INDEPENDENCE OF ELECTION COMMISSION OF INDIA - POLITY
News:
● Supreme court Constitution bench has unanimously ruled that the Chief Election Commissioner and other Election Commissioners appointment should be made by the independent committee.
About the case and ruling:
● In 2015 public interest litigation was filed to challenge 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.
Issues:
● Appointment process of CEC and other EC's.
● Removal process of Election commissioners.
● Funding pattern of Election commission.
Supreme Court verdict:
● High power committee: Consisting of the Prime Minister, Leader of Opposition in Lok Sabha or leader of largest opposition party in the lok sabha and the Chief Justice of India must pick the Chief Election Commissioner (CEC) and Election Commissioners (ECs).
○ This will be subject to any law to be made by Parliament.
● Article 324(2) - 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 removal process of the Chief Election Commissioner and Election Commissioners should be different as of now.
● The Supreme Court ruled that the Permanent secretariat for the ECI and the Election commission expenditure shall be charged on from the consolidated fund of India.
Current process of appointing CEC and EC:
● The Law Minister suggests a pool of suitable candidates to the Prime Minister for consideration.
● Prime Minister selects the suitable candidate and suggests the President to make an appointment.
● As per Article 324 President appoints Chief Election Commissioner and other Election Commissioners.
About Election Commission of India:
● Established on 25 January 1950.
● It is a permanent and independent body responsible for administering Union and State election processes in India.
● Power of superintendence, direction and control of elections to parliament, state legislatures, the office of president of India and the office of vice president of India is vested with the election commission.
● Composition: Chief Election Commissioner and two other Election Commissioners.
● Appointment: Made by the President.
● Tenure: The Chief Election Commissioner and other Election Commissioners hold office for a term of six years or until they attain the age of 65 years, whichever is earlier.
● Removal: The process and the grounds for removal of the chief election commissioner are the same as that of a judge of the Supreme Court.
● He can be removed by the President on the basis of a resolution passed to that effect by both the Houses of Parliament with the special majority, either on the ground of proved misbehavior or incapacity. Thus, he does not hold his office till the pleasure of the president, though he is appointed by him.
Powers and functions:
● Determination of territorial areas: To determine territorial areas of electoral constituencies throughout the country on the basis of the Delimitation Commission
● Electoral rolls: Preparing and periodically revising electoral rolls and registering all eligible voters.
● Recognition: To grant recognition to political parties and allot symbols.
● Advice to President and Governor: To advise the president and governors on matters relating to disqualifications of the members of Parliament and member of state legislative assembly.
● President’s rule: To advise the President whether elections can be held in a state under the president's rule in order to extend the period of emergency after one year.
● Code of conduct: Determining the code of conduct to be observed by the parties and the candidates at the time of elections.
Constitutional provisions:
● Article 324: Entails the provisions related to the chief election commissioner and other election commissioners.
○ The President of India appoints the chief election commissioner and other election commissioners.
○ President also determines the conditions of service and tenure of office of the election commissioners and the regional commissioners.
○ The Constitution has not prescribed the qualifications (legal, educational, administrative or judicial) of the members of the Election Commission.
● Article 325: No person to be ineligible for inclusion in, or to claim to be included in a special electoral roll on the ground of religion, race, caste or sex.
● Article 326: Elections to the Lok Sabha and Legislative Assemblies of States to be on the basis of adult suffrage.
● Article 327: Power of Parliament to make provision with respect to elections to legislature.
● Article 328: Power of Legislature of a State to make provision with respect to elections to such Legislature.
● Article 329: Bar to interference by courts in electoral matters.
Independence of Election Commission:
● Security of tenure: The Chief Election Commissioner is provided with the security of tenure. He cannot be removed from his office except in the same manner and on the same grounds as a judge of the Supreme Court.
● Service conditions: The service conditions of the Chief Election Commissioner cannot be varied to his disadvantage after his appointment.
● Removal of other Election Commissioners: Any other Election Commissioner or a regional commissioner cannot be removed from office except on the recommendation of the chief election commissioner.
Causes of reducing independence of Election Commission of India:
● Selection Procedure: The Chief Election Commissioner and other ECs are appointed by the President on recommendations of the central government. This raises a question of partisan behavior of officials towards the ruling party.
● Post Retirement Jobs: The Constitution has not debarred the retiring election commissioners from any further appointment by the government. The government uses this loophole for compromising the independence of members.
● Security of Tenure: CEC enjoys the security of tenure like supreme court judges but other Election commissioners don't have such security of Tenure.
● Lack of power to the commission: Election Commission of India have no financial powers and Model code of conduct also Don't have statutory backup.
● Crisis of credibility: ECI has drawn flak over its response to the MCC violations such as use of Indian Army in political rallies despite ECI giving warning against it, VVPAT audits, violations of the MCC by Rajasthan Governor etc.
Importance of ensuring independence:
● Free and Fair Elections: A democracy can survive only when free and fair elections are conducted in it on a regular basis. This requires an independent EC which can curtail the use of money and muscle power and ensure adherence to electoral rules by all the stakeholders.
● Acceptability of Verdict: The losing parties accept the electoral verdict as they believe in the impartial and independent functioning of EC. A failure to ensure the same can create distrust among the parties.
● Non-Partisan Behavior: The body can resist political pressures especially from the ruling party only when it enjoys a considerable degree of independence.
● Proper functioning of democracy: Frequent and trustable elections to the parliament and state legislatures are necessary for the proper functioning of the democracy.
WAY FORWARD:
● Executive non-interference: Executive at Central level should restraint from interfering in the internal matters of Election Commission of India.
● Cooling off period: There must be a prudent cooling-off period for election commissioners in order to strengthen independence.
● Establishment of appointment committee: Appointment committee comprising Prime minister, Leader of opposition and Chief justice of India should make suggestions on the appointment of CEC and EC.
● Statutory power to model code of conduct: Parliament should confer statutory backup to the model code of conduct.
● Financial power to the ECI: All the expenditure of the ECI should be made charged on expenditure.