PSIR Simplified

Why We need Independent Election Commission?

Democracy has two forms:

1. Direct Democracy, where people directly participate in the law making. This form of democracy does not need elections. But direct democracy is feasible only in small states. It cannot be practiced in modern states which have large population.
2.  Indirect or Representative Democracy is the form of democracy where people elect their representatives after a fixed interval. These elected representatives make the law on behalf of people. This is suitable for modern states with large population. Hence, modern states including India have adopted Representative form of democracy.

However, the success of representative democracy depends upon the condition of free and fair elections. And for free and fair elections, we need a separate body which is free from the control of the government, so that  free and fair elections can be ensured.

Original Position in India

The Constitution of India ( Part XV- articles 324-329) makes provision for the Election Commission of India (ECI), which is vested with the power of Superintendence, Direction and Control of  elections to the offices of President, Vice-president; two Houses of Parliament, and State Legislatures (Legislative Assemblies and Legislative Councils).

How Constitution Ensures Independence of ECI?

Article 324 makes two provisions to ensure the independence of ECI in India:

First, that the Chief Election Commissioner will be removed  in the like manner as the judges of the Supreme Court of India, meaning by Parliament with special majority.

Second, that the terms and conditions of the office of the incumbent Chief Election Commissioner cannot be varied to his disadvantage after appointment.

However, under the original Constitution (Article 324), the appointment of the Chief Election Commissioner and other Election Commissioners was done by the  President on the advice of the Government. Thus, the appointment of the members of the ECI was controlled by union government.

Present Controversy

As the electoral contest intensified, the allegation of  misuse of election machinery by the government were made by the opposition parties. The opposition parties demanded that the appointment of the Members of Election Commission of India should also be free from the government to ensure free and fair elections.

Anoop Baranwal Vs Union of India case, 2023

It was in this context, that a case Anoop Baranwal Vs Union of India was filed in the Supreme Court of India to demand the appointment of ECI members which is free from the government control. In this case,  the Supreme Court of India in May, 2023, held that a committee comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India will advise the President on appointments to the Election Commission of India until Parliament enacts a law on the subject.

Chief Election Commissioner and Other Election Commissioner Act, 2023

The Parliament of India enacted the Chief Election Commissioner and Other Election Commissioner Act in 2023. Under this act, the Chief Justice of India was dropped from the selection committee and its place a minister nominated by the Prime minister was included.

Under the present act, the three-member Selection Committee for the members of ECI consists of the following:

1. The Prime Minister, Chair
2. The leader of Opposition in Lok Sabha, member
3. A Union Minister nominated by the Prime Minister, member

As the composition of the selection committee indicates, the government still dominates the selection committee.

The opposition parties allege that the 2023 Act has violated the spirit of the Supreme Court order in Aoop Baranwal case, mentioned above as the Chief justice of India is not included under the new act of 2023.

Jaya Thakur v Union of India, 2024 Case

Hence, another case (Jaya Thakur v Union of India) was filed in the Supreme Court of India in 2024, challenging the Selection Committee as envisaged under the Chief Election Commissioner and Other Election Commissioner Act, 2023 on the ground that it violates the Courts order in Anoop Baranwal case. This petition is still pending in the Supreme Court of India. The Supreme Court of India is mulling whether this case be referred to the five-Judge Constitution bench as the Anoop  Baranwal case was also decided by the five judge Constitution bench of Supreme Court of India.

Technically, the Chief Election Commissioner and Other Election Commissioner Act, 2023 does not violate the SC order in Branawal case, as the Supreme Court made the arrangement till the Act is passed by the Parliament. But, the spirit of court’s order was to ensure that the selection of the members of ECI should be free from government control. The Supreme Court has to decide whether it goes by its words or by the spirit behind those words. This case is still pending before the Supreme Court of India.