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Table of contents

1. Meaning

2. Application of Collegium System in Judiciary

3. Previous system of appointing election commissioner

4. Need for an independent election commission system

5. Collegium like system for appointing Election Commissioners

6. FAQs

Meaning

Any association that functioned as a legal body in ancient Rome was called a collegium (plural: collegia). These affiliations could be religious or civil. Collega is the root of the term collegium, which literally means "society" ("colleague"). They served as social groups or religious organizations whose members pursued common goals.

In order to make decisions about the appointment of judges and attorneys to the Supreme Court, as well as the transfer of judges to the High Courts and Apex Court, the Chief Justice of India and the four most senior justices of the Supreme Court meet as a collegium. Neither the original Indian Constitution nor any of its later versions include any reference of the Collegium.

The Collegium System oversees the appointment of new justices and the transfer of outgoing justices in India. "Judges selecting judges" is a collegium function. The cornerstone of the system is the set of Supreme Court decisions known as the "Three-Judges Cases." Either a statute passed by the Parliament or clauses found in the country's Constitution establish a system or organization in India. On the other hand, the Collegium System is unique. The above-mentioned judgments are what gave rise to it. It has evolved as a result of them.

The Supreme Court Collegium is composed of the Chief Justice of India and the four SC judges with the greatest seniority. The High Court Collegium is composed of the Chief Justice and the four most senior justices of the HC. The candidates are initially submitted to the Supreme Court Collegium for approval by the High Court Collegium. The names are not approved by the CJI and the SC Collegium before they are sent to the Indian government. If the Collegium confirms the names, the Government of India is obliged to grant the request and authorize the appointment of the concerned parties. If not, the Government of India may return the names for additional review.

Application of Collegium System in Judiciary

Prior to 1993, the Chief Justice and the two other senior Supreme Court judges were consulted when the President of India appointed judges. Although the President of India is the official appointing authority, since 1993 the Collegium system, developed by the Supreme Court, has made decisions about the appointments and transfers of judges in the higher court. Strictly speaking, the divisions between the executive and the judiciary led to the creation of the Collegium. Although the Indian Constitution makes no reference of the Collegium system, it has developed as a result of three rulings by the Supreme Court, generally referred to as the Three Judges Cases (1981, 1993, and 1998).

The mechanism for selecting judges is called the Collegium mechanism, and it was created as a result of Supreme Court rulings rather than by Act of Parliament or a clause in the Constitution. Once the collegium has selected names, the government steps in.

1. The Supreme Court Collegium is composed of the Chief Justice and four of the most senior judges.
2. The Chief Justice and four of the most experienced justices comprise the High Court collegium.
The collegium will provide names of candidates to the Central Government in compliance with this judicial selection system. The national government will also transmit the nominees' names for public discussion. The appointment process is laborious because there is no set time restriction. If the Collegium delivers them again under the same name, the government has to authorize the names.

The Central Government would choose judges based on recommendations made by the Collegium. The federal government may also submit candidates for referral to the Collegium. It takes a long time because the appointment process has no set time limit defined in the regulations. If the Collegium returns the report for more study but does not alter it, the Central Government will need to contact the Collegium.

Procedure for appointing judges to high courts:
The comprehensive procedure to be followed is set down in the Memorandum of Procedure (MoP) for the appointment of High Court judges.

The HC collegium, comprising The HC Chief Justice + 2 senior-most judges, recommends to the state government nominations or elevations to the high courts.
The State Government provides the names to the Centre together with its feedback.
The Center assigns names to the Intelligence Bureau (IB) to do background investigations. The IB then forward its report to the Collegium of Supreme Court (CJI + two Senior-most justices).
Reviewing the IB report, the SC Collegium suggests names to the Centre for appointment.
Either the Centre can accept the appointments or send the case back to the Collegium for review.

The Collegium has the right to go over the names the Centre sent back again for review.
Should the Collegium repeat a name, the Centre is obligated to select the candidate (albeit there is no set deadline for this).

Following the guidelines set down in the Memorandum of Procedure (MoP), the appointment of judges to the Supreme Court is done similarly. The first recommendation comes from the Supreme Court Collegium straight-forwardly.

Previous system of appointing Election Commissioners

According to Article 324(1), the Election Commission has the authority to supervise, direct, and control the creation of electoral rolls for elections to the legislature of each State, the Parliament, and the offices of President and Vice-President that are held in accordance with the Constitution.

Article 324(2) specifies the Election Commission's composition, saying that it will be made up of the Chief Election Commissioner and any additional election commissioners, if any, that the President may from time to time fix. The President will appoint the Chief Election Commissioner and the other election commissioners, subject to any laws passed by the Parliament in this regard.

