A petition was filed in the Supreme Court (SC) seeking the constitution of an independent collegium to appoint members of the Election Commission.
The Election Commission of India is an autonomous constitutional authority liable for administering Union and State election processes in India. The body administers elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies, and the offices of the President and Vice President in the country. Article 324 of the Constitution provides for the appointment of an Election commission to superintend, direct and control the elections.
Originally the commission had just one election commissioner but after the Election Commissioner Amendment Act 1989, it's been made a multi-member body. The commission presently consists of 1 Chief Election Commissioner (CEC) and two Election Commissioners (ECs). The secretariat of the commission is located in New Delhi.
Under the Transaction of Business rules 1961, the President shall appoint the CEC and EC based on the recommendations made by the Prime Minister. It is the chief power of the President to appoint CEC and ECs. According to Article 324(5), the Parliament has the power to regulate the terms of conditions of service and tenure of ECs.
Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 was passed to determine the conditions of service of the CEC and other ECs and to provide for the procedure for transaction of business by the ECI.
Article 324(2) in which the Parliament can establish a selection committee for regulating the appointments made by the President, with aid and advice of the Council of Ministers, appoint CEC and ECs, till Parliament enacts a law fixing the standards for selection, conditions of service and tenure.
It was also part of the Law Commission’s 255th report in March 2015. In 2009, the Second Administrative Reforms Commission in its fourth report suggested a collegium system for CEC and ECs.In 1990, the Dinesh Goswami Committee recommended effective consultation with neutral authorities like the Chief Justice of India and the Leader of the Opposition for the appointment in the Election Commission. In 1975, the Justice Tarkunde Committee recommended that the members of the Election Commission should be appointed by the President on the advice of a Committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India.
The appointment of members of the Election Commission on the whims and fancies of the Executive makes it a branch of the executive. The Election Commission is not only responsible for conducting free and fair elections, but it also renders a quasi-judicial function between the various political parties including the ruling government and other parties. For other constitutional positions, similar demands can be raised where it is imperative of the executive to make such appointments like for Attorney General or, Central Bureau of Investigation (CBI) director and the Central Vigilance Commissioner, committees are constituted.
There is a difference between the position of a CEC & EC. The appointments to both positions may differ according to the task they perform. The SC interprets any law on the basis of provisions of the constitution, and constitutionally the decision for appointment procedure of EC comes under the executive domain. Thereby, decisions by the SC in this regard can possibly shake the harmonious balance of power. Deficiencies in the present system of appointment processes need to be removed. And adequate safeguards must be put into place to make sure that ethical and capable people head the concerned positions. There is a requirement for debate and discussions within the Parliament on the issue of independence of ECI and consequently passing of required legislation.