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How are the CEC and ECs appointed, and what has the Supreme Court order changed?

GS Paper 2

 Syllabus: Appointment to various Constitutional Posts, Powers, Functions and Responsibilities of various Constitutional Bodies

 

Source: IE

 Context: A five-judge Constitution Bench of the SC unanimously ruled that a high-power committee consisting of the PM, the Leader of Opposition in LS and the CJI must pick the CEC and ECs.

 

How are the Chief Election Commissioner (CEC) and Election Commissioners (ECs) currently appointed?

 

The Election Commission (Conditions of Service of ECs and Transaction of Business) Act 1991:

  • An amendment to the above act (in 1993) made the CEC and the ECs equal by giving all three the status of an SC judge, retiring at the age of 65 years/after 6 years (whichever is earlier).
  • This means, all three Commissioners now had equal decision-making powers, as both would act unanimously and in case of difference of opinion, the majority view would prevail.

 

Powers of the Election Commission: as envisaged in the Constitution, by the Supreme Court of India & the Parliament

  • Babasaheb Ambedkar: The whole election machinery should be in the hands of a Central Election Commission.
    • He further acknowledges that there is nothing in the Constitution to prevent the nomination of an ineligible person to the position of CEC or another EC.
  • Parliament subsequently enacted the RPA 1950 and 1951: To define and enlarge the powers of the Commission.
  • The SC (in 1977): The words ‘superintendence, direction and control’ as well as ‘conduct of all elections’ are the broadest terms, not defined by the Constitution.

 

Reputation of the ECI & the need for reforms

  • The Commission has earned public trust by working as an independent and neutral authority.
  • This achievement has been made possible as the Commission enjoyed autonomy and its functioning insulated from the interference of the executive and judiciary.
  • However, there were growing concerns on that front. For example, the top court noted that the appointment of Arun Goel as EC had been carried out with “lightning speed”.

 

Recommendations to reform the system:

  • Ambedkar noted that the provisions in the American Constitution: check (through the Senate) upon the extravagance of the President in making such appointments.
  • The 2nd ARC in 2007 recommended that a collegium headed by the PM be formed to make recommendations to the President regarding appointments of the CEC and ECs.

 

SC’s observations during its recent verdict:

  • The judgment has brought the appointment process on par with that of the CBI Director.
  • A CEC (like SC judges) can be removed from office only by way of a parliamentary process. However, no such protection of tenure is available to the ECs (removed by the President if CEC recommends).
  • A person weak-kneed before the powerful (executive) cannot be appointed as an EC.
  • Fierce independence, neutrality and honesty envisaged in the institution require an end to government monopoly and “exclusive control” over appointments.

 

Conclusion:

  • The judgment recognises the fine distinction between conventional democracy (majority alone matters) and constitutional democracy (Constitution matters).
  • The judgment revives the era of judicial activism, ensuring a more independent Election Commission.

 

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