S. Mohan

Under Article 324(5), the CEC cannotsuo motuexercise his power of recommending removal of an Election Commissioner because the members of the Election Commission are of equal status. Arrogation of anysuo motupower will amount to an assumption of superiority, which will obliterate the equality and nullify the independent functioning of the Commission.

The Chief Election Commissioner has hit the headlines recently. Therefore it may be apposite to find out the actual legal position of the CEC in relation to Election Commissioners. Article 324 of the Constitution provides the answer.

The superintendence, direction and control of the preparations of the electoral rolls for, and the conduct of all elections to Parliament and State legislatures and to the offices of President and Vice President is vested in the Election Commission. By a reading of Article 324(2), it is clear that the Chief Election Commissioner is a must. However, the number of other Election Commissioners may be optional. Presently, the Election Commission consists of the CEC and two other members. In view of Article 324 (3), the CEC shall be the Chairman.

The correct legal position as laid down by the Supreme Court of India in T.N. Seshan vs Union of India (1995) is as follows: “The provision that the ECs and the RCs once appointed cannot be removed from office before the expiry of their tenure except on the recommendations of the CEC ensures their independence. Of course, the recommendation for removal must be based on intelligible, and cogent considerations, which would have relation to efficient functioning of the Election Commission. That is so because this privilege has been conferred on the CEC to ensure that the ECs as well as the RCs are not at the mercy of political or executive bosses of the day. This check on the executive’s power to remove is built into the second proviso to clause (5) to safeguard the independence of not only these functionaries but the election Commission as a body [emphasis added].”

The second proviso to Article 324(5) states categorically that the ECs shall not be removed from office except on the recommendation of the CEC.

At this juncture, the question may arise whether the CEC can assume a superior status to ECs, or is equal with them. In the first of the cases that arose, in S.S. Dhanoa vs Union of India (1991), the Supreme Court held: “It is necessary to bear these features in mind because although clause (2) of the article states that the Commission will consist of both the Chief Election Commissioner and the Election Commissioners if and when appointed, it does not appear that the framers of the Constitution desired to give the same status to the Election Commissioners as that of the Chief Election Commissioner. The Chief Election Commissioner does not, therefore, appear to be primus inter pares, i.e. first among the equals, but is intended to be placed in a distinctly higher position [emphasis added].”

Had the law rested there, the CEC could of course claim to enjoy a superior status. But later, in the case of T.N. Seshan vs Union of India, this view was not accepted. In this case, the Supreme Court held:

“While is it true that under the scheme of Article 324 the conditions of service and tenure of office of all the functionaries of the Election Commission have to be determined by the President unless determined by law made by Parliament, it is only in the case of the CEC that the first proviso to clause (5) lays down that they cannot be varied to the disadvantage of the CEC after his appointment. Such a protection is not extended to the ECs. But it must be remembered that by virtue of the Ordinance the CEC and the ECs are placed on a par in the matter of salary etc. Does the absence of such provision for ECs make the CEC superior to the ECs?

“The second ground relates to removability. In the case of the CEC he can be removed from office in like manner and on the like ground as a Judge of the Supreme Court whereas the ECs can be removed on the recommendation of the CEC. That, however, is not an indicia for conferring a higher status on the CEC. To so hold is to overlook the scheme of Article 324 of the Constitution. It must be remembered that the CEC is intended to be a permanent incumbent and therefore in order to preserve and safeguard his independence, he had to be treated differently. That is because there cannot be an Election Commission without a CEC. That is not the case with other ECs. They are not intended to be permanent incumbents. Clause (2) of Article 324 itself suggests that the number of ECs can vary from time to time. In the very nature of things, therefore, they could not be conferred the type of irremovability that is bestowed on the CEC. If that were to be done, the entire scheme of Article 324 would have to undergo a change. In the scheme of things, therefore, the power to remove in certain cases had to be retained.

“Having insulated the CEC from external political or executive pressures, confidence was reposed in this independent functionary to safeguard the independence of his ECs and even RCs by enjoining that they cannot be removed except on the recommendation of the CEC. This is evident from the following statement found in the speech of Sri K.M. Munshi in the Constituent Assembly when he supported the amended draft submitted by Dr. Ambedkar: ‘We cannot have an Election Commission sitting all the time during those five years doing nothing. The Chief Election Commissioner will continue to be a whole time officer performing the duties of his office and looking after the work from day to day but when major elections take place in the country, either provincial or Central, the Commission must be enlarged to cope with the work. More members therefore have to be added to the Commission. They are no doubt to be appointed by the President. Therefore, to that extent their independence is ensured. So there is no reason to believe that these temporary Election Commissioners will not have the necessary measure of independence [emphasis added].’”

