Daily Editorial Analysis for 1st December 2022

Towards a robust triumvirate

GS Paper: 2- Election Commission of India, Judiciary

Important for

Prelims exam: Election Commission of India (ECI)

Mains exam: Constitutional provisions of election commission

Context

• A five-judge Constitution Bench of the Supreme Court is examining a bunch of petitions recommending reforms in the process of appointment of members of the Election Commission.
• It is hoped that the Bench will also examine electoral reforms suggested to governments by successive Election Commissions over the last two decades or so. More proposals were added to the list over time and are pending with government. These range from strengthening the Commission’s inherent structure to handling the misuse of muscle and money power during elections, which violate the Model Code of Conduct.

About Election commission

The Election Commission of India (ECI) is an autonomous and permanent constitutional body responsible for organising free and fair elections in the Union and States of India.

Constitutional provisions

Part XV of the Constitution of India consists of Articles on Elections. Article 324 of the Constitution provides 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.

Articles 324 – 329

• 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 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

Since its inception in 1950, the election commission had been a one-member body with only the Chief Election Commissioner (CEC) as its sole member. Later, two more election commissioners were appointed to the body and the Election Commission became a multi-member body with 3 election commissioners. The President appoints the Chief Election Commissioner and other election commissioners. The tenure of office and the conditions of service of all the commissioners is determined by the President. The chief and the two other election commissioners have the same powers and emoluments including salaries, which are the same as a Supreme Court judge. In case of a difference of opinion amongst the three members, the matter is decided by the Commission by a majority.

Powers and responsibilities

The Commission’s functions and powers with respect to elections are divided into three categories (Administrative, Advisory, and Quasi-judicial). In detail, these powers include

1. Determining the Electoral Constituencies’ territorial areas throughout the country.
2. Preparing and periodically revising electoral rolls and registering all eligible voters.
3. Notifying the schedules and dates of elections and scrutinising nomination papers.
4. Granting recognition to the various political parties and allocating them election symbols.
5. The Commission also has advisory jurisdiction in the matter of post-election disqualification of sitting members of Parliament and State Legislatures.
6. 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.

The matter of appointments

This article deals with two issues. The first, under consideration, is whether Election Commissioners should be selected by the executive or by a collegium.

1. The Dinesh Goswami Committee in 1990 suggested that the Chief Election Commissioner be appointed by the President in consultation with the Chief Justice of India and the Leader of the Opposition (and in case the Leader of the Opposition was not available, then consultation be held with the leader the largest opposition group in the Lok Sabha).
2. It said this process should have statutory backing. Importantly, it applied the same criteria to the appointments of Election Commissioners, along with consultation with the Chief Election Commissioner.
3. The National Commission to Review the Working of the Constitution, under Justice M.N. Venkatachaliah, said that the Chief Election Commissioner and other Election Commissioners should be appointed on the recommendation of a body comprising the Prime Minister, the Leaders of the Opposition in the Lok Sabha and the Rajya Sabha, the Speaker of the Lok Sabha and the Deputy Chairman of the Rajya Sabha.
4. The 255th Report of the Law Commission, chaired by Justice A.P. Shah, said the appointment of all the Election Commissioners should be made by the President in consultation with a three-member collegium consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha (or the leader of the largest opposition party in the Lok Sabha), and the Chief Justice of India. It also suggested measures to safeguard Election Commissioners from arbitrary removal, in a manner similar to what is accorded to the Chief Election Commissioner, who can only be removed by impeachment, which is by no means easy.

Providing security

• The second issue is to afford the same security from arbitrary removal to Election Commissioners that the Constitution affords to the Chief Election Commissioner.
• The Supreme Court lost an opportunity for reform in its judgment in the Seshan case. It conferred equal powers on the Election Commissioners as those enjoyed by the Chief Election Commissioner (referring to the Chief Election Commissioner as primus inter pares, or first among equals) and even offered majority power, whereby any two can overrule even the Chief Election Commissioner.
• Yet, it did not afford the Election Commissioners the same constitutional protection (of removal by impeachment) as is accorded to the Chief Election Commissioner. It is hoped that the present Bench will examine this.

Conclusion

While the Chief Election Commissioner should be appointed by a collegium, this must apply equally to the Election Commissioners. The collegium should be wide based. Strengthened now by a broad-based selection by the top constitutional luminaries of the country, the Election Commission must now equally be protected from arbitrary removal by a constitutional amendment that would ensure a removal process that currently applies only to the Chief Election Commissioner. Without this, the Election Commission of India will not be a robust triumvirate.