Supreme Court verdict on ECI appointments
Context- A five-judge bench of the Supreme Court Thursday unanimously ruled that a high-power committee consisting of the Prime Minister, Leader of Opposition in Lok Sabha, and the Chief Justice of India must pick the Chief Election Commissioner (CEC) and Election Commissioners (ECs).
(Credits- Election Commission of India)
Why did the SC debate the issue?
- In 2015, a public interest litigation was filed by Anoop Baranwal challenging the constitutional validity of the practice of the Centre appointing members of the Election Commission.
- In October 2018, a two-judge bench of the SC referred the case to a larger bench since it would require a close examination of Article 324 of the Constitution, which deals with the mandate of the Chief Election Commissioner.
What is the challenge?
- Article 324(2) reads: “The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time-to-time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.”
- The crux of the challenge is that since there is no law made by Parliament on this issue, the Court must step in to fill the “constitutional vacuum.” This examination also leads to the larger question of separation of powers and if the judiciary is overstepping its role in filling this gap in the law.
- Two corollary issues that were also examined by the Court are whether the process of removal of the two Election Commissioners must be the same as the CEC; and regarding the funding of the EC.
- As per the current process, 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.
How are the CEC and ECs currently appointed?
- There are just five Articles (324-329) in Part XV (Elections) of the Constitution. 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.
What are the powers of the Election Commission?
- The Constitution of India gave the Election Commission sweeping powers without going into the specifics. Introducing this provision in the Constituent Assembly on June 15, 1949, Babasaheb Ambedkar had said “the whole election machinery should be in the hands of a Central Election Commission, which alone would be entitled to issue directives to returning officers, polling officers and others”.
- Parliament subsequently enacted The Representation of the People Act, 1950, and The Representation of the People Act, 1951, to define and enlarge the powers of the Commission.
What are the other findings of the court?
- On the issue of whether the process of removal of Election Commissioners must be the same as it is for the CEC, the Court ruled that it cannot be the same. The Constitution states that the CEC can be removed in a process similar to a judge — through a majority in both houses of Parliament on grounds of proven incapacity or misbehaviour.
- On the issue of funding the EC, the Court left it to the government. “We would only make an appeal on the basis that there is an urgent need to provide for a permanent Secretariat and also to provide that the expenditure be charged on the Consolidated Fund of India and it is for the Union of India to seriously consider bringing in the much-needed changes,” the ruling stated.
Conclusion- Supreme Court has made it clear that parliament can make law on the issue as has been allowed in the constitution. Hence, it is ultimately the prerogative of the lawmakers.
Source- Indian Express
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Syllabus- GS-2; Constitutional Bodies