A 5-judge constitution bench of the Supreme Court (SC) on March 2 unanimously ruled that Chief Election Commissioner (CEC) and Election Commissioners (ECs) will be appointed by the President on the advice tendered by a committee of Prime Minister, Leader of Opposition (LoP) in the Lok Sabha or the leader of the single largest party in opposition and the Chief Justice of India (CJI).
- The bench said the high-powered committee would continue to advise the President on the appointment until the Parliament enacts a law on the appointment process of Election Commissioners.
- On the issue of whether the process of removal of Election Commissioners must be the same as it is for the CEC, the apex court ruled that it cannot be the same.
- The Constitution states that the CEC can be removed in a process similar to a judge — through a majority in both houses of Parliament on grounds of proven incapacity or misbehaviour.
Key points
- In 2015, a PIL was filed by Anoop Baranwal challenging the constitutional validity of the practice of the Centre appointing members of the Election Commission.
- In October 2018, a 2-judge bench of the SC referred the case to a larger bench since it would require a close examination of Article 324 of the Constitution, which deals with the mandate of the Chief Election Commissioner.
Constitutional provisions
- There are just five Articles (324-329) in Part XV (Elections) of the Constitution. Article 324 of the Constitution vests the “superintendence, direction and control of elections” in an Election Commission consisting “of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix”.
- The Constitution does not lay down a specific legislative process for the appointment of the CEC and ECs.
- The President makes the appointment on the advice of the Union Council of Ministers headed by the Prime Minister.
- The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 (EC Act) requires that the EC and CEC must hold the post for a period of six years. This law essentially governs the conditions of service of the CEC and ECs.
- Until 1989, the EC was a single-member body, with only a Chief Election Commissioner (CEC). The Election Commission was expanded just ahead of the elections to the 9th Lok Sabha.
- In 1993, the government brought an Ordinance to amend the EC Act, and made the CEC and the ECs equal by giving all three the status of a Supreme Court judge, retiring at the age of 65 years.
- In other words, all three Commissioners now had equal decision-making powers. The amendment also introduced sections that envisaged that the CEC and the ECs would act unanimously and, in case there was a difference of opinion on any issue, the majority view would prevail.
- Other Election Commissioners can be removed from office on the recommendation of the Chief Election Commissioner.
