Analysing The Trends In Appointment Of Chief Election Commissioner And Independence Of The Election Commission
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ANALYSING THE TRENDS IN APPOINTMENT OF CHIEF
ELECTION COMMISSIONER AND INDEPENDENCE OF THE ELECTION COMMISSION Divyaraj Ray, B.A. LL.B. (Hons.), Rajiv Gandhi National Law University, Punjab
ABSTRACT
This paper focuses on the developments in Constitutionalism through the evolving jurisprudence relating to judicial review and the judicial activism that is essential to maintain balance of power in India. This jurisprudence applied by the Hon’ble Apex Court in the controversy surrounding the selection procedure and the appointment of the Chief Election Commissioner is the pivotal aspect addressed in light of the historical perspective obtained by the slew of precedents and the Constitutional Assembly debates that often guide the courts to interpret Articles of the Constitution keeping in mind the purpose behind them is discussed in this paper.
Further the question relating to the constitutionality of the appointment procedure of the Chief Election Commissioner and other Election Commissioners before the judicial intervention has been discussed in relation to Article 324 of the Constitution and the need for the judicial activism in this particular instance has been discussed in detail. This paper also addressed the question relating to the validity of alarming recent enactment by Parliament which bypasses the judgement as conflict between the Legislature and Parliament and the tussle between these pillars of democracy
1. CHAPTER I -
INTRODUCTION
The Election Commission of India (ECI) is responsible for supervising, directing, and control the development of the electoral rolls for all state legislature and parliament elections as well as elections for the president and vice president of India, as stated in Article 324(1) of the Indian Constitution1. The Election Commission is an essential part of India's democratic governance because of this Article, which grants it a lot of power. Free and fair elections are necessary for a functioning democracy, Article 324 is important. By functioning as an impartial constitutional authority free from political influence, the Election Commission protects the integrity of the democratic process. Its primary objective is to uphold the democratic values of transparency, equity, and inclusivity.
Creating and maintaining accurate electoral rolls is one of the Election Commission's primary responsibilities. These rolls serve as the foundation for the election process, establishing who is qualified to cast a ballot and take part in democratic decision-making. The Election Commission encourages inclusivity in the electoral process by guaranteeing the accuracy and completeness of electoral rolls and protecting the right to vote of all eligible citizens2. Furthermore, the Election Commission is essential to the way elections are conducted. From candidate nomination to results announcement, it manages every facet of the election process. The Election Commission works to foster an atmosphere that supports free and fair elections via careful preparation and implementation.
It prevents electoral fraud, bribery, and coercion by enforcing rigorous adherence to electoral laws and procedures. The Election Commission also employs a variety of tactics, such as voter-verifiable paper audit trails (VVPATs) and electronic voting machines (EVMs), to further enhance the transparency and integrity of the voting process. 3
1 INDIA CONST. Art. 324.
Case Comment: Anoop Barnwal v. Union of India, 2023,
AMICUS CURIAE BLOG, Accessed on 15 April,2024.
3 Ramaswamy R. Iyer, The Election Commission and the Judgment, ECONOMIC AND POLITICAL WEEKLY,
JSTOR, Accessed 10 November 2024.
During elections, the Election Commission also serves as a monitor for moral behaviour. It keeps an eye on candidates' and political parties' behaviour to make sure the Model Code of Conduct (MCC) is followed. By establishing standards for how candidates and political parties should conduct themselves during elections, the MCC encourages objectivity, decency, and civility in election campaigning. The Election Commission levels the playing field and prevents the abuse of power and riches for election purposes by implementing the MCC.
An excellent illustration of the Election Commission's commitment to impartiality and equity is the way it handles complaints and election disputes. It provides a robust framework for resolving electoral disputes through the use of quasi-judicial bodies such as Election Tribunals. Through timely and equitable adjudication of election disputes, the Election Commission maintains the integrity of the democratic process. 4 In accordance with Article 324(2), "The Chief Election Commissioner and any additional Election Commissioners, if any, may be appointed by the President from time to time, and the appointment of the Chief Election Commissioner and other Election Commissioners shall be made by the President, subject to the provisions of any law made in that behalf by Parliament.
The selection process for election commissioners is important in India since it ensures the legitimacy and independence of the ECI. Unlike many other statutory bodies, the Election Commission is a multi-member body composed of the Chief Election Commissioner (CEC) and other Election Commissioners. The Election Commissioners and CEC are appointed by the President of India. The selection process involves careful consideration and examination to ensure that individuals with integrity, competence, and impartiality are appointed to these positions. 5 Maintaining the ECI's independence and impartiality depends on the selecting process. Election commissioners are expected to perform their duties without fear or favour, even in the face of pressure from political connections or other parties.
The selection procedure thus emphasises the need for people who have shown a dedication to democratic principles and values. Meetings with a variety of stakeholders, including political parties, civil society 4 Election Commission Appointments Case, SCO BLOG, accessed on 16 April,2024 5 Katju, Manjari, Election Commission and Functioning of Democracy, ECONOMIC AND POLITICAL WEEKLY, 2006, JSTOR, Accessed 20 April, 2024. organisations, and legal experts, are typically also part of the process to ensure broad consensus on the choices. The Election Commission's independence is also shielded from executive interference by the selection process. By choosing Election Commissioners in an open and merit-based process, the government maintains the commission's status as an independent constitutional body.
This independence is crucial for preserving public trust in the electoral process and safeguarding democracy from unwarranted interference or manipulation. However, the President appointed the Chief Election Commissioner and the other two Election Commissioners on the basis of the Cabinet Ministers' informal suggestions, giving the ruling government authority in the lack of any legislation passed by Parliament. Anoop Barnwal and Ashwini Kumar Upadhyay both challenged this in a Public Interest Litigation petition. These were combined and heard by the Apex Court in the current case in order to understand how the judicial review process and mandatory judicial intervention in cases of lack of legislation can help ensure stability of the democratic machinery by acting as checks and balances on the legislative and executive branches. This project takes a close look at this case.
