Appointment of Election Commissioners

Context: Recently, a Constitution Bench of the Supreme Court has ordered that Election Commissioners will be appointed by the President of India on the advice of a Committee consisting of the Prime Minister, and leader of Opposition in the Lok Sabha (or leader of largest opposition party), and the Chief Justice of India.

Background

• Part XV (Article 324-329) of the Indian Constitution: It deals with elections and establishes a commission for these matters.
  • Originally the commission had only one election commissioner but after the Election Commissioner Amendment Act 1989, it was made a multi-member body.
  • Presently, Election Commission of India (ECI) is a three-member body, with a CEC and two ECs.
• Appointment: Article 324(2) of the Constitution, the President is empowered to appoint the CEC and ECs.
  • The Constitution does not lay down a specific legislative process for the appointment of the CEC and ECs.
  • The President makes the appointment on the advice of the Union Council of Ministers headed by the Prime Minister.
• Tenure: They have a fixed tenure of six years, or up to the age of 65 years, whichever is earlier.
  • They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court (SC) of India.
• Removal: CEC can be removed from office only through a process of removal similar to that of a SC judge by Parliament.
  • However, no such protection of tenure is available to the Election Commissioners currently.
• Powers Of Election Commission: Whole election machinery is in the hands of a Central Election Commission, which alone would be entitled to issue directives to returning officers, polling officers and others.
  • Parliament enacted The Representation of the People Act, 1950, and The Representation of the People Act, 1951, to define and enlarge the powers of the Commission.
  • Supreme Court in ‘Mohinder Singh Gill & Anr vs The Chief Election Commissioner, New Delhi and Ors’ (1977) held that Article 324 “operates in areas left unoccupied by legislation and the words ‘superintendence, direction and control’ as well as ‘conduct of all elections’ are the broadest terms”.
  • It said Article 324 “is a plenary provision vesting the whole responsibility for national and State elections” in the ECI “and, therefore, the necessary powers to discharge that function”.
  • Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991: It gave the CEC a status equal to that of a Supreme Court judge, and his retirement age was fixed at 65 years.

Law Commission’s 255th Report

• It suggested a collegium to improve appointments, consisting of the Prime Minister, the Leader of the Opposition and the Chief Justice of India for the appointment of the Election Commissioners.

Second Administrative Reforms Commission

• Collegium headed by the Prime Minister and comprising the Lok Sabha Speaker, the Leader of the Opposition in the Lok Sabha, the Law Minister and the Deputy Chairperson of the Rajya Sabha be formed to make recommendations to the President regarding appointments of the CEC and ECs.

Highlight of Judgment

• Collegium Committee: Chief Election Commissioner (CEC) and the two Election Commissioners (EC) that make up the ECI should be appointed on the advice of a committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India.
  • In case of the absence of Leader of Opposition, the leader of the single largest Opposition party will take charge.
  • Arrangement of the committee would remain till Parliament passes a law on the subject.
• Independent Staff: It called for the Election Commission to have an independent secretariat, rule-making powers, an independent budget, and protection from impeachment.
• Financial Independence: Election Commission should draw funds directly from the Consolidated Fund of India, instead of having to go to the Prime Minister’s Officer and the Law Ministry for funds and approvals.
• Safeguard to Election Commissioners: It extend the protection available to the CEC under the first proviso to Article 324(5) to other Election Commissioners.
  • Now, Election Commissioners can be removed only in a manner, like Supreme Court judges.

Constitutional Provisions for ECI

• Part XV (Article 324-329) of the Indian Constitution: It deals with elections and establishes a commission for these matters.
• Article 324: Superintendence, direction and control of elections to be vested in an Election Commission.
• Article 325: No person to be ineligible for inclusion in, or to claim to be included in a special, electoral roll-on grounds of religion, race, caste or sex.
• Article 326: Elections to the House of the People and to the Legislative Assemblies of States to be based on adult suffrage.
• Article 327: Power of Parliament to make provision with respect to elections to Legislatures.
• Article 328: Power of Legislature of a State to make provision with respect to elections to such Legislature.
• Article 329: Bar to interference by courts in electoral matters.

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