CHIEF ELECTION COMMISSIONER

1. Context

Questioning the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) by a three-member committee comprising the Prime Minister, a Union Minister and the Leader of Opposition, the Supreme Court on Thursday asked “should there be no show of fairness” in the procedure

2. Who appoints Chief Election Commissioner of India?

The Chief Election Commissioner (CEC) of India is appointed by the President of India under Article 324(2) of the Constitution of India. Article 324 vests the superintendence, direction, and control of elections to Parliament, State Legislatures, and the offices of the President and Vice-President in the Election Commission of India.
While the Constitution provides that the Chief Election Commissioner and the other Election Commissioners shall be appointed by the President, it also states that Parliament may enact a law prescribing the manner of their appointment.
For several decades after the Constitution came into force, there was no specific parliamentary law governing the appointment process. During this period, the President appointed the Chief Election Commissioner on the advice of the Union Council of Ministers.
To establish a statutory framework, Parliament enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which came into effect on 2 February 2024.
Under this Act, the President continues to be the appointing authority, but the appointment is made based on the recommendation of a Selection Committee.
The committee is chaired by the Prime Minister and includes the Leader of the Opposition in the Lok Sabha (or the leader of the largest opposition party if there is no recognised Leader of the Opposition) and a Union Cabinet Minister nominated by the Prime Minister.
The committee considers eligible candidates and recommends one name to the President, who then formally appoints the Chief Election Commissioner.
The constitutional design ensures that although the President makes the formal appointment, the process is carried out within a legal framework established by Parliament.
This arrangement seeks to maintain transparency and institutional continuity while preserving the independence of the Election Commission, which is entrusted with conducting free and fair elections in the country.
The Chief Election Commissioner enjoys significant constitutional safeguards to ensure independence from executive influence.
The CEC holds office for six years or until attaining the age of 65 years, whichever is earlier.
Moreover, the Chief Election Commissioner can be removed from office only through the same procedure and on the same grounds as a judge of the Supreme Court, making the office one of the most secure constitutional positions in India.
These safeguards enable the Election Commission to function impartially and uphold the integrity of India's democratic electoral process

3. How the Chief Election Commissioner appointed earlier?

Before the enactment of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, there was no specific law enacted by Parliament prescribing the procedure for appointing the Chief Election Commissioner (CEC).
Although Article 324(2) of the Constitution stated that the Chief Election Commissioner and the other Election Commissioners would be appointed by the President of India, it also provided that the appointment would be made subject to the provisions of any law made by Parliament.
Since no such law existed for more than seven decades, the appointments were made through the executive process.
In practice, the President appointed the Chief Election Commissioner on the advice of the Union Council of Ministers, headed by the Prime Minister, in accordance with the constitutional principle that the President acts on the aid and advice of the Council of Ministers under Article 74 of the Constitution.
Typically, the Ministry of Law and Justice initiated the process by identifying eligible candidates, generally from among senior civil servants or serving Election Commissioners.
The proposal was examined within the government and, after approval by the Prime Minister and the Union Cabinet, it was forwarded to the President for formal appointment.
This executive-driven process continued from the establishment of the Election Commission in 1950 until 2024.
Since there was no statutory selection committee or legally prescribed consultation mechanism, the appointments were effectively made by the Union Government through executive decision-making.
Over the years, concerns were raised that such a system gave the executive significant influence over the appointment of the country's top election officials.
In March 2023, the Supreme Court, while deciding Anoop Baranwal v. Union of India, observed that Parliament had not enacted the law contemplated under Article 324(2).
To safeguard the independence of the Election Commission until such a law was enacted, the Court directed that appointments to the posts of the Chief Election Commissioner and Election Commissioners should be made by the President on the recommendation of a committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha (or the leader of the largest opposition party), and the Chief Justice of India.
This arrangement was explicitly described as an interim measure that would remain in force until Parliament enacted a law.
Subsequently, Parliament passed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which came into force on 2 February 2024.
The Act replaced the Supreme Court's interim mechanism with a statutory Selection Committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and a Union Cabinet Minister nominated by the Prime Minister.
The President continues to be the constitutional appointing authority, but appointments are now made in accordance with the procedure prescribed by this law.