1.1 Statement of problem-
India's appointment process has come under scrutiny due to questions regarding the independence and impartiality of the Chief Election Commissioner (CEC) and Election Commissioners (ECs). There is increasing debate on whether the current hiring procedure compromises the Election Commission's independence, despite the fact that it is necessary to hold free and fair elections. Legislative discussions and legal action have been sparked by recent disagreements over political interference and the lack of an open and clear process. It is crucial to examine how these appointments have evolved over time and assess how they impact the Election Commission's independence in light of recent Supreme Court decisions and suggested parliamentary changes.
1.2 Objective –
To analyse the trends in the selection of the Chief Election Commissioner and other Election Commissioners since the establishment of the Indian Constitution. In addition to examining the implications of the legislation passed in response to the Chief Election Commissioner and additional Election Commissioner nominations in the future, consider the impact of the most recent Supreme Court decision on the issue.
1.3 Literature Review
This paper has drawn from the Various Committee reports on electoral reforms and the books by Madan Lokur and the other primary sources like journal articles primarily FADIA, B. L. “REFORMING THE ELECTION COMMISSION” and the The Indian Journal of Political Science and the Kumar, B. Venkatesh. “Critical Issues in Electoral Reforms.”
1.4 Research Methodology
A review of relevant case law, constitutional provisions, and judicial interpretations will be carried out with regard to the appointment of the Chief Election Commissioner and Election Commissioners. Discussions in parliament, proposed legislation, and changes to the nomination process will all be looked at. The decision of the Supreme Court on the independence and appointment procedure of the Election Commission will be one of the recent decisions we thoroughly examine
1.5 Limitations
The findings' generalisability may be restricted by the paper's narrow focus on a more general topic. The quality, biases, or limitations of the sources employed may place restrictions on research that mostly on secondary data.
2. CHAPTER II- HISTORY OF CREATION OF ELECTION COMMISSION
Article 289 of the Draft Constitution served as the model for Article 324 of the Indian Constitution, which created the Election Commission. In order to guarantee free and fair elections for the future Democratic Republic of India, the members of the Constituent Assembly had a lengthy discussion over the Election Commission's independence. These discussions can help us understand the various viewpoints that shaped the current iteration of Article 324.
Given the ongoing controversy surrounding the Chief Election Commissioner's appointment process and the legality of the most recent legislation, understanding the current issue and potential solution requires the opinions of the Constituent Assembly members regarding the appointment of the Chief Election Commissioner and other members of the Commission. 6 Shri Chuladhar Chaliha stated “Mr. President, I have heard with great attention the arguments advanced by Dr. Ambedkar who is the Constitutional manoeuvrer and whose industry and diligence is a wonder to all of us. Yet, his arguments have not brought that conviction which ordinarily they bring.
He first argued that he wanted it to be inserted in the Fundamental Rights but as it was said that he wanted a separate provision for this, so this article has been added in order to safeguard the interest of the electorate he thought that a body outside the Executive should be there to conduct the elections; but what is that body outside the Executive? It is the President who will select the Chief Election Commissioner and he is a party-man whatever it may be and will have the same prejudices and same bias towards his own party-man as anyone else and therefore that argument does not hold very good. ”7 Shri K. Santhanam concurred with these views and expressed concern that the president's choice of the CEC would expose it to political pressure. He argued that this might compromise the independence of the Commission. On the other hand, Shri T. T.
Krishnamachari argued that the president should have the last say over appointment decisions, citing the possibility that an excessive number of checks and balances would make the process time-consuming. He believed that impartiality would be ensured by the President's role as defined by the Constitution and that creating a convoluted nomination process would be inappropriate. 8 Furthermore, a number of members proposed that a broad committee be established to make the selection rather than the President selecting individuals only on the basis of the Council 6 Kumar, B. Venkatesh, Critical Issues in Electoral Reforms, THE INDIAN JOURNAL OF POLITICAL SCIENCE, 2002, JSTOR, Accessed 4 November 2024
7 Official Report, CONSTITUENT ASSEMBLY DEBATES, reprinted by LOK SABHA SECRETARIAT, NEW
DELHI SIXTH REPRINT, Parliamentary e-library, Volume VIII—16th May to 16th June, 1949 available at Accessed on 10 November, 2024. 8 Shefali Jha, Representation and Its Epiphanies: A Reading of Constituent Assembly Debates, ECONOMIC AND POLITICAL WEEKLY, 2004, JSTOR, Accessed 10 Nov. 2024. of Ministers' recommendations. To guarantee a neutral procedure, the Chief Justice of India or a panel made up of representatives from several governmental levels were to be involved. Shri H. V. Kamath proposed the establishment of an appointment panel to better protect the Election Commission from executive meddling, arguing that democratic elections require the highest level of impartiality. Although there was cause for concern regarding the executive's control over the selection process, Dr. B. R.
Ambedkar defended the article in its current form, arguing that the Constitution's general structure provided adequate safeguards for the Election Commission's independence. 9Ambedkar underlined that the President's role as a constitutional leader who receives advice from the Council of Ministers does not always entail undue influence.
3. CHAPTER III - ELECTORAL REFORMS
The 1974 Tarkunde Committee, by the efforts of Jayaprakash Narayan, made significant recommendations for improving the independence and efficiency of the Election Commission of India (ECI). Under the direction of Justice V. M. Tarkunde, the committee proposed reforms to ensure a free and fair election process while attempting to solve the ECI's issues with political influence, electoral malpractice, and administrative inefficiencies. One of the primary recommendations of the Tarkunde Committee was the need for a multimember Election Commission that would consist of a Chief Election Commissioner (CEC) and two other Election Commissioners (ECs), each with equal authority. The committee thought that by limiting the power of any one individual and promoting the decentralisation of decision-making inside the ECI, this strategy would reduce the likelihood of political pressure or favouritism.
