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How Independent is India’s Election Commission?

A five member Constitution Bench reserved its judgement in the petitions that have sought a non-arbitrary and transparent process for appointing members of the Election Commission, to safeguard its independence

Legal Researcher 29 Nov 2022

Election Commission
Image: https://bit.ly/3iuqlT1

The election commission and the recently appointed Election Commissioner Arun Goel have been in the news due to the hearings before a five judge constitution bench of the Supreme Court. The apex court is hearing the petitions seeking established, transparent procedure for appointing members to the ECI. In the course of deliberations, with the Centre arguing that there “was no trigger point” warranting such judicial scrutiny, the Court questioned the undue haste in the appointment of Arun Goel as the Election Commissioner [EC] while the matter was being adjudicated. The post had been lying vacant since May 2022.

The matter had been referred to the Constitutional Bench after a Division Bench of the Apex Court had held that 'a close look and interpretation of the provisions of Article 324 of the Constitution of India', which states superintendence, direction and control of elections to be vested in the Election Commission, may be required, reported LiveLaw.

Given these developments, it is important to understand the significance of the Election Commission, and its independent role in the conduct of free and fair elections.

The process of appointment of Election Commissioner(s) post-Independence, has its own tale to tell. The election commission had always been a one member body until 1989. In 1989, the Rajiv Gandhi government appointed election commissioners, as provided in Article 324(1). This was again changed and the EC was made a body with just the CEC by the VP Singh government. However, the PV Narasimha Rao government brought in an ordinance establishing the multi member nature of the commission, which was later converted into an act. A case too was filed in the Supreme Court over these developments.

In this article, the first part deals with the functions and powers of the Election Commission which have been enumerated within the Constitution and other statutes. The second part deals with different cases (jurisprudence) that hold importance in the context of the role and constitution of Election Commission. The third part examines the level and extent of independence the election commission has. To put things in perspective, the appointment of members of ECI is governed by the Constitution (amendment as mentioned above, in 1991). The Election Commission (Conditions of Service of Election Commissioners And Transaction of Business) Act, 1991 prescribes the salary, term and pension matters. A plain reading of Article 324 makes it clear that the process of appointment of the EC members has been left to the law to be made by the Parliament; a lacuna that still persists in the absence of such a law. Even the present constitutional bench pointed out that it’s been 72 years and no law has been put in place.

Election Commission in the Indian Constitution

Articles 324 to 329 of the Constitution deal with the Elections. While Article 324 deals with the commission, its functions and its powers, Article 329 bars the interference of courts in election matters except when brought to them in the form of election petitions.

Article 324 (1) - Establishes the authority of the Election Commission over superintendence, direction and control of the preparation of the electoral rolls, and the conduct of all elections to parliament and the state legislatures, and to the posts of the President and Vice-President.

Article 324 (2) - States that there shall be a Chief Election Commissioner, appointed by the president subject to the law made by the Parliament. It also includes the provision for appointment of Election Commissioners, if the president deems fit, subject to the law made by the parliament.

Article 324 (3) - In case of appointment of Election Commissioner, states that the Chief Election Commissioner shall act as chairman of the commission.

Article 324 (4) - Empowers the president to appoint regional election commissioners.

Article 324 (5) - Subject to the laws of the parliament, the president may make rules for service and tenure of the regional election commissioners and Election Commissioners. For the Chief Election Commissioner, however, the process of removal is the same as the process of impeachment of the judge. The process to impeach a judge starts with either 100 Lok Sabha or 50 Rajya Sabha members giving a notice of motion to the speaker and if the speaker accepts such motion, an inquiry committee has to be constituted with a Supreme Court Judge, a Chief Justice of a High Court and a distinguished jurist who will frame charges and investigate. The report is presented to Parliament and only if each house passes the motion to impeach the judge with majority and 2/3rd of the majority of the members present and voting, the motion will be passed. After both the houses pass such motions, the president will have to pass an order removing the judge. Apart from this special status to the Chief Election Commissioner, Article 324 (5) also states that the Election commissioners and the Regional Election Commissioners, shall not be removed without the recommendations of the Chief Election Commissioners.

