Before 1993, India used to have only one election commissioner and that also ‘Chief Election Commissioner’. During the tenure of T.N. Sheshan and after that, many actions were taken to make reforms in election commission and election. In this article, we will discuss the reforms in election commission.

In the year 1990, the Government of India constituted a Committee under the Chairmanship of the then Law Minister, Shri Dinesh Goswami, referred to as the ‘Goswami Committee’. It made several recommendations relating to electoral reforms. The Committee, recommended as follows:

“CHAPTER II – Electoral Machinery

1. Set up of multi-member Commission

1. The Election Commission should be a multi- member body with three members.

2. The Chief Election Commissioner should be appointed by the President in consultation with the Chief Justice of India and the Leader of the Opposition (and in case no Leader of Opposition is available, the consultation should be with the Leader to the largest opposition group in the Lok Sabha).

3. The consultation process should have a statutory backing.

4. The appointment of other two Election Commissioners should be made in consultation with Chief Justice of India, the Leader of the Opposition (in case no Leader of Opposition is available, the consultation should be with the Leader to the largest opposition group in the Lok Sabha) and the Chief Election Commissioner.

5. The appointment of Regional Commissioners for different zones is not favoured. Such appointments should be made only as and when necessary and not on a permanent footing.

2. Steps for securing independence of the Commission

6. The protection of salary and other allied matters relating to the Chief Election Commissioner and the Election Commissioners should be provided for in the Constitution itself on the analogy of the provisions in respect of the Chief Justice and Judges of the Supreme Court. Pending such measures being taken, a parliamentary law should be enacted.

7. The expenditure of the Commission should continue to be ‘voted’ as of now.

8. The Chief Election Commissioner and the Election Commissioners should be made ineligible not only for any appointment under the Government but also to any office including the office of Governor appointment to which is made by the President.

9. The tenure of the Chief Election Commissioner and other Election Commissioners should be for a term of five years or sixty- five years of age, whichever is later and they should in no case continue in office beyond sixty-five years and for more than ten years in all.”

Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991

In the year 1991, Parliament enacted the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.

Section 3 provides, as it stands, that there shall be paid to the Chief Election Commissioner and other Election Commissioners a salary, which is equal to the salary of the Judge of the Supreme Court.

Section 4 deals with the term of Office and reads as follows:

“4. Term of office. —The Chief Election Commissioner or an Election Commissioner shall hold office for a term of six years from the date on which he assumes his office:

Provided that where the Chief Election Commissioner or an Election Commissioner attains the age of sixty-five years before the expiry of the said term of six years, he shall vacate his office on the date on which he attains the said age:

Provided further that the Chief Election Commissioner or an Election Commissioner may, at any time, by writing under his hand addressed to the President, resign his office.

Explanation. —For the purpose of this section, the term of six years in respect of the Chief Election Commissioner or an Election Commissioner holding office immediately before the commencement of this Act, shall be computed from the date on which he had assumed office.”

Section 5 deals with the leave available to both the Chief Election Commissioner or an Election Commissioner. The power to grant relief or refuse leave to them vests with the President.

Section 6 deals with their right to pension.

Section 7 deals with the right to subscribe to the general provident fund.

Section 8 provides for other conditions of service:

“8. Other conditions of service.—Save as otherwise provided in this Act, the conditions of service relating to travelling allowance, provision of rent-free residence and exemption from payment of income-tax on the value of such rent-free residence, conveyance facilities, sumptuary allowance, medical facilities and such other conditions of service as are, for the time being, applicable to a Judge of the Supreme Court under Chapter IV of the Supreme Court Judges (Conditions of Service) Act, 1958 and the rules made thereunder, shall, so far as may be, apply to the Chief Election Commissioner and other Election Commissioners.”

Under Section 9, the business of the Election Commissioner is to be transacted in accordance with the 1991 Act.

