Towards a robust triumvirate – on appointment of Election Commissioner

Source– The post is based on the article “Towards a robust triumvirate” published in The Hindu on 1st December 2022.

Syllabus: GS2- Salient features of Representation of People Act

Relevance– Electoral reforms

News– THe article explains the issue of appointment of CEC and ECs. It also explains the issue of security of tenure for ECS.

A five-judge Constitution Bench of the Supreme Court is examining a bunch of petitions recommending reforms in the process of appointment of members of the Election Commission.

What are various recommendations for appointment of Election Commissioner?

The Dinesh Goswami Committee in 1990 suggested that the Chief Election Commissioner be appointed by the President in consultation with the Chief Justice of India and the Leader of the Opposition. It said this process should have statutory backing. It applied the same criteria to the appointments of Election Commissioners, along with consultation with the Chief Election Commissioner.

The NCRWC said that the Chief Election Commissioner and other Election Commissioners should be appointed on the recommendation of a body comprising the Prime Minister, the LoP in the Lok Sabha and the Rajya Sabha, the Speaker of the Lok Sabha and the Deputy Chairman of the Rajya Sabha.

The 255th Report of the Law Commission said the appointment of all the Election Commissioners should be made by the President in consultation with a three-member collegium consisting of the Prime Minister, the LoP of the Lok Sabha, and the Chief Justice of India.

What are various facts related to security of tenure for Election Commissioners?

CEC can only be removed by impeachment. Election Commissioners do not enjoy this protection.

SC in Sheshan case have conferred equal powers on the Election Commissioners as those enjoyed by the Chief Election Commissioner. It has even offered majority power, whereby any two can overrule even the Chief Election Commissioner. Yet, it did not afford the Election Commissioners the same constitutional protection from arbitrary removal.

The 255th Report of the Law Commission suggested measures to safeguard Election Commissioners from arbitrary removal, in a manner similar to what is accorded to the Chief Election Commissioner.

What Election Commissioners should be provided with security of tenure?

Without this, they may hesitate to act independently.

In the absence of full constitutional security, an Election Commissioner could feel they must keep on the right side of the Chief Election Commissioner. They might also feel they must favour the government.

With such misgivings, an Election Commissioner can never be sure whether they will automatically be elevated to the top post because nowhere has elevation been mentioned in any statute.

What is the way forward?

Chief Election Commissioner should be appointed by a collegium. This must apply equally to the Election Commissioners. The collegium should be wide based.

The Election Commission must now equally be protected from arbitrary removal by a constitutional amendment that would ensure a removal process that currently applies only to the Chief Election Commissioner.