Election Commission of India: Appointment, Independence and Institutional Reforms

GS Paper II: Constitutional & Non-Constitutional Bodies

Context: Recently, an investigative report by Indian Express revealed internal dissent within the Election Commission of India (ECI).

Background

• Repeated Objections: Two Election Commission members — Sukhbir Sandhu and Vivek Joshi — formally recorded objections at least 14 times in the last 10 months regarding decisions taken without their prior knowledge.
• Key Electoral Matters: The objections pertained to key matters including electoral rolls and Special Intensive Revisions.
• Opposition Allegations: Opposition parties alleged that Chief Election Commissioner Gyanesh Kumar was acting autocratically and as a government puppet, sidelining the other two commissioners.
• Need for Impartiality: For democracy to survive, the ECI must remain fair, impartial and objective.

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Constitutional Framework And Historical Context

• Constitutional Basis: The ECI derives its power as a constitutional body from Article 324.
• Composition: Chief Election Commissioner (CEC) and such number of Election Commissioners (ECs) as the President may fix. 
• Current Selection Committee: Prime Minister, Union Cabinet Minister nominated by the Prime Minister, Leader of Opposition in Lok Sabha.
• Appointment Provision: Article 324(2) provides for the appointment of the CEC and ECs by the President, subject to any law enacted by Parliament.
• Electoral Jurisdiction: It conducts elections for Parliament, State Legislatures, the President and the Vice President.
• Local Elections: Panchayat and Municipal elections are conducted by State Election Commissions, not the ECI.
• Absence of Statutory Law: From 1950 to 2023, Parliament enacted no specific law governing these appointments.
• Executive-Led Appointments: For 73 years, appointments were suggested directly by the Prime Minister and the Council of Ministers.
• Need for Visible Impartiality: “Caesar’s wife must be above suspicion” — the ECI must not only be fair but also appear fair to maintain public and opposition trust.

Judicial Benchmark And Legislative Response

• Supreme Court Intervention: In Anoop Baranwal v. Union of India, the Supreme Court mandated a selection committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India.
• Parliamentary Legislation: Parliament subsequently enacted the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.
• Change in Selection Panel: The 2023 Act replaced the Chief Justice of India with a Union Cabinet Minister in the selection committee.
• Constitutional Challenge: Challenges to the 2023 Act involve questions of constitutional interpretation under Article 145(3), requiring a minimum of a five-judge Constitution Bench.
• Need for Institutional Continuity: The Supreme Court suggested establishing a permanent Constitution Bench to avoid delays caused by temporary ad hoc benches.

Key Systemic Concerns And Structural Anomaly

• Executive Dominance: Two out of three selection panel members represent the government, reducing selection to a formality.
• Conflict With Article 75(3): The Council of Ministers is collectively responsible to the Lok Sabha, meaning a Cabinet Minister cannot vote independently against the Prime Minister.
• Opposition Tokenism: Reduces the Leader of Opposition’s role in the committee to symbolic representation.
• Removal Protection Anomaly: The CEC enjoys constitutional protection and can be removed only as a Supreme Court judge through impeachment, whereas other ECs can be removed on the CEC’s recommendation.
• Financial Autonomy: The ECI’s expenditure is charged on the Consolidated Fund of India, providing it with greater financial independence from the executive. 

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Comparative Global Best Practices

• United Kingdom: Independent assessment process with strong parliamentary scrutiny.
• South Africa: Selection led by the Chief Justice, supported by an independent selection panel and multi-party parliamentary verification.
• Canada: Chief Electoral Officer appointed directly by Parliament to minimise executive interference

Way Forward

• Broaden Panel Representation: Include an independent constitutional expert or institutional member to prevent dominant control by any single branch.
• Search and Assessment Committee: Implement the Law Commission’s 255th Report recommendation to establish a search committee to shortlist candidates.
• Transparent & Fixed Criteria: Establish public criteria regarding experience, integrity and competence.
• Strengthen Parliamentary Oversight: Increase direct parliamentary involvement in appointments to uphold the spirit of Article 324(2).
• Equal Security of Tenure: Grant equal constitutional removal protection to all Election Commissioners alongside the CEC.

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Conclusion

Ensuring a fair, impartial and objective ECI requires a transparent and balanced appointment process with adequate institutional safeguards.

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