The Founding Fathers stipulated that the President would appoint the Chief Election Commissioner and the other Election Commissioners unless a legislation was established specifying otherwise. The Westminster system of government is mirrored in the Indian Constitution. It is generally established that the President may only act in accordance with the Council of Ministers' advice. Throughout the first forty years of the Republic, only Chief Election Commissioners were appointed.

Until future instructions, the President fixed the number of Election Commissioners at two through an order dated October 1, 1993. The Chief Election Commissioner and two other election commissioners make up the Election Commission's current membership.

With regard to the terms of service, Article 324(5) states that the President's rules would govern the terms of service and tenure of office for both election commissioners and regional commissioners, subject to the provisions of any laws passed by Parliament. The Parliament passed the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, in the exercise of its authority under Article 324(5).

Need for an independent election commission system

Practically speaking, the Election Commission's independence is not evident. Certain aspects of the election process raise concerns, such as the Election Commissioners' appointment process, which allows for potential bias throughout the voting process because it is decided by the President based on suggestions from the Central Government.

Furthermore, the retiring election commissioners are still eligible for future government appointments under the terms of the Constitution. This gap allows the government to undermine members' independence.

Assam, West Bengal, Tamil Nadu, Kerala, and Puducherry recently held state legislative assembly elections, raising doubts about the independence of the Election Commissioner. The Chief Election Commissioner of India moved the Supreme Court to overturn the Madras High Court's ruling in the case of Chief Election Commissioner of India v. M.R. Vijayabhaskar & Ors (2021), alleging that the Election Commissioner was responsible for the local Covid-19 cases in these areas because of the multi-phased elections, which were conducted without taking into account the risk of virus transmission during the second wave of the pandemic.

The Supreme Court was contacted by the Election Commissioner, but the Court likewise turned down the Commissioner's request for redress. It is evident that the Election Commissioner did not conduct the election in a cautious and equitable manner, even though he had the authority to do so. This suggests that the Election Commission is subject to government control.

Independence from political authority-
There is some perception that the Indian Election Commissioner is subject to some degree of government oversight. When it became necessary to combine election rounds after the epidemic, the EC did not appear to be interested in doing so. Additionally, it seemed that the Election Commissioner was favoring the Central government when it came to drawing the boundaries between the election stages. The Election Commissioner's credibility was severely impacted by all of these anomalies. Because of this, it becomes imperative that the Election Commissioner operate independently of the government and maintain total freedom from its supervision. This is because any external influence on their job has a negative impact on the election procedures, which frequently violate democratic norms.

Elections that are free and fair-
Free and fair elections would not be possible if the EC is unable to maintain its independence and allows the government's authoritative authority to impede its operations. Election delimitation, planning, amendment revision, updating electoral records, and other transparent election processes are all components of free and fair elections. Political liberty and equality, as well as ensuring that no one experiences party influence or discrimination when exercising their right to vote on the basis of caste, creed, sex, religion, race, language, or any other factor, are the key concepts of free and fair elections.

Furthermore, there have been numerous allegations of EVM malfunctions, which begs the question of who is in charge of ensuring the efficient and impartial conduct of the elections—the Election Commissioner. The entry of numerous wealthy and powerful candidates into the state assembly and the parliament is frequently criticized, demonstrating the widespread influence of money and muscle power in our nation. The Election Commissioner is in charge of preventing unethical practices that hinder free and fair elections, such as booth capturing, voter bribery, and media manipulation.

Preventing unethical behavior by political parties and candidates-
It is also essential that the political parties or candidates running in a given election abide by the Model Code of Conduct (MCC), as we already know that the Election Commissioner is responsible for overseeing, managing, and conducting the elections in a free and fair way. MCC is a series of rules that the EC has released to ensure that parties and candidates are properly regulated. Eight sections cover everything from general behavior to meetings, processions, Election Day, polling booths, observers, and the ruling party. It is required to abide by the code of conduct so as not to exert excessive influence over voters. In 2013, the Standing Committee on Personnel, Public Grievances, Law, and Justice suggested incorporating the MCC into the Representation of the People Act, 1951, so making it legally obligatory.

 

To protect the integrity of the democratic process, the choices made by the Election Commission must win over the public's trust. In the event that the Election Commission begins to act arbitrarily, the situation will not only cast doubt on the impartiality of its members but also instill anxiety in the minds of the general public about the safety of the democratic process. As a result, the Election Commission must be totally autonomous and shielded from any environment that could cause disruption, both internal and external.

 

The public's perception of the Commission must be positively shaped by its operations. The ability to vote provides millions of people in a nation like India, where they still struggle to meet their most basic necessities, hope that they will elect a government that will enable them to overcome their limits of deprivation. The fundamental foundation of Indian democracy would surely be attacked if this authority were to be jeopardized or removed, even by a single, inadvertent miscalculation or the prejudice of Election Commission members. Democracy can only be successful if all parties involved put forth unwavering effort into it. The electoral process itself is the most crucial component of democracy since only its integrity can accurately reflect the will of the people and allow for the full enjoyment of its benefits.