Section 10 provides for disposal of business by Election Commission, it reads as follows:

“10. Disposal of business by Election Commission. — (1) The Election Commission may, by unanimous decision, regulate the procedure for transaction of its business as also allocation of its business amongst the Chief Election Commissioner and other Election Commissioners.

(2) Save as provided in sub-section (1), all business of the Election Commission shall, as far as possible, be transacted unanimously.”

Other Committees and Report

In 1998, Government of India appointed a Committee under the Chairmanship of Shri Indrajit Gupta Committee on State funding of elections. The Committee submitted its Report in December, 1998. The conclusion and summary of the recommendations are found in Chapter 9 and they include various recommendations relating to funding of political parties.

In the year 2002, a National Commission for reviewing the work of the Constitution, under the Chairmanship of the Former Chief Justice of India, M.N. Venkatachaliah, made 58 recommendations involving amendments to the Constitution, 86 recommendations relating to legislative measures and the rest involved Executive action. In relation to electoral processes and political parties, various recommendations were made by the Commission. One of the recommendations, is as follows:

“The Chief Election Commissioner and the other Election Commissioners should be appointed on the recommendation of a Body consisting of the Prime Minister, Leader of the Opposition in the Lok Sabha, the Leader of the Opposition in the Rajya Sabha, the Speaker of the Lok Sabha and the Deputy Chairman of the Rajya Sabha. It was further recommended that similar procedure should be adopted in the case of appointment of the State Election Commissioners.”

In the year 2004, the Election Commission of India, on 02.08.2004 made certain proposal on electoral reforms to the Government of India. The proposals included affidavits to be filed by candidates on criminal antecedents, their assets, etc. The aspect about criminalisation of politics is noted as an issue being raised by the Commission from 1998 onwards. The Commission was of the opinion that keeping a person accused of a serious criminal charge and where the Court had framed charges, out of the electoral arena, would be a reasonable restriction in greater public interest. Among the various reforms it proposed, we notice the following:

“12. Composition of election commission and constitutional protection of all members of the commission and independent secretariat for the commission

Election Commission of India is an independent constitutional body created by the Constitution of India vide Article 324.

Clause (I) of Article 324 has vested the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President of India in the Election Commission.

Under Clause (2) of Article 324, the Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from to time fix and the appointment of the Chief Election Commissioner and Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.

The President has, by Order dated 1.10.1993 under Clause (2) of Article 324, fixed the number of Election Commissioners as two until further orders. Although the Constitution permits the President to fix the number of Election Commissioners at any number without any limit, it is felt that in the interest of smooth and effective functioning of the Election Commission, the number of Election Commissioners should not be unduly large and should remain as two as presently fixed, in addition to the Chief Election Commissioner.

The three-member body is very effective in dealing with the complex situations that arise in the course of superintending, directing and controlling the electoral process, and allows for quick responses to developments in the field that arise from time to time and require immediate solution. Increasing the size of this body beyond the existing three-member body would, in the considered opinion of the Commission, hamper the expeditious manner in which it has necessarily to act for conducting the elections peacefully and in a free and fair manner.

In order to ensure the independence of the Election Commission and to keep it insulated from external pulls and pressures, Clause (5) of Article 324 of the Constitution, inter alia, provides that the Chief Election Commissioner shall not be removed from his office except in like manner and on like grounds as a Judge of the Supreme Court. However, that Clause (5) of Article 324 does not provide similar protection to the Election Commissioners and it merely says that they cannot be removed from office except on the recommendation of the Chief Election Commissioner.

The provision, in the opinion of the Election Commission, is inadequate and requires an amendment to provide the very same protection and safeguard in the matter of removability of Election Commissioners from office as is available to the Chief Election Commissioner. The independence of the Election Commission upon which the Constitution makers laid so much stress in the Constitution would be further strengthened if the Secretariat of the Election Commission consisting of officers and staff at various levels is also insulated from the interference of the Executive in the matter of their appointments, promotions, etc., and all such functions are exclusively vested in the Election Commission on the lines of the Secretariats of the Lok Sabha, and Rajya Sabha, Registries of the Supreme Court and High Courts, etc.

