Free and independent elections are sine qua non for a vibrant and healthy democracy. If elections could be manipulated, the democracy is sure to see its demise sooner or later. It is, therefore, necessary to ensure that elections are conducted in a free and fair manner and that they reflect the true will of the people, irrespective of whether the will of the people results into a clear majority or into a fragmented mandate. But, each and every voter must get a chance to cast his vote freely as per his own choice and the elections cannot be allowed to be manipulated.
To ensure this, Article 324 of the Constitution establishes the Election Commission of India. The Election Commission has been set up under this article as an independent constitutional body. It has been vested with the powers of superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all Parliamentary and State elections and elections to the office of the President and Vice President.
The main objective of Article 324 is to constitute an independent Election Commission which can conduct free and fair elections to the Parliament and the State Legislatures.
It lays down that the Election Commission shall consist of the Chief Election Commissioner (CEC) and such number of other Election Commissioners, if any, as the President may from time to time fix.
Originally, the Election Commission had only a Chief Election Commissioner.
For the first time, on October 16, 1989, two additional Election Commissioners were appointed. But, they had a short tenure, till January 1, 1990. Thereafter, the Election Commission again became a one-member body, consisting only of the CEC.
Subsequently, on October 1, 1993, two additional Election Commissioners were appointed again.
The 3-member Election Commission has been in operation in India since then. So, currently, the Election Commission consists of the CEC and two Election Commissioners.
As per the provisions of Section 10 of the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, the 3-member Election Commission is expected to take its decisions unanimously and if they differ in their opinion, then the decision shall be that of the majority:
“10. Disposal of business by Election Commission.—(1) The Election Commission may, by unanimous decision, regulate the procedure for transaction of its business as also allocation of its business amongst the Chief Election Commissioner and other Election Commissioners.
(2) Save as provided in sub-section (1), all business of the Election Commission shall, as far as possible, be transacted unanimously.
(3) Subject to the provisions of sub-section (2), if the Chief Election Commissioner and other Election Commissioners differ in opinion on any matter, such matter shall be decided according to the opinion of the majority.”
Therefore, in decision-making, the CEC and two Election Commissioners have equal status.
In fact, in the case of T.N. Seshan, Chief Election Commr. of India v. Union of India, (1995) 4 SCC 611, a Constitution bench of the Supreme Court also clearly held that the CEC was not superior to the Election Commissioners by observing as under:
“There can be no doubt that the Election Commission discharges a public function. As pointed out earlier, the scheme of Article 324 clearly envisages a multi-member body comprising the CEC and the ECs. The RCs may be appointed to assist the Commission. If that be so the ECs cannot be put on a par with the RCs. As already pointed out, ECs form part of the Election Commission unlike the RCs. Their role is, therefore, higher than that of RCs. If they form part of the Commission it stands to reason to hold that they must have a say in decision-making. If the CEC is considered to be a superior in the sense that his word is final, he would render the ECs non-functional or ornamental. Such an intention is difficult to cull out from Article 324 nor can we attribute it to the Constitution-makers. We must reject the argument that the ECs’ function is only to tender advice to the CEC.”
In this case, the Supreme Court also rejected the objection that a multi-member Election Commission would be unworkable, by observing as under:
“The Election Commission is not the only body which is a multi-member body. The Constitution also provides for other public institutions to be multi-member bodies. For example, the Public Service Commission. Article 315 provides for the setting up of a Public Service Commission for the Union and every State and Article 316 contemplates a multi-member body with a Chairman. Article 338 provides for a multi-member National Commission for SC/ST comprising a Chairman, Vice-Chairman and other members. So also there are provisions for the setting up of certain other multi-member Commissions or Parliamentary Committees under the Constitution. These also function by the rule of majority and so we find it difficult to accept the broad contention that a multi-member Commission is unworkable. It all depends on the attitude of the Chairman and its members. If they work in cooperation, appreciate and respect each other’s point of view, there would be no difficulty, but if they decide from the outset to pull in opposite directions, they would by their conduct make the Commission unworkable and thus fail the system.”
Thus, it should be clear that the CEC and two Election Commissioners have equal say in all decisions taken by the Election Commission.
However, the independence of the Election Commission can get compromised by the fact that in the matter of security of tenure, the two Election Commissioners don’t have the same security of tenure as that is given to the CEC. The manner in which they can be removed from their office differs substantially.
In this regard, it is pertinent to point out that clause (5) of Article 324 of the Constitution lays down as under:
“(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:
Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:
Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.”