Article 324 (6) - states that the president or the governor of a state, shall provide the election commission with necessary staff, when requested, to discharge the functions as enshrined in Article 324 (1).

Statutes

The Chief Election Commissioner And Other Election Commissioners (Conditions Of Service) Act, 1991
Section 4 of the Act states that the tenure of the Chief Election Commissioner or the election commissioner is 6 years or until he reaches the age of 65 years, whichever is earlier.

The Process

In the recent hearings over the appointment of the Chief Election Commissioner, the Attorney General submitted to the Supreme Court that the CEC is appointed from the lists of ECs on the basis of seniority. A name is picked by the Prime Minister and it is sent to the President along with a note of recommendation, he submitted to the court.

Judicial Pronouncements on the EC

1. SS Dhannoa vs. Union of India.

The Rajiv Gandhi government, via a notification, fixed the number of election commissioners 2, in the year 1989. By another notification, SS Dhannoa and another person were appointed as Election Commissioners. However, the V.P. Singh government issued notifications rescinding the earlier two notifications by the Rajiv Gandhi government. Consequently, the two posts of  Election Commissioners were abolished and the appointment of  SS Dhannoa and the other Election Commissioner came  to  an end.

SS Dhannoa challenged the notifications by the VP Singh government on the grounds that the Election  Commission being  an  independent body, the abolition of the  posts  of Election Commissioners and their consequent removal tampered with the independence of the Election Commission directly or indirectly; in view of the service rules made  by the President  the Election Commissioners were entitled to continue in office for full tenure of five years or until they attained the age of 65 years whichever was earlier; the notification  abolishing  the  two posts  and  removing the petitioner  and the other Election Commissioner were issued mala fide under the advice of the Chief Election Commissioner; his removal affected him  materially.

The court however stated that the post of election commissioner can be created and abolished as the president may deem fit. The court noted the difference in treatment of both the Election Commissioner on the one side and the Chief Election Commissioner on the other side, as provided in the constitution. The court stated that while the conditions of service and tenure of office of all are to be such as the President may, by rule determine, a protection is given to the Chief Election Commissioner in that his conditions of  service shall not be varied to his disadvantage after his appointment, and he  shall  not be removed from his office  except  in like manner and  on the like grounds as a judge of the Supreme Court. These protections are not available either to the Election Commissioners or to the Regional Commissioners. The court stated that  the conditions of Election Commissioner and the Regional Conditions can be varied to their disadvantage.

2. T.N.Seshan vs. Union of India

A five-judge constitution bench in this case, heard the petitions challenging the validity of the The Chief Election Commissioner And Other Election Commissioners (Conditions Of Service) Act, 1991 on the grounds that it equates the status of CEC and EC by introducing the concept in which whenever a conflict arises as to a decision, the majority will prevail rather than CEC’s decision. The judgement stated that just because the CEC’s conditions of service are different from that of Election Commissioners, it cannot be concluded that CEC is of a higher status than the other Election Commissioners.

The TN Seshan case, therefore confirmed the basics of the power structures with the Election Commission

Independence of the Election Commission

Before the issue of independence itself is examined, it is important to understand and affirm the need for an independent election commission. This does not need complex and layered explanations. Elections are one of the many strong pillars on which democracies stand. If there is any discrepancy in the conduct or result of the elections, there will be cracks in a democracy which will hamper rule of law and public order. This means, the conduct of elections shall be free and fair and for that, the institution which conducts the elections should be free from any influence from the political parties.

Now, how can an institution be truly independent? There are different facets to an institution. Financial, Administrative and others. As far as money is concerned, the Union budget provides for the money required to run the Election commission i.e. EVMs, salaries for the staff, allowances etc. Since the union budget is presented in the parliament, it can be understood that no interference of the executive is present there.

