INDEPENDENT MECHANISM FOR APPOINTMENT OF ELECTION
COMMISSIONERS
Election commission of India is a constitutional body under Article 324 which is vested with the
responsibility of superintendence, direction and control of conduct of elections. It consists of
chief election Commissioner and two other election commissioners. Election commission
independence is the backdrop of our democracy. It ensures free and fair election.
In a recent petition, the Supreme Court had observed that the appointment of Arun Goel as
Election Commissioner had been carried out with “lightning speed”, the procedure taking less
than 24 hours on November 18 from start to finish. The ongoing hearing before the Supreme
Court on the need to have a neutral mechanism for appointment of Election Commissioners
raises questions on the body’s functional independence.
The Supreme Court while deciding the matter said that “Any process that seeks to improve the
election process before this court must be considered” and directed the appointment of Election
Commissioners on advice of Committee comprising of Prime Minister, Leader of Opposition and
Chief Justice of India.
Current issue with appointments
At present, the Chief Election Commissioner and Election Commissioners are appointed by the
president on the advice of the Cabinet under Transaction of Business Rules, 1961 of the Union
cabinet. The current convention is to appoint Election Commissioners, and elevate them as Chief
Election Commissioner on the basis of seniority.
The issue is related to the likelihood of biasness in the appointments, possibility of biased
conduct by Chief Election Commissioner and Election Commissioners, in the future scope for
personal whimsy in the appointments of Election Commissioners.
The Court has also questioned the practice of appointing Chief Election Commissioner close to
the age of 65 so that they have only a brief tenure. Equal tenure security for CEC and Election
Commissioners will boost their independence.
The Election Commissioners must also be provided with security of tenure as they can be
removed from office on the Chief Election Commissioner’s recommendation.
The Constitution is also silent about the procedure for removal of the two Election
Commissioners. It only provides for removal on the recommendation of the Chief Election
Commissioner. The Constitution has neither prescribed the qualification of the members of the
ECI nor specified the terms of the members of the Election commission of India. The
Constitution has not debarred the retiring election commissioners from any further appointment
by the government.
Currently, the Executive enjoys the power to make appointments that affect the ECI's
independence and make the process of appointing election commissioners partial and biased.
Considering the Court’s vocal concern about the Election commission of India’s independence,
the question is whether the Commissioners should be appointed on the recommendation of a
high-powered committee independent body.
The five-judge Bench of Supreme Court led by Justice K.M. Joseph had heard separate petitions
filed by advocates Prashant Bhushan, Kaleeswaram Raj and senior advocate Gopal
Sankaranarayanan, who had all argued that the selection process of election commissioners
should be carried out by a high-level committee comprising the Prime Minister, the Leader of the
Opposition, and the Chief Justice of India, as was done in the case of the Director, Central
Bureau of Investigation (CBI).
The petitions were referred to the Constitution Bench despite many objections raised by the
Centre that the appointment of Election Commissioners to the top poll body was "consciously
and deliberately" a part of the executive function of the state. Court said the Election
Commission has to remain “aloof” from all forms subjugation by the executive. Thus, it decided
that Election Commission has to be independent.
Conclusion
The Election commission of India should be free from political and/or executive interference to
prevent any kind of manipulation in the selection process. It must ensure the smooth and
successful functioning of the democracy. It cannot become arbitrary and partisan as that will lead
to the failure of democracy.
The Election commission of India needs to continuously reinvent its powers given to it under the
Indian Constitution for better functioning. The integrity and independence of the Election
commission of India and its process needs to be preserved for a free and fair election in India and
to maintain the public's faith and confidence in the Election process.
Aisha Ali
X Semester, [Link].B. (Hons.)