More independent Election Commission – Supreme Court on the appointment of the Chief Election Commissioner (CEC) | 3rd March 2023 | UPSC Daily Editorial Analysis

March, 2023 UPSC
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What's the article about?

  • It talks about the recent Supreme Court verdict regarding the appointment of the Chief Election Commissioner (CEC).

Relevance:

  • GS2: Appointment to various Constitutional Posts, Powers, Functions and Responsibilities of various Constitutional Bodies;
  • Prelims

Context:

  • The Supreme Court recently quashed the existing system of appointment of Chief Election Commissioner (CEC) and Election Commissioners (ECs), which is being done by the Centre, and ruled that appointments be done by a committee of PM, Leader of Opposition and Chief Justice of India.
  • The SC also said that if LoP is not there, then the leader of the single largest opposition party in Lok Sabha will be in committee to appoint the ECs and CEC.

Why did SC quashed the existing system of appointment of the ECs and CEC?

  • According to Article 324(2) of the Constitution, the CEC and ECs shall be appointed by the President, with the aid and advice of the Council of Ministers, till Parliament enacts a law fixing the criteria for selection, conditions of service and tenure.
  • Yet, no law was enacted by Parliament in this regard.
  • As a result, the appointment of the CEC and other ECs was at the whim of the Union, which was seen detrimental to the ECI's autonomy.
  • The functional autonomy of the CEC and the EC has a direct link with the process by which they are selected.
  • Thus the Constitutional Bench of the SC stepped in to fill the void.

Articles related to Elections:

  • 324 – Superintendence, direction and control of elections to be vested in an Election Commission.
    • Article 324(2) – 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.
  • 325 – No person to be ineligible for inclusion in, or to claim to be included in a special, electoral roll on grounds of religion, race, caste or sex.
  • 326 – Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage.
  • 327 – Power of Parliament to make provision with respect to elections to Legislatures.
  • 328 – Power of Legislature of a State to make provision with respect to elections to such Legislature.
  • 329 – Bar to interference by courts in electoral matters.

Analysis:

  • The vacuum in Article 342 is essentially a democratic space, which the Constituent Assembly did not want to occupy by way of any prescription whatsoever.
  • This space was left to the future Parliament.
  • The elected Parliament was supposed to legislate on this issue with a greater element of democratic legitimacy. That was a constitutional aspiration rather than a vacuum.
  • It was, however, not fulfilled.
  • As a result, the executive enjoyed the benefit of appointing people as chosen by it as the CEC and ECs.
  • One of the main concerns was that this led to perceptions of bias of the Commission in favour of the ruling party.
  • The silence of the Constitution was rather purposive, imaginative and democratic, whereas that of Parliament was clandestine, audacious and undemocratic.

Way Forward:

  • Elections are the bedrock of democracy and the EC’s credibility is central to democratic legitimacy.
  • An independent committee consisting of the prime minister, leader of the opposition in the Lok Sabha or the leader of the largest party in opposition and the Chief Justice of India for selecting the CEC is a great leap towards a sustainable democracy.



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