Now, to the facet of administration. The powers of the Election Commission are written in the constitution but the Constitution does not detail out the process in which the persons’ appointment to the posts of CEC or EC. Therefore, the government follows the process of seniority + appointments. That is the Centre will appoint Election Commissioners and the senior most of them usually becomes the Chief Election Commissioner. The Centre, here, means the President on the recommendation of the Prime Minister.

Even prima facie, this process has tenets of executive influence in the appointment of the Election Commissioner and the Chief Election Commissioner. Effectively, if the executive wanted, it can control the Election Commission by placing ‘yes’ men in the commission who will dance to its tunes. The process of appointments to the EC and CEC of the commission is where the independence of the Election Commission falls flat.

What are the other ways in which an Election Commissioner can be appointed?

The issue with the current system is the control of the executive and the lack of concurrence or consultation with other political parties. The current petition in the Supreme Court prayed for a collegium-like system that can appoint the Election Commissioner. This could be a way. Or, say  like in Australia, some jurisdictions necessitate consultation with other political parties before appointing an electoral officer, and in some jurisdictions, a consultation with a parliamentary committee is necessary.

In South Korea, after election discrepancies in 1960, a National Election Commission was constituted in which the members were to be appointed by the National Assembly, the President and the Judiciary and the chairman of the commission was to be elected from such members.

Any of these ways or a new ways in which there is ample independence to the appointment may or should be adopted in India.

Conclusion

The idea of independence is not a straight arrow. Independence manifests itself in various forms-behavioural and structural. However, to have the starting step of appointments influenced by the executive brings down the independence of the Election Commission to the ground. It remains to be seen if the Supreme Court will pass any guidelines or recommendations as such for appointments to the Election Commission.

(The author is a legal researcher currently giving his post graduate examinations)


Related:

Appointment of Election Commissioner under SC scrutiny: The story so far

How Independent is India’s Election Commission?

A five member Constitution Bench reserved its judgement in the petitions that have sought a non-arbitrary and transparent process for appointing members of the Election Commission, to safeguard its independence

Election Commission
Image: https://bit.ly/3iuqlT1

The election commission and the recently appointed Election Commissioner Arun Goel have been in the news due to the hearings before a five judge constitution bench of the Supreme Court. The apex court is hearing the petitions seeking established, transparent procedure for appointing members to the ECI. In the course of deliberations, with the Centre arguing that there “was no trigger point” warranting such judicial scrutiny, the Court questioned the undue haste in the appointment of Arun Goel as the Election Commissioner [EC] while the matter was being adjudicated. The post had been lying vacant since May 2022.

The matter had been referred to the Constitutional Bench after a Division Bench of the Apex Court had held that 'a close look and interpretation of the provisions of Article 324 of the Constitution of India', which states superintendence, direction and control of elections to be vested in the Election Commission, may be required, reported LiveLaw.

Given these developments, it is important to understand the significance of the Election Commission, and its independent role in the conduct of free and fair elections.

The process of appointment of Election Commissioner(s) post-Independence, has its own tale to tell. The election commission had always been a one member body until 1989. In 1989, the Rajiv Gandhi government appointed election commissioners, as provided in Article 324(1). This was again changed and the EC was made a body with just the CEC by the VP Singh government. However, the PV Narasimha Rao government brought in an ordinance establishing the multi member nature of the commission, which was later converted into an act. A case too was filed in the Supreme Court over these developments.

