The Chief Election Commissioner and other Election Commissioners Bill, 2023 – introduced in the Rajya Sabha a day before the Monsoon session ended – expectedly seeks to restore the executive prerogative in selecting the top rung of the Election Commission of India.

For all practical purposes, the bill seeks to retain the pre-March status quo with regards to the powers of the incumbent government over the appointments of the chief election commissioner and other election commissioners in the ECI. The move, however, has come with fine print that may have been overlooked.

While the media attention and commentary has been directed to the backdrop of this proposed legislation. It has been seen, and for good reason, as a bill aimed at undoing the effect of a Supreme Court verdict in March. The order had stated that until the Parliament enacts a new law, a three-member panel headed by the Prime Minister, the Leader of the Opposition and the Chief Justice of India will select the chief election commissioner and two election commissioners.

The apex court had said that the panel will be in existence until the Parliament brings a law to establish a system for the appointments. Five months later, the government’s bill seeks to fill the legislative vacuum the apex court had cited as reason to propose the selection panel.

In no uncertain terms, the government saw the Supreme Court-formulated panel as judicial overreach. Predictably, the bill is reclaiming the government’s discretion in the matter by bringing a legislation that Article 324 (2) of the Indian constitution entrusts with the Parliament. The proposed law retains the Prime Minister and the Leader of the Opposition as members of the selection committee, but replaces the CJI with a cabinet minister as member of the panel, giving the government the major say in the decision-making. 

But, beyond this expected reordering of the selection committee, it’s the subtext of the search committee and the five candidates that it has been mandated to shortlist, which is interesting. It tells that the top-notch bureaucracy has now attempted to codify its conventional hold on the turf. 

The bill proposes a search committee headed by the cabinet secretary, generally one of the senior-most Indian Administrative Service officers, and two other members not below the rank of secretary to the government, to shortlist five candidates for the consideration of the three-member selection committee headed by the PM. If one reads the eligibility prescribed for candidature, it will be clear that it aims at keeping the pool restricted to the top-rung bureaucracy, particularly the IAS.

In stating the qualifications of those who are to be considered for key ECI offices, the bill says that the candidates will be amongst those “holding or have held a post equivalent to the rank of secretary” and someone with knowledge of and experience in “management and conduct of elections”.

In mandating that the official must be of the rank of secretary to be eligible for the position, the bill has restricted the appointment to only a few top civil services officials. More significantly, by mentioning the need for experience in “management and conduct of elections” as a condition, the inclination towards the IAS is clear. 

As a matter of practice, it isn’t new. From the beginning of India’s post- Independence journey, the senior IAS brass has steered and headed the commission- from India’s first CEC Sukumar Sen, belonging to the ICS, the British period predecessor of the IAS, to the current and 25th CEC Rajeev Kumar. This has seen only a few exceptions: the 13th CEC TS Krishnamurthi and 24th CEC Sushil Chandra, both from Indian Revenue Service. 

The reasoning for the IAS holding the top positions in the ECI isn’t far to seek. It isn’t only about the IAS lobby leveraging its presence in the power corridors to grab a wide range of key roles for the service, it also fits into the eligibility that was earlier implied, but now has been explicitly stated in the bill. There is no other among the top rung civil services that matches its exposure to, and experience, in the management and conduct of polls.

From the responsibility of conducting polls as district magistrate and returning officers in EC, grasping the paraphernalia as poll observers in different states, to later overseeing the broader frame as secretaries, the IAS’ dynamic job profile is seen as suitable for the role. 

The other service which can claim some exposure to “conducting and managing polls” is the IPS, though that’s limited to the law and order part – not comparable to the wider set of responsibilities that IAS officers hold during the electoral process. This is why former CEC SY Qureshi has termed the codification of the qualification part, which was till now an unwritten convention, an important step.

“Earlier, there was no rule prescribing the qualifications for appointment to the posts, which was a major matter of concern with the risk of appointment from some other catchment area,” Quershi observed. 

Second, there is one possibility to which the IAS fraternity will still be exploring its response. The provision that the selection committee can even choose anyone other than the five candidates shortlisted by the search committee. It will be carefully watched. Ideally, this isn’t what the cabinet secretary-led panel would want. But, if such a situation arises, the key question will be: will the eligibility conditions for the shortlisted five be relaxed for the ‘other’ choice?  The higher bureaucracy wouldn’t be pleased if there is any tinkering with the qualification clause, and if eligibility is unaltered in such a situation too, the ‘other’ would also be within the famed steel frame. 

Third, the provision about shielding the other ECs from removal. The protection that was earlier for the CEC only, brings more substantive parity within the top three of the body. This may help in putting to rest an unnecessary irritant, which even after the resolution of the legal battle about the status of CEC vis-a-vis ECs in the 90s could rear its head anytime. 

In codifying what was always a matter of practice, namely the hold of the top-rung civil service, mainly that of the IAS, in steering and heading the commission, the ECI Bill has identified the pool from which our apex poll administrators will be drawn. In the process, the IAS seems to have secured one more turf itself which informally had mostly belonged to it. Given their wide ranging experience in electoral supervision, there is little to argue against the tilt towards the IAS babus for governing how India votes.