Independent Secretariat is vital to the functioning of the Election Commission as an independent constitutional authority. In fact, the provision of independent Secretariat to the Election Commission has already been accepted in principle by the Goswami Committee on Electoral Reforms and the Government had, in the Constitution (Seventieth Amendment) Bill, 1990, made a provision also to that effect. That Bill was, however, withdrawn in 1993 as the Government proposed to bring in a more comprehensive Bill.”

As regards expenses of Election Commission, we find the following complaint and solution:

“13. Expenses of election commission to be treated as charged

The Commission had sent a proposal that the expenditure of the Commission should be charged on the Consolidated Fund of India. The Government had moved in the 10th Lok Sabha “The Election Commission (Charging of Expenses on the Consolidated Fund of India) Bill, 1994” with the objective of providing for the salaries, allowances and pension payable to the Chief Election Commissioner and other Election Commissioners and the administrative expenses including salaries, allowances and pension of the staff of the Election Commission to be expenditure charged upon the Consolidated Fund of India.

Similar provisions already exist in respect of the Supreme Court, Comptroller & Auditor General and the Union Public Service Commission, which are, like the Election Commission, independent constitutional bodies. To secure its independent functioning the Commission is of the opinion that the Bill, which lapsed with the dissolution of the 10th Lok Sabha in 1996, needs reconsideration.”

Second Administrative Reforms Commission Report, 2007

The next milestone to be noticed is the Second Administrative Reforms Commission Report made in January, 2007. The Commission consisted of Shri Veerappa Moily, the then Law Minister, as its Chairperson and five other Members. We find the following in the summary of its recommendations, inter alia.

It recommended that the Collegium headed by the Prime Minister, with the Speaker of the Lok Sabha, the leader of the Opposition in the Lok Sabha, the Law Minister and the Deputy Chairman of the Rajya Sabha, as Members, should make recommendations for consideration of the President for appointment of the Chief Election Commissioner and the Election Commissioners.

Committee of Ministry of Law and Justice

In the year 2010, the Ministry of Law and Justice, Government of India, had constituted a Committee on Electoral Reforms. The Report, it made, in the year 2010 indicates the background which led to the constitution of the Committee. Reference is made to various earlier Reports as also the efforts being made by the Election Commission. It made various recommendations relating to electoral reforms.

Law Commission of India Report, 2015

In the year 2015, Law Commission of India, in its Two Hundred and Fifty Fifth Report dated 12.03.2015, dealing with the electoral reforms in India, made various recommendations in regard to strengthening the Office of the Election Commission of India. After referring to Article 324(2), the fact of the appointments being discussed in the Constituent Assembly, Article 324(2) leaving it to the Parliament to legislate, the recommendation of the Goswami Committee in 1990, we find the following discussion:

“6.10.4 This was followed by the introduction of the Constitution (Seventieth Amendment) Bill 1990, which was introduced in the Rajya Sabha on 30th May 1990 providing that the CEC would be appointed by the President after consultation with the Chairman of the Rajya Sabha, the Speaker of the Lok Sabha, and the Leader of the Opposition (or the leader of the largest party) in the Lok Sabha. The CEC was further made a part of the consultative process in the appointment of the Election Commissioners. However, on 13th June 1994, the Government moved a motion to withdraw the Bill, which was finally withdrawn with the leave of the Rajya Sabha on the same day.

6.10.5 Consequently, in the absence of any Parliamentary law governing the appointment issue, the Election Commissioners are appointed by the government of the day, without pursuing any consultation process. This practice has been described as requiring the Law Ministry to get the file approved by the Prime Minister, who then recommends a name to the President. Thus, there is no concept of collegium and no involvement of the opposition.

