Article 324 of the Indian Constitution establishes the Election Commission of India and vests in it the superintendence, direction, and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution. While Article 324(1) broadly defines the function of the Election Commission, Article 324(2) specifically deals with the composition of the Commission and the process of appointment of its members.
This particular clause is crucial for understanding the structural makeup of the independent body responsible for conducting elections in India. It lays down the foundational framework regarding who constitutes the Election Commission and by whom they are appointed, subject to potential legislative intervention by Parliament.
Original Text
(2) 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.
Detailed Explanation
Article 324(2) delineates the structure of the Election Commission. It mandates that the Commission must have a Chief Election Commissioner (CEC). In addition to the CEC, it provides for the possibility of having other Election Commissioners (OECs). The exact number of these other Election Commissioners is not fixed by the Constitution itself but is left to be determined “from time to time” by the President of India. This flexibility allows the structure of the Commission to be adapted based on the workload or requirements perceived by the executive.
The second part of the clause specifies the authority responsible for appointing the members of the Election Commission. Both the Chief Election Commissioner and any other Election Commissioners are to be appointed by the President of India. However, this power of appointment vested in the President is not absolute or unfettered. It is explicitly stated that these appointments shall be made “subject to the provisions of any law made in that behalf by Parliament.” This phrase signifies that while the President is the appointing authority, Parliament has the constitutional power to enact a law that can regulate or specify the procedure, criteria, or conditions for such appointments. In the absence of such a law, the President’s power holds. If Parliament enacts such a law, the President must make appointments in accordance with its provisions.
Detailed Notes
- Composition: The Election Commission consists of:
- A Chief Election Commissioner (CEC).
- Such number of other Election Commissioners (OECs), if any, as the President may fix.
- Number of OECs: Not fixed by the Constitution; decided by the President from time to time.
- Appointment Authority: The President of India appoints:
- The Chief Election Commissioner.
- The other Election Commissioners (if any).
- Parliamentary Law: The appointment power of the President is subject to the provisions of any law made by Parliament regarding these appointments.
- Interplay: Parliament can legislate on the procedure, criteria, or other aspects of the appointment of CEC and OECs. The President must then make appointments according to that law.
- Flexibility: The provision for OECs allows for expanding the Commission’s size based on necessity as determined by the President.
- CEC Status: The Constitution ensures a CEC, indicating a primary role, though the status and power differences between CEC and OECs are primarily derived from Article 324(3) regarding their conditions of service and removal.
Additional Comments
- Historically, the Election Commission was single-member, consisting only of the Chief Election Commissioner, until 1989.
- In 1989, the President appointed two additional Election Commissioners, making it a multi-member body, but this structure was temporary.
- The multi-member structure became permanent in 1993 with the appointment of two OECs alongside the CEC, which has continued since. This was done under the power granted by Article 324(2) allowing the President to fix the number of OECs.
- The phrase “subject to the provisions of any law made in that behalf by Parliament” is highly significant. For many decades, Parliament did not enact a specific law governing the appointment process, leaving considerable discretion with the executive (the President acting on the advice of the Council of Ministers).
- In 2023, Parliament enacted the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which lays down a procedure involving a selection committee for recommending names for appointment, thereby operationalizing the “subject to law” clause of Article 324(2).
- This provision highlights the potential for legislative control over the executive’s power in appointing key independent functionaries, crucial for maintaining the integrity of the electoral process.
Summary
Article 324(2) of the Indian Constitution stipulates that the Election Commission comprises a Chief Election Commissioner and potentially other Election Commissioners, whose number is determined by the President. The President is the appointing authority for both the Chief Election Commissioner and the other Election Commissioners. However, these appointments must conform to the provisions of any law enacted by Parliament for this purpose, allowing Parliament to regulate the appointment process.