There has been a lot of debate as to whether the recommendation of the Chief Election Commissioner for the removal of one of the Election Commissioners of the ELECTION COMMISSION OF INDIA should be ACCEPTED by the PRESIDENT of India, without reference to the Cabinet of the day.
The constitutional provisions that relate to the question cited above is Article 324 of the Constitution of India. The relevant clauses are 2 and 5 which are reproduced here below.
article 324 of the constitution of India, clauses 2 and 5 read as under:-
(2) The Election Commission shall consist of the Chief Election
Commissioner and such number of other Election Commissioners, if any,
as the President may from time to time fix and the appointment of the
Chief Election Commissioner and other Election Commissioners shall,
subject to the provisions of any law made in that behalf by
Parliament, be made by the President.
(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.
The above provisions of clause 5 mentions, “Subject to the provisions of any law made by Parliament..” in respect of TWO things viz:-
1)the conditions of service
2) tenure of office.
the president may act.
However in respect of “..fixing the number of other Election Commissioners & appointment of the CEC”, the provision says,
“subject to the provisions of any law made in that behalf by Parliament“(ref: clause 2),
which clearly shows that the parliament is not expected to make any laws outside the scope defined. There is surely a difference between …”any law made by the parliament” and “.. any law made in that behalf by the Parliament”.
However the parliament made a law RELATING TO THE TRANSACTIONS OF THE BUSINESS and prescribed a mode of UNANIMITY failing which BY MAJORITY.
Accordingly, after issuance of an Ordinance, an Act was passed by the parliament, which inter-alia included sections 9 and 10 determining the Disposal of Business by the Commission besides enumerating the conditions of service, tenure of office etc.
What is relevant to our consideration is section 10 which is reproduced below:-
CHIEF ELECTION COMMISSIONER AND OTHER ELECTION COMMISSIONERS(CONDITIONS OF SERVICE) ACT 1991
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.
In the matter of T.N.Seshan, CEC of India vs. Union of India & ors (1995(4) SCC 611, two issues were to be decided, which were
1. whether the appointment of the other election commissioners was intra-vires the constitution of India and
2. constitutional validity of the Ordinance and thereafter the Act, and the orders thereto.
The issues were decided in favour of the Union of India, but inter-alia many obiter dicta which are relevant for answering the topic of discussion were made.
In my opinion, the CEC is different in status and rank and thereby has primacy over the other ECs for the following reasons:-
1. The Commission presupposes the existence of the Chief Election Commissioner but it need not have other election commissioners.
2. The CEC has the status of a judge of the Supreme Court of India and therefore is of a rank higher than that of the Commissioners who are only of the rank of a High Court Judge minus the constitutional protection of removal only thru Impeachment.
3. the EC cannot be removed except on the recommendation of the CEC (if the legislative intent has been merely to protect the independence of the commission, they wud have given the protection of removal thru impeachment and not placed them at the mercy of the recommendation of the CEC)
4. the Article 324 and the clauses do not empower the Parliament to make any law prescribing the mode of deciding the issues thru Unanimity and failing which thru Majority. Further a person of the rank of a Supreme court Justice cannot be considered to be at par with a High Court justice (without the protection of removal thru impeachment proceedings), that the opinion of the CEC is to be given the same weightage as that of an EC! Let us remind ourselves that people similarly placed can be treated equally and not otherwise.
Therefore the prescription of the parliament of UNANIMOUS/MAJORITY decision is ultra-vires the constitution.
Further the equating of the opinion of the CEC with that of the other ECs is not tenable in our system based on Rank. The CEC is not PRIMUS INTER PARES as there is NO comparison between the status of the CEC with that of the ordinary ECs. The CEC is the RECOMMENDATORY AUTHORITY FOR THE REMOVAL OF THE ECs, therefore he CANNOT be treated as an equal to the other ECs.
This takes us to the next question as to whether the PRESIDENT of India has to get a Cabinet decision on the recommendation of the CEC for the removal of the ECs?
It is ridiculous that a cabinet that is partisan shud be allowed to decide on the issue when most of the constituent parties in the cabinet have been dragged into the controversy relating to Mr.Gopalswami and Mr. Chawla.
Further the method if initiation of impeachment proceedings for removal of a SC judge is clearly mentioned in the Constitution, whereas in respect of the removal of the EC either the President could move it and obtain the recommendation of the CEC and remove the ECs or the Cabinet could abolish the post of the ECs, even without the recommendation of the CEC. In this case, the CEC has mentioned loss of confidence in his EC and therefore it is only in the fitness of things that the PRESIDENT of INDIA without the reference to the Cabinet should remove the Election Commissioner.
I HOPE THAT THE PRESIDENT REMOVES THE EC AND UPHOLD THE INTEGRITY OF THE ELECTION COMMISSION.