The way of the EC

Article 324 gives administrative primacy to the CEC. The EC can consist of a CEC and such other election commissioners as may be provided from time to time. There is, however, one fundamental flaw in the Constitution. The Constitution does not provide the qualifications for appointment of an election commissioner or CEC. It merely provides that the appointment shall be made by the president, on the aid and advice of the council of ministers. Members of the EC are thus to be appointed by the political executive.

The EC is a regulator of free and fair elections. It is expected to be impartial and yet its appointment is to be made by the government of the day.

Realising this inadequacy in the Constitution, B.B. Tandon, the erstwhile CEC, had written to the then president, A.P.J. Abdul Kalam, suggesting that a national debate be initiated for amending this provision — for constituting a collegium to make the appointment of members of the EC in order to ensure that its members are impartial and independent. However, Article 324(5) lays down the procedure for removal of the CEC and the other election commissioners. It provides for removal of the CEC on the like grounds and in the like manner as a judge of the Supreme Court, that is, through an impeachment process as envisaged under Article 124(4) of the Constitution. The second proviso to Article 324(5) states that the election commissioner or a regional commissioner shall not be removed from office except on the recommendation of the CEC.

The government wants to contend that the removal of the election commissioner can only be made by the government in power. If the government decides to remove the election commissioner it can call for a recommendation of the CEC, as a safety valve.

It is important that the provisions of Article 324 are construed in a manner so as to strengthen the independence and impartiality of the EC. We live with a constitutional flaw that an independent EC is appointed by members of a political party when it is in government. The appointment process can suffer from an institutional bias. Must the vigil on their performance and the removal process also be vitiated by the same bias particularly when the Constitution did not so provide?

Firstly, there are two separate provisos in Article 324(5); one providing that CEC is not to be removed except under an impeachment process and second that an election commissioner or a regional commissioner not to be removed except on the recommendation of CEC. The resolution of two houses of Parliament is always binding on the political executive or the president in regard to the impeachment. Nobody has ever suggested that the parliamentary resolution on impeachment is only a safety valve and not a condition.

If the first proviso to Article 324(5) in the context of removal of a CEC is binding, can an absurd interpretation be placed on the Constitution that the second proviso containing a condition precedent for removal of an election commissioner is merely recommendatory.

Secondly, the object of the constitutional interpretation is to strengthen the EC in its independence. Just as in the context of judicial appointments the object in the Constitution was to strengthen the independence of the judiciary, in the second judges case (Supreme Court AOR Association) 1993, the Supreme Court interpreted the word “consultation” in the appointment of judges to be a binding consultation on the political executive. This was done on the rationale that “a fortori any construction of the constitutional provisions which conflicts with the constitutional purpose or negates the avowed object has to be eschewed being opposed to the true meaning and spirit of the constitution and, therefore, an alien concept.”

Thirdly, if the contrary argument were to be accepted, an absurdity would arise wherein if the allegation against an election commissioner is one of political bias, the beneficiary of the political bias, that is the ruling party, would then have the final say in deciding whether the incumbent is biased in its favour or not.

Fourthly, it is after a two decade long debate that the Supreme Court in Writ Petition No. 606/1993 finally decided upon a settlement between the government of India and the EC that during the elections, the power to remove officers who indulge in delinquent conduct would be with the EC and not with the central or state government. The same would apply to the removal of a regional commissioner. The Constitution deals with the removal a regional commissioner or an election commissioner on the same basis. Can it be argued that the decision of the EC for removing officers or regional commissioners from election duties is not binding on the government? An approach leaning in favour of the government would destroy the independence of the EC itself.

The stand of the CEC N. Gopalaswamy that he can act against a member of the EC either suo motu or on receipt of a memorandum appears to be correct. Sixty years of India’s freedom have shown that we survived assaults on democracy primarily because unlike Pakistan we have a professional and a non-political army, a judiciary which does not follow the ballot box and an election commission which at the behest of government does not rig elections. We also have a media which though at times over-enthusiastic, is usually independent.

In the 60th year of independence let our politicians and government pause and think whether any of these institutions must be tinkered with or their strength, independence and professionalism diluted.

The writer, a senior lawyer and BJP leader, is a Rajya Sabha MP