Appointment of CEC and EC members

Context:

A petition was filed in the Supreme Court seeking the constitution of an independent collegium to appoint members of the Election Commission.

Probable Question:

1. “The constitution of an      independent collegium to appoint members of the Election Commission (EC)      will ensure the independence of the election commission.” Critically      Examine.

Background:

● Article 324 deals with the Election Commission. It prescribes that the power of superintendence, direction and control of elections to parliament, state legislatures, the office of President of India and the office of vice-President of India shall be vested in the election commission of India.

● The Election Commission has been functioning as a multi-member body including three election commissioners. The Chief Election Commissioner and the 2 other election commissioners have equivalent powers and receive equal salary, allowances and other perquisites, which are similar to those of a judge of the Supreme Court.

The present system of Appointment:

● There is no prescribed procedure for the appointment of the Chief Election Commissioner and Election Commissioners as per the constitution.

● At present, the President appoints both the Chief Election Commissioner and other election commissioners based on the recommendations made by the Prime Minister. Therefore, it is the executive power of the President to appoint CEC and ECs.

● However, according to Article 324(5), the Parliament has the power to regulate the terms of conditions of service and tenure of the ECs.

● The Parliament enacted the Chief Election Commissioner and Election Commissioners (Conditions of Service) Act, 1991, which gave the CEC a status equal to that of a Supreme Court judge, and his retirement age was fixed at 65 years. The ECs were given the status of High Court judges, and their retirement age was fixed at 62 years.

● The Constitution has not described the term of office and the qualifications (legal, educational, administrative or judicial) of the members of the Election Commission.

Need for an Independent Collegium:

● Recommendations as given by various expert committees

➢ The 255th Law Commission Report(2015) recommended that the appointment of all the Election Commissioner should be made by the President in consultation with a three-member collegium or selection committee, consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha and the Chief Justice of India.

➢ The Second Administrative Reforms Commission, in its fourth report in January 2007, recommended a neutral and independent body to recommend names for the ECI.

➢ Dinesh Goswami Committee on Electoral Reforms (1990) appointed by the Central Government, recommended effective consultation with neutral authorities like Chief Justice of India and Leader of the Opposition for appointments in the ECI.

➢ Justice Tarkunde Committee (1975)recommended that the members of ECI should be appointed by the President on the advice of a committee consisting of the Prime Minister, Leader of the Opposition in the Lok Sabha and the Chief Justice of India.

● Insulation from Political and Executive Interference: the appointment of members of the Election Commission on the whims and fancies of the Executive violates the very foundation on which it was created, thus, making the Commission a branch of the Executive.

● To make it impartial to political parties: The Election Commission alsorenders a quasi-judicial function between the various political partiesincluding the ruling government and other parties. In such circumstances, the Executive cannot be the sole participant in the appointment of members of the Election Commission as it gives unfettered discretion to the ruling party to choose someone whose loyalty to it is ensured and thereby renders the selection process vulnerable to manipulation.

● However, the independence of EC cannot merely be safeguarded by the appointment through an independent collegium. Further constitutional safeguards are required not just for the CEC but other members of EC as well.

Conclusion:

The Appointment of members of the election commission by the executive is subject to the influence of political parties. There is a need for a legislative framework to ensure the independence of ECI and free and fair elections in a democracy.