All That’s Wrong With The PIL That Wants To Change How Election Commissioners Are Removed

Posted by HIMANSHU THAKUR in Politics, Staff Picks
December 16, 2017

A petition has been filed in the Supreme Court (SC) seeking constitutional unanimity in the removal of election commissioners by bringing their removal procedure on par with that of the Chief Election Commissioner.

The Election Commission of India is a permanent constitutional body established under Article 324 of the Constitution of India to conduct all elections to the offices of the President, Vice-President, the Parliament and state legislatures. Though the functions of the Commission are generally administrative, at times, it also functions as a quasi-judicial and legislative body.

The body consists of a Chief Election Commissioner (CEC) and two election commissioners (ECs) who enjoy a tenure of six years, or up to the age of 65 years, whichever is earlier. They enjoy the same status, salary and perks as that of the judges of the SC.

The provisions that have are being questioned are contained in Article 324(5) of the Constitution Of India, 1949:

“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.”

The petitioner has alleged that constitutional experts remain divided in their opinion over the procedure for removal of the two ECs. The petitioner has approached the honorable court saying that the provisions under Article 324(5) of the Indian Constitution remains silent on the process of removal of the EC. It only puts forth the condition that the EC cannot be removed from his office except on the recommendation of the CEC.

The petition involves a well-framed political intention to support and condescendingly treat those forces who want to use the judicial route to launch an assault on the election process and the Commission.

Why Is The Procedure For Removal Of The ECs Not Vague And Arbitrary?

There lies a distinction between the process for the removal of the CEC and that of the ECs. Since the ECs are appointed by the President, they also need to be removed by the President.

But, in accordance with Article 324(5), and as also ruled in the case of “TN Seshan vs Union of India”, the condition prior to the removal of an EC is that they can be removed only on the recommendation of the CEC on the basis of a petition addressed to the President. This would suggest that the CEC cannot act on their own – and that the recommendation they give must be based on intelligible and cogent considerations, which would have relation to the efficient functioning of the Election Commission. Should that not be the case, judicial review shall extend, even to the extent of quashing such a decision.

Therefore, it may be inferred that there is, as such, no absence of a constitutional process in the removal of ECs. The constitutional protection enjoyed by the CEC may not be expressly provided to the ECs, but the manner of the removal of both the CEC and the ECs does not appear to be vague or promoting any mala fide action that may affect the independence of the Commission.

Does The CEC’s Advice In The Removal of ECs Make Them A Primus Inter Pares?

The two prominent cases that shed light on the relationship between the CEC and the ECs are: “SS Dhanoa vs Union of India” and “TN Seshan vs Union of India”. While the former case placed the CEC at a higher position than the ECs, the latter went on to say that they are all placed equally – and that if the CEC is considered to be superior (in the sense that their word is final), that 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. The ruling in the latter case also happens to be the legal position recognised by the SC, currently. Thus, the independence of the Commission is guaranteed, thereby enabling the ECs to act as a watchdog ensuring that there is a system of checks and balances.

Various Cases Which Show That The Relationship Between The CEC and The ECs Is Similar To That Between The Chief Justices And Judges Of High Courts/SC

1. In the case of “SS Dhanoa vs Union of India”, it was ruled that the relationship between the CEC and ECs was largely similar to that between the Chief Justice and judges. The former is not in a position to influence the latter in the course of discharging their functions.

The judges of the SC and the High Courts can sit in benches, thus showing that the presence of the Chief Justice is not necessary in all the decisions of the court. Similarly, the Commission may also sit in benches, where the participation of the CEC not a must in all its decisions. This was also rightly ruled in the case of “The Election Commission of India vs Dr Subramaniam Swamy”.

2. The Goswami Committee, in its “Report on Electoral Reforms” (1990) recommended that “the protection of salary and other allied matters relating to the Chief Election Commissioner and the Election Commissioners should be provided for in the Constitution itself on the analogy of the provisions in respect of the Chief Justice and Judges of the Supreme Court. Pending such measures being taken, a parliamentary law should be enacted for achieving the object.”

Conclusion

So far as the process of the removal of the EC is concerned, the relevant constitutional provisions under Article 324(5) lay down the manner of removal of the EC as being conditional on the advice of the CEC. As justified above, this provision is necessary to ensure the independent functioning of the Commission, by insulating it from the direct control of the executive. Clearly, the aim of having an independent and impartial commission would have been defeated had the executive been solely in a position to remove the ECs.

The current process of the removal of the ECs strikes a balance between the CEC and the executive wing. The President can remove the ECs upon the recommendations of the CEC, but the recommendations have to be based on relevant considerations. This warrants the smooth functioning of the body – without letting differences of opinion act as a barrier in the process.

_

Featured image source: Harikrishna Katragadda/Mint via Getty Images