ECI appointments: SC Judgement – The Core IAS

ECI appointments: SC Judgement

ECI Appointment : SC Decision

Why is NEWS?

A five-judge bench of the Supreme Court unanimously ruled that a high-power committee consisting of the Prime Minister, Leader of Opposition in Lok Sabha, and the Chief Justice of India must pick the Chief Election Commissioner (CEC) and Election Commissioners (ECs).

Background: A first PIL had been filed in 2015, and the Supreme Court agreed to hear a second PIL on the issue filed in 2018 by Delhi BJP leader Ashwini Upadhyaya.

Why PIL for Appointment of ECI?

  • The crux of the challenge is that since there is no law made by Parliament on this issue, the Court must step in to fill the “constitutional vacuum.” This examination also leads to the larger question of separation of powers and if the judiciary is overstepping its role in filling this gap in the law.
  • Two corollary issues that were also examined by the Court are whether the process of removal of the two Election Commissioners must be the same as the CEC; and regarding the funding of the EC.
  • As per the current process, the Law Minister suggests a pool of suitable candidates to the Prime Minister for consideration. The President makes the appointment on the advice of the PM.

Constitutional Provision for Appointment of ECI:

  • Article 324(2) reads: “The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time-to-time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.

Supreme Court Decision:

  • The Court’s verdict is based on a reading of the debates of the Constituent Assembly to ascertain what the founding members of the Constitution envisaged the process to be and an interpretation of similar provisions in the Constitution.
  • The verdict states that a “golden thread runs through” the proceedings of the Constituent Assembly debates on the provision. All the Members were of the clear view that elections must be conducted by an independent Commission. It was a radical departure from the regime prevailing under the Government of India Act, 1935.
  • subject to the provisions of any law made in that behalf by Parliament” after prolonged discussions, according to the court, indicate that “what the Founding Fathers clearly contemplated and intended was, that Parliament would step in and provide norms, which would govern the appointment to such a uniquely important post as the post of Chief Election Commissioner and the Election Commissioners.”
  • The ruling examined a number of provisions in the Constitution, including the ones relating to the powers of the Supreme Court and High Court; establishing the SC, ST and Backward Classes Commissions, etc. where the Constitution uses the phrase “subject to the provisions of any law made by Parliament”. The Court finds that while a legislation has been supplemented for those provisions, there is no law on appointment of the CEC even 70 years after independence.
  • Article 324 has a unique background. The Founding Fathers clearly contemplated a law by Parliament and did not intend the executive exclusively calling the shots in the matter of appointments to the Election Commission.
  • A law could not be one to perpetuate what is already permitted namely appointment at the absolute and sole discretion of the Executive,” the court said.

Government’s stand:

The government argued that “in the absence of such a law, the President has the constitutional power.” The government has essentially asked the court to exhibit judicial restraint. The court in its ruling discusses at length its intention to “maintain a delicate balance” on separation of powers.

Other findings:

process of removal of Election Commissioners must be the same as it is for the CEC.

Article 324 is inoperable without the Chief Election Commissioner.

How powerful is the Election Commission?

Babasaheb Ambedkar had in 1949 said, “the whole election machinery should be in the hands of a Central Election Commission, which alone would be entitled to issue directives to returning officers, polling officers and others”.

What changes in consequence?

The SC’s decision will end the single party influence, essential to a democracy, where voting is the be-all and say-all of a functioning governance


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