To further protect the independence of the ECI, the committee suggested that appointments be decided by a collegium consisting of the Chief Justice of India, the Leader of the Opposition in the Lok Sabha, and the Prime Minister. A secure tenure for the CEC and ECs, with a defined term of six years or retirement at age 65, whichever came first, was another recommendation made by the committee. This was
9 Thresimma V.G ,MAKING OF THE INDIAN CONSTITUTION AND DEBATE ON THE ISSUE OF TRIBAL
DEVELOPMENT, THE INDIAN JOURNAL OF POLITICAL SCIENCE, ,vol 3, pp 4567, 2011, JSTOR, Accessed 10 November, 2024 carried out in an attempt to lessen the possibility of arbitrary removals or transfers by the ruling administration. The Tarkunde Committee further emphasised that in order to protect the ECI from political interference and ensure that it has enough money to operate, its budget must be managed as a "Charged Expenditure" on the Consolidated Fund of India. The Tarkunde Committee's recommendations, which emphasised the need for an independent and powerful Election Commission to uphold democracy, created an early framework for electoral changes in India. The Dinesh Goswami commission on Electoral Reforms was a well-known commission that looked at the matter of Election Commission appointments.
The committee suggested that the president acting on the Council of Ministers' recommendation should not be the only executive branch body responsible for appointing the CEC and Election Commissioners. Instead, the committee suggested that, “the appointments should be made by the President in consultation with a multi-member committee comprising: o The Prime Minister o The Leader of the Opposition in the Lok Sabha o The Chief Justice of India10” This recommendation sought to provide a more transparent and bipartisan procedure in order to preserve the Election Commission's independence from the government. The committee also underlined that the CEC's tenure security safeguards their independence because they can only be removed by impeachment, just like Supreme Court judges.
To guarantee independence and equality for all members, the committee recommended that the other Election Commissioners adhere to the same process. The Election Commission of India (ECI) received crucial recommendations from the Vohra Committee, 11which was founded in 1993 to study the criminalisation of politics and its effects on governance. These suggestions helped the ECI combat the increasing influence 10 T. S. Sankaran, Electoral Reforms: A Farce and an Opportunity, ECONOMIC AND POLITICAL WEEKLY, vol. 29, no. 27, 1994, pp. 1635–37. JSTOR, Accessed 10 November, 2024. 11 Kumar, Sanjay, Reforming Indian Electoral Process, ECONOMIC AND POLITICAL WEEKLY, vol. 37, no. 34, 2002, pp. 3489–91. JSTOR, Accessed 10 November, 2024. of criminal groups in elections.
The committee emphasised the urgent need for reforms to improve the ECI's ability to prevent illegal and dishonest election practices. One of the key proposals was to give the ECI more power to prevent candidates with criminal backgrounds from seeking public office. One approach to do this was to propose legislation that would make it illegal for those with criminal records to run for public office, especially if the convictions were for serious offences. The committee emphasised the significance of carrying out thorough background checks and suggested that the ECI collaborate closely with law enforcement agencies to obtain accurate information on candidates' criminal history. Additionally, the Vohra Committee proposed increasing transparency in the funding of political parties.
It recommended that the ECI be empowered to oversee the finances of political parties and enforce regulations on campaign spending to prevent the influence of illegal funds in elections. These recommendations aimed to empower the ECI to play a proactive role in ensuring a clean electoral process and reducing the impact of criminalization on democratic governance. Established in 1998 to investigate state sponsorship of elections, the Indrajit Gupta Committee made important recommendations on the Election Commission of India (ECI) and political parties' funding transparency. In order to lessen candidates' reliance on private donations, which frequently affect election results and jeopardise integrity, the committee emphasised the significance of having some public funding for elections.
It was suggested that the ECI regulate this financing to guarantee accountability and equitable distribution. The committee also emphasised that political parties should provide the ECI with annual revenue returns to ensure openness in their financial dealings. It recommended making political parties disclose their income, costs, and funding sources so that the general public may assess their financial standing. This recommendation aimed to reduce the influence of money in elections, prevent the misuse of unaccounted funds, and increase the ECI's monitoring power over political finances in order to help create a more efficient and transparent electoral process. The 2002 National Commission to Review the Working of the Constitution (NCRWC12), presided over by Justice M. N. Venkatachaliah, also suggested a collegium structure.
The NCRWC stressed that in order to guarantee impartiality and transparency, the judiciary should be involved in appointments. The National Commission to Review the Working of the Constitution (NCRWC), which was established in 2000, was tasked with evaluating the effectiveness of India's Constitution and suggesting any necessary amendments. The NCRWC's 2002 report contained significant recommendations regarding the Election Commission of India (ECI). These suggestions sought to strengthen the ECI's autonomy, streamline its functions, and address problems with the Indian electoral system in order to maintain democratic integrity. One of the NCRWC's primary recommendations was to guarantee the ECI's independence.
To shield it from political influence, the Commission suggested a multi-member Election Commission that would have equal decision-making power for a Chief Election Commissioner (CEC) and other Election Commissioners (ECs). The NCRWC recommended that a committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India be appointed to these posts in order to promote transparency and avoid the ruling party from unilaterally influencing the selection. Further, the Commission emphasized that the CEC and other ECs should have fixed and secure tenures. They proposed a term of five to six years, or until the age of 65, whichever is earlier, to prevent abrupt and politically motivated dismissals. Election Commissioner dismissal procedures were still another important topic of focus.
Only the CEC could be removed in a way similar to that of a Supreme Court judge at the time, but the President might dismiss other ECs upon the CEC's suggestion. The NCRWC claimed that this system was inadequate and vulnerable to misuse. To guarantee their independence and shield them from unjustified influence, it was proposed that all ECs go through the same stringent process used to remove the CEC. The NCRWC also recommended enhancing the financial independence of the ECI.
To achieve this, it suggested that, similar to the budgets of the judiciary and the Comptroller and Auditor General, the Election Commission's budget be treated as a "Charged 12 National Commission to Review the Working of the Constitution (NCRWC) Report, 31st March, 2002, MINISTRY OF LAW, JUSTICE AND COMPANY AFFAIRS, DEPARTMENT OF LEGAL AFFAIRS, by secretary to Government, Available at Accessed on 9 November, 2024.
