Appointment of Election Commission

A five-judge Constitution Bench of the Supreme Court has unanimously ruled that a high-power committee consisting of the Prime Minister, Leader of Opposition in Lok Sabha and the Chief Justice of India must pick the Chief Election Commissioner (CEC) and Election Commissioners (ECs).

Petition to reform the appointment procedure –

• In 2015, a PIL was filed in SC contending that executive making appointments to ECI has degraded its independence over time.
• It claimed that the current system of appointments violates Article 324(2) of the Constitution and is hence unconstitutional.
• The SC in 2018 referred the PIL to a five-judge Constitution bench for authoritative adjudication.

How are the CEC and ECs currently appointed?

• There are just five Articles (324-329) in Part XV (Elections) of the Constitution.
• Article 324 of the Constitution vests the “superintendence, direction and control of elections” in an Election Commission consisting “of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix”.
• The Constitution does not lay down a specific legislative process for the appointment of the CEC and ECs.
• The President makes the appointment on the advice of the Union Council of Ministers headed by the Prime Minister.

Observations of the Supreme Court –

• In the absence of a law to oversee such appointments, the silence of the Indian Constitution is being exploited.
• The government ensures that the person nominated does not serve the full six years by picking someone close to 65, thus undermining independence.
• Any ruling party at the Centre “likes to perpetuate itself in power,” can appoint a ‘Yes Man’ to the post under the current system.
• The bench also mooted the idea of including the Chief Justice of India (CJI) in the committee which appoints Election Commissioner to ensure “neutrality” and independence of the poll panel.

Way forward –

• Though the existing system where the executive has absolute power over appointments to the ECI is unsatisfactory, historically problematic, and damages the rule of law, but the Court must be careful to avoid band aid or stop-gap solutions.
• The court can chart a possible alternative by handing down a suspended declaration of invalidity, i.e., a remedy where the Court puts into place certain interim guidelines, but leaves a more permanent, structural solution up to the legislature.
• An Independent Institutions Bill also be enacted to ensure credibility and fairness of the fourth branch institutions and should seek following objectives —
  • • Multi-partisan appointments
    • Operational independence and impartiality
    • Accountability to the legislature rather than the executive