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EDITORIAL ANALYSIS : Upholding the autonomy of the Election Commission

 

Source: The Hindu 

Prelims: Current events of national importance(ECI, CEC, Article 324, PIL, constitution bench etc)

Mains GS Paper II: Appointments to various constitutional posts, powers functions and responsibilities of various constitutional bodies etc

ARTICLE HIGHLIGHTS

  • A Constitution Bench of the Supreme Court heard a crucial case about the method by which the Election Commission of India (ECI) is constituted, and Election Commissioners

 

INSIGHTS ON THE ISSUE

Context

Election Commission of India(ECI):

  • The Election Commission of India is an autonomous constitutional authority responsible for administering Union and State election processes in India.
  • The body administers elections to:
    • Lok Sabha
    • Rajya Sabha
    • State Legislative Assemblies in India
    • Offices of the President and Vice President in the country.
  • Part XV of the constitution deals with elections, and establishes a commission for these matters.
  • Article 324 to 329: deals with powers, function, tenure, eligibility, etc of the commission and the members.
  • The commission: It consists of one Chief Election Commissioner and two Election Commissioners.
  • The President appoints Chief Election Commissioner and Election Commissioners.
  • Tenure: They have a fixed tenure of six years, or up to the age of 65 years, whichever is earlier.
  • Status: They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court of India.
  • The Chief Election Commissioner can be removed from office only through a process of removal similar to that of a Supreme Court judge by Parliament.
  • All three members have equal voting rights and all decisions in the commission are taken by the majority,

 

Procedure For Removal

  • He/she can be removed either on the ground of “proved misbehavior or incapacity”.
  • Resolution: He/she can be removed by the president on the basis of a resolution passed to that effect by both the Houses of Parliament with special majority(majority of two-third members present and voting supported by more than 50% of the total strength of the house).
  • The Constitution does not use the word ‘impeachment’, for the removal of the Chief Election Commissioner.
  • The Election Commissioner or Regional Commissioner: They can only be removed from office by the Chief Election Commissioner.

 

Article 324:

  • The Superintendence, direction and control of elections to be vested in an Election Commission.

 

Functions of EC:

 

Issues regarding control over ECI:

  • Democracy: Far-reaching ramifications for Indian democracy
  • Complete executive control over appointments to the ECI constitutional
  • Appointment: manner of appointment of election commissioners.

 

Three wings of the state:

  • Legislature
  • Executive
  • Judiciary

 

How do they function?

  • The task of the Constitution is to allocate powers between these three wings
    • To ensure that there is an adequate degree of checks and balances between them.
  • Elections: fall within the executive domain.

 

Why does a fourth branch(in addition to the legislature, the executive, judiciary) need to exist?

  • Many of the basic rights and guarantees that we enjoy cannot be effective without an infrastructure of implementation.
    • For example: RTI: Without an infrastructure of implementation, the right to information will remain only a paper guarantee.

 

Fourth branch institutions” need to be functionally independent from the political executive:

  • They are the vehicles for implementing rights against the executive.
  • Example; RTI: Citizens will attempt to invoke this right to extract public documents from government departments, in the interests of transparency.
    • To be effective: The Information Commission needs to be independent of the government, against which it will enforce the constitutional right to information.

 

Some Global practices:

  • South African and Kenyan Constitutions:
    • They have dedicated constitutional provisions for “fourth branch institutions” such as Human Rights Commissions, Election Commissions, and so on
    • These “integrity institutions”, and requiring them to be “independent.
    • The appointments process for such bodies normally involves multiple stakeholders from different wings of the state.
  • South African constitutional court: True and functional independence is effectively impossible if the power to appoint rests entirely within a single individual, office, or entity.

 

Executive bodies in India:

  • The Indian Constitution provides for such similar fourth branch institutions.
    • ECI
    • Comptroller and Auditor General
    • Public Service Commissions
    • National Commission for Scheduled Castes.
  • Issue:
    • The power of appointment lies exclusively with the executive (formally, the President of India acting on the aid and advice of the Council of Ministers).

 

Recent controversies regarding executive control:

  • The collegium system for the appointment of judges:
    • Arose as a response to executive abuse and attempts to control the judiciary
    • Stemming from the constitutional text: It gave the President (i.e., the executive) the power to appoint judges.
  • The Vineet Narain case: SC held that for the rule of law to prevail, the appointment of the CBI Director would have to be ratified by a three-member body:
    • Prime Minister
    • Leader of Opposition
    • Chief Justice of India.

 

Problems associated with appointment in ECI:

  • Flawed system of appointment of the Election Commissioners.
    • They are appointed unilaterally by the government.
  • Uncertainty over the elevation of an Election Commissioner to the post of CEC.
    • It makes them vulnerable to government pressure.
  • Government can control an independent-minded CEC through the majority voting power of the two Election Commissioners.

 

Way Forward

  • Need of an information commission adequately staffed and funded, which will oversee the on-ground enforcement of the right to information, compel recalcitrant public institutions to release public information, adjudicate disputes, and so on.
  • Extensive government control over the Central Information Commission: including control over appointments has led to it becoming a largely toothless and ineffective body, and the eventual frustration of the right to information.
  • Global practices: Appointment processes involve the government, the Opposition, independent experts, and judicial experts, in a manner that no one center of power has dominance, or a veto.
  • Appointment process is difficult to create simply by judicial decree: It is something that needs political consensus, public deliberation, and, perhaps, a carefully crafted legislation.
  • The Court needs to hand down a suspended declaration of invalidity, e., a remedy where the Court puts into place certain interim guidelines, but leaves a more permanent, structural solution up to the legislature.
  • The guiding principles must be functional and effective independence from the executive, from the moment of appointment to the retirement, and then beyond.

 

QUESTION FOR PRACTICE

Q. Discuss the role of the Election Commission of India in the light of the evolution of the Model Code of Conduct.(UPSC 2022) (200 WORDS, 10 MARKS)