COMMENT
ECI Appointments: Constitutional and Moral Imperatives
The appointment procedure of ECI members ought to be free from executive control and interference.
Anupama Roy and Ujjwal Kumar Singh write:
I
n March 2023, a constitution bench of the Supreme Court of
India directed that the appointment of the chief election
commissioner (CEC) and other election commissioners (ECs)
shall be made by a “three-member committee” consisting of the
Prime Minister, the leader of the opposition in the Lok Sabha (or the
leader of the largest opposition party [LOP]), and the Chief Justice
of India (CJI) (Anoop Baranwal v Union of India). This “practice” of
the appointment of the CEC and the ECs on the advice of a commit-
tee was to remain in force till a law was enacted by Parliament.
The directions came in response to a clutch of writ petitions
under Article 32 of the Constitution, requesting the Court to
“consider the true effect of Article 324,” especially Article 324(2),
which provides for the appointment of the CEC and other ECs by
the President “subject to any law made by Parliament.”
Hitherto, in the absence of a law, the CEC and ECs were ap-
pointed by the President. In its arguments in the Supreme
Court, the union government took the position that the absence
of a law did not indicate a constitutional vacuum “calling for the
interference of the Court.” In the opinion of the Supreme Court,
its recommendations filled a lacuna in law—an “unavoidable
necessity” under Article 324 of the Constitution.
In issuing the directions, which were to remain effective till Par-
liament made a law “in consonance with Article 324(2) of the Con-
stitution,” the Supreme Court was not just plugging a legislative
vacuum. The judicial reasoning leading to the directions drew
upon the constitutional history of Article 324, especially the Con-
stituent Assembly debates, delineating the norms and principles
implicit in the constitutional provisions, which would serve as
higher order standards for lawmaking. This would imply that any
alteration in the constitution bench guidelines must be buttressed/
justified by an argument stronger than those given by the bench.
On 4 August 2023, the Chief Election Commissioner and Other
Election Commissioners (Appointment, Conditions of Service and
Term of Office) Bill, 2023 was introduced in the Rajya Sabha. The
bill provides, for the first time, a procedure for the appointment of
CEC and ECs through a search committee headed by the cabinet
secretary, and a selection committee consisting of the Prime
Minister, the LOP, and a union cabinet minister. While the pro-
posal to institute a search committee and the inclusion of the LOP
in the selection is a positive change, essential for making the ap-
pointment process transparent and fair, it is by no means sufficient.
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The merits of including/excluding the CJI may have substantial
arguments on both sides, but the inclusion of a union cabinet min-
ister erodes constitutional norms by ensuring the control of the
executive over the appointments of the CEC and the ECs, making
the Election Commission of India (ECI) dependent and vulnerable.
The constitutional history of Article 324 shows that the Consti-
tuent Assembly preferred that a law should govern the appoint-
ments to the ECI. Appointment to a body “charged with the
highest duties and with nearly infinite powers” of holding elec-
tions could not be left exclusively to the executive. While the
proposed law fulfils a “constitutional imperative,” since appoint-
ment by the President/executive was construed as a “temporary”
measure, it deviates from the moral imperative found in the dis-
cussions around Article 324 in the Constituent Assembly. In the
ultimate analysis, the bill betrays the “special interest” that the
executive has in conserving/preserving its own power over ap-
pointment rather than the integrity of the electoral process.
The process of appointment in the vision of the Constituent
Assembly was to “entrench” the ECI as an institution that would
stand apart from and be autonomous vis-à-vis the political pow-
er structure. A “Note on Election Commission” prepared by the
secretariat of the Constituent Assembly underscored the need
to consider carefully “what machinery should be employed to
implement the direction of the Constituent Assembly.” The ma-
chinery to direct and control elections under the new Constitu-
tion was conceived as an impartial and independent body,
above party politics, so as to avoid giving ground for any suspi-
cion. Speaking on the draft article on the Election Commission
in the Constituent Assembly in June 1949, B R Ambedkar com-
municated the Constituent Assembly’s affirmation “without dis-
sent,” “in the interest of the purity and freedom of elections to
the legislative bodies” that “they should be freed from any kind
of interference from the executive of the day.”
The Advisory Committee on Minorities and Fundamental
Rights, chaired by Vallabhbhai Patel, laid down specific princi-
ples while addressing questions pertaining to the justiciability
of rights. To ensure the right to vote and its secrecy, it recom-
mended setting up the ECI as an autonomous constitutional
body to conduct elections for different representative bodies. In
the opinion of the advisory committee, while fundamental to
the rights of the people, the vote “should find a place in some
vol lViii no 34 EPW Economic & Political Weekly

other part of the Constitution,” not in the chapter on funda-
mental rights. The insertion of franchise in the chapter on elec-
tions was not a “light-hearted” decision but a “proper” place-
ment to ensure the independence of elections from any interfer-
ence of the executive. In envisaging a selection committee with
an overwhelming presence of the executive, the proposed bill
falls short of enforcing the checks intended by the Constituent
Assembly, which can diminish electoral integrity, erode the
Economic & Political Weekly EPW AUGUST 26, 2023 vol lViii no 34
COMMENT
legitimacy of the electoral process and the right to vote, and under-
mine “free and fair elections” and “constitutional democracy,”
which constitute the basic structure of the Constitution.
Anupama Roy (royanupama07@gmail.com) teaches at the Centre for Political
Studies, Jawaharlal Nehru University, New Delhi. Ujjwal Kumar Singh
(ujjwalksingh@gmail.com) teaches at the Department of Political Science,
University of Delhi. They are the authors of Election Commission of India:
Institutionalising Democratic Uncertainties (Oxford University Press, 2019).
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