With mid-term polls not being entirely improbable, the issue of protecting the Election Commission’s independence is once again in focus. Recent discussions before the Supreme Court on whether the Chief Election Commissioner (CEC) can suo motu process a complaint against an Election Commissioner (EC) highlighted a non-question. The second proviso of Article 324 (5) of the Constitution focuses on the primary safeguard — ie, the need for a recommendation from the CEC before an EC can be removed. The present CEC, in an affidavit filed before the Supreme Court, stated that he was competent. In the absence of any express legal provision to the contrary, it stands to reason that he could indeed initiate the process. However, there is also no ambiguity that the final authority with respect to the removal of both the CEC and EC lies with the president.As regards the CEC, Article 324 (5) states that he shall not be removed from office except in like manner as a Supreme Court judge. Similar safeguards were not envisaged for the EC. The only safeguard then envisaged by the Constituent Assembly against his/her arbitrary removal was that the CEC’s recommendation would be necessary for such action. Since the CEC himself was considered adequately protected and the ECs were working as the Commission’s members and subject to the CEC’s supervision, this was considered adequate enough.Until 1989, the Commission comprised a sole member, the CEC. In October 1989, when R.V.S. Peri Sastry was already CEC for a couple of years, the president increased the Commission’s size to three, with S.S. Dhanoa and V.S. Seigell appointed as ECs. This was justified on the grounds that since the voting age had just been lowered to 18, the Commission’s workload had increased. Sastry protested mildly against this move and the new government that came in late 1989 abolished the two extra posts. When the matter was challenged by Dhanoa in the Supreme Court, it took the view that the CEC’s position was higher than that of the ECs, but given the wide powers conferred on the Commission, it is ‘desirable’ not to have a single-member Commission.After Sastry’s death while in office, T.N. Seshan assumed charge as CEC in 1990. He functioned as a one-man Commission for three years, at which point the president thought it fit to appoint two more ECs — M.S. Gill and G.V.G. Krishnamurthy. Seshan challenged these appointments in the Supreme Court. The verdict came in July 1995. It held as valid the appointments and saw the CEC as only the first among equals, reversing the earlier view of the court. In 1994, the Conditions of Services of Election Commissioners and Transaction of Business Act came into force. It stipulated that the Commission’s decisions would be taken by the majority, and also placed the EC’s terms and conditions on par with a Supreme Court judge, as in the case of the CEC.While the court specifically recognised the need to restrict the power of individual members of the Commission in view of the Commission’s “vast powers”, it did not address the basic issue of ensuring that the Commission’s members function without fear or favour. The manner in which Seshan initially treated Gill and Krishnamurthy indicated that the constitutional protection then envisaged — of making the CEC’s recommendation mandatory for the removal of an EC — need not always be adequate. A CEC may not recommend an EC’s removal on strictly objective considerations. That such a “recommendation” is not binding on the president is a separate, but settled, issue. A former Union law minister, in a recent article, has however argued to the contrary and has said that such “recommendation” from the CEC should be made binding on the government to ensure the Commission’s “independence” (‘The way of the EC’, by Arun Jaitley, IE, August 21).Over the last few years, governments have recognised the need for a three-member Commission and ECs are no longer envisaged as “temporary appendages” appointed at the government’s whim. Over the last few years, the time-worn rule of seniority being the sole condition for elevating a ‘senior’ commissioner to the post of CEC has also come to stay.The same former law minister referred to earlier, when he was in power, had finally elevated the then senior-most member, T.S. Krishnamurthy, as CEC, notwithstanding the well-publicised intention of his government to appoint another favoured bureaucrat as CEC. No doubt this happened after a public outcry and after Krishnamurthy had threatened to quit. A politician’s memory, based on political exigencies, is after all even shorter than public memory!Against this backdrop it is invidious to concentrate on non-issues such as who can initiate action against an EC, rather than on how the Commission should be strengthened. Stringent procedures for removal in respect of several functionaries such as state election commissioners are provided for under the law. Parliament could have easily provided legislation to establish the manner an EC is removed. Parties across the board should therefore arrive at a consensus on the issue.The writer is a former Chief Electoral Officer of Maharashtra
