Confusion in the Election commission

The chief election commissioner has hit the headlines recently for more than one reason. Apart from the general elections, there has been much talk about the powers of the commissioner vis-à-vis the other commissioners.

Unfortunately or fortunately, so far as the latter is concerned, much of the opinions in the media and academic circles have gone against the CEC. Given the opinions expressed, it may be apposite now to dispassionately analyze the position of CEC in the light of the arguments put against him.

The correct legal position of the CEC 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.

In the same case, the supreme court goes on to add that “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.

“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”.

Recently, these issues have under arguments and discussions. The overwhelming opinion is that the CEC cannot recommend the removal of EC suo motu. The argument put forward is that, the CEC cannot exercise his power suo motu because the members of the commission and the CEC are of equal status. Further if such powers are conferred to CEC, he will himself be an instrument of oppression. The election commissioners will have to function under the fear of removal if they voice their opinion against the CEC. Further, some scholars have argued that suo motu powers to CEC would nullify the independent functioning of the election commission.

Assuming for a moment the above arguments are correct and CEC does not have the powers to recommend the removal of EC suo motu, then who can ask the CEC to give his recommendations? It is obviously the president under the advice of the cabinet.

This puts the EC in a difficult position vis-à-vis the CEC. The law says that the CEC and EC are equal but insulates the CEC from removal on advice of the cabinet. But the EC does not enjoy similar privileges. He can be removed on the recommendations of the CEC (case being referred by the president on advice of the cabinet). There seems to be some confusion here.

If the CEC can be an instrument of oppression on the EC, so can be the cabinet. The EC has to work under the threat of CEC if the latter enjoys suo motu powers. Otherwise if the union cabinet has the powers to advice president on removal of the EC, EC will have to work under the threat of the cabinet. (We must note here that EC does not have to be removed in the manner in which a Supreme Court judge is removed.). In the era of coalition politics, it makes more sense to insulate the election commissioners from the cabinet rather than the CEC.

If all the election commissioners have to be treated on par and equally, then all of them must enjoy similar privileges and similar insulation from political and executive bosses and from each other.

In the present case, the CEC has recommended the removal of an EC suo motu. It is still not clear if he enjoys such powers and the repercussions of the same if he really enjoys such powers. However if the recommendations for removal are to be based on intelligible and cogent considerations, which will have relation to efficient functioning of the Election Commission, then the CEC has defended himself by outlining the basis for his recommendations.