A Constitutional bench of Supreme Court has reserved its judgment, related to the method by which the Election Commission of India (ECI) is constituted and Election Commissioners (EC) are appointed.


An institution of fourth branch of the state

  • According to the classical understanding of modern democracy, there are 3 wings of state – the legislature, the executive, and the judiciary.
  • The task of the Constitution is to allocate powers between these 3 wings, and to ensure that there is an adequate degree of checks and balances between them.
  • Traditionally, bodies that are involved with administrative and implementational issues (elections being among them) are believed to fall within the executive domain.
  • However, in contemporary times, the healthy constitutional democracies need what are known as “fourth branch institutions” (or integrity institutions), to provide an infrastructure of implementation of basic rights of citizens. For example, the right to information – a feature of most modern constitutional democracies, is only a paper guarantee without an infrastructure of implementation.
  • Hence, there is need to ensure that these fourth branch institutions are functionally independent from the political executive since these are the vehicles for implementing rights against the executive.
  • The fourth branch institutions in India are established either by constitution or by law. E.g., Election Commission, Lokpal, CAG, Public Service Commission(s), etc., by constitution and CBI, NHRC, RBI etc., by law.
  • Though the Constitution protects the independence of these institutions to some degree, but the power of appointment of officials to these institutions lies exclusively with the executive. Similarly, the power of appointment of Electoral Commissioner lies exclusively with the executive (formally, the President of India acting on the aid and advice of the Council of Ministers).
  • Hence, the government decides who gets to be in charge of running fourth branch institutions. This is the reason, that the SC in the landmark Vineet Narain case, called the CBI a ‘caged parrot.’


Where does the problem lie?

  • In India, Article 324 (2) of the Indian Constitution provides that the Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, as the President may from time-to-time fix.
  • Their appointment shall be subject to law made by Parliament. However, such a law has not been enacted yet.
  • In the absence of such a law, the President has been making appointments as per the recommendations of the Prime Minister.


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.


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



There is almost no constitutional democracy in the world that allows the political executive sole power to staff a body as important to sustaining democracy as an Election Commission. However, to craft a viable appointments process, political consensus, public deliberation, and, a carefully crafted legislation is needed and rather than a singular judicial decree.


SourceThe Hindu


QUESTION – As an element of fourth branch institutions of the Indian state, the appointment to the Election Commission of India cannot be made in the absence of parliamentary supervision. Discuss the recent observations of the Supreme Court and suggest a way forward.