SELECTING ELECTION COMMISSIONERS
- Anoop Baranwal initiated a Public Interest Litigation (PIL) in 2015, urging the Supreme Court to establish an independent system resembling the collegium for appointing the Chief Election Commissioner (CEC) and Election Commissioners (ECs).
- In March 2023, the Supreme Court noted the absence of parliamentary legislation over the past 73 years regarding the appointment of the CEC and ECs since the Constitution's adoption.
- Acknowledging the vital role of the Election Commission of India (ECI) in ensuring fair elections for a robust democracy, the court referenced various independent mechanisms in other constitutional institutions such as the National and State Human Rights Commission, the Central Bureau of Investigation (CBI), Information Commission, and Lokpal.
- Previously, the Dinesh Goswami Committee on Electoral Reforms (1990) and the Law Commission's 255th report on Electoral Reforms (2015) had proposed a committee comprising the Prime Minister, Chief Justice of India (CJI), and the Leader of the Opposition or the largest Opposition party in the Lok Sabha for the appointment of the CEC and ECs.
- Taking these suggestions into account, the Supreme Court, utilizing its authority under Article 142 to ensure 'complete justice,' mandated that the committee responsible for appointing the CEC and ECs would consist of the Prime Minister, CJI, and the Leader of the Opposition or the largest opposition party in the Lok Sabha. This directive will stand until Parliament formulates a specific law on this issue
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The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Bill, 2023, was introduced in Rajya Sabha on August 10, 2023. It repeals the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.
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Election Commission: As per Article 324 of the Constitution, the Election Commission consists of the Chief Election Commissioner (CEC) and such number of other Election Commissioners (ECs), as the President may decide. The CEC and other ECs are appointed by the President. The Bill specifies the same composition of the Election Commission. It adds that the CEC and other ECs will be appointed by the President on the recommendation of a Selection Committee.
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Selection Committee: The Selection Committee will consist of (i) the Prime Minister as Chairperson, (ii) the Leader of the Opposition in Lok Sabha as a member, and (iii) a Union Cabinet Minister nominated by the Prime Minister as a member. If the Leader of the Opposition in Lok Sabha has not been recognized, the leader of the single largest opposition party in Lok Sabha will assume the role.
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Search Committee: A Search Committee will prepare a panel of five persons for the consideration of the Selection Committee. The Search Committee will be headed by the Cabinet Secretary. It will have two other members, not below the rank of Secretary to the central government, having knowledge and experience in matters related to elections. The Selection Committee may also consider candidates who have not been included in the panel prepared by the Search Committee.
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Qualification of CEC and ECs: Persons who are holding or have held posts equivalent to the rank of Secretary to the central government will be eligible to be appointed as CEC and ECs. Such persons must have expertise in managing and conducting elections.
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Salary and allowances: The 1991 Act provides that the salary of the ECs will be equal to that of a Supreme Court judge. The Bill provides that the salary, allowance, and service conditions of the CEC and other ECs will be the same as that of the Cabinet Secretary.
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Term of office: The 1991 Act mandates that the CEC and other ECs will hold office for a term of six years or until they reach the age of 65 years, whichever is earlier. If an EC is appointed as the CEC, his total term cannot exceed six years. The Bill retains the same tenure. Further, under the Bill, the CEC and other ECs will not be eligible for re-appointment.
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Conduct of business: All business of the Election Commission is to be conducted unanimously. In case of a difference of opinion between the CEC and the other ECs on any matter, it shall be decided through the majority.
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Removal and resignation: Under Article 324 of the Constitution, the CEC can only be removed from his office in a manner similar to that of a Supreme Court judge. This is done through an order of the President, based on a motion passed by both Houses of Parliament in the same session. The motion for removal must be adopted with (i) majority support of total membership of each House, and (ii) at least two-thirds support from members present and voting. An EC can only be removed from office on the recommendation of the CEC. The Bill retains this removal procedure.
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Further, the 1991 Act provides that the CEC and other ECs may submit their resignation to the President. The Bill has the same provision.
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Constitution Says-
Article 324 provides for the composition of the Election Commission of India (ECI). It consists of the CEC and two other ECs. The Constitution provides that the appointment of the CEC and EC shall, subject to the provisions of any law made by Parliament, be made by the President. While the existing parliamentary law provides for their conditions of service, it is silent with respect to appointments. The appointments till date are made by the President, that is the Central Government and there is no mechanism for ensuring independence during the appointment process
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- The process of selecting and appointing members to electoral bodies varies internationally across democracies. For instance, in South Africa, involvement includes the President of the Constitutional Court, representatives from the Human Rights Court, and advocates for gender equality. In the United Kingdom, candidates receive approval from the House of Commons, while in the United States, the President nominates them, and the Senate confirms the appointments.
- Although the proposed Bill shifts the appointment process from a sole executive decision to a committee-based selection, it still leans in favor of the existing government.
- The Supreme Court took into account recommendations from diverse committees and the appointment mechanisms for certain independent bodies like the CBI, involving the Chief Justice of India (CJI), while establishing its selection procedure.
- While Parliament holds the authority to legislate on this matter, it might have been prudent to include the CJI in the selection committee to ensure the highest level of independence.
- Nonetheless, it's highly probable that the Bill will become law in its current shape. It would be commendable and foster public trust in the functioning of the Election Commission of India (ECI) if, at the very least, selections under the new law are made unanimously by the proposed selection committee
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For Prelims: Election Commission of India, President, Prime Minister, Leader of Opposition, Chief Election Commissioner (CEC), Article 324, Electronic Voting Machines (EVMs) and Voter Verified Paper Audit Trails (VVPATs). For Mains 1. The Election Commission of India is often hailed as the guardian of democracy. Discuss the constitutional provisions and the various measures it takes to ensure free and fair elections in the country. (250 words). 2. Examine the role of the Election Commission of India in regulating the influence of money in politics. How effective have its measures been in curbing electoral malpractice related to campaign finance? (250 words). |
Previous year Questions1. Consider the following statements: (UPSC 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) Answer (b) 1.In the light of recent controversy regarding the use of Electronic Voting Machines (EVM), what are the challenges before the Election Commission of India to ensure the trustworthiness of elections in India? (UPSC Mains GS2, 2018) |
