Election Commission of India (ECI), and its functions, independence, appointment procedure have been a topic of contention in recent times. Recently, a five-judge bench of the Supreme Court (SC) unanimously ruled that the appointment of the Chief Election Commissioner and the Election Commissioners shall be made by the President on the advice of a Committee consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha and Chief Justice of India (CJI). The decision has opened up a dialogue about the independence and functionality of the ECI.
Important Points of the Supreme Court Verdict
The SC verdict indicates that members of the Constituent Assembly were of a clear view that elections must be conducted by an independent Commission. This viewpoint is backed by the addition of the words “subject to the provisions of any law made in that behalf by Parliament” in the Constitution, implying that the Assembly envisaged parliament making norms to govern appointments to ECI. The court stated the need to intervene due to the inertia of the Legislature and the vacuum created by it. Regarding the removal process for CEC and the ECs, the SC pointed out that the CEC holds a special position and hence, the processes cannot be identical.
Government’s Perspective
The government argued that in absence of a law by the parliament, the President holds the constitutional power, hence requesting the SC to exhibit judicial restraint.
Challenges Ahead
The constitution places the power to make laws regarding the appointment of ECI with the Parliament. This poses a question of Separation of Power with the SC ruling. But, the SC has maintained that this ruling will be subject to any law made by the parliament, implying parliament can bring a law to undo it. An alternate viewpoint suggests that the Court must step in to fill this “constitutional vacuum” since the parliament has not made a law on this issue yet.
Existing Provisions for Appointment to ECI
The Indian Constitution, in Part XV (Article 324-329), establishes a commission for electoral matters. The structure of ECI has evolved from a single-member body to a multi-member body after the Election Commissioner Amendment Act 1989. Article 324 prescribes that the ECI shall consist of the CEC and such number of other election commissioners, as the President may from time-to-time fix. The appointment of the CEC and other Election Commissioners is made by the President, subject to any law made in that behalf by Parliament.
Appointment Procedure and Tenure
The Law Minister suggests suitable candidates to the Prime Minister who advises the President. The President then makes the appointment. The President determines the conditions of service and tenure of office of the Election. They have a tenure of six years, or up to the age of 65 years, whichever is earlier.
Provision for Removal
Election Commissioners can resign anytime or can also be removed before the expiry of their term. The CEC can be removed from office only through a process of removal similar to that of a SC judge by Parliament. Any other EC cannot be removed except on the recommendation of CEC.
Previous Year Questions in UPSC Civil Services Examination
Questions regarding Election Commission of India have been asked in previous year examinations, giving insight into the importance of understanding the body’s structure, functionality and challenges. In 2017, the questions revolved around the structure of the ECI, recognition of political parties, and electoral reforms. In 2018, questions were focused on the use of Electronic Voting Machines (EVM) and the ensuing challenges for the Election Commission to ensure trustworthiness in elections. Such questions underline the significance of comprehensive knowledge of the Election Commission and its workings in the ever-evolving political landscape of India.
