Why in News?

The Election Commission of India (ECI) is facing renewed scrutiny over its institutional independence and functioning:

  • Opposition parties have sought action against the Chief Election Commissioner (CEC) following reports that two Election Commissioners (ECs) recorded objections on several decisions, while the ECI maintained that its final decisions were unanimous.
  • The Supreme Court has referred challenges to the CEC and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 to the Chief Justice of India (CJI) for constitution of an appropriate Constitution Bench, after a 1:1 split verdict.

Constitutional Framework: Article 324

  • Article 324 vests the superintendence, direction, and control of elections in the Election Commission of India.
  • The appointment of the CEC and other Election Commissioners shall, subject to any law made by Parliament, be made by the President.
  • For over seven decades, Parliament did not enact a specific law, leaving appointments under the exclusive domain of the Union Executive.
  • Removal safeguards:
  • The CEC can be removed only in a manner and on grounds similar to a Judge of the Supreme Court (special majority on proven misbehaviour or incapacity).
  • Other Election Commissioners can be removed only on the recommendation of the CEC.

The Anoop Baranwal Judgment (2023)

  • In March 2023, a five-judge Constitution Bench in Anoop Baranwal v. Union of India ruled that until Parliament enacts a law, the CEC and ECs shall be appointed on the advice of a committee comprising:
  • The Prime Minister
  • The Leader of the Opposition (LoP) in the Lok Sabha
  • The Chief Justice of India (CJI)

The Chief Election Commissioner and Other Election Commissioners Act, 2023

Enacted to replace the interim arrangement, the Act created a new Selection Committee comprising:

  • The Prime Minister (Chairperson)
  • The Leader of the Opposition in the Lok Sabha (Member)
  • A Union Cabinet Minister nominated by the Prime Minister (Member)

Key Concerns with the 2023 Act

  • Exclusion of the CJI: The most contentious aspect — the CJI was replaced by a Cabinet Minister nominated by the PM.
  • Executive Dominance: The 2:1 majority (PM + Cabinet Minister) gives the Executive the final say, rendering the LoP's presence largely ornamental.
  • Perception of Bias: Critics argue the Act affects perceptions of institutional independence and safeguards for free and fair elections.
  • The 'Perception Test': The core judicial concern is that "it is not enough for the ECI to be independent, it must also appear to be independent." Critics contend the 2023 Act fails this test, potentially undermining public confidence in the ECI's neutrality.

Concerns Regarding Internal Governance of the ECI

  • Collegial Decision-Making: The ECI is a multi-member collegial body (CEC + two ECs); under Article 324, decisions are taken through unanimity or majority. Reports of repeated dissent over decisions allegedly taken without the knowledge of all Commissioners raise concerns about transparency and institutional collegiality.
  • Procedural Irregularities in Form 6:
  • During the Special Intensive Revision (SIR), changes to Form 6 (new voter registration) were allegedly introduced through administrative directives rather than statutory procedure.
  • Form 6 is a statutory form under the Registration of Electors Rules, 1960.
  • Under Section 28 of the Representation of the People Act, 1950, the power to amend these rules and forms rests exclusively with the Central Government through an Official Gazette notification (in consultation with the ECI) — making changes via administrative orders or portal updates legally untenable.
  • Centralisation of Electoral-Roll Management: Concerns over centralisation of electoral-roll IT systems, including ERONet, in Delhi; limited access for State-level officials could weaken the decentralised structure of electoral-roll management.
  • Risk of Mass Disenfranchisement: Despite the ECI's guiding principle of "no voter to be left behind," reports indicate deletion of approximately 13 crore voters nationwide during the SIR, raising questions about procedural transparency and accuracy of verification.
  • Institutional Credibility: Repeated internal dissent may affect transparency, accountability, institutional coherence and public confidence in the ECI.

Measures Needed to Ensure Institutional Integrity of the ECI

  • Broad-Based Selection Committee: Reform appointments to reduce executive dominance — supported by the Dinesh Goswami Committee (1990), Law Commission's 255th Report (2015), and the Anoop Baranwal judgment (2023).
  • Equal Protection for Election Commissioners: Extend removal protection to ECs on par with the CEC to enable independent decision-making and fearless dissent.
  • Post-Retirement Safeguards: Introduce a cooling-off period or restrictions on post-retirement executive appointments to reduce perceptions of conflict of interest or quid pro quo.
  • Clear Transaction of Business Rules: Codify internal procedures requiring circulation and approval of major decisions by all Commissioners.
  • Follow Statutory Procedure: Changes to electoral forms under the RPA, 1950 and Registration of Electors Rules, 1960 should follow proper legal vetting and formal notification.
  • Protect Decentralised Electoral Administration: Systems like ERONet should support, not centralise, electoral administration; State and district authorities should retain access, oversight and operational autonomy.
  • Expenditure Charged on the Consolidated Fund of India: Unlike the Supreme Court, CAG, and UPSC, the ECI's administrative expenses are currently "voted" by Parliament rather than "charged" on the Consolidated Fund of India. Granting "charged" status would insulate the Commission from budgetary pressures by the Union Executive.
  • Independent and Permanent Secretariat: Analogous to Article 98 (Secretariat of Parliament) and Article 146 (Supreme Court officers and servants), the ECI should have an independent cadre and service conditions, reducing dependence on deputations from Union civil services and fostering institutional memory.

Significance

  • The ECI is central to ensuring free and fair elections, the bedrock of India's democracy.
  • Strengthening structural autonomy, financial independence, collegial transparency and institutional integrity is essential to preserve the "perception of independence" and sustain public confidence in India's electoral process.

Previous Year Questions (PYQ)

Prelims (2017): Consider the following statements:

  1. The Election Commission of India is a five-member body.
  2. Union Ministry of Home Affairs decides the election schedule for the conduct of both general elections and bye-elections.
  3. Election Commission resolves the disputes relating to splits/mergers of recognised political parties.

Which of the statements given above is/are correct? (a) 1 and 2 only (b) 2 only (c) 2 and 3 only (d) 3 only

Answer: (d) — The ECI is a three-member body; the election schedule is decided by the ECI itself; the ECI does resolve disputes relating to splits/mergers of recognised political parties.

Mains (2017): To enhance the quality of democracy in India the Election Commission of India has proposed electoral reforms in 2016. What are the suggested reforms and how far are they significant to make democracy successful?

Drishti Mains Question

"An electoral institution must not only be independent but also appear to be independent." Discuss the significance of this 'perception test' for the credibility of the Election Commission of India.