Thus, it can be clearly seen that the CEC can be removed from his position only by way of an impeachment process in the Parliament, i.e., he is given the same protection from removal from office as is given to a Supreme Court judge. But, the Election Commissioners can be removed by the President of India merely on the recommendation of the CEC.
Thus, there is a vast difference in the security of tenure given to the CEC and other two Election Commissioners. This can lead to a potential compromise in the independent functioning of the Election Commission, because while the Election Commissioners have the same decision-making power, they have no security of tenure like the CEC. They can be removed from their office in a summary manner. Thus, their decisions can be influenced, at least in theory.
Let me point out that this difference in security of tenure of the Election Commissioners exists in the Constitution since the beginning itself, i.e., the original Constitution itself had this difference.
My analysis of the debates of the Constituent Assembly, which drafted the Constitution, shows that Dr. B.R. Ambedkar, the chief architect of the Constitution, had defended this difference of security of tenure, apparently on the ground that the Election Commission was supposed to consist mainly of the CEC on permanent basis, and the Election Commissioners were supposed to be temporary members to be appointed (and, perhaps, to be removed) as and when elections were round the corner. His relevant comments on the draft Article 289 (which became the present Article 324) are as under (see, Constituent Assembly Debates of June 15, 1949):
“Sub-clause (2) says that there shall be a Chief Election Commissioner and such other Election Commissioners as the President may, from time to time appoint. There were two alternatives before the Drafting Committee, namely, either to have a permanent body consisting of four or five members of the Election Commission who would continue in office throughout without any break, or to permit the President to have ad hoc body appointed at the time when there is an election on the anvil. The Committee, has steered a middle course. What the Drafting Committee proposes by sub-clause (2) is to have permanently in office one man called the Chief Election Commissioner, so that the skeleton machinery would always be available. Election no doubt will generally take place at the end of five years; but there is this question, namely that a bye-election may take place at any time. The Assembly may be dissolved before its period of five years has expired. Consequently, the electoral rolls will have to be kept up to date all the time so that the new election may take place without any difficulty. It was therefore felt that having regard to these exigencies, it would be sufficient if there was permanently in session one officer to be called the Chief Election Commissioner, while when the elections are coming up, the President may further add to the machinery by appointing other members to the Election Commission.”
“So far as clause (4) is concerned, we have left the matter to the President to determine the conditions of service and the tenure of office of the members of the Election Commission, subject to one or two conditions, that the Chief Election Commission, shall not be liable to be removed except in the same manner as a Judge of the Supreme Court. If the object of this House is that all matter relating to Elections should be outside the control of the Executive Government of the day, it is absolutely necessary that the new machinery which we are setting up, namely, the Election Commission should be irremovable by the executive by a mere fiat. We have therefore given the Chief Election Commissioner the same status so far as removability is concerned as wee have given to the Judge of he Supreme Court. We, of course, do not propose to give the same status to the other members of the Election Commission. We have left the matter to the President as to the circumstances under which he would deem fit to remove any other member of the Election Commissioner, subject to one condition that the Chief Election Commissioner must recommend that the removal is just and proper.”
During the debates, Prof. Shibban Lal Saksena, a member of the Constituent Assembly had, inter alia, objected to different security tenure given to the Election Commissioners and moved amendments to seek a similar process for removal of the Election Commissioners at par with the CEC.
Another member, Pandit Hirday Nath Kunzru, also pointed out the difference in security of tenure given to the Election Commissioners by observing:
“Again, while it is provided that the Chief Election Commissioner should not be removed except in the same manner as a Judge of the Supreme Court, the removal of the other Election Commissioners is left in the hands of the President. He can remove any Commissioner he likes in consultation with the Chief Election Commissioner.”
However, Pandit Hirday Nath Kunzru appeared to be satisfied by the reasoning given by Dr. Ambedkar on this issue, when he observed:
“Dr. Ambedkar told us yesterday that it might be unnecessary to have permanent Election Commissioners and that all that might be required might be to appoint Election Commissions when there is work enough for them to do. In such case obviously the procedure relating to the removal of judges of the Supreme Court cannot be applied in the case of Election Commissioners.
While replying to these and other objections, Dr. Ambedkar had made the following observations rejecting such objections:
“So far as the question of removal is concerned, I personally do not think that any change is necessary in the amendment which I have proposed, as the House will see that so far as the removal of the members of the Election Commission is concerned the Chief Commissioner is placed on the same footings as the Judges of the Supreme Court. And I do not know that there exist any measure of greater security in any other constitution which is better than the one we have provided for in the proviso at clause (4).”