Expenditure" on the Consolidated Fund of India. By doing this, Parliament would be able to discuss the allocation but not alter it, ensuring that the ECI has the resources to accomplish its duties independently of government permission for funding. 13 To address issues of voter fraud, duplication, and exclusion, the NCRWC recommended modernising the universal electoral registration procedure and digitising voter rolls in addition to structural changes. The Commission suggested that voter identity cards be utilised nationwide to speed up voter verification and lower the possibility of impersonation, acknowledging the necessity for a contemporary and transparent election system. The NCRWC's recommendations for the Election Commission underlined the need for a robust and independent electoral body in a democracy such as India.
By guaranteeing autonomy, financial independence, and procedural efficiency, these ideas aimed to increase the ECI's ability to conduct free, fair, and transparent elections. Even while these recommendations are helpful, they haven't been fully put into practice yet, and there is ongoing debate about whether the ECI should be reinforced in light of India's most recent election reforms. The NCRWC's mandate for a robust and independent Election Commission, which remains in effect today, emphasises how important it is for institutions to constantly change to meet the evolving demands of democratic governance.
The Second Administrative Amendments Commission (ARC) adopted similar amendments in 2007 and emphasised the importance of a multi-member selection panel that comprises the Chief Justice of India, the Leader of the Opposition, and the Prime Minister in order to prevent political interference. Furthermore, former Election Commissioner G. V. G. Krishnamurthy supported a collegium-based method akin to the judiciary's selection procedure and argued for the involvement of several stakeholders to guarantee neutrality in appointments.
4. CHAPTER IV - PRECEDENTS WITH REGARD TO CHIEF ELECTION
COMMISSIONER-
13 Ramesh, R. HISTORICAL PERSPECTIVES OF THE ELECTORAL REFORMS IN INDIA, PROCEEDINGS OF
THE INDIAN HISTORY CONGRESS, 2011, JSTOR, http://www.jstor.org/stable/44145743. Accessed 10 November 2024.
4.1 S.S Dhanoa Case, 199114
On October 7, 1989, the President issued a notification establishing a two-member Election Commission, exercising his authority under Article 324(2) of the Indian Constitution. The President then designated S. S. Dhanoa (the petitioner) and V. S. Seigell as Election Commissioners in a follow-up notification dated October 16, 1989, in compliance with the same constitutional provision. Regulations regarding the terms of service for the recently appointed Election Commissioners were released by the President that same day. These rules stipulated that an Election Commissioner would serve for a term of five years or until their sixty-fifth birthday, whichever came first. However, the President rescinded the earlier announcements on Dhanoa and Seigell’s nominations with immediate effect in a second notification issued on January 1, 1990, thereby terminating their positions.
In response to this abrupt revocation, petitioner S. S. Dhanoa filed a writ case contesting the notification dated January 1, 1990. He said that the revocation was illegal and capricious, undermining the Election Commission's long-standing appointment procedure. Dhanoa's case raised significant concerns over the safety and legitimacy of the President's appointees as well as the general independence of the Election Commission, which are crucial for free and fair elections in India. The decision in this case would have broader implications for the future functioning of the Election Commission and the selection of its members. The petition questioned the manner in which Election Commissioner (EC) jobs were abolished. The Supreme Court upheld the validity of the final Presidential notification in relation to this abolition.
The court noted that while the creation and termination of these positions were subject to judicial review, the appointments themselves might be challenged if they were thought to be unjustified. It came to the conclusion that a multi-member Commission could not operate without procedural rules, which is why EC posts were eliminated. The argument that this behaviour threatened the independence of the Commission was dismissed since it was found that the government did not follow the Chief Election Commissioner's (CEC) recommendation to abolish the offices. The CEC did not authorise their removal, as the ECs themselves acknowledged and the documentation provided confirmed. The decision to remove the posters was unanimously agreed, despite
14 S.S. Dhanoa vs Union of India and Ors, 1991 (3) SCC 567.
minor differences. The government may have allowed the ECs to continue in their posts or established rules for their activities, but the court determined that this did not establish sufficient grounds to claim that the government or the CEC acted with malice. 15 The composition of the Election Commission of India ensures a permanent Chief Election Commissioner (CEC). The President may decide to alter the number of Election Commissioners (ECs) and, if necessary, appoint additional ECs, though this is not obligatory. This selection process may be regulated by laws established by Parliament, in contrast to the CEC, whose participation is always required. A multi-member Commission is chaired by the CEC, who acts as its sole decision-making member. As a result, rather than being bound by the ECs' opinions, the CEC is in a better position and can ignore them.
The Supreme Court contrasted the CEC's authority to that of the Prime Minister or Chief Ministers, who have the right to overrule their respective councils, in this particular case. However, this analogy was deemed inaccurate because a prime minister or chief minister needs the support of their council in order to keep power, hence they must consider the opinions of the council. Additionally, unlike ECs, CECs are not shielded by constitutional provisions that prohibit them from changing their terms of service negatively after they are appointed. CECs can only be fired in a manner and for grounds akin to those of Supreme Court justices, in contrast to ECs, who are not granted such protections. In terms of service terms and firing procedures, the Supreme Court determined that ECs are more akin to Regional Commissioners than the CEC.
What distinguishes Regional Commissioners is their lack of affiliation with the Commission itself. The court firmly said that the CEC is not just a "primus inter pares" (first among equals) but also has a much larger role in the electoral system.
4.2 T.N Seshan Case, 199516
In line with his authority under Article 123 of the Indian Constitution17, the President issued "The Chief Election Commissioner and Other Election Commissioners (Conditions of 15 Ashwini Chawla, A Critical Study of the Position of the Chief Election Commissioner in the Light of Cases Such as SS Dhanoa V. Union Of India and TN Seshan V. Union Of India, MANUPATRA ARTICLES, Available at Accessed on 9 November, 2024.
