BABASAHEB BHIMRAO AMBEDKAR UNIVERSITY,

LUCKNOW.

ELECTION LAW

CONSTITUTIONAL APPOINTMENT OF ELECTION

COMMISSIONER.

Submitted By- Samridhi

Submitted to-Dr. Shailesh Mishra
Roll Number-65
CourseBBAllb(H)
Semester-8th

DEPARTMENT OF LAW
SCHOOL OF LEGAL STUDIES
BABASAHEB BHIMRAO AMEDKAR
UNIVERSITY(A CENTRAL UNIVERSITY)
VIDYA VIHAR RAIBARELI
ROADLUCKNOW-226025.

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 ACKNOWLEDGEMENT

The success and outcome of this assignment required a lot of guidance and
assistance from many people and I am extremely fortunate to have got this all
along the completion of my assignment work. Whatever I have done is only due
to such guidance and assistance and I will not forget to thank them. I am grateful
and thankful, my subject teacher Dr. Shailesh Mishra who was the guiding force
for giving we an opportunity to do this assignment work and providing me all
support and guidance which made me complete the assignment on time. I am
extremely grateful to her for providing such a nice support and guidance.
Additionally, any attempt at any level cannot be satisfactorily completed without
the support and guidance of my Parents and friends.
So, I would like to thank my parents who helped me a lot in gathering different
information, collecting data, and guiding me from time to time in making this
project, despite of their busy schedules they gave me different Ideas In making
this project unique.
Thanking you

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 TABLE OF CONTENTS.

SR.NO TOPICS PAGE NO.

1. ACKNOWLEDGEMENT 2

2. INTRODUCTION 4-5
3. CONSTITUTIONAL APPOINTMENT OF 6-7
ELECTION COMMISIONER

1. ARTICLE 324 OF CONSTITUTION

4. 8
INDEPENDENCE OF ELECTION

COMMISSION

5. CASE LAWS 9-10

6. CONCLUSION 11

7. BIBLIOGRAPHY 12

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 INTRODUCTION

The Election Commissioners of India are the members of Election Commission of India, a
body constitutionally empowered to conduct free and fair elections in India. An election
commissioner is appointed by the President of India on the recommendation of a three member
selection committee headed by the Prime Minister of India. The term of an election
commissioner can be a maximum of six years or till he/she attains sixty-five years of age.
Election Commissioners are usually members of the Indian Civil Service.

ELECTION COMMISION OF INDIA

Since 1950, the Election Commission of India was a single member body with only the Chief
Election Commissioner. As per The Election Commissioner Amendment Act, 1989, the
Commission was made a multi-member body with two additional election commissioners who
were appointed to the commission for the first time on 16 October 1989. On 1 January 1990,
the post of election commissioners was abolished again. The Election Commission was once
again made as a three-member body on 1 October 1993.
The Election Commission of India is an autonomous constitutional authority responsible for
administering election processes in India at national, state and district level. The body
administers elections to the Lok Sabha, Rajya Sabha, state Legislative Assemblies, state
legislative Councils, and the offices of the President and Vice President of the country. The
Election Commission operates under the authority of Constitution per Article 324, and
subsequently enacted Representation of the People Act.
The commission has the powers under the Constitution, to act in an appropriate manner when
the enacted laws make insufficient provisions to deal with a given situation in the conduct of
an election. Being a constitutional authority, Election Commission is amongst the few
institutions which function with both autonomy and freedom, along with the country's higher

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judiciary, the Union Public Service Commission and the Comptroller and Auditor General of
India.

The commission was established in 1950 and originally only had a Chief Election
Commissioner. Two additional Commissioners were appointed to the commission for the first
time on 16 October 1989 (on the eve of the 1989 General Election), but they had a very short
tenure ending. on 1 January 1990.

The Election Commissioner Amendment Act, 1989 was adopted on 1 January 1990 which
turned the commission into a multi-member body: a 3-member Commission has been in
operation since then and the decisions by the commission are made by a majority vote. The
Chief Election Commissioner and the two Election Commissioners who are usually retired IAS
officers draw salaries and allowances at par with those of the Judges of the Supreme Court of
India as per the Chief Election Commissioner and other Election Commissioners (Conditions
of Service) Rules, 1992.
The commission is served by its secretariat located in New Delhi. The Election Commissioners
are assisted by Deputy Election Commissioners, who are generally IAS officers. They are
further assisted by Directors General, Principal Secretaries, and Secretaries and Under
Secretaries.

At the state level, Election Commission is assisted by the Chief Electoral Officer of the State,
who is an IAS officer of Principal Secretary rank. At the district and constituency levels, the
District Magistrates (in their capacity as District Election Officers), Electoral Registration
Officers and Returning Officers perform election work.

Part XV of the Constitution entitled as Elections constitutes a code, providing the groundwork
for the enactment of appropriate laws and the setting up of suitable machinery for the conduct
of elections.