“With regard to the other Commissioners the Provision is that, while the power is left the President to remove them, that power is subjected to a very important limitation, viz., than in the matter of removal of the other Commissioners, the President can only act on the recommendation of the Chief Election Commissioner. My contention therefore is, so far as the question of removal is concerned, the provision which are incorporated in my amendment are adequate and nothing more is necessary for that purpose.”
In the end, the Constituent Assembly approved the draft Article 289 as proposed by Dr. Ambedkar and this became Article 324 of the present Constitution.
Therefore, the difference in security of tenure given to the two Election Commissioners exists in the Constitution as it was mandated by the Constitution-makers themselves.
As pointed out above, at the time of drafting of the Constitution, it was expected that elections would not be a regular process and that the elections will generally take place after 5 years, with some bye-polls taking place in the interregnum. Therefore, only one permanent member of the Election Commission, i.e., only the CEC, was supposed to be appointed and the additional Election Commissioners were supposed to be appointed as the need arises at the time of elections and then perhaps removed when the need for them was over.
However, this situation has now changed drastically. Now, the Election Commission is a regular and permanent 3-member body since 1993, i.e., for last about 27 years. Moreover, elections take place regularly throughout the supposed period of 5 years; and, there is hardly a year when one or other regular elections to a State legislature or the Parliament as well as various bye-polls are not conducted by the Election Commission.
In fact, Prof. Shibban Lal Saksena, had anticipated it during the Constituent Assembly Debates, when he had pointed out as under (see, Constituent Assembly Debates of June 15, 1949):
“The second point made by Dr. Ambedkar was that this commission may not have permanent work and therefore only the Chief Election Commissioner should be appointed permanently and the others should be appointed when necessary on his recommendations. Our Constitution does not provide for a fixed four years cycle like the one in the United States of America. The elections will probably be almost always going on in some province or the other. We shall have about shorty provinces after the states have been integrated. Our Constitution provides for the dissolution of the Legislature when a non confidence is passed. So it is quite possible that the elections to, the various legislatures in the province and the Centre will not be all concurrent . Every time some election or other will be taking place somewhere. It may be so in the very beginning or in very five or ten years. But after ten or twelve years, at every moment some elections in some province will be going on. Therefore, it will be far more economical and useful if a permanent Election Commission is appointed-not only the chief Election Commissioner but three or five members of the commission who should be permanent and who should conduct the elections. I do not think that there will be lack of work because as I said in our constitution all the elections will not synchronize but they will be at varying times in accordance with the vote of no-confidence passed in various legislatures and the consequent dissolution of the legislatures. Therefore, I think that there will be no dearth of work. This commission should be a permanent commission and all the commissioners should be appointed in the same manner as the Chief Election Commissioner.”
In hindsight, it is thus clear that the above suggestions of Prof. Shibban Lal Saksena, made during the debates of the Constituent Assembly, were quite pragmatic and with foresight.
It was during 1949, when his suggestions were rejected. But, now, it is 2020. Is it not the right time to give a safety of tenure to the two Election Commissioners at par with the CEC? So that they could not be removed arbitrarily? To ensure better independence of the Election Commission?
At this juncture, it is pertinent to point out that the Election Commission, in its 2004 Report, had said that the current wording of Article 324(5) of the Constitution was “inadequate” and required an amendment to bring the removal procedures of the Election Commissioners on par with the CEC, and thus to provide them with the same protection and safeguards as the CEC.
The Law Commission of India, in para 6.8 of its Report No. 255 (“Electoral Reforms”), also endorsed the proposal of the Election Commission to extend the same protection under the Constitution in the matter of removability from office to the Election Commissioners as is available to the CEC.
Thus, Article 324(5) needs to be reworded / amended as suggested below:
“(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:
Provided that the Chief Election Commissioner and any other Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner and any other Election Commissioner shall not be varied to his disadvantage after his appointment:
Provided further that a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.”
As I mentioned at the outset itself, free and independent elections are necessary for a vibrant and healthy democracy. They are necessary if a true democracy is to survive. It is, therefore, necessary to give the same protection under the Constitution in the matter of removability from office to the Election Commissioners as is available to the CEC. This means that the Election Commissioners should also be removable only by way of impeachment in the Parliament and not otherwise.