16 T.N Seshan v. Union of India, (1995)4SCC611.
17 INDIA CONST. Art. 123.
Service) Amendment Ordinance, 1993" (Order No. 32 of 1993). "The Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Act, 1991" was to be amended by this ordinance. On October 1, 1993, the same day the Ordinance was released, the President also issued a notification under Article 324(2) creating a two-member Election Commissioner (EC) body. Then, with immediate effect, he appointed Mr. M. S. Gill and Mr. G. V. G. Krishnamurthy as the new ECs. The petition provides that “the first writ petition was filed by journalist S. Ramaswamy, who asked for a declaration that the Ordinance was illegal, capricious, and unconstitutional. He also requested a writ of certiorari to annul the notifications related to the appointments. ” Following this, the Chief Election Commissioner (CEC), Mr. T. N. Seshan, filed a second writ petition for similar relief.
Two additional writ petitions were filed, both challenging the constitutionality of the Ordinance and the associated notifications. As these petitions were pending, the Ordinance was enacted as an Act without any modifications. Given that the petitions raised issues regarding the interpretation of Article
324 of the Constitution, they were referred to a Constitution Bench for resolution. This
bench was tasked with determining the legality and implications of the Ordinance and notifications in question. The Chief Election Commissioner (CEC) accused the President of acting with mala fides when issuing the notifications, suggesting that the true intent was to empower the ruling party to gain favours from the newly appointed Election Commissioners by undermining the CEC's authority. The CEC challenged Sections 9 and 10 of the Ordinance as unconstitutional, arguing that Article 324 did not authorize Parliament to create rules governing the Commission's operations. Despite these challenges, the Ordinance was upheld in its entirety by the court. Section 9 mandated that the Commission conduct its business in accordance with the provisions of the Act, while Section 10 stated that decisions should ideally be made unanimously.
However, in situations where unanimity was not achieved, decisions would be made based on a majority vote. This structure aimed to ensure the smooth functioning of the Commission while addressing potential disagreements among its members. “In asserting that the Chief Election Commissioner (CEC) holds a higher status than the Election Commissioners (ECs), the petitioners primarily referenced the SS Dhanoa case and presented several arguments:
1. The CEC enjoys conditions of service comparable to those of a Supreme Court judge,
whereas the ECs did not have similar conditions before the passage of the Ordinance.
2. The CEC can only be removed in a manner akin to that of a Supreme Court judge, while
the ECs can be dismissed based on the CEC's recommendations.
3. Once appointed, the CEC's service conditions cannot be altered to his disadvantage, a
protection not extended to the ECs.
4. In a multi-member Commission, the CEC serves as the Chairman.
5. The CEC is a permanent position, whereas the posts of the ECs can be abolished, as
illustrated in the SS Dhanoa case. ”18 The President is responsible for determining the tenure and terms of service for each member of the Commission, according to parliamentary regulations. Even though the Ordinance matched the pay of the CECs and ECs, the court found that there was no discernible difference in their terms of service. The Constitution's clause that a CEC can only be removed, like a Supreme Court judge, to preserve independence does not protect ECs due to their ambiguous appointments. This indicates that if the CEC is protected from executive meddling, he is likely to defend the ECs' independence. The Constituent Assembly's discussions on the matter were considered significant in this respect. Nonetheless, the Supreme Court ruled that the Chief Election Commissioner (CEC) must act as the Chairman of a multi-member Election Commission.
Although he is designated as a permanent incumbent by constitutional rules, the Supreme Court made it clear that this designation does not automatically give him a higher standing than the other members. Although the Constitution does not specifically define the CEC's job in this position, it was not brought up during the deliberations in the Constituent Assembly. In his capacity as
18 Supra note 16.
Chairman, the CEC is in charge of the Commission's employees and is in charge of duties like creating electoral records. It was argued in the SS Dhanoa case that the chairman of a multi-member committee ought to have more power and privileges than the other members. In the case of the Election Commission, the Court disregarded this line of thinking, ruling that no member could assert superiority over the organisation they represent. Even while the CEC may decide on his own, the Commission as a whole, not just him, ultimately makes these decisions. The CEC must make choices within the authority granted by the Commission, even in a one-member Commission, and these decisions reflect the Commission's collective will. The Court underlined that the CEC's existence is dependent on the Commission's existence and that he is essentially an institution-wide creation.
As a result, it came to the conclusion that the CEC, whether it has one member or several, is fundamentally a function of the Commission. The fact that he represents the institution rather than assuming a position of superiority over it serves to further emphasise the notion that the Commission, not the individual, is the source of his authority
5. CHAPTER V - ANOOP BARNWAL V. UOI, 2023 SC
Numerous PILs have been presented before the highest judicial body, the Supreme Court of India, seeking a re-evaluation of the protocol concerning the selection of members of the Election Commission of India (ECI) as outlined in Article 324 of the Indian Constitution. 19The said article delineates that the President of India is tasked with appointing the Chief Election Commissioner (CEC) and other Election Commissioners, with these appointments mandated to adhere to legislation devised by Parliament on the matter. However, despite the passage of almost seventy years since the inception of this constitutional provision, Parliament has yet to promulgate any such statutory framework. Historically, appointments to these esteemed positions have been made upon the recommendations of the Council of Ministers, spearheaded by the Prime Minister.
Petitioners argue that the absence of a codified law governing this process undermines the ECI's autonomy. They have thus implored the apex court to intervene and compel Parliament to devise legislation governing the appointment mechanism or establish an
19 Anoop Barnwal v. Union of India, 2023 9 SCR 1.
independent entity tasked with recommending appointees. Such measures are seen as imperative to ensure the impartiality and openness of the Election Commission.
5.1 Question before the court
1. “Is there a legal vacuum in Article 324(2)? If there is a gap, then should the Court intervene
to fill the gap?
2. Whether the safeguards given to the Chief Election Commissioner should be extended to
the other Election Commissioners?”
