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Report No. 255

Chapter VI

Strengthening the Office of the Election Commission of India

A. Constitutional Protection of all the Members of the ECI

6.1. The ECI is an independent, constitutional body, which has been vested with the powers of superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all Parliamentary and State elections and elections to the office of the President and Vice President vide Article 324(1) of the Constitution.

6.2. Article 324(2) stipulates that the ECI shall comprise of the CEC and "such number of other Election Commissioners, if any, as the President may from time to time fix." By an order dated 1st October 1993, the President has fixed the number of Election Commissioners as two, until further orders. There is all round consensus, evident from the Goswami Committee's Report in 1990;209 the ECI's 1998 letter;210 and its 2004 proposed reforms that the number of Election Commissioners should remain at two to ensure the "smooth and effective functioning" of the ECI. Their stated rationale is that:

209. Goswami Committee Report, supra note 113, at para 1.1

210. Mendiratta, supra note 161, at 18

"The three-member body is very effective in dealing with the complex situations that arise in the course of superintending, directing and controlling the electoral process, and allows for quick responses to developments in the field that arise from time to time and require immediate solution. Increasing the size of this body beyond the existing three-member body would, in the considered opinion of the Commission, hamper the expeditious manner in which it has necessarily to act for conducting the elections peacefully and in a free and fair manner".211

211. ECI 2004 Reforms, supra note 203, at 14

6.3. Article 324(5) of the Constitution is intended to ensure the independence of the ECI and free it from external, political interference and thus expressly provides that the removal of the CEC from office shall be on "like manner and on the like grounds as a Judge of the Supreme Court".

Nevertheless, a similar impeachment procedure is not prescribed for the other Election Commissioners under Article 324(5), and they are treated on par with the Regional Commissioners. Instead Article 324(5) stipulates that subject to any Parliamentary law, the office tenure of the Election and Regional Commissioners shall be determined by the President and that they cannot be removed except on the CEC's recommendation.

6.4. The ECI in its 2004 Report expressly opined that the current wording of Article 324(5) was "inadequate" and required an amendment to bring the removal procedures of Election Commissioners on par with the CEC, and thus to provide them with the "same protection and safeguard[s]" as the CEC.212 The proposed amendment by the Background Paper on Electoral Reforms prepared by the Legislative Department of the Law Ministry in 2010 is along the same lines.

212. ECI 2004 Reforms, supra note 203, at 1

6.5. Equating the removal procedures of the two Election Commissioners with that of the CEC is also in line with the legislative intent of the Parliament. In 1991, the Parliament enacted the Chief Election Commissioner and other Election Commissioners (Conditions of Service) Act whereby the retirement age of the CEC was fixed at 65 years, with a salary and other perquisites equal to that of a Supreme Court judge; whereas that of the other Election Commissioners was fixed at 62 years with benefits equivalent to a High Court judge.

However, in 1993, the above Act was amended and the CEC and other Election Commissioners were placed on par on matters of retirement age, salaries and other benefits.213 Section 10 of the Act also provided for all three members to have an equal say in the decision making process, with any difference in opinion being resolved "according to the opinion of the majority."

213. Mendiratta, supra note 161, at 181

6.6. Commenting on this Act, the Supreme Court in T.N. Seshan, CEC v. Union of India, (1995) 4 SCC 611 held that the CEC was not superior to the Election Commissioners stating:

"As pointed out earlier, the scheme of Article 324 clearly envisages a multi-member body comprising the CEC and the ECs. The RCs may be appointed to assist the Commission. If that be so the ECs cannot be put on par with the RCs. As already pointed out, ECs form part of the Election Commission unlike the RCs.

Their role is, therefore, higher than that of RCs. If they form part of the Commission it stands to reason to hold that they must have a say in decision-making. If the CEC is considered to be a superior in the sense that his word is final, he 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 advise to the CEC."

[Emphasis supplied]

6.7. It is thus clear that the CEC is at the same position as the other Election Commissioners and only functions as a first amongst equals. Moreover, the Election Commissioners are clearly superior to the Regional Commissioners and Article 324(5) should be amended to reflect that. Given that the removal (impeachment) procedure of the judges of the High Court and Supreme Court is also the same, the benefit of the CEC's removal procedures under Article 324(5) should also be extended to the other Election Commissioners.

6.8. The Law Commission thus, relying on the Court's observations in the Seshan's judgment, and for the reasons aforementioned reiterates and endorses the ECI's proposal to extend the same protection under the Constitution in the matter of removability from office to the Election Commissioners as is available to the CEC. Thus, the second proviso in Article 324(5) after the words "Chief Election Commissioner", the words "and any other Election Commissioner" should be added. In the third proviso, the words "and any other Election Commissioner" should be deleted.

Recommendation

6.9. The following change should be made in Article 324:

  • In sub-section (5), delete the words "the Election Commissioners and" appearing after the words "tenure of office of".
  • In the first proviso to sub-section (5), after the words "Chief Election Commissioner" appearing before "shall not be removed", add the following words, "and any other Election Commissioner"; also, after the words "conditions of service of the Chief Election Commissioner", add the following words, "and any other Election Commissioner".
  • In the second proviso to sub-section (5), after the words "provided further that", delete the words "any other Election Commissioner or" occurring before "a Regional Commissioner".


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