Indian Kanoon - Search engine for Indian Law

We may now briefly notice the position of each functionary of the Election Commission. In the first place, clause (2) states that the appointment of the CEC and other ECs shall, subject to any law made in that behalf by Parliament, be made by the President. Thus the President shall be the appointing authority. Clause (5) provides that subject to any law made by Parliament, The conditions of service and the lenure of office of the RCs shall be such as may be determined by rule made by the president. of course the RCs do not form part of the Election Commission but. are appointed merely to help the commission, that is to say, the CEC and the ECs if any. As we have pointed out earlier the lenure, salaries, allowances and other perquisites of the CEC and ECs had been fixed under the Act as equivalent to a Judge of the Supreme Court and the High Court, respectively. This has undergone a change after the ordinance which has so amended the Act as to place them on par. However,the proviso to clause (4) of Article 324 says (i) the CEC shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and (ii) the condition of service of the CEC shall not be varied to his disadvantage after his appointment. These two limitations on the power of Parliament are intended to protect the independence of the CEC from political and/or executive interference. In the case of Ecs as well as Rcs the second proviso to clause(5) provides that they shall not be removed from office except on the recommendation of the CEC. It may also be noticed that while under clause (4), before the appointment of the RCs, consultation with the Election Commission (not CEC) is necessary, there is no such requirement in the case of appointments of ECs. The provision that the ECs and the RCs once appointed cannot be removed from office before the expiry of their tenure except on the recommendation of the CEC ensures their independence. 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 relise 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 were 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 efficient functioning of the Election Commission. This, briefly stated, indicates the status of the various functionaries constituting the Election Commission.

It must be realised that these observations were made, notwithstanding the fact that the learned judges were alive to and aware of the circumstances in which the Persident was required in that case to rescind the notifications creating two posts of ECs and appointing the petitioner Dhanoa and another to them.

There can be no dispute, and indeed there never was, that the Election Commission must be an independent body. It is also clear from the scheme of Article 324 that the said body shall have the CEC as a permanent incumbent and under clause (2) such number of other ECs, if any, as the President may deem appropriate to appoint. The scheme of Article 324, therefore, is that there shall be a permanent body to be called the Election Commission with a permanent incumbent to be called the CEC. The Election Commission can therefore be a single-member body or a multi-member body if the President considers it necessary to appoint one or more ECs. Upto this point there is no difficulty. The argument that a multi-member Election Commission would be unworkable and should not, therefore, be appointed must be stated to be rejected. Our Constitution-makers have provided for a multi- member body. They saw the need to provide for such a body. If the submission that a multi-member body would be unworkable is accepted it would tantamount to destroying or nullifying clauses (2) and (3) of Article 324 of the Constitution. Strong reliance was, however, placed on Dhanoa's case to buttress the argument. The facts of that case were just the reverse of the facts of the present case. In that case the President by a notification issued in pursuance of clause (2) of Article 324 fixed the number of ECs, besides the CEC, at two and a few days thereafter by a separate notification appointed the petitioner and one another as ECs. By yet another notification issued under clause (5) of Article 324 the President made rules to regulate their lenure and conditions of service. After watching the functioning of the multi-member body for about a couple of months, the President issued two notifications rescinding with immediate effect the notification by which the two posts of ECs were created and the notification by which the petitioner and one another were appointed thereto. The petitioner S.S. Dhanoa challenged the notifications rescinding the earlier notification firstly on the ground that once appointed an EC continues in office for the full term determined by rules made under clause (5) of Article 324 and, in any event, the petitioner could not be removed except on the recommendation of the CEC. At the same time it was also contended that the notifications were issued malafide under the advise of the CEC to get rid of the petitioner and his colleague because the CEC was from the very begining ill-disposed or opposed to the ceration of the posts of ECs. According to the petitioner, there were differences of opinion between the CEC on the one hand and the ECs on the other and since the CEC desired that he should have the sole power to decide the did not like the association of the ECs.

