Why in the news? 

The President has appointed Gyanesh Kumar and Sukhbir Singh Sandhu, both retired IAS officers, as Election Commissioners (ECs) to fill up two vacancies in the three-member Election Commission of India

Context:

• Article 324 of the Indian Constitution dictates the appointment of Election Commissioners, granting the Election Commission of India (ECI) authority over the supervision, guidance, and management of elections.
• The Chief Election Commissioner (CEC) and Election Commissioners (ECs) are nominated by the President of India. While traditionally an executive prerogative, recent efforts aim to enhance inclusivity and transparency in this selection process.

How were the new ECs selected?

• Selection Committee: Comprising Prime Minister, Union Cabinet Minister, and Leader of the Opposition in the Lok Sabha.
  • Six names were shortlisted for consideration by the selection committee.
  • Headed by the Union Minister for Law and Justice and includes two officials with the rank of Secretary to the government.
  • The shortlisting was done by a committee which, according to the  Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
  • The final appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) is made by the President of India based on the recommendations of the Selection Committee.

What was the process before this?

• Historical Background: Initially, the EC consisted only of the CEC for nearly 40 years after the adoption of the Constitution in 1949. It wasn’t until October 1989 that the EC became a multi-member body.
• Appointment Rescission: In January 1990, the appointment of two Election Commissioners was rescinded shortly after their appointment.
• Enactment of Law: In 1991, a law was enacted to determine the conditions of service for the CEC and ECs. This law was amended in 1993. However, it did not specify an appointment process for the CEC and ECs.
• Appointment Process: In the absence of a specified process in parliamentary law, the appointment of the CEC and ECs has been at the discretion of the President. The Law Ministry typically presents a panel of names to the Prime Minister, who then recommends one of them as an EC to the President.
• Appointment Convention: It became customary to appoint officials as ECs initially, and upon the completion of the CEC’s tenure, the senior EC would be elevated to the position of CEC.

What did the SC rule on the process?

• Anoop Baranwal vs Union of India: In the case of Anoop Baranwal versus Union of India, a five-member Constitution Bench ruled that the power to appoint the Chief Election Commissioner (CEC) and other Election Commissioners (ECs) was not intended to be exclusively vested in the executive branch. Instead, it was subject to any law made by Parliament.
• Interim Arrangement: Since no such law had been enacted since the inception of the Constitution, the court established an interim arrangement for the appointment of CEC and ECs. This interim arrangement was to remain in place until Parliament formulated its law regarding the appointment process.
• Composition of Appointment Committee: The court specified that appointments should be made by a three-member committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha (or the leader of the largest party in the Opposition), and the Chief Justice of India.
• Response: In response to the court’s directive, Parliament enacted the 2023 Act, which received presidential assent and was notified in December 2023

What is the criticism against the Act?

• Executive Majority: Critics argue that the new Act has altered the composition of the selection panel by removing the Chief Justice of India (CJI) and replacing them with a Union Minister. This change results in a two-one majority for the executive within the three-member committee.
• Supreme Court’s Response: Despite challenges and requests for a stay on the implementation of the new Act, the Supreme Court has consistently refused to intervene, allowing the Act to proceed.
• Upholding Constitutional Principle: Critics argue that by shifting the balance of power within the selection panel in favor of the executive, the Act undermines the constitutional principle of maintaining the autonomy and impartiality of constitutional bodies like the Election Commission.

Conclusion:

In moving forward, it’s imperative to restore balance in Election Commissioner appointments, ensuring judicial oversight, transparency, and inclusivity. Legislative reforms should reflect constitutional principles, safeguarding the independence of constitutional bodies and preserving democratic integrity.

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