In recent weeks, questions about the independence of the Election Commission of India (ECI) and the Election Commissioners themselves have resurfaced. This second article in our series on the Election Commission revisits a significant 2022 development concerning the appointment process of Election Commissioners.
In 2022, the Supreme Court of India established a new procedure for appointing members of the ECI. According to this ruling, a selection committee comprising the Prime Minister, the Leader of the Opposition in Parliament, and the Chief Justice of India will advise the President on the appointments. This system will remain effective until Parliament enacts statutory legislation to regulate the process.
Until then, members of the ECI had been appointed solely by the President based on the advice of the Council of Ministers, under Article 324 of the Constitution. The Supreme Court’s judgement has been widely praised for reducing the executive branch’s dominance over ECI appointments, thereby enhancing the Commission’s independence.
But why did the Supreme Court feel the need to intervene and effectively revise a clear constitutional provision? The answer lies both in the text of Article 324 itself and the discussions held by the Constituent Assembly during the drafting of the Constitution.
Originally, Article 324 (in its 1948 draft form) simply empowered the President to appoint Election Commissioners. While introducing this Article, Dr. B.R. Ambedkar emphasized its importance, highlighting that there had even been consideration of enshrining independent elections as a Fundamental Right.
However, several Assembly members worried that the draft Article did not sufficiently protect election administration from executive interference. For instance, Shibban Lal Saksena proposed that appointments receive parliamentary approval by a two-thirds majority. Similarly, H.N. Kunzru expressed deep concern, stating, “If the electoral machinery is defective or is not efficient or is worked by people whose integrity cannot be depended upon, democracy will be poisoned at the source.”
On the other hand, K.M. Munshi, a member of the Drafting Committee, argued pragmatically that elections, being a massive administrative exercise, must inevitably be conducted through government machinery, and thus the Election Commission should remain closely linked to the government.
Recognizing these divided views, Ambedkar acknowledged the concerns but was uncertain how to reconcile them effectively. One option, similar to Saksena’s suggestion, was the American practice where the Senate ratifies certain presidential appointments. However, he noted this could be time-consuming and politicize the process.
Another idea considered by the Drafting Committee was an “Instrument of Instructions” for the President, which would create a smaller advisory body for constitutional appointments. Yet, this proposal divided the Assembly, and its inclusion remained uncertain.
Ultimately, Ambedkar proposed a simple amendment: that appointments should be “subject to the provisions of any law made in this behalf by Parliament.” This compromise was adopted and remains the current form of Article 324.
Ambedkar’s intention appears to have been to defer resolution of how to insulate ECI appointments from executive interference to a future Parliament. Such deferral is a recognized constitutional strategy employed globally by framers when immediate consensus isn’t possible.
However, Parliament has delayed acting on this critical issue for decades, allowing the status quo to persist—favoring executive control. Ambedkar himself admitted the draft Article “does not contain anything to provide against nomination of an unfit person to the post of the Chief Election Commissioner or the other Election Commissioner.”
To prevent this undesirable scenario from continuing, the Supreme Court intervened, instituting the present consultative mechanism for appointments, thereby safeguarding the independence of the Election Commission.