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CEC v. EC: OPPURTUNITY IN CONTROVERSY




The din surrounding the controversy over the CEC’s recommendation to the President regarding removal of his colleague is growing shriller thereby threatening to obfuscate the real issues involved. Firstly the characters involved, both the present CEC and the EC, whose removal he has recommended will not be around for long. Secondly, while the power of the CEC to recommend removal of an EC is apparent from the wording of the proviso to Article 324(5), it is open to interpretation whether such recommendation can be made suo motu or only upon a query from the appointing authority i.e. the President of India. So these cannot be the issues around which the present debate should centre. The real concern should be the autonomy of the institution itself. Though the Election Commission has done a commendable job in the past years and proved itself to be an impartial body, its autonomy is still a work in progress.


It will be useful here to quickly look at how the present structure came into being. Article 324 of our Constitution envisages an Election Commission, for supervising, directing and controlling the conduct of elections in the country. This institution is to be headed by a Chief Election Commissioner (CEC) and his removal has been made subject to the same conditions and procedure as that of a Judge of the Supreme Court of India. The same Article also provides for the appointment of other Election Commissioners (ECs) and Regional ECs, with the discretion vesting with the President to decide about the need for appointing such ECs and/or Regional ECs. It is stipulated that the removal of these ECs or Regional ECs cannot be done except upon the recommendation of the CEC. This is however not to say that the CEC is the boss. For a long time the Election Commission functioned mostly with only the CEC at the top. However during the tenure of former CEC T.N. Seshan, two additional ECs were appointed and the practice has continued eversince.

This was done ostensibly to avoid any arbitrary decision making by any individual (the incumbent CEC) thereby undermining the authority and impartiality of the institution. The then CEC Mr. T.N. Seshan, perceived this as ploy to undermine his authority and retribution on account of his tough stand against electoral malpractices and corruption of errant politicians. He therefore approached the Supreme Court, seeking amongst other things, the clarification whether the CEC was to have the last word on decisions of the Election Commission. The apex court, in the case of T.N. Seshan v. Union of India, clarified that the CEC is only the first amongst equals and not the superior of the two ECs. This implies that the decision of the Election Commission is now the combined decision of 3 people (CEC+2ECs). In case of lack of consensus, the decision is now made by a majority and which in turn represents the decision of the Election Commission. While this also has a bearing on other aspects of the controversy, it is an important indicator of the fact that the Election Commission and it’s functioning and impartiality are closely dependant on each of the 3 Election Commissioners, jointly heading it at a particular time. 

All three therefore need to be equally upright and impartial as decisions are usually made by majority vote. All three must trust each other to be impartial, as only then they can respect the differing opinions of each other and support the majority decision once it is made, irrespective of any personal reservations to the decision. This is directly related to the mode of appointment, service conditions and any other rules and regulations governing their conduct during and after their tenure as EC. Presently, the President, in consonance with the advice of the Cabinet, appoints the CEC and the other ECs and Regional ECs. Thus the governing party of the day has a significant influence in choosing the Election Commissioners. Similarly, while the President cannot remove the CEC, except through procedure governing the removal of a Judge of the SC, she can remove the ECs and Regional ECs, upon recommendation of the CEC. But she is not bound by such recommendation and will again take a decision on the advice of the Cabinet. Thus once again the governing party get to play a role, albeit a diminished one, in the removal of the 2 other people, who are at par with the CEC and who can combine together to overrule the CEC on any decision of the Election Commission. This clearly is a recipe for polarization of the Election Commission as has happened in the present situation. Every appointment of an EC will give rise to allegations of partisanship and any recommendation by CEC for removal of a colleague will raise a political storm. 

It will therefore be advisable to make the appointments through a mechanism which involves greater transparency and involvement of people holding offices, which naturally gives credibility and impartiality to their opinions with regard to the choice of an Election Commissioner. This mechanism should not however be restricted to just appointments. CECs/ECs joining political parties or holding posts which are directly under control of the governing party, undermines the dignity of the office of the Election Commission. Restrictions therefore need to be put in place to immunize the Election Commissioners from the Executive Branches of the Government. Similar restrictions are already in place for the Vigilance Commissioners. The present controversy is unfortunate, but it is timely reminder that some more work needs to be done at one of the important institutions of our democracy and of which we are all quite proud of.




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