The Hindu Editorial Analysis- 1st December 2022 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

Context

Recently, the Supreme Court mooted the idea of including the Chief Justice of India in the appointment committee of CEC to ensure “neutrality”.

More about the news

• The petition:
  • On appointment:
    • The Bench is examining a series of petitions seeking functional independence for Election Commissioners. 
    • They have sought an “independent, neutral mechanism” for their appointment, outside the control of the government.
  • Protection from removal:
    • The Election Commissioners should have the same level of protection from removal as the Chief Election Commissioner (CEC). 
    • The CEC, like an apex court judge, can be removed from office only through a special majority of the Parliament whereas the Election Commissioners depend on the “pleasure” of the President to stay in office.
• Supreme Court’s opinion on appointment procedure:
  • The SC suggested that the least intrusive will be a system where there is a presence of the Chief Justice in the appointment committee.
• Issues:
  • No law for the appointment of election commissioners:
    • The court said Article 324 of the Constitution, dealing with the appointment of election commissioners, had envisaged the enactment of a law to provide for the procedure for such appointments, but the government had not done this yet. 
    • In the absence of a law, the “silence of the Constitution is being exploited by all”, said the court.
  • Issue of incompletion of tenure:
    • The SC said that although the CEC’s tenure is six years under ‘The Chief Election Commissioner And Other Election Commissioners (Conditions Of Service) Act, 1991’, no CEC has completed his tenure since 2004.

Composition of Election Commission of India

• About:
  • The Election Commission of India consists of the chief election commissioner and a number of other election commissioners, as fixed by the President.
  • Originally the commission had only a Chief Election Commissioner.
  • It currently consists of the Chief Election Commissioner and two Election Commissioners.
• Constitutional Provisions (Article 324 to Article 329 (Part XV)) 
  • Article 324: Entails the provisions related to the chief election commissioner and other election commissioners.
    • The President of India appoints the chief election commissioner and other election commissioners.
    • President also determines the conditions of service and tenure of office of the election commissioners and the regional commissioners.
    • The Constitution has not prescribed the qualifications (legal, educational, administrative or judicial) of the members of the Election Commission.
• Tenure and Removal: 
  • The chief election commissioner and other election commissioners hold office for a term of six years or until they attain the age of 65 years, whichever is earlier. 
  • They can resign at any time or can also be removed before the expiry of their term. 
  • The process and the grounds for removal of the chief election commissioner are the same as that of a judge of the Supreme Court.
  • He can be removed by the president on the basis of a resolution passed to that effect by both the Houses of Parliament with the special majority, either on the ground of proved misbehaviour or incapacity. Thus, he does not hold his office till the pleasure of the president, though he is appointed by him.
• Independence: 
  • The chief election commissioner is provided with the security of tenure.
  • The service conditions of the chief election commissioner cannot be varied to his disadvantage after his appointment.
  • Any other election commissioner or a regional commissioner cannot be removed from office except on the recommendation of the chief election commissioner.
  • Some flaws in safeguarding the independence and impartiality of the election commission are also noted, viz., 
    • The Constitution has not specified the term of the members of the Election Commission.
    • The Constitution has not debarred the retiring election commissioners from any further appointment by the government.

Election Commission of India

• Establishment:
  • The Election Commission of India was established in accordance with the Constitution on 25th January 1950.
• Functions & Powers:
  • It is a permanent and independent body responsible for administering Union and State election processes in India.
  • Power of superintendence, direction and control of elections to parliament, state legislatures, the office of president of India and the office of vice president of India is vested with the election commission.
    • It is not concerned with the elections to panchayats and municipalities in the states.
      • For this, the Constitution of India provides for a separate State Election Commission.
• Other Constitutional provisions:
  • Article 325: No person to be ineligible for inclusion in, or to claim to be included in a special electoral roll on the ground of religion, race, caste or sex.
  • Article 326: Elections to the Lok Sabha and Legislative Assemblies of States to be on the basis of adult suffrage.
  • Article 327: Power of Parliament to make provision with respect to elections to legislature.
  • Article 328: Power of Legislature of a State to make provision with respect to elections to such Legislature.
  • Article 329: Bar to interference by courts in electoral matters.