Autonomy of Election Commission of India (ECI)

In News

• Recently, the Supreme Court (SC) held that, “Election Commissioner shouldn’t be a ‘yes-man’”.

Supreme Court’s Stand

• Present: 
  • The court gave the government 24 hours to produce the file of appointment of former IAS officer Arun Goel as Election Commissioner.
  • The court asked the government how it had appointed Mr. Goel as Election Commissioner when an application questioning the prolonged vacancy was already pending before the Constitution Bench.
• Problem: 
  • SC is looking at the manner in which you are appointing Election Commissioners and whether the manner of appointment can put in a person who can act independently in his post.
  • Why Centre only considered bureaucrats for Election Commissioners.

Centre’s Stand

• The Election Commission of India had worked “perfectly fine” all these years. 
• Elections were held on time and there was no need to question the system of appointment. 
• The court should only intervene if a challenge had been raised against any specific appointment of Election Commissioner.
• The independence of the executive was as sacrosanct as the independence of the judiciary.

Election Commission of India

• About:
  • The Election Commission of India was established in accordance with the Constitution on 25th January 1950.
  • 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.
• Composition:
  • 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.
  • 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.
• 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.
• Powers and Functions of the Election Commission:
  • Determining the territorial areas of the electoral constituencies throughout the country on the basis of the Delimitation Commission Act.
  • Preparing and periodically revising electoral rolls and registering all eligible voters. 
  • Notifying the dates and schedules of elections and scrutinising nomination papers. 
  • Granting recognition to political parties and allot election symbols to them.
  • Registering political parties for the purpose of elections and granting them the status of national or state parties on the basis of their poll performance.
  • Acting as a court for settling disputes related to granting of recognition to political parties and allotment of election symbols to them.
  • Appointing officers to inquire into disputes related to electoral arrangements.
  • Determining the code of conduct to be observed by the parties and the candidates at the time of elections.
  • Preparing a roster for publicity of the policies of the political parties on radio and TV in times of elections.
  • Advising the president on matters related to the disqualifications of the members of Parliament.
  • Advising the governor on matters related to the disqualifications of the members of the state legislature. 
  • Cancelling polls in the event of rigging, booth capturing, violence and other irregularities.
  • Supervising the machinery of elections throughout the country to ensure free and fair elections.
  • Advising the president whether elections can be held in a state under the president’s rule in order to extend the period of emergency after one year.

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. 
  • Chief Election Commissioners’ terms have fallen from over eight years in the 1950s to less than three hundred days since 2004.
• Issue of Short tenures of Chief Election Commissioners:
  • 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.
• Independence: 
  • Is the independence of the Election Commissioner really there or just in the spirit?
  • Election Commissioners may be honest, but can have definite political leaning which makes them less independent.

Way Ahead

• The country needs Election Commissioners (ECs) who would not shirk from even taking on the Prime Minister if required, and not just “weak-kneed” yes-men.

Source: TH