Why in news?

 The Supreme Court of India batted for the need to have a neutral mechanism for appointment of Election Commissioners.

Highlights:

• The Election Commission of India (ECI) has generally enjoyed a high reputation for holding free and fair polls since the dawn of the Republic, but not immune to charges of favouring the ruling party
• SC highlighted the fact that since 2004, no chief election commissioner has completed the six years tenure and between 2015-22 in 8 years commission had 8 CEC

What is the Constitutional Provision of Election Commission ?

• Article 324- 329 : Deals with powers, function, tenure, eligibility, etc. of the commission and the member.
• Appointment : by the Prime Minister and the council of ministers under the seal of the President.
• Members: Multi Member body, 1+2 (one chief election commissioner and two election commissioners)
• Tenure: Fixed tenure which can be 6 years or until 65 years of age, whichever is earlier.
• Removal : As like Judge of SC and others by president of India in consultation with Chief election Commission
• Grounds of removal : Proved misbehaviour and Incapacity

What is the difference between Chief election commissioner(CEC) and election commissioner(EC) ?

• The CEC is usually referred to as first among equals in the Election Commission. two other Election Commissioners are also appointed.
• Removal : CEC can be removed from office in the manner and grounds on which the judges of the Supreme Court are removed.
• But the other Commissioners hold their office during the pleasure of the President of India.
• So, it can be said that the factor of removal of CEC, the equal salary of both CEC & EC/ECs does not confer any higher status on the CEC.

Case study

• T.N. Seshan, CEC of India v. Union of India (1995) : It was held that the CEC cannot be considered as superior but considered at the par on the ground that its decision is final because in such a case, the CEC can render the EC as non-functional, thus affecting the smooth mechanism and functions of the ECI.

What are the powers exercised by the Election Commissioners?

Advisory powers:

• It is empowered to advise the President of India or Governor to disqualify the sitting members of the Parliament or State legislature who are found ineligible during post-election
• It is also empowered to advise the High Courts and the Supreme Court in matters of disputes arising after the elections.

Quasi-judicial powers

• Settle the disputes between the candidates or the political parties.
• Decides the disputes regarding the allotment of election symbols & administrative powers.
• Disqualify an individual who is found guilty of any malpractice or non-compliance with any law.

Administrative powers

• Enforces the Model Code of Conduct for election campaigns
• Given powers to register or deregister the political parties and also to keep a check on the expenses of the political party.
• It also appoints the election observers from various departments of civil services to perform the election duties.

What are the issues associated with Independence of election commissioners?

• Selection procedure : They are appointed by the President on recommendations of the Central Government, so it creates room for partiality during the electoral process.
• Compromising the independence of members: Constitution has not locked out the retiring election commissioners from any further appointment by the government.
• Working with ruling political party manifestations  : The Madras HC blamed the Election Commissioner for local Covid-19 cases in these areas due to the multi-phased elections, which were conducted without considering the transmission risk of the virus under the 2nd wave of the pandemic
• Limited Safeguard: Constitution haven’t specified the qualifications, term and lack of security of tenure (Election Commissioners removed simply by the government) affects the smooth functioning of commission
• Bureaucratization of Commission: Inspite of lack of qualification mandate of election commissioner , government often  appoints civil servants for functioning which in turn favours during the election
• Free and fair elections: Malfunctioning of EVMs has been alleged many times which raises the question of the Election Commissioner. Voter bribery, booth capturing and manipulation by the media are some of the unethical techniques which prevent the elections to go freely and fairly for which the Election Commissioner is responsible

Independence of Election Commissioner –Way forward?

• Appointment by neutral body:
• Law commission : Recommended that a panel of Prime Minister, Chief Justice of India and Leader of Opposition  should appoint the CEC which was again recommended by Dinesh Goswami committee

• 2^nd ARC committee: Recommended a panel of Prime Minister, Chief Justice of India, Leader of Opposition, Law Minister and the Deputy Chairman of the Rajya Sabha be included in such a Collegium.
• The CEC and EC must be made free from every kind of external influence of the government so that it can work independently, and let the government employees work impartially when they are assigned their duties in the elections.
• The real difference is security of tenure that could come from operational freedom and space
• The judiciary must keep on delivering quality decisions from time to time to ensure independent and fair functioning of the EC, as well as to safeguard the democracy by free and fair elections as it is required

Considering the various irregularities and inconsistencies, it is high time for the Election Commission of India to reform its functioning. It should be able to uphold the basic features of the system such as rule of law, the sovereignty of the nation, supremacy of the Constitution and, the principle of freedom and fairness in an election.