ELECTION COMMISSION OF INDIA: APPOINTMENT

INTRODUCTION

The procedure of election in India is monitored by the Election Commission of India or ECI which is a permanent and independent constitutional body under the Ministry of Law and Justice. It was founded In January 1950 with the main objective of identifying and regulating the multi-levelled mechanism of an election in India. Article 324 of the Indian Constitution makes the Election Commission of India the charge of overseeing and directing the entire process of elections in every state along with the elections for the post of President and Vice President in India. The territorial boundaries of electoral constituencies are established by the ECI. It registers and deregisters political parties. The implementation of the “Model Code of Conduct” for election campaigns is also supervised by it. It keeps an eye on political parties’ election spending. Along with these Administrative Powers, the EC also has a few Advisory and Quasi-Judicial Powers.[1]

COMPOSITION OF THE ECI

The office of the Election Commission of India comprises a Chief Election Commissioner, a CEC and two more Election Commissioners or the ECs.[2] They all are appointed by the President of India. They both hold their offices for six years or until they reach 65 years of age, whatever comes before.[3] They also enjoy similar benefits and pay to the Judges of the Supreme Court.[4] The office works as per the majority vote. The President may remove the Chief Election Commission from office by an order supported by Parliament if it is proven they don’t have the capacity to hold the office or if they misbehave.[5] Through a recommendation, the Election Commissioner(s)may also be dismissed from their office by the Chief Election Commissioner.[6]

APPOINTMENT OF THE MEMBERS

There has been persistent decry with regard to the procedure of removal of the Chief Election Commissioner and other Election Commissioners and how they both are treated equally despite one of them being considered to be the “Chief.” However, the issue of the process of their appointment also needs to be considered along with the other fallacies of the Election Commission of India.

The President of India is empowered with the process of appointment of members of the Election Commission of India with the recommendation of the Council of Ministers. Similarly, a trend has been developed to appoint the retiring government officials to the post of CEC and ECs. In 2004 January, the government led by Vajpayee sought to appoint T.R. Prasad, a former Cabinet Secretary and member of the 12th Finance Commission as the CEC.[7] However, due to threats of resignation by Mr. Krishnamurthy and B.B. Tandon, the then ECs, the appointment of Mr. Prasad was dropped.[8] In comparison to earlier years of independence, the Election Commission is, thus, becoming more and more dependent on the executive. This is why an urgent structural reform is needed in the appointment of the members of the Election Commission of India.

SUGGESTED REFORMS

In March 2015, the 255th Law Commission Report[9] headed by Ajit Prakash Shah investigated the appointment process in-depth. He reached a conclusion that it should become “imperative” that the appointment procedure of the members of the Election Commission of India be a “consultative process,” considering how important it is to retain the independence of this office and protect the members from executive intervention. The Law Commission recommended the amendment of the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.[10] It made two specific recommendations:

  1. “The President should “consult” with a three-member committee, which could consist of the Prime Minister, the Opposition leader of the lower house, and the Chief Justice of India for the appointment of the CEC and ECs.[11]
  2. The promotion of the members should be based on seniority until the collegium or committee declares the Commissioner incompetent for reasons to be reported in writing.”[12]

In consonance with the first recommendation, a PIL had been filed by Anoop Baranwal in January 2015 seeking a structural reform in the procedure of appointment of CEC and ECs.[13] It pleads for the court to issue directions to form a three-member “collegium” for the appointment of the said offices comprising of the three offices recommended by the 255th Law Commission Report.[14] It also pleaded to provide the CEC and the ECs with greater autonomy for their respected office, and an independent secretariat for the ECI.[15] Another petition – Association for Democratic Reforms v. Union of India has been in the Supreme Court stating that the present procedure of appointment of members of the ECI is incompatible with Article 324 (2) and instead an independent Selection Committee should be established.[16]

It was in 1990 that the Dinesh Goswami Committee on Electoral[17] Reforms raised the need for the collegium or selection system for the first time. It had suggested the same thing that had been recommended by the 255thLaw Commission Report – the three-membered collegium system. The Chandra Shekhar government even initiated a Bill requiring the President of India to select the CEC after a detailed consultation with the Chairman of the Upper House, the Speaker of the Lower House, and the Opposition Leader. This Bill also suggested the consultation of the CEC for the appointment of the ECs.[18]

On the same lines, the Tarkunde Committee[19] had suggested the consultive provisions and the 2nd Administrative Reforms Commission[20] suggested a collegium system for the appointment of the members of ECI.

CONCLUSION

Implementation of the various reports and suggestions by activists and intellectuals could help restore the gradually lost faith in the office’s credibility. To make sure that the election throughout the country is free and fair, it has become imperative to bring a reform in the appointment of the members of the Election Commission. The independence of the EC from the executive could be maintained only if a swift reform is done for the appointment of the offices being discussed. Most of the inconsistencies of the Election Commission are political rather than judicial. Hence, at the end of the day, it is the political parties who need to take accountability for the corruption and flaws within themselves and help to uphold the visions of an independent and transparent EC of the Constitution makers.

Author(s) Name: Priyal Palak (National Law University Odisha)

Reference(s):

[1] The Constitution of India, 1950; The Representation of The People Act, 1951 (Act 43 of 1951); The Delimitation Act, 2002 (Act 33 of 2002)

[2] The Constitution of India 1950, Art 324.

[3] Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act 1991, s 4 (Act 11 of 1991)

[4] Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act 1991, s 3 (Act 11 of 1991)

[5] The Constitution of India 1950, Art 324.

[6] Ibid.

[7] T. Ramakrishnan, ‘News Analysis: Chief Election Commissioner’s Appointment Needs Overhaul’ (The Hindu, 2019)<https://www.thehindu.com/elections/lok-sabha-2019/news-analysis-chief-election-commissioners-appointment-needs-overhaul/article27003506.ece>

[8]Navin Chawla, Every Vote Counts: The Story of India’s Elections (1st edn, HarperCollins Publishers India 2019).

[9] Law Commission of India, Electoral Reforms, Report No.255 (March, 2015).

[10] Law Commission of India, Electoral Reforms, Report No.255, para 6.12.5 (March, 2015).

[11] Law Commission of India, Electoral Reforms, Report No.255, para 6.12.2 (March, 2015).

[12] Law Commission of India, Electoral Reforms, Report No.255, para 6.12.3 (March, 2015).

[13] Anoop Baranwal v. Union of India, Ministry of Law and Justice Secretary (Writ Petitions Civil Case no. 104/2015).

[14] Ibid.

[15] Ibid.

[16] ‘Judgment and Petition – Association for Democratic Reforms’ <https://adrindia.org/content/judgment-and-petition>

[17] Dinesh Goswami Committee, Report of the Committee on Electoral Reforms, pg 9 (May 1990) <https://adrindia.org/sites/default/files/Dinesh%20Goswami%20Report%20on%20Electoral%20Reforms.pdf

[18]Rasheed Kidwai, ‘Election Commission In Need Of Reforms’ The Tribune (09 November 2020) <https://www.tribuneindia.com/news/comment/election-commission-in-need-of-reforms-168183>

[19] Tarkunde Committee, Report on Election Expenses, (August 1974).

[20] Second Administrative Reforms Commission, Report 4 on Ethics in Governance, (31st August 2005).