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 CONSTITUTIONAL APPOINTMENT OF ELECTION
COMMISSIONER.

Since its inception in 1950 and till 15 October 1989, the election commission was a one-
member body with only the Chief Election Commissioner (CEC) as its sole member.

• On 16 October 1989, the voting age was changed from 21 to 18 years. So, two more
election commissioners were appointed by the president to cope with the increased
work of the election commission.
• Since then, the Election Commission was a multi-member body that consisted of 3
election commissioners.
• Later, the two posts of election commissioners were eliminated in January 1990 and
the Election Commission was reverted to the previous position.
• This was repeated later in October 1993 when the president appointed two more
election commissioners. Since then, the Election Commission functions as a multi-
member body comprising of 3 commissioners.
• The chief and the two other election commissioners have the same powers and
emoluments including salaries, which are the same as a Supreme Court judge.
• In case of a difference of opinion amongst the Chief Election Commissioner and/or
two other election commissioners, the matter is decided by the Commission by a
majority.
• The office is held by them for a term of 6 years or until they attain 65 years,
whichever happens first. They can also be removed or can resign at any time before
the expiry of their term.

Clause (2) of Article 324 provides 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. Until Parliament makes any law in that behalf, the
Chief Election Commissioner and other Election Commissioners are appointed by the
President. When any other Election Commissioner is so appointed, the Chief Election
Commissioner; shall act as the Chairman of the Election Commission.

The President may also appoint, after consultation with the Election Commission, such
Regional Commissioners as he may consider necessary to assist the Election Commission
in the performance of its functions. The conditions of service and tenure of office of the
Election Commissioners and the Regional Commissioners shall be such as the President
may by rule determine. These rules, however, are subject to any law made by Parliament
in this respect.

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According to Article 324 of Indian Constitution:

• The superintendence, direction, and control of the preparation of the 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 held under this Constitution
shall be vested in a Commission (referred to in this Constitution as the Election
Commission).
• 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 and the appointment of the Chief Election Commissioner and other Election
Commissioners shall, subject to the provisions of any law made in that behalf by
Parliament, be made by the President.
• When any other Election Commissioner is so appointed the Chief Election
Commissioner shall act as the Chairman of the Election Commission.
• Before each general election to the House of the People and to the Legislative Assembly
of each State, and before the first general election and thereafter before each biennial
election to the Legislative Council of each State having such Council, the President
may also appoint after consultation with the Election Commission such Regional
Commissioners as he may consider necessary to assist the Election Commission in the
performance of the functions conferred on the Commission by clause (1).
• Subject to the provisions of any law made by Parliament, the conditions of service and
tenure of office of the Election Commissioners and the Regional Commissioners shall
be such as the President may by rule determine: Provided that the Chief Election
Commissioner shall not be removed from his office except in like manner and on the
like grounds as a Judge of the Supreme Court and the conditions of service of the Chief
Election Commissioner shall not be varied to his disadvantage after his appointment:
Provided further than any other Election Commissioner or a Regional Commissioner
shall not be removed from office except on the recommendation of the Chief Election
Commissioner.
• The President, or the Governor of a State, shall, when so requested by the Election
Commission, make available to the Election Commission or to a Regional
Commissioner such staff as may be necessary for the discharge of the functions
conferred on the Election Commission by clause (1).

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 INDEPENDENCE OF ELECTION COMMISSION

Article 324 of The Constitution of India mentions the provisions to safeguard and ensure the
independent and impartial functioning of the Election Commission which is as follows.

• The chief election commissioner is provided with security of tenure. He cannot be

removed from his office except in the same manner and on the same grounds as a
judge of the Supreme Court. In other words, he can be removed by the President on
the basis of a resolution passed to that effect by both the Houses of Parliament with a
special majority, either on the ground of proved misbehaviour or incapacity.
• Thus, he does not hold his office until the pleasure of the president, though he is
appointed by him.
• The service conditions of the chief election commissioner cannot be varied to his
disadvantage after his appointment.
• Any other election commissioner or a regional commissioner cannot be removed from
office except on the recommendation of the chief election commissioner.
• Though the constitution has sought to safeguard and ensure the independence and
impartiality of the Election Commission, some flaws can be noted, i.e.:
• The Constitution has not prescribed the qualifications (legal, educational,
administrative, or judicial) of the members of the Election Commission.
• The Constitution has not specified the term of the members of the Election
Commission.
• The Constitution has not debarred the retiring election commissioners from
any further appointment by the government.

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 CASES

I. Anoop Baranwal vs Union of India Case, 2023

A five-judge bench of the Supreme Court (SC) unanimously ruled that the appointment of
the Chief Election Commissioner and the Election Commissioners shall be made by the
President on the advice of a Committee consisting of the Prime Minister, the Leader of the
Opposition of the Lok Sabha and Chief Justice of India (CJI).
In case no leader of the Opposition is available, the leader of the largest opposition Party in
the Lok Sabha in terms of numerical strength will be a part of such committee.
The Parliament passed the Chief Election Commissioner and Other Election Commissioners
(Appointment, Conditions of Service and Term of Office) Act, 2023, in response to
the directive of the Supreme Court in the Anoop Baranwal v Union of India case, 2023.

