Questioning the independence of Election Commission

The announcement of election schedule for Gujarat Assembly elections thirteen days after the announcement made for Himachal Pradesh has raised eyebrows on the independence of the Election Commission. To recall, the Commission in 2012 had announced the poll schedule for both Gujarat and Himachal Pradesh on the same date. The opposition parties have alleged that the delay in the announcement will give more time to the ruling BJP to offer sops to voters and will impact the voting behaviour of the electorates. The Chief election commissioner, however, defended the decision to announce Gujarat’s dates later, saying that factors such as snowfall in Himachal Pradesh, flood relief efforts in Gujarat and festivities played a role in the decision.

In this backdrop, it is essential to examine the legal and constitutional status of the Election Commission. Under Article 324 of the Constitution the Election Commission has been made responsible for superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of all elections to Parliament and state legislatures and also to the offices of President and Vice President. The Constitution provides that the Commission shall comprise a Chief Election Commissioner and other commissioners. However, in a multi-member Commission, the Chief Elections Commissioner (CEC) shall serve as its Chairman. It is to be noted that the chiefs of various commissions are termed as ‘Chairman’, unlike the Election Commission, whose chief has been designated primarily as ‘Commissioner’. This is mainly because he is entrusted with the powers of superintendence, direction and control or commissioned for conducting elections.

The Supreme Court in T. N. Seshan v. Union of India, 1995 (4) SCC 611 held that though the Chief Election Commissioner does not enjoy a status superior to Election Commissioners, yet Article 324 envisages a permanent body to be headed by a permanent incumbent, namely, the Chief Election Commissioner. Therefore, to preserve and safeguard his independence, he had to be treated differently because there cannot be an election commission without a CEC. That is not the case with other Election Commissioners. They are not permanent incumbents. The service conditions of the CEC are akin to those of the Supreme Court Judges, namely (i) the provisions that he can be removed from Office in like manner and on like grounds as a judge of the Supreme Court and (ii) his conditions of service shall not be varied to his disadvantage after appointment. The Supreme Court on the role of the Election Commission in India maintained that the constitution makers entrusted the task of conducting all elections in the country to a Commission referred to as the Election Commission and to an individual. It may be that, if it is a single-member body the decisions may have to be taken by the CEC but still they will be the decisions of the Election Commission. It would be wrong to project the individual and eclipse the Election Commission. Nobody can be above the institution which he is supposed to serve. The Supreme Court in S.S. Dhanoa vs Union of India AIR 1991 SC 1745 also held that it is necessary to bear these features in mind because although clause (2) of the article states that the Commission will consist of both the Chief Election Commissioner and the Election Commissioners if and when appointed, it does not appear that the framers of the Constitution desired to give the same status to the Election Commissioners as that of the Chief Election Commissioner. The Chief Election Commissioner does not, therefore, appear to be primus inter pares, i.e. first among the equals, but is intended to be placed in a distinctly higher position.

Further, the tenure of the Chief Election Commissioner is also the reflection of its independence as it is out of the purview of executive discretion. The conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment. This protection is analogical to the scrutiny of tenure of office given to the judge of the Supreme Court.

It is crystal clear from the Article 324 (2) that the framers of the Constitution did realise the need to set up an independent body or commission which would be permanently in session with at least one officer, namely, the CEC, and left it to the President to further add to the Commission such number of ECs as he may consider appropriate from time to time. Under Article 324(5), the CEC shall be removed by a process similar to that of the procedure to remove a Judge of the Supreme Court and other ECs and RCs may be removed by the President on the advice of the CEC. It is also to be examined whether the CEC can give suo motu advice for the removal of ECs and RCs. The CEC cannot give suo motu advice and his recommendation must be based on intelligible and cogent considerations which would have relation to the efficient functioning of the 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 realize 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. If therefore, the power was to be exercisable by the CEC as per his whim and caprice, the CEC himself would become an instrument of oppression and would destroy the independence of the ECs and the RCs if they are required to function under the threat of the CEC recommending their removal. It is, therefore, needless to emphasise that the CEC must exercise this power only when there exist valid reasons, which are conducive to the efficient functioning of the Election Commission. This, briefly stated, indicates the status of the various functionaries constituting the Election Commission.

The Supreme Court in Vineet Narayan v. Union of India, 1996 (2) SCC 199 held that the jurisdiction of the Election Commission is wider enough to include all powers necessary for smooth conduct of elections and the word ‘elections’ is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps. The limitation on the plenary character of power is when the Parliament or State Legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with the said provisions. In the case where the law is silent, Article 324 is a reservoir of power to act for the avowed purpose of having a free and fair election. Constitution has taken care of leaving scope for the exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules.

Earlier, in Kanhiya Lal Omar v. R. K. Trivedi AIR 1986 SC 111 the Court construed the expression “superintendence, direction and control” in Article 324(1) and held that a direction may mean an order issued to a particular individual or a precept which may have to follow and it may be a specific or a general order and such phrase should be construed liberally empowering the Election Commission to issue such order.

Conclusively, it would not be appropriate and justified to raise a question on the independence of the Election Commission which enjoys a clear constitutional mandate to conduct free and fair elections which is the core of democracy and is a part of the Basic Structure of the Constitution.

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