Election Commision proposal to protect poll body members put on backburner

The government has put in cold storage a proposal of the Election Commission to give equal constitutional protection to all members of the poll body with regard to their removal, saying it would require amending the Constitution.

The Law Ministry is learnt to have informed the Election Commission that a political consensus needed to be evolved before section 324(5) of the Constitution could be amended to provide equal protection to the Election Commissioners in the event of their removal. A senior government functionary said that the Supreme Court had also upheld the present provision that the Election Commissioners and the Regional Commissioners once appointed cannot be removed from office before the expiry of their tenure "except on the recommendation of the CEC" which "ensures their independence".

The President appoints Chief Election Commissioner and Election Commissioners after the Law Ministry initiates the file for their appointment. The Chief Election Commissioner can be removed from office only through impeachment by Parliament. The President can remove the ECs based on the recommendation of the CEC.

At a meeting between Chief Election Commissioner Nasim Zaidi and top Law Ministry officials here on January 5, the poll body had said it wants the government to adopt the same removal procedures for the two Election Commissioners as in case of the Chief Election Commissioner. Besides other senior officials, the CEC was accompanied by Election Commissioner OP Rawat at the meeting.

Reference to the provisions

At a follow-up meeting later, senior officials of the Law Ministry were learnt to have informed the Commission that the demands for equal protection to the two ECs needed amendment to Constitution for which political unanimity was required. The officials are also understood to have referred to the 1995 Supreme Court judgement in the TN Seshan, Chief Election Commissioner of India Vs Union of India case in which the apex court had also examined Article 324 (5) of the Constitution dealing with appointment and removal of CEC and fellow Commissioners.

The provision states that "any other Election Commissioner or a Regional Commissioner (RC) shall not be removed from office except on the recommendation of the Chief Election Commissioner."  "The scheme of Article 324 in this behalf is that after insulating the CEC by the first proviso to clause(5), the ECs and the RCs have been assured independence of functioning by providing that they cannot be removed except on the recommendation of the CEC. Of course, the recommendation for removal must be based on intelligible and cogent considerations which would have relation to efficient functioning of the Election Commission."

"That is so because this privilege has been conferred on the CEC to ensure that the ECs as well as the RCs are not at the mercy of political or executive bosses of the day. It is necessary to realise that this check on the Executive's power to remove is built into the second proviso to clause (5) to safeguard the independence of not only these functionaries but the Election Commission as a body," the apex court order had said.

In its report on electoral reforms submitted in March last year, the Law Commission had also proposed extending constitutional protection to the two ECs. "When Constitution says that the ECs may be appointed as the President may decide from time to time, how can we give them Constitutional protection," he maintained.

The senior functionary also pointed out that even Article 324 (2) talks of CEC who will be the chairman of the Election Commission and that "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."

From Chief Election Commissioner to CEC and two Election Commissioners

Election Commission is a permanent Constitutional body which was established in accordance with the Constitution on January 25, 1950. Originally the Commission had only a Chief Election Commissioner. It currently consists of Chief Election Commissioner and two Election Commissioners.

For the first time two additional Commissioners were appointed on October 16, 1989 but they had a very short tenure till January 1, 1990. Later, on October 1, 1993 two additional Election Commissioners were appointed. The concept of multi-member Commission has been in operation since then, with decision making power by majority vote.