Report No. 255

B. Appointment of the Election Commissioners and the CEC

(i) Appointment process

6.10.1. The power to appointment the CEC and the Election Commissioners lies with the President vide Article 324(2) of the Constitution, which states 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 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."

6.10.2. Although the issue of appointments was discussed in the Constituent Assembly and a suggestion was floated to make the appointments subject to confirmation by a two-thirds majority, in a joint session of the Parliament, it was rejected.215 Consequently, Article 324(2) left it open for the Parliament to legislate on the issue.

215. Mendiratta, supra note 161, at 179

6.10.3. The Goswami Committee in 1990 recommended a change to the appointment process, suggesting that the CEC should be appointed by the President in consultation with the Chief Justice of India and the Leader of the Opposition in the Lok Sabha. In turn, the CEC should be additionally consulted on the question of appointment of the other Election Commissioners and the entire consultation process should have statutory backing.216

216. Goswami Committee Report, supra note 113, at 9

6.10.4. This was followed by the introduction of the Constitution (Seventieth Amendment) Bull 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 However, on 13th June 1994, the Government moved a motion to withdraw the Bill, which was finally withdrawn with the leave of the Rajya Sabha on the same day.217

217. Rajya Sabha debates, 13th June 1994, at 600 and 637. See also Mendiratta, supra note 161, at 179

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.218 Thus, there is no concept of collegium and no involvement of the opposition.

218. Qureshi, supra note 1, at 39-40

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, AIR 1986 SC 1534 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.