon Session. It was mentioned in the pending list of business brought out by the ruling dispensation ahead of the special session of Parliament.
While it is uncertain whether the bill will be taken up in the ongoing session, there is a fierce debate on with regard to the proposed legislation seeking to bring about a “status downgrade” of the CEC and the ECs by bringing their service conditions in sync with that of the Cabinet Secretary while their salaries and other facilities were on par with Supreme Court judges.
The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, which the bill in question seeks to replace, clearly places the CECs and the ECs on par with the Supreme Court judge.
According to the Act, “there shall be paid to the Chief Election Commissioner [and other Election Commissioners] a salary which is equal to the salary of a Judge of the Supreme Court.”
It further says that when the CEC or an EC demits office, he shall be entitled to a pension which is equal to the pension payable to a Judge of the Supreme Court in accordance with the provisions of Part III of the Schedule to the Supreme Court Judges (Conditions of Service) Act,1958 (41 of 1958), as amended from time to time.
Other conditions of service relating to travelling allowance, provision of rent-free residence and exemption from payment of income tax on the value of such rent-free residence, conveyance facilities, sumptuary allowance and medical facilities are also in line with the amenities applicable to Supreme Court judges.
The bill, on the other hand, states that the salary, allowances and other conditions of service of the Chief Election Commissioner (CEC) and other Election Commissioners (EC) shall be the same as those of the Cabinet Secretary.
As per the bill, the CEC and ECs shall be entitled to dearness allowance as may be admissible to Cabinet Secretary.
It states that where the CEC or an EC had retired from the service of the Central Government or a State Government prior to appointment as such, the aggregate period for which the encashment of unutilised earned leave he shall be entitled, shall be subject to a maximum period as admissible to the Cabinet Secretary.
It further states: “Save as otherwise provided in this Act, the conditions of service relating to travelling allowance, medical facilities, leave travel concession, conveyance facilities, and such other conditions of service as are, for the time being, applicable to the Cabinet Secretary, shall be applicable to the Chief Election Commissioner and other Election Commissioners.”
However, the provisions with regard to salary, allowances and other conditions of service of the CEC and other ECs will not apply to the present CEC and ECs.
Critics say the change in the service conditions amount to an erosion of the authority of the CEC and the ECs because their status will now be equivalent not to a Supreme Court judge but to a bureaucrat.
Their argument is that the downgrading of the status of the CEC and ECs will undermine the authority that they wield on account of being constitutional functionaries and it will prove detrimental in their functioning, especially when it comes to taking action against politicians.
Nine former CECs have written to Prime Minister Narendra Modi, saying that the status downgrade would convey that the CEC and the ECs are “as good as, and no better than, bureaucrats, thus adversely affecting the perception of their being independent of the bureaucracy.”
The “status downgrade” is significant, it is pointed out by the critics, since the search committee that will prepare a panel of persons for consideration for appointment as CEC and ECs will be headed by the Cabinet Secretary.
Critics also say that the reason behind the CEC and the ECs having the same status as Supreme Court judges with regard to their service conditions is to bring this aspect of their office in keeping with Article 324 of the Constitution, under which the CEC can only be removed from his office in a manner similar to that of a Supreme Court judge. The bill states that the provisions under Article 324 will continue to be in operation.
The government's argument is that the position of the CEC and the ECs in the Table of Precedence remains the same, where they are on par with the Supreme Court judges. They are at order 9A, with Supreme Court judges figuring at number 9.
However, the counter to this is that the Table of Precedence will not come into play in the functioning of the Commission, where the change in service conditions will establish the perception of erosion of authority of the CEC and ECs.
