Relevance: Mains: G.S paper II: Polity
Context
- A plea has been filed in the Supreme Court seeking the chief election commissioner and election commissioners be appointed by a three-member collegium. The collegium will comprise the Prime Minister, the leader of opposition in Lok Sabha and the Chief Justice of India.
- The plea also sought more autonomy and powers to make its own rules and an independent secretariat for the Election Commission of India.
What are the Constitutional Provisions and major laws with respect to Election Commission?
- Election Commission of India is a permanent independent constitutional body created under Article 324 of the Constitution. The key functionaries of the Election Commission are the Chief Election Commissioner and one or more Election Commissioners.
- The major laws with respect to elections are the Presidential and Vice-Presidential Elections Act, 1952; the Representation of the People Act, 1950; and the Representation of the People Act, 1951.
- With respect to Election Commissioners, The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 was enacted by the Parliament.
What is the present system of appointment of the Chief Election Commissioner (CEC) and the Election Commissioners (ECs)?
- The Constitution has not prescribed a method for selection of the Chief Election Commissioners and Election Commissioners. However, the basic demand of the Constitution makers was that there should be a parliamentary law.
- Article 324 (2) contains two aspects:
- Firstly, The President shall appoint the CECs and ECs until there is a law by the Parliament.
- Secondly, The Parliament should enact a law for the appointment of the CECs and ECs. However, the Parliament is yet to enact a law.
- Article 324 (5) states that Parliament has the power to regulate the terms and conditions of service and tenure of ECs. The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 addresses to some extent (provision for a selection committee forgone) the demands of Article 324(5).
- And thus, under the Transaction of Business rules, the CECs and ECs are appointed by the President based on the recommendations of Prime Minister.
- In summary, it can be said that to address the current situation, the President is merely extending his powers to meet the demand of the Constitution.
Why is there a demand to change?
- Allegations of partisan nature of the last few CECs and ECs of Election commission.
- There is no expert body or methodology to appoint the CEC even after 73 years. Committees like the Dinesh Goswami Committee (1990) and the Law Commission in its various reports have recommended for such a mechanism.
- In United States, Canada or South Africa, there is outside consultation either with the senate or with an expert body with respect to the appointment of the key officials of their respective Election Commissions.
What might be the possible issues?
- There are committees to appoint for statutory positions (CBI director or the Chief Vigilance Commissioner etc.). However, for constitutional positions there are none. There might be demands for other constitutional positions to be appointed by a collegium system.
- The distinction between the appointment and removal of CECs and ECs also needs to be addressed.
- Supreme Court should respect the separation of powers with respect to the executive and legislature.
Way Forward:
In the context of Election Commission
- Granting greater autonomy to Election Commission of India as recommended by the 255th Law commission report
- Expenditure of the EC should be charged on the Consolidated Fund of India.
- Many of the CECs have have suggested a collegium type of system to address the allegations over the Independence of CECs.
- The appointment and the removal process of CECs and EC should be the same. Both law as well as committee with respect to the appointment of CEC and EC can bring in more transparency.
In the context of Government
- Introduce the Electoral Reforms
- President shall make an appointment in consultation of PM with the concurrence of 2/3rds of the majority of the joint session of the parliament.
- By including the provisions mentioned in the 70th constitutional Amendment Bill introduced in 1990 (withdrawn in 1993) as the Speaker of the Lok Sabha, the Deputy Chairman of the Rajya Sabha and the leader of Opposition in Lok Sabha, can also be included in the selection committee.