That takes us to the question of mala fides. It is in two parts. The first part relates to events which preceded the Ordinance and the second part to post-Ordinance and notification events. On the first part the CEC contends that since, after his appointment, he had taken various steps with a view to ensuring free and fair elections and was constrained to postpone certain elections which were to decide the fale of certain leaders belonging to the ruling party at the Centre, i.e., the National Congress (i), he had caused considerable discomfiture to them. His insistence on strict observance of the model Code of Conduct had also disturbed the calculations of the ruling party. According to him, he had postponed the elections in Kalka Assembly constituency, Haryana, because the Chief Minister of Haryana, belonging to the ruling party at the Centre, had flouted the guidelines. So also he had postponed the elections in the State of Tripura which ultimately led to the dismissal of the Government headed by the Chief Minister belonging to the ruling party at the Centre. The postponement of the bye-elections involving Shri Sharad Pawar and Shri Pranab Mukherjee also upset the calculations of the said party. He had also postponed the election in Anipet Assembly constituency, Tamil Nadu, as the Chief Minister of the State had flouted the model Code of Conduct by announcing certain projects on the eye of the elections. Shri Santosh Mohan Deb, Union Minister, belonging to the ruling party, was also upset because the CEC look disciplinary action against officials who were found present at his election meetings. The ruling party was also unhappy with his decision to announce general elections for the State Assemblies for Madhya Pradesh, Uttar Pradesh, Rajasthan, Himachal Pradesh and the National Capital Territory of Delhi as the party was not ready for the same. According to the CEC he had also spurned the request made through the Ieieutenant Governor of Delhi by the said party for postponement of the Delhi elections. According to him, emissaries were sent by the said party at the Centre to him but he did not oblige and he even look serious exception regarding the conduct of the Governor of Uttar Pradesh, Shri Moti Lal Vohra, for violating the model Code of Conduct. Since the ruling party at the Centre failed in all its attempts to prevail upon to him, it decided to convert the Election Commission into a multi-member body and, after having the Ordinance issued by the President, the impugned notifications appointing the two ECs were issued. The extraodinary haste with which all this was done while the CEC was at Pune and the urgency with which one of the appointees Shri M.S. Gill was called to Delhi by a special aircraft betrayed the keenness on the part of the ruling party to install the two newly appointed ECs. The CEC describes in detail the post-appointment events which took place at the meeting of 11th October, 1993 in paragraphs 18

(c) to (f) and (g) of the writ petition. According to him, by the issuance of the Ordinance and the notifications the ruling party is trying to achieve indirectly that which it could not achieve directly. These, in brief, are the broad counts on the basis whereof he contends that the ruling party at the Centre was keen to dislodge him.

On behalf of the union of India it is contended that the allegation that the power to issue an Ordinance was misused for collateral purpose, namely, to impinge on the independence of the Election Commission, is wholly misconceived since it is a known fact that the demand for a multi-member Commission had been raised from time to time by different political parties. The Joint Committee of both Houses of Parliament had submitted a report in 1972 recommending a multi-member body and the Tarkunde Committee appointed on behalf of the Citizens for Democracy also favoured a multi-member Election Commission in its report submitted in August 1974. Similarly, the Committee on electoral reforms appointed by the Janata Dal Government, in its report in May, 1990, favoured a three member Election Commission. Various Members of Parliament belonging to different political shades had also raised a similar demand from time to time. The Advocates General of various States in their meeting held on 26th September, 1993 at New Delhi had made a similar demand. It was, therefore, not correct to contend that the decision to constitute a multi-member Election Commission was abruptly taken with a mala fide intention, to curb the activities of the present CEC. The allegation that the decision was taken because the ruling party at the Centre was irked by the attitude of the CEC in postponing elections on one ground or the other is denied. The issue regarding the constitution of a multi-member Election Commission was a live issue and the same was discussed at various fora and even the Supreme Court in Dhanoa's case had indicated that vast discretionary powers, with virtually no checks and balances, should not be left in the hands of a single individual and it was desirable that more than one person should be associated with the exercise of such discretionary powers. It was, therefore, in public interest that the Ordinance in question was issued and two ECs were appointed to associate with the CEC. The deponent contends that this was a bona fide exercise and it was unfortunate that a high ranking official like the CEC had alleged that one of the ECs had been appointed because he was a close friend of the Prime Minister, an allegation which was unfounded. It is therefore denied that the Ordinance and the subsequent notifications appointing the two ECs were intended to sideline the CEC and erode his authority. The Government bona fide followed the earlier reports and the observations made in Dhanoa's case to which a reference has already been made. It is, therefore, contended that Sections 9 and 10 do not suffer from any vice as alleged by the CEC. The two ECs have also filed their counter affidavits denying these allegations. Shri G.V.G. Krishnamurthy, Respondent No.3 in the CEC's petition, has pointed out that the CEC had made unprecedented demands, for example, (i) to be equated with Supreme Court Judges, and had pressurised the Government that he be ranked along with Supreme Court Judge in the Warrant of Precedence, (ii) the powers of contempt of court be conferred upon the Election Commission, (iii) the CEC had refused to participate in meetings as ex-officio member of the delimitation Commission headed by Mr. Justice A.M. Mir, Judge of the High Court of J & K, on the ground that his position was higher, he having been equated with judges of the Supreme Court, (iv) the CEC be exempted from personal appearance in court, (v) the Election Commission be exempted from the purview of the UPSC so far as its staff was concerned, etc. The learned Allorney General pointed out that no mala fides can be attributed to the exercise of legislative power by the President of India under Article 123 of the Constitution. He further pointed out. that having regard to the express language of Article 324(2) of the Constitution, it was perfectly proper to expand the Election Commission by making appropriate changes in the extant law. The question whether it is necessary to appoint other ECs besides the CEC is for the Government to decide and that is not a justiciable matter. The demand for a multi-member Commission was being voiced for the last several years and merely because it was decided to make an amendment in the statute through an Ordinance, it is not permissible to infer that the decision was actuated by malice. It was lastly contended that Article 324 nowhere stipulates that before ECs are appointed, the CEC will be consulted. In the absence of an express provision in that behalf, it cannot be said that the failure to consult the CEC before the appointments of the two ECs viliates the appointment.