1 March 2023

Table of Contents

How are the CEC and ECs appointed, and what has the Supreme Court order changed?

GS-2:Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.

Recently, a Constitution Bench of the Supreme Court, comprising of five judges, unanimously decreed that the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) must be determined by a high-power committee consisting of the Prime Minister, Leader of Opposition in Lok Sabha, and the Chief Justice of India. This ruling is of immense importance as it intends to transform the current procedure of appointing India's top election officials, and could potentially have widespread consequences. The court also specified that this committee's arrangement would continue until Parliament enacts a law on the matter. At present, the central government enjoys complete autonomy in appointing these officials.

How are the CEC and ECs currently appointed?

• Currently, the appointment process for the CEC and ECs is not defined by a specific legislative process in the Indian Constitution.
• The Constitution only provides for the Election Commission, consisting of the CEC and any number of ECs as deemed necessary by the President, to be responsible for the "superintendence, direction and control of elections" under Article 324 (2).
• The President has the authority to appoint the CEC and ECs, but the advice of the Union Council of Ministers, led by the Prime Minister, is taken into consideration during the appointment process.

Election Commission

• The election commission will have the CEC as its chairman if it consists of multiple members. 

• In situations where the chief election commissioner and/or two other election commissioners disagree, the commission will make decisions based on the majority.

Terms and Conditions of Service

• The President decides the terms of service and tenure.
• They receive the same status, salary, and benefits as the Judges of the Supreme Court of India.
• Their tenure lasts for six years or until they reach the age of65, whichever earlier.
• They can choose to resign by sending a letter of resignation to the President, or they may be dismissed before their term is completed.

Process of Removal

• An individual can be ousted from their position based on "proved misbehaviour or incapacity." 
• The president can remove an individual if both Houses of Parliament pass a resolution with a special majority. 

• This requires the support of two-thirds of the members present and voting, as well as over 50% of the total strength of the house.

• The Constitution does not utilize the term "impeachment" to remove the CEC. 

• This term is reserved solely for removing the President. 

• The CEC has the authority to remove an EC or Regional Commissioner from their post.

Powers

• The Constitution of India granted the EC extensive powers without specifying the appointment process.
• The Representation of the People Act, 1950 and 1951 were enacted by Parliament to define and expand the powers of the Commission.
• Article 324 vests the Election Commission with complete responsibility for conducting national and state elections.
• The Supreme Court, in the Mohinder Singh Gill case of 1977, stated that Article 324 provides the Election Commission with the broadest terms of "superintendence, direction, and control" of all elections and that the Constitution has not defined these terms.
• The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, mandates that the CEC and ECs hold their posts for six years and governs their working conditions.

The Evolution of the Election Commission of India as a Multi-Member Body

• Until 1989, the Election Commission of India was a single-member body with only a CEC.
• Prior to the ninth Lok Sabha elections, the government of Rajiv Gandhi expanded the Election Commission by adding two more members, as there was a friction between the government and the then CEC R V S Peri Sastri.
• President R Venkataraman issued a notification creating two positions in the Election Commission, and the government appointed S SDhanoa and V S Seigell to these posts on October 16, 1989.
• However, the National Front government of Prime Minister V P Singh rescinded the presidential notification after coming to power, and EC Dhanoa's challenge to his removal was dismissed by the Supreme Court.
• The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 was enacted, which gave the CEC the same status as a Supreme Court judge, and the ECs were given the status of High Court judges.
• The EC Act ensured that if the Election Commission became a multi-member body again, the CEC would act as its chairman, and the ECs would be junior to him.
• T N Seshan became the CEC on December 12, 1990, known for his independent and zealousapproach to the job.
• Therefore, the Congress government, led by P V Narasimha Rao, expanded the poll body on October 1, 1993, by appointing M S Gill and G V G Krishnamurthy as ECs.
• The government amended the EC Act through an Ordinance, which granted the CEC and ECs the same status as a Supreme Court judge with equal decision-making powers and retirement at the age of 65 years.
• The amendment also required the CEC and ECs to act unanimously and gave the majority view the final decision-making power in case of a difference of opinion.
• T N Seshan challenged the three provisions as an attempt to curtail his powers, but the Supreme Court dismissed his petition on July 14, 1995.
• Since then, the ECI has functioned as a three-member body with equal decision-making powers.

How did the court arrive at the verdict?

• The court arrived at the verdict by examining the debates of the Constituent Assembly and interpreting provisions in the Constitution.
• The court found that the Constituent Assembly intended for elections to be conducted by an independent commission, which was a departure from the previous regime.
• The addition of the phrase "subject to the provisions of any law made in that behalf by Parliament" indicated that Parliament was expected to provide norms for the appointment of the CEC and ECs.
• The court examined other provisions in the Constitution that used a similar phrase and found that legislation had been supplemented for those provisions but not for the appointment of the CEC even after 70 years of independence.
• The court concluded that the Founding Fathers intended for a law to be passed by Parliament and did not intend for the executive to have sole discretion in the appointment of the Election Commission. A law could not perpetuate this arrangement.

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Total Recall: From Ambedkar to Advani, concerns over the way appointments to ECI are made

GS-2:Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.

Since 1949, the question of how to make appointments to the Election Commission of India (ECI) has been a difficult one, as highlighted by Dr B R Ambedkar, Chairman of the Drafting Committee, who expressed his concern over the possibility of an "unfit person" becoming CEC, causing him a headache, during his address to the Constituent Assembly.

The apprehensions raised by Dr Ambedkar

• Dr Ambedkar expressed concerns regarding the appointment of an unfit person as the CEC or EC in the Constituent Assembly on June 16, 1949.
• He noted that the American Constitution had provisions that checked the President's power in making appointments, which could lead to administrative difficulties.
• The Drafting Committee paid considerable attention to this question, and Ambedkar proposed an amendment to include provisions for the appointment of the CEC and ECs subject to the provisions of any law made by Parliament.
• Ambedkar suggested an Instrument of Instructions to the President, which would obligate the President to consult a machinery before making any appointment.

What has been the course of events since then?

• The question of the independence of the ECI from the executive has arisen many times due to the appointment of retired senior bureaucrats to the posts.
• The Second Administrative Reforms Commission during the UPA era recommended the formation of a collegiumheaded 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 for making recommendations to the President on appointments of the CEC and ECs.
• The current procedure for appointment of the CEC and ECs is laid down in Article 324 of the Constitution, where they are appointed by the President on the advice of the Prime Minister.
• The report stated that during the debates in the Constituent Assembly, there were suggestions for the appointment of the CEC to enjoy the confidence of all parties, and therefore, their appointment should be confirmed by a 2/3 majority of both the Houses.
• The reforms committee recommended the formation of a collegium for the selection of the CEC and ECs, similar to the committees for the appointment of the National Human Rights Commission and Central Vigilance Commissioner chairpersons and members, given the critical role of the Election Commission in the working of Indian democracy.

BJP's stance in the matter

• In June 2012, L KAdvani, the BJP Parliamentary Party chairman, wrote to then-Prime Minister Manmohan Singh citing the reforms committee's report and recommended the creation of a collegium.

• The collegium would include the Prime Minister as chairperson, the Chief Justice of India, the Law Minister, and the Leaders of Opposition in the Lok Sabha and Rajya Sabha as members.

• Advani believed that the current system of appointing Election Commission members, solely on the Prime Minister's advice, did not inspire confidence among the people.
• The BJP was in opposition at the time, and Advani argued that keeping important decisions within the ruling party made the selection process susceptible to manipulation and partisanship. Thus, he suggested it was time to change the process.

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