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Should the CJI be part of the committee ‘selecting the CEC’?

  • Published
    25th Aug, 2023
Context

Recently, the Union government introduced a Bill in the Rajya Sabha that proposed that the selection panel for appointing the Members of Election Commission (EC) will include a Cabinet Minister rather than Chief Justice of India (CJI).

About
  • According to Bill proposed by the union government, the selection panel will consist of the Prime Minister as the chairperson, the Leader of the Opposition as a member, and a Union Cabinet Minister nominated by the Prime Minister as another member.
  • However earlier, the Supreme Court had ruled that the selection panel should comprise the Prime Minister, the Leader of the Opposition, and the Chief Justice of India (CJI) until Parliament enacts a law on the manner of appointment.

Election Commission of India (ECI):

  • It is a constitutional body responsible for administering elections in India according to the rules and regulations mentioned in the Constitution of India.
  • Its aim is to define and control the process for elections conducted at various levels: Parliament, State Legislatures, and the offices of the President and Vice President of India.
  • The ECI implements norms and the Model Code of Conduct (MCC) to ensure free and fair elections in the country.

Process of selection of Members of EC:

  • The President of India appoints the Chief Election Commissioner (CEC) and Election Commissioners (ECs).
  • They have 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 of India.

Constitutional Provisions

  • 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 the ground of religion, race, caste or sex.
  • Article 326: Elections to the Lok Sabha and Legislative Assemblies of States to be on the basis of adult suffrage.
  • Article 327: Power of Parliament to make provision with respect to elections to legislature.
  • 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.

Does SC can intervene in the selection process?

  • The Supreme Court can intervene in the selection process of members of the election commission under certain circumstances.
  • In India, the Election Commission is an autonomous body responsible for conducting elections and ensuring their fairness.
  • While the process of appointing Election Commissioners is largely done by the executive branch of the government, the Supreme Court can intervene if there are concerns about the fairness or legality of the process.
  • The cases under which SC can intervene are:
    • Violation of Constitutional Provisions: If the appointment process violates constitutional provisions or principles, such as those related to transparency, impartiality, or non-discrimination, the Supreme Court can intervene to ensure that the process is carried out in accordance with the Constitution.
    • Malafide Actions: If there are allegations of malafide or political interference in the selection process, and these allegations are supported by evidence, the Supreme Court can step in to investigate and possibly rectify the situation.
    • Public Interest Litigation (PIL): Citizens, civil society organizations, or other concerned parties can file PILs in the Supreme Court if they believe that the selection process was not conducted properly or fairly.
    • Violation of Fundamental Rights: If the selection process violates fundamental rights of citizens, such as the right to information or the right to equality, the Supreme Court can step in to protect these rights.

Concerns associated:

  • Hindering Separation of Powers: As the constitution places the power to make any law on appointment of ECI in the hands of Parliament, SC ruling on this issue poses a question of Separation of Power.
  • However, SC has stated that this ruling will be subject to any law made by parliament, which means parliament can bring a law to undo it.
  • Another view is that since there is no law made by parliament on this issue, the Court must step in to fill the “constitutional vacuum.”
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