Appointment of CEC and EC : Daily Current Affairs

Date: 04/03/2023

Relevance: GS-2: Structure, Organization and Functioning of the Judiciary; Appointment, Powers, Functions and Responsibilities of various Constitutional Bodies; Election Commission of India.

Key Phrases: Election Commission of India, Supreme Court of India, Neutrality, Independence, Selection Committee, Article 324 of the Constitution of India, Separation of Power, CBI Director, Democracy, Electoral Rolls.

Context:

Recently, A Constitution Bench of the Supreme Court directed in a landmark judgment that the Chief Election Commissioner (CEC) and Election Commissioners (ECs) will be appointed by the President on the advice tendered by a committee of Prime Minister, Leader of Opposition (LoP) in the Lok Sabha or the leader of the single largest party in opposition and the Chief Justice of India (CJI).
- It might ensure the most transparent way of selecting election commissioners.

Key Highlights:

Chief Election Commissioners and Election Commissioners have so far been appointed by the President on the advice of the Prime Minister.
The judgment came on petitions filed for an accountable and transparent appointment process.
The judgment has now brought the appointment process of Chief Election Commissioners and Election Commissioners on par with that of the CBI Director.
The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 requires that the CEC and Election Commissioners must hold the post for a period of six years.

SC judgment on the Appointment in ECI:

The court observed that fierce independence, neutrality and honesty envisaged in the institution of the Election Commission of India (ECI) requires an end to government monopoly and exclusive control over appointments to the ECI.
The court said the high-powered committee would continue to advise the President on the appointment until the Parliament enacts a law on the appointment process of Election Commissioners.
There is a crucial link between the independence of the Election Commission and the pursuit of power by parties, their consolidation and perpetuation.
The court made a fervent appeal to the Parliament and the Union Government to set up a permanent secretariat which draws its expenses directly from the Consolidated Fund of India and not the government.
- A vulnerable Commission, faced with the prospects of lack of funds, may kneel to the pressure of the Executive, and that would result in an insidious conquest of an otherwise defiant and independent Election Commission.
The procedural safeguards in place for effecting the removal of a Chief Election Commissioner (CEC) should be extended to the Election Commissioners under the first proviso to Article 324(5) of the Constitution.
The judge noted that the conditions of service of Election Commissioners, after appointment, should not be “varied to their disadvantage”.
- These directions hold that the tenures of the Election Commissioners should not be disturbed in any way.

Merits of the Intervention of the Supreme Court:

Ensure Neutral Appointments:
- Demands for bipartisan appointments to the Election Commission have been around for decades, but governments have seldom agreed.
- In the present case, the court might provide a way for neutral appointments to the Election Commission.
Role of CJI in Appointment is Not New:
- CJI plays an important role in the selection of CVC, CBI Director and Lokpal body so this is not new for CJI to take part in the appointment process of the constitutional and statutory bodies.

Demerits of the Intervention of the Supreme Court:

Risks violating the Separation of Powers:
- Institutionally, the desire within the judiciary to get more entangled in appointments is possibly more about leverage than virtue.
- It may result in conflicts between the executive and judiciary arms of the government. So it can violate the separation of power.
Not Ensure Better Performance:
- Formal appointment processes are no predictors of performance or bulwarks against the underlying distribution of political power.
No Need for SC’s Intervention:
- Elections were held on time and no abuse of power has happened in the Election Commission.
  - So there is no need for judicial intervention.

Election Commission of India

About:
- The Election Commission of India (ECI) is an autonomous and permanent constitutional body.
- It is responsible for organizing free and fair elections in the Union and States of India.
- The Constitution grants the ECI with the power of direction, superintendence, and control of elections to Parliament, state legislatures, the office of president of India and the office of vice-president of India.
Powers and Responsibilities:
- Determining the Electoral Constituencies’ territorial areas throughout the country.
- Preparing and periodically revising electoral rolls and registering all eligible voters.
- Notifying the schedules and dates of elections and scrutinizing nomination papers.
- Granting recognition to the various political parties and allocating them election symbols.
- The Commission also has advisory jurisdiction in the matter of post-election disqualification of sitting members of the Parliament and State Legislatures.
Composition:
- A chief election commissioner (CEC) and Other election commissioners (EC) (the number is to be decided by the President from time to time Art 324).
- Tenure- Six years or up to the age of 65 years whichever is earlier.
Appointment of Election Commissioners:
- Article 324 (2) specifies that the Chief Election Commissioner and Election Commissioners will be appointed by the President of India.
- This is subject to Parliamentary law (if such law exists).
- In the absence of such a law, the President has been making appointments as per the recommendations of the Prime Minister.
CEC and EC:
- Though the Chief Election Commissioner is the chairman of the election commission, his powers are equal to the other election commissioners.
- All the matters in the commission are decided by the majority of its members.
- The Chief Election Commissioner and the two other election commissioners receive equal salaries, allowances and other benefits.
- They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court of India.
Removal:
- CECs and apex court judges can be removed only by an order of the President passed after an address in each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of members present and voting, and presented to the President in the same session.
  - The grounds of removal are limited to “proved misbehavior or incapacity”.
- The President of India can remove the other officers on the Chief Commissioner's recommendation.

Un-addressed Issues of EC:

Number of Commissioners is Not Specified:
- In principle, a government can enlarge the Commission sometimes with a view to undermine the authority of existing commissioners.
No Security of Tenure and Constitutional status to ECs:
- The other commissioners do not enjoy the security of tenure and constitutional status of the CEC. This can affect their independence.
CEC’s powers in relation to other commissioners:
- There is no mention of the CEC’s powers in relation to other commissioners.

Conclusion:

The Election Commission has to be independent, it cannot claim to be independent then act in an unfair manner.

Source: The Hindu

Mains Question:

Q. What can be the merit and demerit of the involvement of the judiciary in the appointment of the election commissioners? Critically Evaluate. (250 Words).