In this article, the first part deals with the functions and powers of the Election Commission which have been enumerated within the Constitution and other statutes. The second part deals with different cases (jurisprudence) that hold importance in the context of the role and constitution of Election Commission. The third part examines the level and extent of independence the election commission has. To put things in perspective, the appointment of members of ECI is governed by the Constitution (amendment as mentioned above, in 1991). The Election Commission (Conditions of Service of Election Commissioners And Transaction of Business) Act, 1991 prescribes the salary, term and pension matters. A plain reading of Article 324 makes it clear that the process of appointment of the EC members has been left to the law to be made by the Parliament; a lacuna that still persists in the absence of such a law. Even the present constitutional bench pointed out that it’s been 72 years and no law has been put in place.

Election Commission in the Indian Constitution

Articles 324 to 329 of the Constitution deal with the Elections. While Article 324 deals with the commission, its functions and its powers, Article 329 bars the interference of courts in election matters except when brought to them in the form of election petitions.

Article 324 (1) - Establishes the authority of the Election Commission over superintendence, direction and control of the preparation of the electoral rolls, and the conduct of all elections to parliament and the state legislatures, and to the posts of the President and Vice-President.

Article 324 (2) - States that there shall be a Chief Election Commissioner, appointed by the president subject to the law made by the Parliament. It also includes the provision for appointment of Election Commissioners, if the president deems fit, subject to the law made by the parliament.

Article 324 (3) - In case of appointment of Election Commissioner, states that the Chief Election Commissioner shall act as chairman of the commission.

Article 324 (4) - Empowers the president to appoint regional election commissioners.

Article 324 (5) - Subject to the laws of the parliament, the president may make rules for service and tenure of the regional election commissioners and Election Commissioners. For the Chief Election Commissioner, however, the process of removal is the same as the process of impeachment of the judge. The process to impeach a judge starts with either 100 Lok Sabha or 50 Rajya Sabha members giving a notice of motion to the speaker and if the speaker accepts such motion, an inquiry committee has to be constituted with a Supreme Court Judge, a Chief Justice of a High Court and a distinguished jurist who will frame charges and investigate. The report is presented to Parliament and only if each house passes the motion to impeach the judge with majority and 2/3rd of the majority of the members present and voting, the motion will be passed. After both the houses pass such motions, the president will have to pass an order removing the judge. Apart from this special status to the Chief Election Commissioner, Article 324 (5) also states that the Election commissioners and the Regional Election Commissioners, shall not be removed without the recommendations of the Chief Election Commissioners.

Article 324 (6) - states that the president or the governor of a state, shall provide the election commission with necessary staff, when requested, to discharge the functions as enshrined in Article 324 (1).

Statutes

The Chief Election Commissioner And Other Election Commissioners (Conditions Of Service) Act, 1991
Section 4 of the Act states that the tenure of the Chief Election Commissioner or the election commissioner is 6 years or until he reaches the age of 65 years, whichever is earlier.

The Process

In the recent hearings over the appointment of the Chief Election Commissioner, the Attorney General submitted to the Supreme Court that the CEC is appointed from the lists of ECs on the basis of seniority. A name is picked by the Prime Minister and it is sent to the President along with a note of recommendation, he submitted to the court.

Judicial Pronouncements on the EC

1. SS Dhannoa vs. Union of India.

The Rajiv Gandhi government, via a notification, fixed the number of election commissioners 2, in the year 1989. By another notification, SS Dhannoa and another person were appointed as Election Commissioners. However, the V.P. Singh government issued notifications rescinding the earlier two notifications by the Rajiv Gandhi government. Consequently, the two posts of  Election Commissioners were abolished and the appointment of  SS Dhannoa and the other Election Commissioner came  to  an end.

SS Dhannoa challenged the notifications by the VP Singh government on the grounds that the Election  Commission being  an  independent body, the abolition of the  posts  of Election Commissioners and their consequent removal tampered with the independence of the Election Commission directly or indirectly; in view of the service rules made  by the President  the Election Commissioners were entitled to continue in office for full tenure of five years or until they attained the age of 65 years whichever was earlier; the notification  abolishing  the  two posts  and  removing the petitioner  and the other Election Commissioner were issued mala fide under the advice of the Chief Election Commissioner; his removal affected him  materially.