5.2 Petitioner’s Arguments-
The Learned Counsel Shri Gopala Sankar Narayana from petitioner side contended that the absence of clear qualifications and appointment procedures for the Election Commission of India (ECI) and the National Commission for Scheduled Castes stands out among the twelve unelected Constitutional Authorities. While Article 324 mentions appointments to be made "subject to law made," no specific legislation exists for this purpose. This raises concerns about institutional integrity and the potential for bias or favouritism in appointments. The petitioners argue that an independent appointment mechanism is crucial for ensuring the Commission's fearless independence and safeguarding democracy, especially in light of increasing criminal involvement in public life.
They point to examples from other South Asian countries and the United Kingdom where clear qualifications, mandatory tenures, and rigorous removal processes are in place. The petitioners highlight a perceived shift since 2001 towards appointing older candidates, which they believe compromises independence and curtails tenure. They urge the court to intervene, citing its proactive role in electoral matters and the need for judicial oversight when executive action falls short. The proposed directions include establishing a committee for appointing Election Commissioners, setting qualifications such as citizenship, age limits, impeccable integrity, and a lack of political affiliations, and ensuring irrevocability except through a specified process.
Additionally, they call for the establishment of an independent secretariat and equalization of the Election Commission's expenditure with other constitutional bodies.
Furthermore, Prashant Bhushan, Senior Advocate for the petitioner, said that Article 324(2) is incompatible with the appointment procedure as it is. It also breaches Article 14 due to its arbitrary nature. When elections are not conducted by an unbiased body, the constitutional right to vote is violated. A wide range of quasi-judicial conflicts between parties can be resolved by the Election Commission. A variety of quasi-judicial conflicts between parties can be resolved by the Election Commission. The Court's ruling in Indian National Congress v. Institute of Social Welfare and Others 20serves as the foundation for the Election Commission's quasi-judicial function under Section 29A of the Representative of the People Act, 1951. It has the power to register political parties, allot symbols, to enforce the moral code of conduct.
In many cases the ruling government is party involved in the dispute. Executive as a sole participator in the appointment will make its decisions biased. Petitioners relied on Supreme Court Advocates-on-Record and Anr. v. Union of India to substantiate their argument. References were made to the Report of Justice Madan Lokur which highlights the inconsistency of the ECI in implementing the moral code of conduct and 255th Law Commission Report which proposed several electoral reforms including the appointment of ECs on the recommendation from a three-member committee. There has been a trend of appointing older candidates as ECs thereby shrinking their tenure. The independence of the Commission depends upon its appointment procedure. A majority of Commissioners have been ex-bureaucrats. Appointment made by the Executive alone makes it a partisan body and a branch of the executive.
Petitioners advocated for constituting a collegium like committee to recommend names to the Election Commission to ensure its independence. They also advocated that the same protection must be extended to the EC as is available to the CEC in the light of Article 324(5). Learned Counsel relied upon the judgment of Prakash Singh and Others vs. Union of India and Others, 21relating to reforms in the Police Administration. This is
20 20Indian National Congress v. Institute of Social Welfare and Others, 2002 (5) SCC 685.
21 Prakash Singh and Others vs. Union of India and Others (2006) 8 SCC 1.
besides relying on Vineet Narain and Others vs. Union of India and Another22 and the Third judge’s 23case.
5.3 Respondent’s Arguments
The Learnt Attorney General of India denied the allegation that EC appointments were legally illegitimate. Since the Constitution lays forth a process for appointment, Article 324(2) cannot impose a constitutional duty on the Parliament to pass laws. The reply emphasised the practice of judicial restraint in legislative concerns. If the Court became involved in this issue, it would violate the idea of separation of powers. The Court must intervene and set rules only when a fundamental right is in jeopardy. Judicial meddling in matters pertaining to policy must be avoided. Establishing a committee to suggest names for the ECI would go against the procedure outlined in Article 74, 24which requires the President to act on the Council of Ministers' advice. They contended that the President appoints the Election Commission, citing the ruling in T. N. Seshan v. Union of India.
The Supreme Court's ruling in T. N. Seshan v. Union of India is said to have settled issues pertaining to the selection of the Chief Election Commissioner and other Election Commissioners. The selection procedure is not specifically covered under the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. Because neither the administration nor Parliament have stepped in, the custom of assigning senior civil officers to these roles has persisted. Judicial review can be used to address any irregularities in appointee actions or nominations. Despite the 1991 Act's recommendation that Chief Election Commissioners and Election Commissioners serve six-year terms, the notion of composite tenure has been adopted due to practical difficulties.
This approach aims to ensure that appointees can serve for about six years, regardless of whether they are appointed as Election Commissioners or Chief Election Commissioners. The President and Prime Minister recommend members from a database of senior active or retired officers after the Minister of Law and Justice suggests a panel. Aspirational recommendations are exempt from consideration unless the Commission's independence is
22 Vineet Narain and Others vs. Union of India and Another (1998) 1 SCC 226.
23 Third judge’s case (1998) 7 SCC 739.
24 INDIA CONST. Art. 74.
in danger due to noncompliance with the 1991 Act's requirements. It is thought unnecessary to modify appointment procedures from other jurisdictions because the Constituent Assembly deliberately chose the approach taken under Article 324(2). There is never a vacancy in appointments, as evidenced by prior appointments made based on need. Applying constitutional interpretation principles to ordinary statutes is prohibited. The Government has been appointing the members from the civil services because they are considered the most fit to be inducted as Elections Commissioners.
5.4 Ratio Decidendi
Using the power conferred by Article 142 of the Constitution25, the five-judge panel unanimously created regulations to regulate the Election Commission's member selection procedure. A three-member committee was established by the Supreme Court to make suggestions until legislation was ratified by Parliament. The Committee shall comprise of: i. the Prime Minister, ii. the Leader of Opposition in Lok Sabha or if he is unavailable the leader of the largest opposition party in Lok Sabha and iii. the Chief Justice of India The Court based its decision on the idea of judicial activism, which holds that in democracies, judges have an obligation to actively protect and uphold the rights of their constituents. The Supreme Court looked at the concept of judicial activism, which is similar to the separation of powers.