II. Indira Nehru Gandhi V. Raj Narain

Facts Of the Case: –

Smt.Indira Nehru Gandhi Was Elected to The House of The People By Rae Bareli
Parliamentary Constituency In March 1971. Her Election Was Challenged By One Of The
Rival Candidates Shri Raj Narain, Before The Allahabad High Court By An Election Petition
On Various Grounds Such As Indira Gandhi Used Bribery, Government Machinery, And
Resources To Gain An Unfair Advantage In Contesting The Election. Narain said Gandhi used
government workers as campaign workers and held events in his district.

Issue Before the High Court – A writ petition was filed before the High Court to decide
Whether The Election Was ‘Null And Void’ On The Grounds Of Corrupt Practices.

High Court’s Judgement –

The Court Allowed The Election Petition And Declared The Election Of Smt. Indira Nehru
Gandhi As Void And Barred Gandhi From Holding Elected Office For Six Years On The
Grounds That She Procured The Assistance Of A Gazetted Officer Of The Government Of
India, The District Magistrate And Superintendent Of Police, Rae Bareli, The Executive
Engineer, PWD, And The Engineer, Hydel Department, For Her Election Campaign And Had
Thus Committed Corrupt Practices Under Section 123 (7) Of The Representation Of The
People Act, 1951.

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Appeal To Supreme Court and Amending of Laws -

Aggrieved By the Order of The Allahabad High Court, Smt. Indira Nehru Gandhi Filed An
Appeal Before The Supreme Court. Shri Raj Narain also filed a cross-appeal. During The
Pendency of These Appeals, Parliament Passed: –

The Election Laws (Amendment) Act, 1975. By This Amendment Act, Several Provisions Of
The Representation Of The People Act, 1951 Were Amended Retrospectively.

The Constitution (Thirty-Ninth Amendment) Act, 1975. By This Amendment Act, A

New Article 329-A Was Inserted Into The Constitution To Provide, Inter Alia, That The
Election To Parliament Of A Person, Who Holds The Office Of Prime Minister Or Speaker Of
The Lok Sabha At The Time Of Such Election Or Is Appointed As Prime Minister Or Speaker
After Such Election, Shall Be Called In Question Only Before A Specially Prescribed
Authority [And Not Before The High Court Under Article 329 (B) Of The Constitution].

In appeals, the constitutionality of two changes was called into question because lawmakers
were in jail and could not vote.

Judgment: –

The Supreme Court upheld the 1975 Election Laws (Amendment) Act and the Constitution
(39th Amendment) Act in the current appeals. The Supreme Court upheld the election of Smt.
Indira Gandhi to The House of The People, Allowing Her Appeal and Rejecting the Cross-
Appeal of Shri Raj Narain.

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 CONCLUSION

The Election Commission of India has supervisory and directing responsibility for the
whole process of election to the legislatures and legislatures of each and every state with
India’s president and vice-president. This helps to conduct elections of Lok Sabha, Rajya
Sabha, and many more.

For more than 50 years, the Electoral Commission has overseen and upheld the integrity of
all national elections. It has been essential in keeping the nation's democratic nature
untarnished. In order to preserve the voters' right to free and fair elections, it has up until this
point shielded a number of elections from the influence of shady political parties and figures.
It is clear that Article 324 has been crucial in assisting the Election Commission in carrying
out its responsibilities free from outside interference.

The Election Commission of India (ECI) stands as a bulwark of democracy, ensuring the
sanctity of electoral processes and upholding the democratic ideals enshrined in the
Constitution. With its unwavering commitment to free and fair elections, the ECI plays a
pivotal role in fostering political participation, safeguarding the rights of citizens, and
strengthening the democratic fabric of the nation. Necessary steps should be taken to enhance
its independence and give more teeth to it.

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 BIBLIOGRAPHY

TEXTBOOK: -
• Singhal’s Law of Elections in India by Manav Malhotra Edition 2023-24

• Handbook on Election Law by P Rathna Swamy Edition: 1st Edition, 2014

• How India Votes–Election Laws, Practice and Procedure by V S Rama Devi and S K

Mendiratta Edition: 4th Edition, 2017

SITES: -
• https://www.nextias.com/blog/election-commission-of-
india/#Appointment_of_Members_of_ECI
• https://unacademy.com/content/karnataka-psc/study-material/polity/election-
commission/
• https://www.eci.gov.in/about-eci
• https://www.nextias.com/ca/editorial-analysis/22-03-2024/selection-and-
election-on-the-appointment-of-election-commissioners

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