Election Commissioner Appointment Law And SC Review
Source: Indian Express
GS II: Polity and Governance- Constitutional Bodies, Election Commission, Separation of Powers and Judicial Review.
Overview
- The 2023 Act replaced the CJI with a PM-nominated minister in the EC appointment panel.
- The Supreme Court delivered a split verdict on referring the law to a Constitution Bench.
- The case raises concerns over electoral independence, executive dominance and separation of powers.
- An independent Election Commission is essential for free and fair elections.
Why in the News?
A two-judge Bench of the Supreme Court has referred the challenge to the 2023 law governing the appointment of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs) to a larger Constitution Bench.
News in Brief
- The 2023 law replaced the Chief Justice of India (CJI) in the Election Commission selection committee with a Union Cabinet Minister nominated by the Prime Minister.
- The dispute centres on the exclusion of the Chief Justice of India (CJI) from the selection committee and whether the new appointment mechanism is consistent with the constitutional principles laid down by the Supreme Court earlier in the Anoop Baranwal case.
- The matter has now been placed before the CJI for constitution of a larger Bench.
Constitutional Framework
- Article 324 (2) deals with the appointment of the Election Commission.
- It provides that;
- The President appoints the CEC and other ECs.
- The appointment is subject to any law made by Parliament.
- The Constitution itself originally did not prescribe a detailed collegium-like selection mechanism.
- For many decades after 1950, Parliament did not enact a specific law governing the appointment procedure.
The Anoop Baranwal Case, 2023
- The Constitution Bench noted that Parliament had not enacted a law under Article 324(2) governing appointments to the Election Commission.
- Until Parliament enacted such legislation, the Court directed that appointments should be made on the recommendation of a committee consisting of Prime Minister, Leader of Opposition in Lok Sabha, and Chief Justice of India.
- The Court also emphasized the importance of protecting the Election Commission from exclusive executive control and ensuring institutional independence.
2023 Election Commission Appointment Law
- Parliament enacted the CEC and Other ECs Act, 2023.
- Under the new framework, the selection committee consists of:
- Prime Minister
- Union Cabinet Minister nominated by the Prime Minister
- Leader of Opposition in the Lok Sabha
- Thus, the CJI was removed from the selection committee and replaced by a Union Cabinet Minister.
- This change became the central issue in the constitutional challenge.
Why is the 2023 law being challenged?
- The central concern is the composition of the Selection Committee.
- Under the 2023 law:
- Prime Minister — Chairperson
- Union Cabinet Minister nominated by PM — Member
- Leader of Opposition in Lok Sabha — Member
- Thus, two of the three members belong to the executive.
- The petitioners argue that this arrangement may undermine the independence and impartiality of the Election Commission, which conducts elections to Parliament, State Legislatures and the officers of the President and Vice-President.
- They have also argued that the new mechanism needs to be examined in light of the constitutional principles laid down in Anoop Baranwal.
Government’s Arguments
- The government has opposed the challenge and has relied on principles such as separation of powers.
- It has argued, among other things, that:
- Parliament is constitutionally empowered to legislate on the appointment process.
- The selection mechanism does not necessarily require the participation of the CJI.
- Comparing the appointment of Election Commissioners with judicial appointments may not be appropriate because the two processes have different constitutional purposes.
- The presence of the Leader of Opposition provides participation from outside the government.
- The government has also questioned the assumption that the absence of the CJI necessarily makes the selection process constitutionally invalid.
Why was the case referred to a Constitution Bench?
- The two-judge bench delivered a split verdict.
Justice Dipankar Datta
- The existing two-judge Bench could decide the petitions by applying the constitutional principles laid down in Anoop Baranwal (2023).
- The PM-nominated Cabinet Minister may not act as an independent counterweight due to collective responsibility, potentially weakening the Leader of Opposition’s role.
- Emphasised that the Election Commission must have both actual independence and public perception of independence.
- Rejected the comparison with the judicial collegium, as the two appointment mechanisms operate in different institutional contexts.
Justice Satish Chandra Sharma
- Favoured referring the matter to a Constitution Bench, as the constitutional validity of the 2023 Act had not been directly examined earlier.
- Raised the question of whether replacing the CJI with a PM-nominated Cabinet Minister ensures a neutral appointment process.
- Considered the issues of separation of powers and comparison with the judicial collegium to involve substantial constitutional questions under Article 145(3).
Although the judges differed on the need for a Constitution Bench, they argued that referring the matter to another three-judge Bench could cause further delays.
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- Citing the Anoop Baranwal case, which originated in 2015 and took several years to reach a final judgment, they suggested that the CJI consider establishing a permanent five-judge Constitution Bench to expedite the hearing of important constitutional matters and reduce delays in constitutional adjudication.
What is a Constitution Bench?
- Under Article 145(3) of the Constitution, a case involving a substantial question of law as to the interpretation of the Constitution must be heard by a Bench consisting of at least five Supreme Court judges.
- A Constitution Bench is therefore constituted for cases involving important constitutional questions requiring authoritative interpretation.
Why is it significant?
- A Constitution Bench’s ruling carries greater institutional authority than an ordinary Bench and helps settle major questions of constitutional interpretation.
- Earlier instances including, where the split verdicts were referred to larger Benches, including matters involving the Prevention of Corruption Act.
Key Constitutional Issues
- Independence of the Election Commission- The Election Commission is expected to function independently while conducting elections.
- Parliamentary power– Article 324(2) gives Parliament the power to make a law concerning appointments.
- Separation of Powers- The case examines the respective roles of the legislature, executive and judiciary.
- Institutional neutrality- The composition of the Selection Committee raises questions about whether an independent or neutral member is necessary to maintain institutional credibility.
- Checks and Balances- The issue highlights the importance of checks and balances in preventing the concentration of power and maintaining public confidence in constitutional institutions.
Election Commission Of India
- The Election Commission of India has the constitutional responsibility of the superintendence, direction and control of elections to Parliament, State legislatures, Office of the President and Office of the Vice -President.
- The CEC and Election Commissioners are appointed by the President, subject to parliamentary legislation under Article 324(2).
- The CEC and ECs have a tenure of six years or until the age of 65 years, whichever is earlier.
- The CEC enjoys a special removal protection similar to that of a Supreme Court judge, while other Election Commissioners can be removed on the recommendation of the CEC.
- Constitutional Basis
- Article 324 – Election Commission of India
- Article 325 – No exclusion from electoral rolls on grounds of religion, race, caste or sex
- Article 326 – Elections based on adult suffrage
- Article 327 – Parliament’s power to make election-related laws
- Article 328 – State Legislature’s power regarding elections to State legislatures
- Article 329 – Bar to interference by courts in electoral matters, subject to constitutional provisions
Conclusion
Ensuring an independent and impartial Election Commission is essential for free and fair elections, democratic accountability and public confidence in India’s electoral system.
UPSC Prelims and Mains Practice Question
Consider the following statements:
- Article 324 provides the constitutional basis for the Election Commission of India.
- Article 145(3) provides for a Constitution Bench of at least five judges for substantial questions concerning constitutional interpretation.
- The 2023 law retains the Chief Justice of India as a member of the Selection Committee for appointing Election Commissioners.
Which of the statements given above is/are correct?
A) 1 and 2 only
B) 2 and 3 only
C) 1 and 3 only
D) 1,2 and 3
Answer: 1 and 2 only.
Mains Practice Question
Q) The independence of the Election Commission is essential for maintaining the credibility of the electoral process. Discuss the constitutional and institutional issues involved in the appointment of the Election Commissioners. (250 words)
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