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ECI: Point of contention between the government and the judiciary

GS Paper 2

 Syllabus: Election Commission of India

 

Source: TH

 Context: Recently, the government introduced a Bill that seeks to replace the Chief Justice of India with a cabinet minister nominated by the Prime Minister in the committee of selection for the appointment of the Chief Election Commissioner and other Election Commissioners in India.

  

Previously, The Supreme Court gave a unanimous judgment on March 2 and directed that the Chief Election Commissioner (CEC) and Election Commissioners (ECs) should be appointed by the President based on a committee’s advice. This committee would include the Prime Minister, the Leader of the Opposition in the Lok Sabha or the largest Opposition party leader, and the Chief Justice of India (CJI).

 

For major provisions of the New Bill and issues with it: Click Here

 

The ongoing debate in light of the recent Supreme Court judgement:

  • Rationale: Article 324(2) reads “The appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made on that behalf by Parliament, be made by the President.”
    • Since there is no law made by parliament on this issue as provided in the Constitution, the Court felt the need to step in to fill the “constitutional vacuum.”
  • Government’s position: The government had argued that in the absence of such a law by parliament, there is no real “vacuum” as the President has the constitutional power to decide on the matter and asked the SC to exhibit Judicial restraint.
  • Separation of powers: The debate has focussed on the separation of powers which is a feature of the basic structure of the constitution. The question is whether SC is in line to produce such a pronouncement versus whether a government to be elected can appoint persons governing the process of election.
  • Parliament’s new bill: The new bill has been the government’s rebuttal to the judiciary.
  • Issues in the bill: The bill attempts to return to the status quo of government decisions while including only the leader of the opposition (replacing the provision of CJI with the minister as a member).
    • This has been criticised as the government of the day having a greater voice in appointing such an important body.
  • Other subjects of debate: The SC had left the question of funding the EC, the Permanent secretariat and the need for expenditure to be charged to the Consolidated Fund of India for the government to decide.

 

Suggested measures:

  • Transparency and independence in appointment: The appointments should be made by a bipartisan committee that includes representatives from various stakeholders.
    • Also, the publishing minutes of the meeting of such a committee is essential.
  • Judicial restraint: The judiciary must be aware of drawing the line between activism and overreacting to exercise restraint except when a true constitutional or executive vacuum exists.
  • Independence of the commission: The ECI should be given complete autonomy in the conduct of elections which can be done by creating a dedicated cadre of officers responsible for election duty.
  • Charged expenditure and other infrastructure: The government must act on the nudge of the SC to provide a permanent secretariat and other infrastructure along with funding via charged expenditure to ensure the commission’s independence.

  

Committee Recommendations:

Committee/Leader Recommendation
V.M. Tarkunde Committee (1975) Broad-based appointments of ECI members through the collegium process rather than the government’s advice
Dinesh Goswami Committee (1990s) A similar suggestion for broader-based appointments through a collegium
Second Administrative Reforms Commission (2009) Suggested broader-based appointments of ECI members
B.B. Tandon (2006) Proposed a seven-member committee with PM, CJI, Lok Sabha Speaker, Opposition leaders, Law Minister, and a judge nominated by CJI
L.K. Advani (2012) Suggested a collegium with PM as chairman, CJI, Minister of Law and Justice, and Leaders of the Opposition as members

 

Current provisions:

  • Appointment: The President appoints the Chief Election Commissioner (CEC) and Election Commissioners. The President makes the appointment on the advice of the Union Council of Ministers headed by the Prime Minister.
  • Tenure: They have a fixed tenure of six years, or up to the age of 65 years, whichever is earlier.
  • Service conditions: They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court (SC) of India.
  • Removal: The CEC can be removed from office only through a process of removal similar to that of an SC judge by Parliament.
  • Number of commissioners: As per Article 342(2) the Election Commission shall consist of the CEC and such number of other election commissioners, if any, as the President may from time to time fix.

  

Conclusion:

Free and fair elections are the foundation of any functioning democracy. In this light, it is important to find a way to balance the need for independence, accountability, and transparency, in order to ensure that the ECI remains a truly independent and impartial institution.

 

Insta Links:

How are the CEC and ECs appointed?

 

Prelims Links:

Consider the following statements: ( UPSC 2017)

  1. The Election Commission of India is a five-member body.
  2. Union Ministry of Home Affairs decides the election schedule for the conduct of both general elections and bye-elections.
  3. Election Commission resolves the disputes relating to splits/mergers of recognised political parties.

 

Which of the statements given above is/are correct?

(a) 1 and 2 only
(b) 2 only
(c) 2 and 3 only
(d) 3 only

 

Ans: D

 

Mains Links:

Q.1 In light of the recent controversy regarding the use of Electronic Voting Machines(EVM), what are the challenges before the Election Commission of India to ensure the trustworthiness of elections in India? (UPSC 2018)

Q.2 To enhance the quality of democracy in India the Election Commission of India has proposed electoral reforms in 2016. What are the suggested reforms and how far are they significant to make democracy successful? (UPSC 2017)