Editorials/Opinions Analysis For UPSC 04 March 2023

 Contents:

1. SC’s New Rules For The Appointment Of Election Commisioners
2. Hathras verdict

SC’s New Rules For The Appointment Of Election Commisioners

Context:

The recent judgement by the Supreme Court on choosing the poll panel for the appointment of the members of the Election Commission of India is a significant boost to its independence.

Relevance:

GS-II: Polity and Governance (Constitutional Bodies, Government Interventions for Transparency and Accountability in governance)

Dimensions of the Article:

1. About Election Commission of India
2. Structure of the Election Commission
3. Issues with ECI
4. Some Powers of the ECI
5. Present system of Appointment to the Election Commission
6. Recommendations in the past for collegium to appoint EC and CEC
7. Supreme Court Verdict
8. Does the presence of the CJI in the panel secure ECI’s independence?
9. Conclusion

About Election Commission of India

• The Election Commission of India is an autonomous constitutional authority responsible for administering Union and State election processes in India.
• The body administers elections to the Lok Sabha, Rajya Sabha, and State Legislative Assemblies in India, and the offices of the President and Vice President in the country.
• It is the Commission that decides the election schedules for the conduct of elections, whether general elections or by-elections.
• ECI decides on the location of polling stations, assignment of voters to the polling stations, location of counting centers, arrangements to be made in and around polling stations and counting centres and all allied matters.
• In the performance of its functions, the Election Commission is insulated from executive interference.
• Part XV of the Indian constitution deals with elections, and establishes a commission for these matters.
• The Election Commission was established in accordance with the Constitution on 25th January 1950, hence it is a constitutional body. Article 324 to 329 of the constitution deals with powers, function, tenure, eligibility, etc., of the commission and the member.

Structure of the Election Commission

• Originally the commission had only one election commissioner but after the Election Commissioner Amendment Act 1989, it has been made a multi-member body.
• The commission consists of one Chief Election Commissioner and two Election Commissioners.
• The secretariat of the commission is located in New Delhi.
• At the state level election commission is helped by Chief Electoral Officer who is an IAS rank Officer.
• The President appoints Chief Election Commissioner and Election Commissioners.
• They have a fixed tenure of six years, or up to the age of 65 years, whichever is earlier.
• They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court of India.
• The Chief Election Commissioner can be removed from office only through a process of removal similar to that of a Supreme Court judge for by Parliament.

Issues with ECI:

• Flaws in the composition: The Constitution doesn’t prescribe qualifications for members of the EC. They are not debarred from future appointments after retiring or resigning.
• No security of tenure: Election commissioners aren’t constitutionally protected with security of tenure.
• Partisan role: The EC has come under the scanner like never before, with increasing incidents of breach of the Model Code of Conduct in the 2019 general elections.
• Political favor: The opposition alleged that the ECI was favoring the ruling party by giving clean chit to the model code of conduct violations made by the PM.
• Non-competence: Increased violence and electoral malpractices under influence of money have resulted in political criminalization, which ECI is unable to arrest.

Some Powers of the ECI:

• The Election Commission of India is considered the guardian of free and reasonable elections.
• It issues the Model Code of Conduct in every election for political parties and candidates so that the decorum of democracy is maintained.
• It regulates political parties and registers them for being eligible to contest elections.
• It publishes the allowed limits of campaign expenditure per candidate to all the political parties, and also monitors the same.
• The political parties must submit their annual reports to the ECI for getting tax benefit on contributions.
• It guarantees that all the political parties regularly submit their audited financial reports.

Present system of Appointment to the Election Commission

• The Constitution of India does NOT prescribe any procedure for appointment of the CEC and EC. However, the Parliament has the power to regulate the terms of conditions of service and tenure of ECs according to Article 324(5) in the Constitution.
• According to this provision in Article 324 – to determine the conditions of service of the CEC and other ECs and to provide for the procedure for transaction of business by the ECI – Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 was passed.
• The appointment of CEC and EC is dealt with in the Transaction of Business rules 1961 – according to which the President shall appoint the CEC and EC based on the recommendations made by the Prime Minister. (Therefore, it is the executive power of the President to appoint CEC and ECs.)
• There is also the Article 324(2), which states that the President shall, with aid and advice of the Council of Ministers, appoint CEC and ECs, till Parliament enacts a law fixing the criteria for selection, conditions of service and tenure.

