Context

• A vital issue of national importance dominating the headlines for the last three days is the PIL in the Supreme Court regarding the autonomy and neutrality of the Election Commission of India (ECI).

Constitutional mandate for Election Commission of India (ECI).

• The Constitution intended the Election Commission to be fiercely independent and vested it with enormous powers of superintendence, direction and control over all elections.
• The apex court has repeatedly adjudged these powers to be absolute and unquestionable.
• It has declared Article 324 to be the reservoir of all powers of the ECI and has repeatedly declared free and fair elections to be part of the basic structure of the Constitution.

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Back to basics: Appointment & Tenure of Commissioners

• The President has the power to select Chief Election Commissioner and Election Commissioners.
• They have tenure of six years, or up to the age of 65 years, whichever is earlier.
• They have the same status and receive pay and perks as available to Judges of the Supreme Court of India.
• The Chief Election Commissioner can be removed from office only through accusation by Parliament.
• Election commissioner or a regional commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.

What are the issues regarding the appointment of the Election commissioners?

• Flawed system of appointment of the Election Commissioners: They are appointed unilaterally by the government of the day.
•  B. R. Ambedkar’s remark on tenure: Tenure B R Ambedkar’s statement to the Constituent Assembly “the tenure can’t be made a fixed and secure tenure if there is no provision in the Constitution to prevent a fool or a naive or a person who is likely to be under the thumb of the executive”
• Uncertainty over the elevation: Uncertainty over the elevation of an Election Commissioner to the post of CEC, which makes them vulnerable to government pressure. They consider themselves on probation, always conscious of how their conduct is viewed by the government, which can exploit this fear. Since all three members have equal voting rights and all decisions in the commission are taken by the majority, the government can even control an independent-minded CEC through the majority voting power of the two Election Commissioners.

What are the demands for the appointment of EC’s?

• Appointments through a broad-based consultation: There has been a demand for appointments through a broad-based consultation, including parliamentary scrutiny.
• The Proposed mechanism: A collegium consisting of the Prime Minister, leader of the Opposition (LOP) and the Chief Justice of India (CJI).This system is already in operation for the appointment of the Central Vigilance Commissioner, Chief Information Commissioner and Director of the Central Bureau of Investigation.
• The probable benefit of this mechanism: This will obviate the possibility of allegations against the incumbent of being partisan to the government. Opposition parties would not be able to raise a finger against the incumbent since the LOP would be a party to the selection.
• Collegium system for appointing Election Commissioners: In its 255th Report, the Law Commission of India also recommended a collegium system for appointing Election Commissioners. Political stalwarts and many former CECs including BB Tandon, N Gopalaswami, TS Krishnamurthy supported the idea.
• Extending protection to Election Commissioners: At present, only the CEC is protected from being removed (except through impeachment). One has to remember that the Constitution enabled protection for the CEC as it was initially a one-man Commission. Logically, this should have been extended to the other two Commissioners, who were added in 1993, as they collectively represent the ECI.

Memory shot: Constitutional Provisions in short

• 324: Functions of EC and its composition.
• 325: One general electoral roll and equality among the citizens.
• 326: Adult suffrage.
• 327: Power to Parliament: To make provisions with respect to elections to federal and State Legislatures.
• 328: Power to State Legislature: To make laws with respect to elections to such legislature.
• 329: Bars interference by courts in electoral matters. Notwithstanding anything said in the constitution i.e., validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies shall not be called in question in any court.

Added Information: Conditions for filing an Election Petition

• No election to either House of Parliament or either House of the Legislature of a State shall be called in question except by an election petition.
• Any elector or candidate can file an election petition on grounds of malpractice during the election.
• In respect of elections to the Parliament and State Legislatures, they can only be filed before the High Court.
• In respect of elections for the offices of President and Vice President, such petitions can only be filed before the Supreme Court.

Conclusion

• The recent questions raised about the ECI’s credibility are certainly worrisome. An ECI in office with the express consent of both the ruling and opposition parties is a great opportunity to convince the country and all the parties contesting the elections of its neutrality and impartiality.

Mains Question

Q. Election Commission of India, the most powerful in the world, is said to have the most flawed appointment system. What are the concerns and demands raised from time to time? Discuss

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