Supreme Court on short tenures of Chief Election Commissioners

Published
23rd Nov, 2022

Context

In a statement came by the Constitution Bench of the Supreme Court, the short tenure of the Chief Election Commissioner (CEC) is hindering the ‘independence of the office’.

About

The Issue:

It has been observed over several years that the tenure of the office of CEC remained to be too short. In the year 2014 to 2022, there have been eight CECs were appointed.
This has drawn arguments against the Centre’s policy to appoint a person in office whose tenure remains short by default.
This disturbs the working and efficiency of the Election Commission. Hence, the bench has seen issues with the appointment of CECs.

The Election Commission of India (ECI):

The Election Commission of India (ECI) is an autonomous constitutional authority responsible for administering Union and State election processes in India.
The body administers elections to the Lok Sabha, Rajya Sabha, and State Legislative Assemblies in India, and the offices of the President and Vice President in the country.

It is not concerned with the elections of panchayats and municipalities in the states. For this, the Constitution of India provides for a separate State Election Commission.

Important Constitutional Provisions:

Part XV (Article 324-329) of the Indian Constitution:

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 grounds of religion, race, caste, or sex.
Article 326: Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage.
Article 327: Power of Parliament to make provisions with respect to elections to Legislatures.
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.

Structure of the Commission:

Originally the commission had only one election commissioner but after the Election Commissioner Amendment Act 1989, it has been made a multi-member body
The Election Commission shall consist of the Chief Election Commissioner (CEC) and a number of other election commissioners if any, as the President may from time to time fix.
Presently, it consists of the CEC and two Election Commissioners.
At the state level, the election commission is helped by the Chief Electoral Officer who is an IAS rank Officer.

The Chief Election Commissioner:

The Chief Election Commissioner of India heads the Election Commission of India.
This power of the Election Commission of India is derived from Article 324 of the Constitution of India.

Appointment of CEC:

There is no prescribed procedure for appointing the Chief Election Commissioner and Election Commissioners as per the constitution.
Under the Transaction of Business rules, the President shall appoint the CEC and EC based on the recommendations made by the Prime Minister.
Therefore, it is the executive power of the President to appoint CEC and ECs.
However, according to Article 324(5), the Parliament has the power to regulate the terms of conditions of service and tenure of ECs. It is under this article that the Parliament has made laws to date.

Tenure of Commissioners:

They have a fixed 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 (SC) of India.

Removal:

They can resign anytime or can also be removed before the expiry of their term.
The CEC can be removed from office only through a process of removal similar to that of an SC judge by Parliament.

Concerns over the tenure of CEC vs. Centre’s Intervention:

Lack of Transparency: Centre’s intervention in the appointment of CEC remains highly at the discretion of the present government and its suggestion to the President.
Lack of Consensus-based appointment: There is no procedure to draw suggestions before appointing the CEC.
The strategic move by the Centre: As the Election commission is an important and independent body; it must have its head to also be independent of any biases which are withdrawn.
As Government tends to appoint a person who works in their favor.

Suggestions:

Law Commission 255^thReport on Electoral Reforms: Strengthening the office of the Election Commission of India:

The Commission in its report inter-alia suggested, the ECI must be strengthened by:

- Giving equal constitutional protection to all members of the Commission in matters of removability;
- Making the appointment process of the Election Commissioners and the CEC consultative; and
- Creating a permanent, independent Secretariat for the ECI.

Need for a Collegium system: Appointments through collegium or any other system as discussed in the constitutional debate can bring more transparency in the appointment process.