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Supreme Court questions process of appointments to Election Commission: here’s how the system functions

A five-judge Constitution Bench led by Justice K M Joseph is hearing petitions seeking a Collegium-type body to appoint Election Commissioners (ECs) and the Chief Election Commissioner (CEC). What is the procedure?

Article 324(2) says "the Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix”. (Express Photo: Praveen Khanna)

On a second day of tense arguments, the Supreme Court on Thursday (November 24) questioned the “haste” and “tearing hurry” with which Election Commissioner (EC) Arun Goel was appointed, with the file moving at “lightning speed” in 24 hours.

On Wednesday, the court had asked the Centre about the “mechanism” by which Goel had been appointed, and directed it to present the relevant file. A five-judge Constitution Bench led by Justice K M Joseph is hearing petitions seeking a Collegium-type body to appoint Election Commissioners (ECs) and the Chief Election Commissioner (CEC).

“…We are not questioning the merits of Arun Goel’s credentials but the process,” the Bench said. Justice Joseph said the court had heard the matter on November 18, and on the same day, the file was moved and the PM had recommended Goel’s name to the President. “Why this urgency?” he asked.

Appointment of Chief Election Commissioner, Election Commissioners

The CEC and ECs are appointed by the President to a tenure of six years, or up to the age of 65 years, whichever is earlier. They enjoy the same status and receive salary and perks as judges of the Supreme Court of India.

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The Election Commission of India draws its authority from the Constitution itself. Under Article 324, the powers of “superintendence, direction and control of elections” is to be vested in an Election Commission.

Size of the Election Commission

The Constitution does not fix the size of the Election Commission. Article 324(2) says that “the Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix”.

From the beginning, the Election Commission of India consisted of just the Chief Election Commissioner. However, on October 16, 1989, the Congress government of Prime Minister Rajiv Gandhi appointed two more Election Commissioners, making the Election Commission a multi-member body.

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The appointments were done just before the commencement of the Ninth General Election, and were criticized as being an attempt to compromise the independence of the Election Commission and of CEC RVS Peri Sastri.

On January 2, 1990, the National Front government of Prime Minister VP Singh amended the rules, making the EC a single-member body again.

However, on October 1, 1993, the government of Prime Minister PV Narasimha Rao promulgated an Ordinance to provide for the appointment of two more Election Commissioners.

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The EC has had three members ever since. The Ordinance was subsequently replaced by The Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Amendment Act, 1993, which came into effect on January 4, 1994.

All three ECs have equal say in the decision making of the Commission.

Procedure of appointments to Election Commission

On Wednesday, Justice Ajay Rastogi, who is a member of the Bench, had asked the Centre about the mechanism followed in the appointment of Goel. “Show us what mechanism you adopted in making the appointment two days before,” he said, inquiring if there was any specific mechanism or if it was on the recommendation of the Council of Ministers.

Attorney General R Venkataramani said the mechanism followed a “time-tested convention”.

“A list of serving and retired officials in the position of Secretaries… is prepared. On the basis of this, a panel of names is prepared for consideration of the Prime Minister and President. The PM, after considering the panel, recommends one name to the President. A note with the recommendation is submitted to the President of India. That’s how the system works,” he said.

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The appointment of ECs, he said, follows seniority and the senior among the two ECs goes on to become the CEC. “It’s all on the basis of time-tested convention. Therefore, there is a procedure that is being followed,” he said, adding “so it was not a pick-and-choose at all”.

On Thursday, the court said the file was cleared in one day and asked if there was any haste or tearing urgency.

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“It was put up on November 18. We find that it moved the same day. It then goes to some officials. Then the PM recommended the name the same day… Not for any kind of confrontation, but was there any kind of haste or tearing urgency,” Justice Joseph asked, adding that in government offices, files usually move slowly.

“This vacancy became available in May… Can you show what prevailed upon the government to initiate the process in a manner that everything is done in the shortest possible time, superfast. The same day process, the same day clearance, the same day application, the same day acceptance and the same day appointment… The file has not travelled even 24 hours. What kind of evaluation was there?” Justice Rastogi said.

First published on: 25-11-2022 at 08:00 IST
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