An activist approach strengthens democracy by addressing the issues facing the most marginalised segments of society. J. Rastogi claims that under Article 142, which grants the Court the power to create rules, the Supreme Court may issue any order to provide full justice. An analysis of the arguments in the Constituent Assembly reveals that the architects of the Constitution agreed that the regulations governing appointments should be made by the
25 INDIA CONST. Art. 142.
Parliament. An appointment made solely at the executive's discretion would unavoidably allow for the abuse of authority in the absence of regulation. It undermines the core tenets of democracy and the rule of law. Citing landmark decisions in Vishaka v. State of Rajasthan 26and the Third Judges case27, the Court upheld the cases in which it had stepped in to fill the gaps and deliver justice while keeping the larger public interest in mind. Future objectives must be reflected in the interpretations of the Constitution. It is impossible to force the power to make laws. The Court did not give the Parliament authority to pass laws. Laws are needed to give Art. 324(2) life. Given the growing trend of criminalising politics and the substantial impact of money in elections, the EC needs to be a neutral organisation.
Regarding the issue of providing EC with the same safeguards as CEC, it was mentioned that the only distinction between the two is that, once appointed, CEC's terms of service cannot be altered to his detriment. This protection does not apply to the other ECs. He is more than just an advisory member, though. It doesn't mean that the CEC's decisions are final in every situation. Other ECs were encouraged to seek constitutional protection, and the Ministry of Law & Justice's Background Paper on Electoral Reform was referenced. It was determined that it is crucial to keep the position of the Election Commissioner free from executive interference. The Court consequently gave other ECs the same safeguards that were given to CEC.
With respect to the right to vote, the Court observed upon a lengthy discussion on the Constitutional Assembly Debates that founding fathers created a constitutional right to vote for the adult citizens under Article 326. It can be restricted on the grounds of disqualification as mentioned therein. The Court reiterated its ruling in PUCL case28where it was held the freedom to vote is a form of expression under Article 19(1)(a) 29.
26 Vishaka v. State of Rajasthan, 1997 (6) SCC 241.
27 Third judge’s case (1998) 7 SCC 739.
28 People’s Union of Civil Liberties v. Union of India, (2003) 4 SCC 399
29 INDIA CONST. art. 19, cl. 1(a).
6. CHAPTER VI- RECENT CONCERNING EVENTS AND NEW ENACTMENT
The weakening of the Election Commission's independence is particularly worrisome given its historical prominence. Former President K.R. Narayanan commended the Commission's integrity and said the public was impressed with its work during the festivities of its golden jubilee. The Election Commission of India (ECI), which is in charge of conducting free and fair elections and is regarded as essential to the nation's democracy, has come under unprecedented scrutiny due to the resignations of former Election Commissioner (EC) Ashok Lavasa and Election Commissioner (EC) Arun Goel during Prime Minister Narendra Modi's administration. When Arun Goel resigned shortly before the announcement of the general elections, he defied convention. His term, which was set to end in 2027, was reportedly marred by disputes with Chief Election Commissioner Rajiv Kumar. Similar to this, Ashok Lavasa's
2020 resignation brought attention to a growing trend of EC resignations under the present
administration, which was sparked by disagreements over purported election law violations between Prime Minister Modi and Home Minister Amit Shah30. The weakening of the Election Commission's independence is particularly worrisome given its historical prominence. Former President K. R. Narayanan commended the Commission's integrity and said the public was impressed with its work during the festivities of its golden jubilee. Lavasa's dissent during the 2019 election campaign resulted in alleged harassment, including investigations by the Income Tax Department and being targeted with Pegasus spyware. These incidents highlight the challenges faced by dissenting EC members and raise questions about the government's interference in the functioning of the Commission.
31 However, recent events suggest a departure from this custom, validating concerns raised by members of the Constituent Assembly. Shibban Lal Saxena and Hriday Nath Kunzru have 30 S. N Sahu, Resignations of Two Election Commissioners Under Modi Regime Reflect ECI’s Decline, THE WIRE BLOG, available at Accessed on 20 April,2024. 31 Katju, Manjari, Election Commission and Changing Contours of Politics, ECONOMIC AND POLITICAL WEEKLy, 2009, JSTOR ,available at Accessed 20 April, 2024. warned against adding partisans to the Commission, pointing up that democracy might be compromised. Similarly, B. R. Ambedkar had cautioned against the Commission being dominated by the executive branch, citing concerns that it should turn into a "servile commission.
" “The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Bill, 2023”, has stirred controversy since its introduction in the Rajya Sabha and its presentation before the Lok Sabha during the ongoing special session. Currently it has been passed by the Lok Sabha and Rajya Sabha and got presidential assent on 28 December, 2023.
6.1 Challenge
to the Act Critics have raised concerns that transparency has been compromised because Chief Justice of India DY Chandrachud was left off the selection committee. According to Section 7(1) of the 2023 Act, the Prime Minister will chair the selection committee, which will include a Union Cabinet minister chosen by the Prime Minister and the Leader of the Opposition in the Lok Sabha. Because the selection process would only be based on a name submitted by a five-member search committee directed by the law minister and included the cabinet secretary and two secretaries, there are concerns about impartiality and transparency. This arrangement potentially sidelines the Opposition leader, raising questions about the government's intentions, especially with the next commission vacancy approaching in February, and the general election on the horizon.
32 The Madhya Pradesh Mahila Congress Committee's general secretary, Dr. Jaya Thakur, petitioned the Supreme Court on January 2, 2024, asking for a stay of a recently passed law. The Association for Democratic Reforms, led by Advocate Prashant Bhushan, filed petitions challenging the new Act after she did. Article 32, which gives the Sc writ jurisdiction, was used to consolidate the petitions in Jaya Thakur v. Union of India. 33The 2023 Act can be contested on two main grounds. First, the Act's Section 7(1) replaces the Chief Justice of India in the Selection Committee for the
32 Ramaswamy R. Iyer, The Election Commission and the Judgment, ECONOMIC AND POLITICAL WEEKLY, 1996,
JSTOR, available at Accessed 20 April, 2024.