Since the ECs were not intended to be permanent appointees, they could not be granted the irremovability protection of the CEC, a permanent incumbent, and, therefore, they were placed under the protective umbrella of an independent CEC. This aspect of the matter escaped the attention of the learned Judges who decided the Dhanoa case.

Merely because the CEC is obliged to act as a chairman, could it be said that he is a superior? That question is also answered by the Supreme Court in the Seshan case: “…if it is a multi member body the CEC is obliged to act as its Chairman. ‘Chairman’ according to the Concise Oxford Dictionary means a person chosen to preside over meetings, e.g. one who presides over the meetings of the Board of Directors. In Black’s Law Dictionary, 6th Ed. P. 230, the same expression is defined as a name given to a presiding officer of an assembly, public meeting, convention, deliberative or legislative body, board of directors, committee etc., Similar meanings have been attributed to that expression in Ballentine’s Law Dictionary, 3rd Ed. Pp 189-190 Webster’s New Twentieth Century Dictionary, Unabridged, 2nd ed. P. 299 and Aiyer’s Judicial Dictionary, 11th Ed. P.238. The function of the Chairman would, therefore, be to preside over meetings, preserve order, conduct the business of the day, ensure that precise decisions are taken and correctly recorded and do all that is necessary for smooth transaction of business. The nature and duties of this office may vary depending on the nature of business to be transacted but by and large these would be the functions of a Chairman. He must so conduct himself at the meetings chaired by him that he is able to win the confidence of his colleagues on the Commission and carry them with him.”

An analysis of the above dictum leads us to the conclusion that CEC and the EC enjoy equal status.

The object of clause (5), which states that ECs cannot be removed from office except on the recommendation of the CEC, is as follows:

“It is crystal clear from the plain language of the said clause (2) that our Constitution-makers realised the need to set up an independent body or commission which would be permanently in session with at least one officer, namely, the CEC, and left it to the President to further add to the Commission such number of ECs as he may consider appropriate from time to time. Clause (3) of the said article makes it clear that when the Election Commission is a multi member body, the CEC shall act as its Chairman. What will be his role as a Chairman has not been specifically spelt out by the said article and we will deal with this question hereafter. Clause (4) of the said article further provides for the appointment of RCs to assist the Election Commission in the performance of its functions set out in clause (1). This, in brief, is the scheme of Article 324 insofar as the constitution of the election Commission is concerned.”

“The first proviso to clause (5), the ECs and the RCs have been assured independence of functioning by providing that they cannot be removed except on the recommendation of the CEC. Of course, the recommendation for removal must be based on intelligible, and cogent considerations which would have relation to efficient functioning of the Election Commission. That is so because this privilege has been conferred on the CEC to ensure that the ECs as well as the RCs are not at the mercy of political or executive bosses of the day. It is necessary to realize that this check on the executive’s power to remove is built into the second proviso to clause (5) to safeguard the independence of not only these functionaries but the Election Commission as a body. If, therefore, the power were to be exercisable by the CEC as per his whim and caprice, the CEC himself would become an instrument of oppression and would destroy the independence of the ECs and the RCs if they are required to function under the threat of the CEC recommending heir removal. It is, therefore, needless to emphasise that the CEC must exercise this power only when there exist valid reasons, which are conducive to efficient functioning of the Election Commission. This, briefly stated, indicates the status of the various functionaries constituting the Election Commission.”

The CEC cannot exercise his power suo motu because the members of the Commission are of equal status. If suo motu power is conferred on the CEC, it will amount to an assumption of superiority, which is not warranted and will obliterate the equality. This aspect did not specifically arise in the case of T.N. Seshan. However, it is logical to conclude that if the Election Commission is to function as a body, such suo motu recommendation by the CEC would nullify the function of the Commission. The Election Commissioners will be more interested in dancing to the tune of Chief Election Commissioner and try to be in his good books. This cannot be the intent of the Constitution under Article 324(5). Such a situation will never be conducive to an effective functioning of the Commission. The conclusion, therefore, is inescapable that the power of recommendation cannot be exercised suo motu.

(Justice S. Mohan is a retired Judge of the Supreme Court of India.)

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