Appointment of Chief Election Commissioner and Other ECs

Context: Recently, a Constitution Bench of the Supreme Court (SC) has stated the rules for appointment of Chief Election Commissioner (CEC) and Election Commissioners (ECs).

Highlights of the Supreme Court rulings:

• A high-power committee consisting of the Prime Minister, Leader of Opposition in Lok Sabha and the Chief Justice of India.
• In case no leader of Opposition is available, the leader of the largest opposition Party in the Lok Sabha in terms of numerical strength will take in that position.
  • This is an example of violation of the separation of powers between legislature and the judiciary.
• Earlier, Vishaka guidelines formed by the SC was one such example.
• For funding of ECI, government should create a permanent Secretariat and expenditure be charged on the Consolidated Fund of India.

About Election Commission India:

• The Election Commission was established in accordance with the Constitution on 25th January 1950.
• The Election Commission of India is an autonomous constitutional body responsible for administering Union and State election processes in India.
• The body administers elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies, State Legislative Councils and the offices of the President and Vice President of the country.
• It is not concerned with the elections to panchayats and municipalities in the states.
• For this, the Constitution of India provides for a separate State Election Commission.

Constitutional Provisions:

• Its powers, appointment and duties are mentioned in Part XV of the Constitution (Article 324 to Article 329) and the Representation of People Act.
• 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 ground of religion, race, caste or sex.
• Article 326: Elections to the Lok Sabha and Legislative Assemblies of States to be on the basis of adult suffrage.
• Article 327: Power of Parliament to make provision with respect to elections to legislature.
• 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.

Composition of Election Commission:

• Originally the commission had only a Chief Election Commissioner.
• It currently consists of the Chief Election Commissioner and two Election Commissioners.
• For the first time, two additional Commissioners were appointed on 16th October 1989 but they had a very short tenure till 1st January 1990.
• Later, on 1st October 1993 two additional Election Commissioners were appointed.
• The concept of a multi-member Commission has been in operation since then, with decision making power by majority vote.

Appointment ,Tenure and Privileges of Commissioners:

• The President appoints Chief Election Commissioner and Election Commissioners.
• They have a 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 of India.
• The Chief Election Commissioner can be removed from office only through impeachment by Parliament.

Removal of Election Commissioners:

• They can resign anytime or can also be removed before the expiry of their term.
• The CEC can be removed from office only by the order of the President, just like a judge of the Supreme Court.

Issue in Removal of other Commissioners:

• The Constitutional provision is silent about the procedure for removal of the two Election Commissioners.
• It only provides that they cannot be removed from office except on the recommendation of the CEC.
• The Constitution has not specified the term of the members of the Election Commission.
• The Constitution has not debarred the retiring election commissioners from any further appointment by the government.

Power and Functions of ECI:

• 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 scrutinising 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 Parliament and State Legislatures.
• It issues the Model Code of Conduct in elections for political parties and candidates so that no one indulges in unfair practice or there is no arbitrary abuse of powers by those in power.
• Under the Constitution, the Commission also has advisory jurisdiction in the matter of post-election disqualification of sitting members of Parliament and State Legislatures.
• Further, the cases of persons found guilty of corrupt practices at elections which come before the Supreme Court and High Courts are also referred to the Commission for its opinion on the question as to whether such person shall be disqualified and, if so, for what period.
• The opinion of the Commission in all such matters is binding on the President or, as the case may be, the Governor to whom such opinion is tendered.
• The Commission has the power to disqualify a candidate who has failed to lodge an account of his election expenses within the time and in the manner prescribed by law.
• The Commission has also the power for removing or reducing the period of such disqualification as also other disqualification under the law.

Significance of current Judgement:

• The functional autonomy of the CEC and the EC has a direct link with the process by which they are selected.
• As stated by the Court, “a vulnerable Election Commission would result in an insidious situation and detract from its efficient functioning.”
• The SC’s verdict, apart from ensuring fairness in the process, can act as a constitutional lesson in India’s troubled times.
• It found that in India, there is “an unrelenting abuse of the electoral process”.
• The judgment recognises the fine distinction between conventional democracy and constitutional democracy.
  • In the former, the majority alone matters.
  • In the latter, it is the Constitution that matters.
• In the judgment, the country finds an activist judiciary after a long time. This revival of judicial activism is well supported by legal reasoning and binding precedents.
• It has come out during a dark phase of majoritarianism with an aggrandising executive. This adds to the intrinsic value of the judgment.

Source: Indian Express

Previous Year Questions

Q.1) Consider the following statements :

1. The Election Commission of India is a five-member body.
2. The Union Ministry of Home Affairs decides the election schedule for the conduct of both general elections and bye-elections.
3. Election Commission resolves the disputes relating to splits/mergers of recognised political parties.

Which of the statements given above is/are correct? (2017)

1. 1 and 2 only
2. 2 only
3. 2 and 3 only
4. 3 only

Q.2) Consider the following statements:

1. In the election for Lok Sabha or State Assembly, the winning candidate must get at least 50 percent of the votes polled, to be declared elected.
2. According to the provisions laid down in the Constitution of India, in Lok Sabha, the Speaker’s post goes to the majority party and the Deputy Speaker’s to the Opposition.

Which of the statements given above is/are correct? (2017)

1. 1 only
2. 2 only
3. Both 1 and 2
4. Neither 1 nor 2