Election Commission Appointments: Judgement Summary
Election Commission AppointmentsOn March 2, 2023, a 5-Judge Constitution Bench led by Justice K.M. Joseph modified the process for appointing members of the Election Commission of India (ECI). The Bench held that a committee comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India will advise the President on ECI appointments. Previously, the President appointed the Chief Election Commissioner and Election Commissioners.
Background
In 2015, Anoop Baranwal filed a Public Interest Litigation stating that the existing system for appointing members of the Election Commission of India (ECI) was unconstitutional. The petition claimed that over time, the Executive’s power to make appointments degraded the ECI’s independence. The PIL also asserted that the appointment system violated Article 324(2) of the Constitution.
Article 324(2) specifies that the President will appoint the Chief Election Commissioner and Election Commissioners, subject to any laws made by Parliament. However, no such law has been drafted. The petitioner argued this compromised the Constituent Assembly’s vision for the ECI—to be independent of the Executive.
The Union claimed that the Constitution does not force the Parliament to make laws simply because it has the power to do so. It urged the Court to refrain from intervening in this legislative process.
On 23 October 2018, Chief Justice Ranjan Gogoi and Justice S. K. Kaul referred the matter to a 5-judge Constitution Bench. The Court tagged similar petitions filed by Ashwini Kumar Upadhyay, Association for Democratic Reforms and Dr. Jaya Thakur to this case. The Bench began hearing the case on November 17, 2022 and reserved its judgement on November 24, 2022.
Article 324 is Intended to Ensure the Independence of the ECI
The Court referred to the Constituent Assembly Debates of 1949 to determine the intent of the Constitution Framers. Dr B. R. Ambedkar pointed out that the election machinery should be out of the control of the executive government. While the other Constitution Framers agreed, they left the creation of an exact mechanism for appointment to the discretion of the Parliament. The Bench found that the phrase ‘subject to the provisions of any law to be made by the Parliament’ in Article 324(2) demonstrated this intention.
Independence of the ECI to Ensure Fair Elections
The Bench highlighted that the ECI should be independent, and fair and follow the Rule of Law and the Principle of Equality. They reiterated that the right to vote was integral to a democracy and that the ECI played a vital role in ensuring the democratic process continues smoothly. The Bench stressed the need for objective selection of the ECI to ensure transparency and accountability. This in turn upholds the integrity and independence of the ECI.
The ECI’s responsibilities—ranging from proper allocation of party symbols, derecognition of parties, enforcement of the Model Code of Conduct, and penalisation for non-compliance—are crucial to the election process. Therefore, it is imperative that it functions independently. The Bench viewed that as long as the Executive made ECI appointments, its independence was compromised.
Committee to Preserve the Independence of ECI
Observing that the Parliament failed to make laws, the Supreme Court set up a process in its place. The Court has previously intervened to set up processes in cases where there were glaring lacunae in the law (such as the Vishaka v State of Rajasthan (1997) and Laxmi Kant Pandey v Union of India (1985).)
Referring to the Goswami Committee Report of 1990 and the 255th Law Commission Report, the Bench held the President should appoint the Chief Election Commissioner and Election Commissioners based on the advice of
- the Prime Minister,
- the Leader of the Opposition in the Lok Sabha,
- and the Chief Justice of India.
This committee will function until the Parliament drafts an alternative in the future. In his concurring judgment, Justice Ajay Rastogi added that the grounds for removing Election Commissioners should be the same as those for the Chief Election Commissioner (which is the same as a Judge of the Supreme Court). He reasoned that Election Commissioners must also be free from ‘all external political interference’ like the Chief Election Commissioner, so the same provisions must be extended to them.
Regarding the petitioner’s plea for an independent Secretariat for the ECI and funding from the Consolidated Fund of India, the Court refrained from interfering. The Court stated that details regarding expenditure are policy matters and outside the purview of the SC. Still, it urged Parliament to address the matter seriously and make necessary changes.