Recommendations in the past for collegium to appoint EC and CEC

• According to the plea filed in the SC, recommendations to have a neutral collegium to fill up vacancies in the Election Commission have been given by several expert committees, commissions from 1975.
• The recommendation to have a neutral collegium to appoint EC and CEC was also part of the Law Commission’s 255th report in March 2015.
• In 2009, the Second Administrative Reforms Commission in its fourth report suggested a collegium system for appointment CEC and ECs.
• In 1990, the Dinesh Goswami Committee recommended effective consultation with neutral authorities like the Chief Justice of India and the Leader of the Opposition for the appointment in the Election Commission.
• In 1975, the Justice Tarkunde Committee recommended that the members of the Election Commission should be appointed by the President on the advice of a Committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India.

Supreme Court Verdict:

• The recent judgement of the Supreme Court took away the power of the executive to appoint members of the Election Commission of India (ECI).
• The power to appoint the members of the Election Commission of India was under the sole domain of the executive.
• The verdict is a major boost to the independence of the election watchdog.
• The Court has ruled that a three member committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha, or the leader of the single largest Opposition party, and the Chief Justice of India (CJI), will choose the CEC and ECs until a law in passed.
• The Court held that, the Election Commission of India is a constitutional body vested with plenary powers of superintendence, direction and control over elections.
• Hence, it is a vital component of the republic.
• It is essential to protect its functional freedom and constitutional protection to ensure free and fair elections.
• The Court held that the original intent of the Constitution makers was that the manner of appointment should be laid down in a parliamentary law.
  • Article 324 says the President should appoint the CEC and Commissioners, subject to any law made in that behalf by Parliament.
  • Highlighting the absence of such a law, the court pointed need to fill the ‘Constitutional vacuum’.

Does the presence of the CJI in the panel secure ECI’s independence?

• Responding to the Court’s verdict, the government’s argument that the existing system was working well and there was no vacuum was quite weak.
  • The convention now is that the Prime Minister chooses a name from among a database of high ranking civil servants and advises the President to make the appointment.
• However, a relevant question is whether the presence of the CJI in the selection panel is the only way in which an institution’s independence can be preserved.
  • There is no clear proof that the independence of the CBI director, who is appointed by a panel that includes the CJI, or his nominee, has been preserved or enhanced.
• Further, the CJI’s presence may give pre-emptive legitimacy to all appointments and affect objective judicial scrutiny of any error or infirmity in the process.

Conclusion:

Hence, by correcting an indefensible method of selection of the Election commission, the Court has significantly added to the sanctity of the process.

-Source: The Hindu

Hathras Verdict

Context:

Recently, the Uttar Pradesh court acquitted three  of  the  four accused  in  the  high-profile Hathras case.

Relevance:

GS-II: Social Justice (Issues related to Women, Schemes for Vulnerable Sections of the population, Government Interventions and Policies, Issues arising out of the design and implementation of Government Policies)

Dimensions of the Article:

1. Background of the Hathras case
2. Recent Judgement
3. Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (SC/ST Act or PoA Act)
4. Amendment to the SC and ST (Prevention of Atrocities) Act
5. Previous cases of setting aside the PoA Act

Background of the Hathras case:

• It is a horror of the gang rape of a 19-year-old Dalit woman in Hathras in 2020. The had succumbed to her injuries as a result of alleged rape.
• While the brutal atrocity shows the grim truth about the unconscionable people, who exist in our society, it was followed by accusation by the family of the victim that they were not allowed by the UP police to participate in late night Cremation.
• The activists, academics and lawyers argued that the sexual violence took place on account of the woman’s gender and caste and that the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (PoA Act) must be invoked.
• Despite the passing of stringent laws, the string of cases related to sexual violence and perils to women safety are quite evident in UP and elsewhere.

