Glaring omission

Syllabus: GS2/ Constitutional Bodies, Representation of People’s Act

In News

• The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, was recently introduced in Rajya Sabha.

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.

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.

Recent Bill highlights

• About:
  • The Union government in the bill, has proposed to have a three-member selection panel with a majority for the executive for the appointment of members of the Election Commission. 
  • The bill removed the Chief Justice of India (CJI) from a three-member panel to select the Chief Election Commissioner (CEC) and Election Commissioners. 
• Composition of Selection Panel:
  • The three-member panel would consist of a Cabinet Minister besides the Leader of Opposition (LoP) in the Lok Sabha, and the Prime Minister, who would head it.
  • In case there is no Leader of Opposition (LoP) in the Lower House of Parliament, the leader of the single-largest Opposition party would be considered the LoP.

Need of the bill

• The Election Commission, led by a CEC and two other commissioners, is much too critical a body for the functioning of India’s democracy and integrity of elections to leave exposed to charges of external influence.
• A Supreme Court judgement stated that the Prime Minister, Leader of Opposition in the Lok Sabha and Chief Justice of India (CJI) would decide the EC’s leadership—until the Centre came up with a law. 

Criticisms

• This composition of the selection panel puts a question mark on the neutrality of the Election Commission (EC) as the selection panel would effectively have two members of the ruling party— the Prime Minister and the Cabinet Minister.
• This bill may not subserve the objective of protecting the poll watchdog’s independence.
• This runs counter to a recent judgment of a Constitution Bench that envisaged an independent selection committee that included the Chief Justice of India. 
  • The judgment was also in line with the recommendations of the Dinesh Goswami Committee in 1990 and the Justice Tarkunde Committee in 1975. 

Way ahead

• The Election Commission of India is a constitutional body that not only conducts elections but also renders a quasi-judicial role. 
• ECI has played a seminal role in the periodic conduct of elections, which have only seen greater participation from the electorate because of the largely free, fair and convenient nature of the process. 
• The need for a selection process that embodies insulation from executive preponderance makes sense. A non-partisan and independent ECI is a sine qua non for the robustness of electoral democracy. 
• The independent V-Dem Institute in Sweden, which compares democracies worldwide, has downgraded India to an “electoral autocracy”, citing the loss in autonomy of the ECI.