The court however stated that the post of election commissioner can be created and abolished as the president may deem fit. The court noted the difference in treatment of both the Election Commissioner on the one side and the Chief Election Commissioner on the other side, as provided in the constitution. The court stated that while the conditions of service and tenure of office of all are to be such as the President may, by rule determine, a protection is given to the Chief Election Commissioner in that his conditions of  service shall not be varied to his disadvantage after his appointment, and he  shall  not be removed from his office  except  in like manner and  on the like grounds as a judge of the Supreme Court. These protections are not available either to the Election Commissioners or to the Regional Commissioners. The court stated that  the conditions of Election Commissioner and the Regional Conditions can be varied to their disadvantage.

2. T.N.Seshan vs. Union of India

A five-judge constitution bench in this case, heard the petitions challenging the validity of the The Chief Election Commissioner And Other Election Commissioners (Conditions Of Service) Act, 1991 on the grounds that it equates the status of CEC and EC by introducing the concept in which whenever a conflict arises as to a decision, the majority will prevail rather than CEC’s decision. The judgement stated that just because the CEC’s conditions of service are different from that of Election Commissioners, it cannot be concluded that CEC is of a higher status than the other Election Commissioners.

The TN Seshan case, therefore confirmed the basics of the power structures with the Election Commission

Independence of the Election Commission

Before the issue of independence itself is examined, it is important to understand and affirm the need for an independent election commission. This does not need complex and layered explanations. Elections are one of the many strong pillars on which democracies stand. If there is any discrepancy in the conduct or result of the elections, there will be cracks in a democracy which will hamper rule of law and public order. This means, the conduct of elections shall be free and fair and for that, the institution which conducts the elections should be free from any influence from the political parties.

Now, how can an institution be truly independent? There are different facets to an institution. Financial, Administrative and others. As far as money is concerned, the Union budget provides for the money required to run the Election commission i.e. EVMs, salaries for the staff, allowances etc. Since the union budget is presented in the parliament, it can be understood that no interference of the executive is present there.

Now, to the facet of administration. The powers of the Election Commission are written in the constitution but the Constitution does not detail out the process in which the persons’ appointment to the posts of CEC or EC. Therefore, the government follows the process of seniority + appointments. That is the Centre will appoint Election Commissioners and the senior most of them usually becomes the Chief Election Commissioner. The Centre, here, means the President on the recommendation of the Prime Minister.

Even prima facie, this process has tenets of executive influence in the appointment of the Election Commissioner and the Chief Election Commissioner. Effectively, if the executive wanted, it can control the Election Commission by placing ‘yes’ men in the commission who will dance to its tunes. The process of appointments to the EC and CEC of the commission is where the independence of the Election Commission falls flat.

What are the other ways in which an Election Commissioner can be appointed?

The issue with the current system is the control of the executive and the lack of concurrence or consultation with other political parties. The current petition in the Supreme Court prayed for a collegium-like system that can appoint the Election Commissioner. This could be a way. Or, say  like in Australia, some jurisdictions necessitate consultation with other political parties before appointing an electoral officer, and in some jurisdictions, a consultation with a parliamentary committee is necessary.

In South Korea, after election discrepancies in 1960, a National Election Commission was constituted in which the members were to be appointed by the National Assembly, the President and the Judiciary and the chairman of the commission was to be elected from such members.

Any of these ways or a new ways in which there is ample independence to the appointment may or should be adopted in India.

Conclusion

The idea of independence is not a straight arrow. Independence manifests itself in various forms-behavioural and structural. However, to have the starting step of appointments influenced by the executive brings down the independence of the Election Commission to the ground. It remains to be seen if the Supreme Court will pass any guidelines or recommendations as such for appointments to the Election Commission.

(The author is a legal researcher currently giving his post graduate examinations)


Related:

Appointment of Election Commissioner under SC scrutiny: The story so far

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