Today's Editorial

Today's Editorial - 22 March 2023

SC order on CEC and ECs appointment

Source: By The Indian Express

five-judge Constitution Bench of the Supreme Court on 2 March 2023 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).

This is a very significant judgment that seeks to change the way in which India’s top election officials are appointed, and can potentially have far-reaching implications. As of now, the central government essentially has a free hand in appointing these officials.

The Bench headed by Justice K M Joseph ruled on a batch of petitions seeking a selection process similar to what is followed in the case of the Director, Central Bureau of Investigation (CBI). The Bench also comprised Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C T Ravikumar.

What was the plea before the Supreme Court?

The public interest petitions sought a law governing the appointment of the CEC and ECs. A first PIL had been filed in 2015, and the Supreme Court agreed to hear a second PIL on the issue filed in 2018 by Delhi BJP leader Ashwini Upadhyaya, and referred the issues to a Constitution Bench.

The court had heard the case in November last year. On the last day of the hearing, the court had noted that the appointment of Arun Goel as EC had been carried out with “lightning speed”, with the procedure taking less than 24 hours on 18 November from start to finish.

Justice Rastogi authored a separate opinion agreeing with the majority opinion authored by Justice Joseph. The fine print of the ruling is awaited.

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 15 June 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.

The Supreme Court in ‘Mohinder Singh Gill & Anr vs The Chief Election CommissionerNew Delhi and Ors’ (1977) held that Article 324 “operates in areas left unoccupied by legislation and the words ‘superintendence, direction and control’ as well as ‘conduct of all elections’ are the broadest terms”. The Constitution has not defined these terms.

The SC said Article 324 “is a plenary provision vesting the whole responsibility for national and State elections” in the ECI “and, therefore, the necessary powers to discharge that function”.

The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 (EC Act) requires that the EC and CEC must hold the post for a period of six years. This law essentially governs the conditions of service of the CEC and ECs.

Was the Election Commission always a three-member body?

No. For almost four decades of the republic, until 1989, the Election Commission was a single-member body, with only a Chief Election Commissioner (CEC). The Election Commission was expanded just ahead of the elections to the ninth Lok Sabha in an atmosphere of friction between the Rajiv Gandhi government and then CEC R V S Peri Sastri.

These differences had resulted in some uncomfortable moments for the government during the Presidential election of 1987, and Rajiv’s government, apprehensive of what Peri Sastri might do during the Lok Sabha elections of 1989, decided to curtail his powers by making the Election Commission a multi-member body. So on 7 October 1989, President R Venkataraman, in the exercise of his powers under Article 324(2), issued a notification creating two positions in the Election Commission in addition to that of the CEC. On 16 October 1989, the government appointed S S Dhanoa and V S Seigell to these posts.

But this arrangement did not last. The Congress lost power in the elections, and the National Front government of Prime Minister V P Singh quickly rescinded the presidential notification of 7 October 1989. EC Dhanoa challenged his removal in the Supreme Court, but his petition was dismissed.

The V P Singh government then enacted the aforementioned Act of 1991, which gave the CEC a status equal to that of a Supreme Court judge, and his retirement age was fixed at 65 years. The ECs were given the status of High Court judges, and their retirement age was fixed at 62 years. The passage of the EC Act essentially meant that if and when the Election Commission became a multi-member body again, the CEC would act as its chairman, and the ECs would be junior to him.

So when did the Election Commission again become a three-member body?

On 12 December 1990, T N Seshan was appointed CEC. Seshan was fiercely independent, and as he went about the Commission’s job with messianic zeal, the Congress government headed by P V Narasimha Rao decided to expand the poll body again on 1 October 1993. M S Gill and G V G Krishnamurthy were appointed as ECs. Also, the government brought an Ordinance to amend the EC Act, and made the CEC and the ECs equal by giving all three the status of a Supreme Court judge, retiring at the age of 65 years.

In other words, all three Commissioners now had equal decision-making powers. The amendment also introduced sections that envisaged that the CEC and the ECs would act unanimously and, in case there was a difference of opinion on any issue, the majority view would prevail.

Seshan moved the Supreme Court, alleging that the three provisions were an attempt by the government to curtail his powers. A five-judge Bench headed by Chief Justice of India A M Ahmadi dismissed the petition (T N Seshan Chief Election Commissioner vs Union Of India & Ors, 14 July 1995), and the ECI has functioned as a three-member body ever since.

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