New CEC Sunil Arora says he “fully endorses” the idea. The recommendation, if implemented, would require a constitutional amendment in Article 324.
New Delhi: With a new chief at the helm, the Election Commission is all set to make a fresh push for an array of electoral reforms — including for its longstanding demand to extend constitutional protection to its two election commissioners.
At present, only the the chief election commissioner (CEC) enjoys this privilege.
Last week, recently-appointed CEC Sunil Arora threw his weight behind the demand, saying he “fully endorses” the idea.
The EC is expected to reiterate its demand to Legislative Secretary G. Narayana Raju next month.
The recommendation, if implemented, would require a constitutional amendment in Article 324.
Also read: Why have we made it a national pastime to blame EVMs, asks CEC
The distinction
According to Article 324(5) of the Constitution, the chief election commissioner can be removed from office the same way in which a Supreme Court judge is removed. The removal of any top court judge needs an impeachment motion — a requirement so tough that no Supreme Court judge has ever been impeached in India.
While this clause was added to the Constitution in order to ensure that the Election Commission remains free from external and political interference, the EC has been of the view that the protection is “inadequate”.
According to the clause, the two other election commissioners, along with other regional commissioners, can be removed on the “recommendation of the Chief Election Commissioner”, thus not extending the constitutional protection to them.
In 2015, the Law Commission said in a report that the election commissioners are “superior” to regional commissioners, and thus, Article 324 be amended to reflect the same.
In 2016, the EC too said that “the rationale behind not affording similar protection to other Election Commissioners is not explicable”.
The election body, in its strongly-worded proposal of reforms given to the government, said: “The element of ‘independence’ sought to be achieved under the Constitution is not exclusively for an individual alone but for the whole institution.
“Thus, the independence of the Commission can only be strengthened if the Election Commissioners are also provided with the same protection as that of the Chief Election Commissioner.”
This wasn’t, however, the first instance of the EC seeking constitutional backing for its commissioners.
Also read: EC chief Sunil Arora endorses constitutional protection for fellow commissioners
CEC superior to election commissioners?
The law is clear on the issue that the Election Commission is a multi-member body consisting of the CEC and the election commissioners, and decisions are taken by majority vote.
In its 2015 report, the Law Commission had said that the CEC is at the same position as the other election commissioners and only functions as a “first amongst equals”.
Even the Supreme Court has weighed in on the debate. In the T.N. Seshan CEC v Union of India case, the top court held that the CEC was not superior to the election commissioners.
“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,” held the court.
The two additional ECs were appointed for the first time only in 1989, before which the election body had only one commissioner. During Seshan’s tenure in 1993, the practice was institutionalised, and the EC has since been a multi-member body.