4. How other Election Commissioners are appointed?

The other Election Commissioners (ECs) of the Election Commission of India are appointed by the President of India under Article 324(2) of the Constitution of India. The Constitution does not distinguish between the appointment of the Chief Election Commissioner (CEC) and the other Election Commissioners.
It provides that the President shall appoint the Chief Election Commissioner and such number of other Election Commissioners as may be determined from time to time, subject to any law made by Parliament.
For many decades after the Constitution came into force, there was no specific law governing the appointment process.
Consequently, the President appointed the Election Commissioners on the aid and advice of the Union Council of Ministers, following the executive procedure.
The Ministry of Law and Justice generally initiated the process, identified suitable candidates, and forwarded the proposal through the Prime Minister and the Union Cabinet to the President for formal appointment.
To provide a statutory framework, Parliament enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which came into force on 2 February 2024.
Under this law, the President appoints the Election Commissioners based on the recommendation of a Selection Committee consisting of the Prime Minister as Chairperson, the Leader of the Opposition in the Lok Sabha (or the leader of the largest opposition party if there is no recognised Leader of the Opposition), and a Union Cabinet Minister nominated by the Prime Minister.
Before the Selection Committee makes its recommendation, a Search Committee, headed by the Cabinet Secretary, prepares a panel of eligible candidates for consideration.
Once the Selection Committee recommends the names, the President formally appoints the Election Commissioners. Like the Chief Election Commissioner, the Election Commissioners hold office for six years or until they attain the age of 65 years, whichever is earlier.
Although the Chief Election Commissioner and the Election Commissioners enjoy equal powers in decision-making within the Election Commission, there is an important difference in their constitutional protection.
The Chief Election Commissioner can be removed only through the same process and on the same grounds as a Judge of the Supreme Court, ensuring a high degree of independence.
In contrast, an Election Commissioner can be removed by the President only on the recommendation of the Chief Election Commissioner. This safeguard is intended to protect Election Commissioners from arbitrary removal while preserving the institutional independence of the Election Commission

5. Election Commission of India- Powers and Functions

The Election Commission of India (ECI) is an independent constitutional body established under Article 324 of the Constitution of India.
It is entrusted with the superintendence, direction, and control of the preparation of electoral rolls and the conduct of elections to Parliament, State Legislatures, and the offices of the President and the Vice-President of India.
Its primary objective is to ensure that elections in India are conducted in a free, fair, transparent, and credible manner, thereby safeguarding the democratic process.
One of the Election Commission's most important functions is the preparation, revision, and maintenance of electoral rolls.
It ensures that every eligible citizen who has attained the age of eighteen years is given the opportunity to register as a voter, while removing duplicate, deceased, or ineligible entries. Accurate electoral rolls are the foundation of free and fair elections, and the Commission regularly updates them before every election.
The Commission is responsible for conducting elections at the national and state levels. It announces election schedules, issues notifications, oversees the nomination process, scrutinises nomination papers, allots election symbols, arranges polling stations, deploys polling personnel, supervises voting through Electronic Voting Machines (EVMs) and Voter Verifiable Paper Audit Trail (VVPAT) systems, and declares election results.
Through these responsibilities, it ensures that elections are conducted efficiently, peacefully, and in accordance with the law.

Another significant function of the Election Commission is the enforcement of the Model Code of Conduct (MCC). Once elections are announced, the MCC comes into force and lays down guidelines for political parties, candidates, ministers, and governments regarding election campaigns, public announcements, transfers of officials, and the use of government resources.
Although the Model Code of Conduct is not a statutory law, the Commission effectively enforces it to ensure a level playing field and prevent the misuse of official machinery during elections.
The Election Commission also registers political parties under the provisions of the Representation of the People Act, 1951, and grants recognition to them as National or State Parties based on their electoral performance.
It also allocates and reserves election symbols for recognised political parties and allots free symbols to registered unrecognised parties and independent candidates. The election symbol system is particularly important in India because it enables voters, including those with limited literacy, to identify candidates easily.
The Commission exercises quasi-judicial powers in matters relating to political parties and elections.
It adjudicates disputes concerning the recognition of political parties, decides claims regarding rival factions seeking the same party symbol, and advises the President or the Governors on the disqualification of Members of Parliament or Members of State Legislatures under the Constitution and the Representation of the People Act, wherever such advice is constitutionally required

For Prelims: Indian Polity and Governance-Constitution, Political System, Panchayati Raj, Public Policy, Rights Issues, etc.

For Mains: General Studies II: Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies

Previous Year Questions

Prelims

1) Consider the following statements: (UPSC CSE, 2017)
1. The Election Commission of India is a five-member body.
2. Union Ministry of Home Affairs decides the election schedule for the conduct of both general elections and bye-elections.
3. Election Commission resolves the disputes relating to splits/mergers of recognised political parties.
Which of the statements given above is/are correct?
(a) 1 and 2 only
(b) 2 only
(c) 2 and 3 only
(d) 3 only

Answer (d)

2) With reference to the Constitution of India, prohibitions or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on the constitutional powers under Article 142. It could mean which one of the following? (UPSC CSE, 2019)
(a) The decisions taken by the Election Commission of India while discharging its duties cannot be challenged in any court of law.
(b) The Supreme Court of India is not constrained in the exercise of its powers by laws made by the Parliament.
(c) In the event of a grave financial crisis in the country, the President of India can declare a Financial Emergency without the counsel from the Cabinet.
(d) State Legislatures cannot make laws on certain matters without the concurrence of the Union Legislature.

Answer (b)

Source: Indianexpress

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