• Election Commission has earned public trust due to independent and neutral authority that organises elections.
• However, in backdrop of independence of the Election Commission, questions are raised about the process through which election commissioner is appointed.  
• This is mainly due to potential bias as well as scope for personal whimsy in the election procedure.
• There is uncertainty over the elevation of an Election Commissioner to the post of Chief election commission.
• It makes them vulnerable to government pressure.
• Election commission of India formed with the consent of both the government and the Opposition has better chance of convincing the nation of its neutrality and impartiality.

Appointment of ECs and CEC

• Article 324 of the Constitution provides for appointment of election commissioners.
• Election Commission shall consist of - Chief Election Commissioner and other Election Commissioners decided by President.
• Appointment of CEC and other ECs shall be done in accordance with provisions of law made by Parliament and ratified by President.
• It did not provide exact procedure for appointments.
• Existing system is based on convention.

Salary, tenure and powers of Election commission

• Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991-ensured independence in salary and tenure to the ECs.
• CEC and ECs are appointed for a tenure of six years or up to the age of 65 years, whichever is earlier.
• They enjoy the same status, salary and perks as judges of Supreme Court of India.
• Constitution does not fix the size of the Election Commission.
• Impeachment process of CEC-
• Two-thirds of the Lok Sabha and the Rajya Sabha need to present and vote against him.
• It should be initiated by the order of president.
• It can be initiated in case of-disorderly conduct or improper actions.
• Removal by impeachment is not given to ECs.

Supreme Court in its judgment in T.N. Seshan vs Union of India case 1995-

• Conferred equal powers on ECs as those enjoyed by the CEC.
• referred Chief Election Commissioner as primus inter pares- first among equals.
• Offered majority power where any two ECs can overrule the CEC.
• It did not provide ECs constitutional protection (of removal by impeachment) given to Chief Election Commissioner.

Current issue raised against the functioning of Election Commission

• Present appointment process for election commissioners is not transparent.
• Election commissioners are appointed by the president.
• But since president is bound by the advice of the prime minister and council of ministers, the appointment is a solely executive decision.
• This gives ample room for the ruling party to choose someone who is loyal to their party.
• As per Article 324, appointment of election commissioners can be regulated by a law made by Parliament.
• However, no such law has been made for appointments yet.
• There are no legal safeguards against the arbitrary removal of the two election commissioners as provided for the chief election commissioner.
• However, it did not give Election Commissioners the same constitutional protection (of removal by impeachment) as is accorded to the Chief Election Commissioner.

Suggestions and recommendations by different committees

• Handle misuse of muscle and money power during elections which violates Model Code of Conduct.

Dinesh Goswami Committee in 1950 suggestions-

• Chief Election Commissioner should be appointed by President in consultation with the Chief Justice of India and the Leader of the Opposition.
• If Leader of the Opposition is not available, then consult the leader of the largest opposition group in the Lok Sabha.
• This process should be a statutory rule.
• Same criteria should be applied in appointment of Election Commissioners.
• Consultation of Chief Election Commissioner should also be considered.

National Commission to review the working of the Constitution

• Chief Election Commissioner and other Election Commissioners should be appointed by a body consisting of-
• Prime Minister.
• Leaders of the Opposition in the Lok Sabha and the Rajya Sabha.
• Speaker of the Lok Sabha.
• Deputy Chairman of the Rajya Sabha.

The 255th Report of the Law Commission –

• Appointment of all Election Commissioners should be made by President in consultation with a three-member collegium of-
• Prime Minister.
• Leader of the Opposition of the Lok Sabha (or the leader of the largest opposition party in the Lok Sabha).
• Chief Justice of India.
• It suggested measures to safeguard Election Commissioners from arbitrary removal similar to Chief election commisioner. In its absence-
• They may hesitate to act independently and may side with CEC and government often.

For India to resonate with its status as a largest democracy it is crucial that it strengthens the very structure on which it is built- free and fair elections. Independence of Election Commissions is important in this regard to continue the democratic tradition of India and to continue the legacy of Constitution as envisioned by its makers. Without independence the Election Commission of India cannot function as a robust triumvirate.