This blog is written by Kunal Jadoun, a Fourth-Year law student of S. S. Jain Subodh Law College, Shipra Path, Mansarovar, Jaipur, Rajasthan

Introduction to the Election Commission:

Process, regulation, and other information related to the Elections are covered under art. 324 -329 of part XV. Article 324 provides for the appointment of an Election Commission of India, which will be responsible for conducting free and fair elections in the state. Election Commission is an independent autonomous body and it is free from any executive interference. The Election Commission conducts elections for the posts of the Parliament, State Assembly, President, and Vice President.

Composition of Election Commission:

The composition of the Election Commission includes the Chief Election Commissioner & two Election Commissioners. All three shall be appointed by the President and enjoy equal powers. In case of any dispute, the majority decision will prevail among them. Salary & allowances are like that of a Supreme Court Judge. The term of Election Commissioners is 6 years or 65 years of age, whichever is earlier.

In S.S. Dhannoa v. Union of India[1], the Hon’ble Supreme Court held that when an institution like the Election Commission was entrusted with quintessential functions and was armed with exclusive and unrestrained powers to execute them, it was important that the powers were not exercised by one individual, however, wise he might be.

Historical Background:

From 1950-1989, the Election Commission consisted of only a single member body. After 1989, the Election commission became a three-member body and then in 1990, its position got reversed with the earlier one. At last, in 1993, the position of the Election Commission again got reversed and it again became a three-member body and this composition is still in the process to date. The limit on the number of other Election Commissioners shall be fixed by the President from time to time.

Provisions related to the appointment of the Chief Election Commissioner and other Election Commissioners:

According to Article 324(2), the Chief Election Commissioner (CEC) and the other Election Commissioners (ECS) shall be appointed by the president, subject to the provisions of law made by the legislature for the purpose. Previously, the President used to appoint the CEC and the ECS on the advice of the PM and the Council of ministers. But after the judgment of the SC, the President shall appoint the CEC and the ECS on the advice of the committee of the PM, the Opposition leader of the Lok Sabha, and the Chief Justice of India.

Judiciary’s stance on the appointment of the Election Commissioners:

In a very recent judgment by the five-judge Supreme Court bench, it was unanimously ruled that the Chief Election Commissioner and the other two Election Commissioners should be appointed in a way that does not interfere with their six-year term because a short-term will undermine the independence of the Commission. The Court said that the Commission should be made fiercely independent, competent, fair, and honest.

According to the ruling by the Supreme Court, the President will henceforth appoint CECs and other ECs based on the recommendations from a powered committee that includes the Chief Justice of India, the leader of the opposition in the Lok Sabha, and the Prime Minister. Earlier, CEC and ECS are appointed by the president on the advice of the PM and the Council of Ministers. This judgment set in motion a process to loosen the political grip of the executive in choosing EC members. This judgment is a step by the judiciary of India to make the Election Commission independent and free from any hindrance or interference of the executive.

Conclusion:

Although this step of the judiciary is transgressing in nature as it takes on an executive role in the functioning of India’s democracy. However, this is a much-needed step that falls within the broad authority granted to the Supreme Court by Article 142 of the Constitution. This article states that the Supreme Court, in the exercise of its jurisdiction, may pass any order or decree that is required to provide justice in any matter that is pending before it and such order or decree so passed by the Supreme Court is applicable throughout the territory of India.

Furthermore, since the opposition in the Parliament is not pursuing any measures to increase the Election Commission’s independence and freedom, this intervention by the judiciary is needed. Legislation should be created by Parliament to hold the Commission responsible to its committees. The Parliament, not the courts, should have the authority to periodically amend the Election Commission’s Constitution. People are the ultimate source of sovereignty in a democracy and their elected representatives should exercise that sovereignty by contributing to the improved operation of these commissions and holding them responsible to the sovereign body.

References:

· Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, 30-D/1 Moti Lal Nehru Road Prayagraj (Allahabad), 1969, 798.

· https://byjus.com/free-ias-prep/election-commission-of-india/.

· https://blog.ipleaders.in/election-commission-india/.

· https://www.eci.gov.in/about-eci.

· https://www.nextias.com/blog/election-commission-of-india/.

· https://forumias.com/blog/election-commission/.

[1]AIR 1991 SC 1745.