33 Jaya Thakur v. Union of India, 2023 INSC 616
Chief Election Commissioner (CEC) and Election Commissioners (ECs) with a Union Cabinet Minister selected by the Prime Minister. This modification would jeopardise the Supreme Court's decision in Anoop Baranwal v. Union of India, which established the selection system. Second, this provision may compromise the transparency and fairness that are essential to free elections, which are a cornerstone of democracy. On January 12, 2024, a Division Bench consisting of Justices Sanjiv Khanna and Dipankar Datta heard the matter but ultimately declined to grant a stay on the legislation as requested in the plea. On March 9, 2024, Election Commissioner Arun Goel unexpectedly resigned just ahead of the 2024 General Elections.
This left the Election Commission of India (ECI) with only one-member, Chief Election Commissioner Rajiv Kumar, as the other commissioner, Satish Chandra Pandey, had retired in February. On March 11, Jaya Thakur filed a stay suit against the Act, fearing that the Union government would take advantage of the situation to expand the ECI's membership. Additionally, on March 12, the Association for Democratic Reforms (ADR) submitted an application. The Supreme Court, led by Justice Sanjiv Khanna, agreed to an urgent hearing on March 15. The President made a significant announcement on March 14: former IAS officials Gyanesh Kumar and Sukhbir Singh Sandhu were named ECI members. These selections were made by a committee that included Prime Minister Narendra Modi, Home Minister Amit Shah, and Leader of the Opposition Adhir Ranjan Chowdhury.
Chowdhury, however, stated in a dissenting opinion that he was only informed of the chosen names ten minutes before the committee meeting. On March 15, the Supreme Court delayed the hearing for March 21.
7. VII - SUGGESTIONS
As per our Constitution, the President has been entrusted with the appointment of Chief Election Commissioner and the has the power to appoint other Election commissioners to expand the body of the Election Commission as per the need and requirement for a proper conduction of free and fair elections subject to the provisions of any law made by Parliament. Hence, the intent of the Constitution makers is clear that the President has to act in accordance to the any Parliamentary law which addresses the procedure for same.
But more importantly, in light of the constitutional’s principles and the interwoven fabric of fundamental rights of the citizens that entitle them to free and fair elections, any law made by the Parliament in that behalf has to be intra vires and hold to test of nonarbitrariness and transparent. The precedent of Maneka Gandhi v. UOI, 1978 34which overruled A. K Gopalan v. state of Madras351950 that put emphasis on ‘procedure established by law’ brought new jurisprudence of ‘Due Process’ both procedural and substantive in India. This judgement the Apex Court held that under Article 21 the term ‘procedure’ implies a procedure lawfully established by Parliament and which is just, reasonable and non-arbitrary as well as not oppressive. A slew of Judgements has followed this jurisprudence since then including the judgment of Sunil Batra v.
Delhi Administration 197936 wherein the court emphasized that the right to life and dignity extends to prisoners equally and issued directions against unnecessary fetters. Further, in case of Francis Coralie Mullin v. Administrator UT of Delhi, 1981 37matter pertained to custodial death and protection of fundamental right against torture, inhuman treatment and degradation of the detainees who have been arrested as per procedure established by law. Also, the case of Olga Tellis v. Bombay Municipal Corporation 1985 38held the right to livelihood of pavement dweller and the procedure under law has to fair and reasonable therefore cannot evict the pavement dweller during the rainy season.
Hence, the Chief Election Commissioner and the other Election Commissioner ( Terms and Conditions of Service) Act, 2023 which provides for the procedure of the appointment by a Committee should comply with the standard in line with the constitutional principles which ensure that it is fair , just and reasonable process which is transparent and which ensures there is no executive influence on the appointment of CEC and the other ECs which can make them bias in towards the ruling government or party.
34 Maneka Gandhi v. UOI, 1978 SCR (2) 621.
35 A.K Gopalan v. state of Madras, 1950 SCR 88.
36 Sunil Batra v. Delhi Administration 1979 SCR (1) 392.
37 Francis Coralie Mullin v. Administrator UT of Delhi, 1981 SCR (2) 516.
38 Olga Tellis v. Bombay Municipal Corporation 1985
However, the constitution of the selection committee that recommends the candidate to the President is lopsided therefore, the Supreme Court strike the Act down or add MLAs from the opposition party in the constitution or substitute the Cabinet minister with the CJI or senior SC judge so as to ensure balance and transparency in the body.
8. VIII-
CONCLUSION
In the Anoop Barnwal v. Union of India case of 2023, the judiciary played a crucial role in interpreting Article 324 and addressing the gap in legislation concerning the appointment of Election Commissioners. The Supreme Court's ruling highlighted the importance of judicial oversight in ensuring the integrity and independence of constitutional bodies like the Election Commission. By interpreting Article 324 and providing guidelines for the appointment process, the judiciary aimed to uphold the principles of democracy and fair electoral practices. However, the subsequent introduction of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Bill, 2023, by Parliament has raised concerns about legislative override.
The Bill, which excludes the Chief Justice of India from the selection committee and alters the appointment process, signifies a move to undermine the effect of the judiciary's judgment. By bypassing the Supreme Court's interpretation of Article 324 and disregarding the principles laid down in the Anoop Barnwal case, Parliament risks eroding the checks and balances crucial for upholding the democratic process. This development underscores the delicate balance of power between the judiciary and the legislature in a democratic system. While Parliament holds the authority to enact laws, it must do so within the bounds of constitutional principles and respect judicial interpretations. By attempting to override the effect of the judgment, Parliament risks compromising the independence and integrity of the Election Commission and undermining the fundamental principles of democracy.