Recent Judgement:

• The Uttar Pradesh court on Thursday found only the prime accused, Sandeep Sisodia, guilty of culpable homicide not amounting to murder and offences under the SC/ST Act.
• The Court acquitted the three co-accused.
• While the verdict is based on the forensic report that found no evidence of rape, disturbing questions about the case remain unanswered.
• Sadly, the developments around this case only point to the harsh truth that our society not only remains entrenched in a patriarchal and misogynist mindset but also is still yoked to the oppressive caste system, wherein the dominant castes continue to oppress vulnerable communities.

Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (SC/ST Act or PoA Act)

• The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 is an Act of the Parliament of India enacted to prevent atrocities against scheduled castes and scheduled tribes.
• The Act is popularly known as the SC/ST Act, POA, the Prevention of Atrocities Act, or simply the Atrocities Act.
• It was enacted when the provisions of the existing laws (such as the Protection of Civil Rights Act 1955 and Indian Penal Code) were found to be inadequate to check these crimes (defined as ‘atrocities’ in the Act).

The salient features of the SC/ST Act are

1. Creation of new types of offences not in the Indian Penal Code (IPC) or in the Protection of Civil Rights Act 1955 (PCRA).
2. Commission of offences only by specified persons (atrocities can be committed only by non-SCs and non-STs on members of the SC or ST communities. Crimes among SCs and STs or between STs and SCs do not come under the purview of this Act).
3. Defines various types of atrocities against SCs/STs (Section 3(1)i to xv and 3(2)i to vii).
4. Prescribes stringent punishment for such atrocities (Section 3(1)i to xv and 3(2)i to vii).
5. Enhanced punishment for some offences (Section 3(2)i to vii, 5).
6. Enhanced minimum punishment for public servants (Section 3(2)vii).
7. Punishment for neglect of duties by a public servant(Section 4).
8. Attachment and forfeiture of property (Section 7).
9. Externment of potential offenders (Section 10(1), 10(3), 10(3)).
10. Creation of Special Courts (Section 14).
11. Denial of anticipatory bail (Section 18).
12. Denial of probation to convict (Section 19).

Amendment to the SC and ST (Prevention of Atrocities) Act

• Delineates specific crimes against Scheduled Castes and Scheduled Tribes as atrocities and describes strategies and prescribes punishments to counter these acts.
• Identifies what acts constitute “atrocities” and all offences listed in the Act are cognizable. The police can arrest the offender without a warrant and start an investigation into the case without taking any orders from the court.
• The Act calls upon all the states to convert an existing sessions court in each district into a Special Court to try cases registered under it and provides for the appointment of Public Prosecutors/Special Public Prosecutors for conducting cases in special courts.
• Creates provisions for states to declare areas with high levels of caste violence to be “atrocity-prone” and to appoint qualified officers to monitor and maintain law and order.
• Provides for the punishment for wilful neglect of duties by non-SC/ST public servants.
• It is implemented by the State Governments and Union Territory Administrations, which are provided due central assistance.

Previous cases of setting aside the PoA Act

• In cases of sexual violence against Dalit and Adivasi women, courts have almost consistently set aside convictions under the PoA Act.
• In 2006 in Ramdas and Others v. State of Maharashtra, where a Dalit minor girl was raped, the Supreme Court set aside the conviction under the PoA Act stating that the mere fact that the victim happened to be a woman who was member of an SC community would not attract the PoA Act.
• In Dinesh Alias Buddha v. State of Rajasthan (2006), the Supreme Court held: “It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste.”
• In Asharfi v. State of Uttar Pradesh (2017), the court held that the evidence and materials on record did not show that the appellant had committed rape on the ground that the victim was member of an SC community.
• In 2019, in Khuman Singh v. State of Madhya Pradesh, a case of murder, again the court held that the fact that the deceased was a member of an SC community was not disputed but there was no evidence to show that the offence was committed only on that ground; conviction under the PoA Act was set aside.