The appointment of Election Commissioners

(MainsGS2:Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.)

Context:

Recently, the Supreme Court ruled that the appointment of the Chief Election Commissioner (CEC) and Election Commissioners by the President will be based on the advice of a three-member high-level committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India (CJI).

Observations of honorable court:

A five-judge Constitution Bench delivered the landmark order after hearing a batch of pleas seeking an independent system to appoint Election Commissioners outside the government’s exclusive power, to ensure impartial operation of the Election Commission of India (ECI).
“This norm will continue to hold good till a law is made by parliament,” the SC said, noting that the Commission must act within the constitutional framework to ensure its independence and neutrality.
An Election Commissioner can be proficient, competent, completely honest and armed with an outstanding record of service, but he may have a definite political leaning which may end up displaying itself in office.
Justice K.M. Joseph, leading a five-judge Bench, referred to how the 10 th Chief Election Commissioner T.N. Seshan had managed to clean up the electoral system.
Justice Joseph said Mr. Seshan merely had put in place a set of rules which reduced human discretion to the minimum.
In such a scenario, Election Commissioners hardly need to fear pressure from any political party or government.
Further, the Election Commission, as an institution, would maintain functional independence and institutional integrity, be what the political leaning, attitude or competence of individual Commissioners may be.

Petitions in court:

A set of petitions calling for a neutral mechanism to appoint Election Commission members revived the debate on the need for a collegium-like panel.
In 2015, Anoop Baranwal filed a public interest litigation (PIL), contending that successive governments failed in the constitutional obligation to set up a “fair, just and transparent process” for the selection of Election Commissioners.
The petitioner claimed that appointments were made by the President solely on the advice of the Executive.
During the hearing, the Court asked the government whether it should intervene, to achieve the constitutional objective of Article 324 (2), which deals with the Election Commission and its members.
The Centre opposed the petition, saying that there was no case so far of abuse of power by the CEC and the appointment of Election Commissioners to the top poll body is “consciously and deliberately” a part of the executive function of the State.
Dissatisfied with this, the Bench of the then Chief Justice of India Ranjan Gogoi and Justice S.K. Kaul referred the matter to a five-judge Constitution Bench for a “close look” in October 2018.
The SC clubbed similar petitions and the Constitution Bench began hearing the matter in November 2022.

Current process of selection:

The appointment of Election Commissioners falls under the purview of Article 324(2) of the Constitution.
The provision states, “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.”
As per the ‘subject to’ clause, the number and tenure of the ECs are subject to the provisions of “any law made on that behalf by Parliament” but no such law has, however, been made for appointments yet.
Currently, the President appoints the CEC and two ECs on the advice of the Prime Minister and council of ministers.
Under the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, an EC can have a tenure of six years or up to the age of 65, whichever is earlier. Typically, the senior-most election commissioner is appointed as the CEC.
Once appointed, the Chief Election Commissioner can be removed from office only through Parliamentary impeachment.
However, no such protection of tenure is available to Election Commissioners, who can be removed by the government on the recommendation of the CEC.

Conclusion:

The Supreme Court observed that the country needed Election Commissioners who would not shirk from even taking on the Prime Minister if required, and not just “weak-kneed” yes-men.