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Appointment of CEC and ECs

  • Category
    Polity & Governance
  • Published
    10th Mar, 2023

Context

The Supreme Court held that a committee comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India will advise the President on appointments to the Election Commission of India until Parliament enacts a law on the subject.

Key-highlights of the Ruling

  • The ruling revamped the selection mechanism to appoint the Chief Election Commissioner (CEC) and Election Commissioners (ECs).
  • It provided for the formation of a panel comprising the Prime Minister, the Leader of Opposition (LoP), and the Chief Justice of India (CJI) to advise on the appointment the CEC and EC.
    • This made the selection process of CEC and EC’s similar to what is followed in the case of the Director, Central Bureau of Investigation (CBI).
  • The ruling is set to limit the government’s authority to make such high-level appointments like that of the CEC and ECs.
  • This will continue to hold good till a law is made by Parliament.

Important Committees

The following committees recommended for an independent system for the appointment of members of the Election Commission:

  • Justice Tarkunde Committee (1975)
  • Dinesh Goswami Committee (1990)
  • Second Administrative Reforms Commission (2007) 
  • Law Commission of India (2015) 

How are the CEC and ECs currently appointed?

  • Election Commission of India is a permanent Constitutional Body. The Election Commission was established in accordance with the Constitution on 25th January 1950.
  • Presently, the ECI is a three-member body, with a CEC and two ECs. 
  • The Constitution does not lay down a specific legislative process for the appointment of the CEC and ECs. 
  • Under Article 324(2) of the Constitution, the President is empowered to appoint the CEC and ECs.
  • This provision further stipulates that the President, who acts on the aid and advice of the Prime Minister and the council of ministers, will make the appointments “subject to the provisions of any law made on that behalf by Parliament”.

Powers of the Election Commission

  • Article 324 of the Constitution vests the “superintendence, direction and control of elections” in an Election Commission
  • Supreme Court in 'Mohinder Singh Gill & Anr vs The Chief Election Commissioner, New Delhi and Ors' (1977) stated 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".
  • The SC stated that Article 324 "is a plenary provision vesting the whole responsibility for national and State elections" in the ECI "and, consequently, the essential authorities to fulfil that function"

What are the questionable issues out of the judgment?

  • Does the current process for ECI appointments violate the right to equality?
  • Does the current process for ECI appointments violate the right to free and fair elections?
  • Currently, the Executive enjoys the power to make appointments, which has degraded the ECI’s independence over time. The current system of appointments violates Article 324(2) of the Constitution.
    • Article 324 specifies that while the Chief Election Commissioner and Election Commissioners will be appointed by the President, this is subject to Parliamentary law (if such law exists). 
    • While this provision places an expectation on Parliament to draft a relevant a law, it has not done so up until now. 
    • In the absence of such a law, the President has been making appointments as per the recommendations of the Prime Minister.
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