APPOINTMENT OF ELECTION COMMISIONER

APPOINTMENT OF ELECTION COMMISIONER

CONTEXT :

• Recently, the judgment of the five-judge Supreme Court Bench on the appointment of the Chief Election Commissioner (CEC) and Election Commissioners is historic as it did refer to constitutional values that democracy must promote.

SUPREME COURT JUDGEMENT

• SC in Anoop Baranwal V. Union Of India, a five judges constitution bench of Supreme Court ruled that there should be a committee to choose Chief Election Commissioner and Election Commissioners.
• The following is the composition of the committee for the appointment of the Central Vigilance Commissioner and the Vigilance Commissioner :
  1. The Prime Minister – chairperson,
  2. The Minister of Home Affairs – member,
  3. The Leader of the Opposition in the House of the People – member.
• Based on the recommendations of this committee, the appointment of the CEC and Election Commissioner could be made by warrant under the hand and seal of the Hon’ble President.
• SC also observed that the new law cannot perpetuate the status quo which is, the Law Minister suggests a pool of suitable candidates to the Prime Minister for consideration.
• The court has made an appeal to the Parliament and the Union Government to set up a permanent secretariat which draws its expenses directly from the Consolidated Fund of India and not the government.
• The bench also mentioned that, “We make it clear that this will be subject to any law to be made by Parliament”.

UNION OF INDIA’S STAND

• The Attorney General for India, R. Venkatramani, represented the Union of India.
• Venkatramani argued that striking down a Constitutional provision is beyond the judiciary’s jurisdiction.
• The judiciary can only interpret and expand the scope of an already existing provision.

HOW ARE THE CEC AND ECs CURRENTLY APPOINTED ?

• There are just five Articles (324-329) in Part XV (Elections) of the Constitution dealing with the matter.
• Article 324 of the Constitution vests the “superintendence, direction and control of elections” in an Election Commission consisting “of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix”.
• The Constitution does not lay down a specific legislative process for the appointment of the CEC and ECs.
• The President makes the appointment on the advice of the Union Council of Ministers headed by the Prime Minister.

ADVANTAGES OF CHANGES IN SELECTION PROCEDURE

• There are multi-fold advantages of appointment of CEC and ECs based on the recommendations of committee.
• It enforces the EC’s credibility and also insulates the EC from political attacks.
• It addresses the conflict of interests prevailing in the existing selection procedure for election commissioners.
• SC’s Election Commission Judgment will instill the trust and faith of the masses in this powerful institution.
• It will greatly add to the perceived sense of impartiality, neutrality and credibility thereby further strengthening the faith of the public in the institutional framework of the Election Commission.

CHALLENGES ASSOCIATED WITH THE RECENT CHANGES IN APPOINTMENT PROCEDURE

• Against the “doctrine of separation of power” –Constitution has given powers to the Parliament to frame the law with respect to the appointments of the election commission.
• The Supreme Court’s intervention in this domain is regarded as a disregard for the doctrine of separation of powers.
• Against the idea of “constitution is supreme”: The words “subject to the provisions of any law made on that behalf by Parliament” mentioned in Article 324(2) have been included only after prolonged discussions in the Constituent Assembly.
• Violative of “Basic Structure Of Constitution” doctorine.
• Presence of CJI in appointing committees could give all appointments extra legitimacy and thus make it harder for judiciary to look impartially on the flaws in process.

WAY FORWARD

• The Supreme Court, in the judgment, has delivered for a reduction of the Centre’s invention in the process of appointment.
• As per the new rules, which are to stay until the Parliament makes stringent laws on the same.
• The judgement also raises questions on the selection procedure of the judiciary. The selection procedure for the judiciary should also get a progressive overhaul.
• The SC’s attention to the functioning of EC is timely. The ruling examined a number of provisions in the Constitution, including the ones relating to the powers of the Supreme Court and High Court.

SOURCE : THE INDIAN EXPRESS

Syllabus : GS-2, MAINS, INDIAN POLITY