Appointment of ECI through an Independent Collegium

News: A petition was filed in the Supreme Court seeking the constitution of an independent collegium to appoint members of the Election Commission of India (ECI). The petition was filed by the Association for Democratic Reforms.

Current mechanism:

  • There is no prescribed procedure for appointment of the CEC and EC as per the Constitution.
  • Under the Transaction of Business rules 1961, the President shall appoint the CEC and EC based on the recommendations made by the Prime Minister. Therefore, it is the executive power of the President to appoint CEC and ECs. However, according to Article 324(5), the Parliament has the power to regulate the terms of conditions of service and tenure of ECs.
  • Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 was passed to determine the conditions of service of the CEC and other ECs and to provide for the procedure for transaction of business by the ECI.
  • It is under Article 324(5) that the Parliament has made laws till date, and not under Article 324(2) in which the Parliament can establish a selection committee for regulating the appointments made by the President.
  • Article 324(2) states that the President shall, with aid and advice of the Council of Ministers, appoint CEC and ECs, till Parliament enacts a law fixing the criteria for selection, conditions of service and tenure.

Proposed mechanism:

  • The petition states that the present process of appointing members to the Election Commission, solely by the executive, is incompatible with Article 324(2) of the Constitution.
  • The appointment of members of Election Commission on the “pick and choose” of the executive violates the very foundation for which it was created, thus, making the Commission a branch of executive.

Recommendations of various committees:

  • 255th Law Commission Report recommended that the appointment of all the Election Commissioner should be made by the President in consultation with a three-member collegium or selection committee, consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha and the Chief Justice of India.
  • 4th Report submitted by the Second Administrative Reform Commission in January 2007 also recommended for the constitution of a neutral and independent collegium headed by the Prime Minister with the Speaker of the Lok Sabha, the Leader of Opposition in the Lok Sabha, the Law Minister and the Deputy Chairman of the Rajya Sabha as it’s members.
  • Dinesh Goswami Committee in its Report of May 1990 recommended for the effective consultation with neutral authorities like Chief Justice of India and the Leader of the Opposition for the appointment in Election Commission.
  • Justice Tarkunde Committee in its Report of 1975 recommended that the members of Election Commission should be appointed by the President on the advice of a Committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India.

Conclusion:

  • Democracy is a facet of the basic structure of the constitution and in order to ensure free and fair elections and to maintain healthy democracy in our country, the Election Commission should be insulated from political and/or executive interference.