History and politics of appointments to Election Commission

Election Commission of India.

In his magnum opus ‘Framing of India’s Constitution’, B Shiva Rao writes that in discussions in the Constituent Assembly, there emerged almost from the beginning a consensus that the right to vote should be treated as a fundamental right of the citizen and that, in order to enable him to exercise this right freely, an independent machinery to control elections should be set up, free from local pressures and political influences.

One of the most prominent members of the Constituent Assembly, KM Munshi, said that citizens have the right to choose the Government and the legislators of the Union and State on the footing of equality in accordance with the law of the Union or the unit, as the case may be, in free, secret and periodic elections. And to ensure this, an independent constitutional body was needed. And herein lay the importance of the Election Commission as one of the most important and indispensable constitutional bodies of the body politic.

Perhaps, this is why any question that deals with the appointment process of members of the Election Commission that is bound to affect its independence, is handled with great caution by the Supreme Court. Currently, a petition challenging the constitutionality of the Chief Election Commissioner and Other Election Commissioners Act, 2023, which removed the Chief Justice of India from the selection panel appointing Election Commissioners (ECs) is pending before the apex court.

Anoop Baranwal judgement by Supreme Court

In March 2023, a Constitution Bench of the Supreme Court in a significant judgment (Anoop Baranwal versus Union of India ) put in place a new system of appointment of Election Commissioners.

The bench had ordered that the President of India will appoint Election Commissioners on the advice of a Committee consisting of the Prime Minister, and Leader of Opposition (LoP) in the Lok Sabha (or leader of the largest opposition party), and the Chief Justice of India. The judgment was in response to a clutch of petitions that sought reforms in the process of appointment of members of the Election Commission of India.

Later in December, the Parliament made a new law with a Union minister, replacing the CJI, which is being challenged.

The petitioner had contended that in Anoop Baranwal's judgment, the constitution bench had made it clear that a committee of diverse heads was necessary to protect the “fierce independence, neutrality and honesty” of the institution of the Election Commission of India and to end government monopoly and “exclusive control” over appointments to the Election Commissioners. Also, it was contended that the Constitution bench judgment was based on the interpretation of Article 324 of the Constitution and the only way the government could get around it was through an amendment of the Constitution and not by bringing in a statutory law.

This is not the first time that the appointment process of Election Commission members has been subject to judicial scrutiny.

It is important to note that under Article 324(1) the superintendence, direction and control of elections have been vested in the Election Commission, and under Article 324(2), the Election Commission is to consist of the Chief Election Commissioner 'and such number of other Election Commissioners, if any, as the President may from time to time fix.

A brief history of the composition of the Election Commission

The Election Commission remained a single-member body till 1989 when, in October of that year, by successive notifications, two persons were appointed as Election Commissioners. However, within three months, the notification of October 1989 fixing the number of Election Commissioners to two was ‘rescinded’. The decision was challenged in the apex court, but the challenge failed.

According to eminent jurist Fali Nariman, the Supreme Court simply held that the two election commissioners, who had been appointed in October 1989, had been appointed without any valid reason.

Again in 1993, the government sprang a surprise when it overnight converted the Election Commission into a multi-member body by appointing two more Election Commissioners.  As reported by India Today, “the move was so sudden that even the two new election commissioners, GVG Krishnamurthy and M.S. Gill, knew about it only hours before their appointment on October 1”.

Does the executive’s upper hand in appointments shrink independence?

One of the questions that comes up every time the appointment process of members of any constitutional body like the Election Commission is discussed is whether giving an upper hand to the Executive mars the independence of the body and its functionaries.

BR Ambedkar believed that for elections to be free in the real sense of the word, they should be taken out of the hands of the government of the day.

However, as highlighted in the 'Anoop Baranwal case, there was some difference of opinion about vesting so much power in the Union in the matter of Election Commissions. It will be seen that, in terms of the recommendation made by the sub-committee, the appointment of all Election Commissions, irrespective of whether they were to function in relation to elections to the Legislature of the Union or in relation to elections to the Legislature of a unit was to be regulated by Union law. Some members of the sub-committee felt that it would be an infringement of the rights of the units if such overriding authority was given to Union law in matters relating to elections to the Legislatures of the units.

Separation of powers

The Constitution of India envisages a clear scheme of separation of powers. The higher judiciary has on several occasions sought to regulate the matters which are clearly within the domain of legislature and executive.

While the court intervention in matters where the state fails to protect the interests of its citizens is welcomed and much desired, the same intervention slips into the domain of judicial overreach, which is completely unwarranted and undesirable, when it tends to regulate institutions that derive their power from the same Constitution as it does.

The Supreme Court's decision on the appointment process will also shape the contours of the separation of power doctrine in a fresh light.