6.10.6 The Commissioners are appointed for a six-year period, or up to the age of 65 years, whichever is earlier. Further, there are no prescribed qualifications for their appointment, although convention dictates that only senior (serving or retired) civil servants, of the rank of the Cabinet Secretary or Secretary to the Government of India or an equivalent rank, will be appointed. The Supreme Court in Bhagwati Prashad Dixit Ghorewala v Rajiv Gandhi rejected the contention that the CEC should possess qualifications similar to that of a Supreme Court judge, despite being placed on par with them in terms of the removal process.”

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6.12.2 To this end, the Commission adapts the Goswami Committee’s proposal with certain modifications. First, the appointment of all the Election Commissioners (including the CEC) should be made by the President in consultation with a three-member collegium or selection committee, consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha (or the leader of the largest opposition party in the Lok Sabha in terms of numerical strength) and the Chief Justice of India. The Commission considers the inclusion of the Prime Minister is important as a representative of the current government.

6.12.3 Second, the elevation of an Election Commissioner should be on the basis of seniority, unless the three-member collegium/committee, for reasons to be recorded in writing, finds such Commissioner unfit.

6.12.4 Such amendments are in consonance with the appointment process in Lokpal and Lokayuktas Act, 2013, the Right to Information Act, 2005 and the Central Vigilance Commission Act, 2003.

6.12.5 Pursuant to Article 324(2), an amendment can be brought to the existing Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 to amend the title and insert a new Chapter 1A on the appointment of Election Commissioners and the CEC.

In regard to the aspect about the permanent and independent Secretariat of the Election Commission of India, it was noticed that to give effect to the Goswami Committee recommendation, the Constitution Seventieth Amendment Bill, 1990 was introduced on 30.05.1990 and that it was subsequently withdrawn in 1993 in view of the changed composition of the Election Commission of India, on it becoming a multi-Member Body pursuant to the 1991 Act and on the ground that the Bill needed some amendments.

The Bill, however, the Law Commission noticed, was never introduced. Thereafter, the Law Commission referred to the recommendations of the Election Commission itself for seeking appointment of an independent Secretariat. The Law Commission, accordingly, recommended insertion of Article 324(2A), inter alia, providing for a separate, independent and permanent secretarial staff for the Election Commission.

In the year 2016, the following proposed electoral reforms essentially related to Article 324(5), being proposals made by the Election Commission itself.

“Clause (5) of Article 324 of the Constitution provides that the Chief Election Commissioner shall not be removed from his office except in the same manner and on the same grounds as a Judge of the Supreme Court. The Chief Election Commissioner and the two Election Commissioners enjoy the same decision making powers which is suggestive of the fact that their powers are at par with each other.

However, Clause (5) of Article 324 of the Constitution does not provide similar protection to the Election Commissioners and it merely says that they cannot be removed from office except on the recommendation of the Chief Election Commissioner. The reason for giving protection to a Chief Election Commissioner as enjoyed by a Supreme Court Judge in matters of removability from office was in order to ensure the independence of Commission from external pulls and pressure. However, the rationale behind not affording similar protection to other Election Commissioners is not explicable.

The element of ‘independence’ sought to be achieved under the Constitution is not exclusively for an individual alone but for the whole institution. Thus, the independence of the Commission can only be strengthened if the Election Commissioners are also provided with the same protection as that of the Chief Election Commissioner. Proposed amendment The present constitutional guarantee is inadequate and requires an amendment to provide the same protection and safeguard in the matter of removability of Election Commissioners as is available to the Chief Election Commissioner.”

In 2023, in the case of Anoop Baranwal v. UOI, the Supreme court of India finally pronounced an historic decision when it changed the procedure of the appointment of Election Commissioner of India and held that ECI shall be appointed by a committee consisting of Prime minister of India, Leader of Opposition, and Chief Justice of India.

Reference

Anoop Baranwal v. UOI (2023)