Collegium like system for appointing Election Commissioner

 

Anoop Baranwal filed a Public Interest Litigation (PIL) in 2015, pleading with the Supreme Court to order the establishment of an autonomous, collegium-style system for the nomination of the CEC and ECs. In March 2023, the Supreme Court ruled in this matter that, because no legislation pertaining to the nomination of the CEC and EC has been passed by Parliament in the 73 years since the Constitution was adopted, there has been a legislative vacuum. A flourishing democracy depends on free and fair elections, which can only be ensured by the ECI's independence. The Central Bureau of Investigation (CBI), the Information Commission, the State and National Human Rights Commissions, the Lokpal, and other organizations with autonomous procedures for selecting their leaders and members were cited by the Supreme Court as additional institutions endorsing constitutional democracy.

 

The Dinesh Goswami Committee on Electoral Reforms (1990) and the Law Commission in their 255th report on Electoral Reforms (2015) had recommended in the past that the CEC and ECs be appointed by a committee comprising the Prime Minister, the Chief Justice of India (CJI) and the Leader of the Opposition or the biggest Opposition party in the Lok Sabha). Under Article 142 (to issue directions for doing "complete justice" in any matter), the Supreme Court decided considering these recommendations that the CEC and ECs would be appointed by a committee comprising the Prime Minister, the CJI and the Leader of the Opposition or the biggest opposition party in the Lok Sabha. This process is supposed to be in effect until Parliament passes legislation on this point.

 

The leader of the single largest opposition party will be on the committee if there is no LOP, as has been the case for the last nine years, the Supreme Court further stated. This will resemble the selection of the CBI director, who, in accordance with the Lokpal Act of 2014, must be chosen by a committee made up of the Prime Minister, the Leader of the Opposition Party (LOP), the Chief Justice of India (CJI), and a Supreme Court judge who has been nominated by the CJI.

The verdict and discusssions-
The five-judge Constitution bench, led by Justice K.M. Joseph, unanimously decided that this standard will remain in effect until Parliament passes a statute addressing the matter. In response to a number of pleas calling for the appointment of Election Commissioners and the Chief Election Commissioner under a collegium-style system, the bench rendered its decision. members Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and C.T. Ravikumar were among the members on the Constitution bench besides Justice Joseph.

Justice Ajay Rastogi agreed with Justice Joseph's conclusion of the judgment, but added that the Chief Election Commissioner's removal process and the grounds for removal of the Election Commissioners should also be by impeachment.
The decision was made in response to public interest petitions that asked for legislation regulating the CEC and ECs' appointments. In November 2022, the Supreme Court heard the petition and observed that Arun Goel's appointment as EC was completed in less than a day on November 18, demonstrating "lightning speed" in the process. Over the course of the hearing, the bench had requested documents pertaining to EC Arun Goel's appointment. However, in doing so, the Constitution bench assuaged the government's concerns by stating that the records would not have a negative impact on his appointment. Days before the nation's general elections take place in February 2024, when EC Anup Chandra Pandey's tenure ends, a new vacancy in the ECI will arise the following year. The bench rendered a unanimous decision, ruling that elections in democracies ought to be fair and that the Election Commission bears the primary responsibility for preserving their integrity.

The judgment went on to say that an ECI assures the collapse of the rule of law, which is the cornerstone of democracy, if it does not ensure a free and fair participation in the process. Political parties praised the result, stating that it was a win for democracy and that it would open the door for free and fair elections to be held nationwide.applauding the historic Election Commission ruling from the Supreme Court. Maintaining the integrity of the electoral process will require protecting EC from government interference and reliance. Congress politician Anand Sharma stated that only a fully independent electoral commission (EC) could carry out the Constitution's responsibility of holding free and fair elections. The historic ruling by the Supreme Court is a democratic triumph.

The ECI itself has been calling for this collegium system for more than 20 years, according to former CEC S.Y. Qureshi. "I have written about it numerous times, both as the incumbent and as a previous CEC, arguing that the collegium should choose election commissioners. According to seniority, ECs should automatically be promoted to CEC status, and the two other ECs should also be granted the CEC's protection against removal, according to Quraishi.

FAQs

1. What is the collegium for appointing election commissioners?

Ans. The collegium will comprise of the Prime Minister, the Leader of Opposition in Lok Sabha and the Chief Justice of India.

2. Who is the CEC of India in 2024?

Ans. Dr. Sukhbir Singh Sandhu

3. When did the Supreme Court pass the ruling for a collegium like system in appointment of EC?

Ans. March 2023