The Supreme Court’s new rules for the appointment of Election Commissioners by the President

The Supreme Court’s new rules for the appointment of Election Commissioners by the President

Why in News?

A five-judge bench of the Supreme Court (SC) unanimously ruled that the appointment of the Chief Election Commissioner and the Election Commissioners shall be made by the President on the advice of a Committee consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha and Chief Justice of India (CJI).

In case no leader of Opposition is available, the leader of the largest opposition Party in the Lok Sabha in terms of numerical strength will be a part of such committee.

What are the Other Important Points of the Verdict?

SC Verdict:

• SC stated that a reading of the debates of the Constituent Assembly (CA) on the appointment of ECI makes clear that all the members were of the clear view that elections must be conducted by an independent Commission.
• The deliberate addition of the words “subject to the provisions of any law made in that behalf by Parliament” further indicates that CA envisaged Parliament making norms to govern appointment to ECI.
• While ordinarily, the court cannot encroach on a purely legislative power, but in the context of the Constitution and inertia of the Legislatureand the vacuum created by it make it necessary for the court to intervene.
• On the question whether process of removal should be same for CEC and the ECs, SC stated that it cannot be same as CEC has special position and Article 324 becomes inoperable without CEC.
• SC left the question of funding the EC, Permanent secretariat and need for expenditure to be charged on Consolidated Fund of India for the government to decide.

Government Argument:

• The Government had argued that in the absence of such a law by parliament, the President has the constitutional power and asked the SC to exhibit Judicial restraint.

What is the Challenge?

As the constitution places the power to make any law on appointment of ECI in the hands of Parliament, SC ruling on this issue poses a question of Separation of Power.

However, SC has stated that this ruling will be subject to any law made by Parliament, which means Parliament can bring a law to undo it.

Another view is that since there is no law made by Parliament on this issue, the Court must step in to fill the “constitutional vacuum.”

What are the Existing Provisions for Appointment to ECI?

Constitutional Provisions: Part XV (Article 324-329) of the Indian Constitution: It deals with elections and establishes a commission for these matters.

Structure of ECI:

• Originally the commission had only one EC but after the Election Commissioner Amendment Act 1989, it was made a multi-member body (1 CEC & 2 other ECs.).
• According to Article 324, the Election Commission shall consist of the CEC and such number of other election commissioners, if any, as the President may from time-to-time fix.

Appointment Procedure:

• Article 324(2): The appointment of the CEC and other Election Commissioners shall be made by the President, subject to the provisions of any law made in that behalf by
• The Law Minister suggests a pool of suitable candidates to the Prime Minister for consideration. The President makes the appointment on the advice of the PM.
• The President determines the conditions of service and tenure of office of the Election.
• They have a tenure of six years, or up to the age of 65 years, whichever is earlier.

Removal:

• They can resign anytime or can also be removed before the expiry of their term.
• The CEC can be removed from office only through a process of removal similar to that of a SC judge by Parliament.
• Any other EC cannot be removed except on the recommendation of CEC.