Before 1989, Election commission used to have just one Commissioner i.e. Chief Election Commissioner.
The Notification
It was on 7Oct 1989 that the President, in exercise of his powers under Clause 2 of Article 324 of the Constitution, fixed the number of Election Commissioners as two. This was to continue until further orders. Later on, on 16 Oct 1989, two persons of which, one was Shri S.S. Dhanoa, were appointed as the Election Commissioners. It was for the first time after Independence that Election Commissioners were appointed, thereby making the Election Commission of India a multi-Member Commission.
In other words, till 16Oct 1989, the Chief Election Commissioner constituted the Election Commission of India. The multi-Member Commission was, however, a short-lived affair. In less than three months’ time, on 1Jan 1990, exercising power under Article 324(2), the President notified, with immediate effect, the rescinding of the Notification dated 7Oct 1989, by which Notification, the two posts of Election Commissioner had been created. Another Notification rescinding the Notification dated 16Oct 1989, by which the two Election Commissioners were appointed, came to be issued.
Notification Challenged- S.S. Dhanoa v. UOI (1991)
The latter Notifications came to be challenged by Shri S.S. Dhanoa before Supreme Court. A Bench of two learned Judges dismissed the Writ Petition. This Court took the view, inter alia, that the framers of the Constitution did not want to give same status to the Election Commissioners as was conferred on the Chief Election Commissioner. In the course of this Judgment in S.S. Dhanoa v. Union of India and others(1991)[1], this Court, inter alia, observed as follows:
“17. … There is no doubt that there is an important distinction between the Council of Ministers and the Election Commission in that whereas the Prime Minister or the Chief Minister is appointed by the President or the Governor and the other Ministers are appointed by the President or the Governor on the advice of the Prime Minister or the Chief Minister, the appointment of both the Chief Election Commissioner and the other Election Commissioners as the law stands today, is made by the President under Article 324(2) of the Constitution. It has, however, to be noted that the provisions of the said article have left the matter of appointment of the Chief Election Commissioner and the other Election Commissioners to be regulated by a law to be made by the Parliament, and the President exercises the power of appointing them today because of the absence of such law which has yet to be made. …”
Thereafter, the Court went on to find that there was really no need to have appointed the Election Commissioners and, still further made the following observations:
“26. There is no doubt that two heads are better than one, and particularly when an institution like the Election Commission is entrusted with vital functions, and is armed with exclusive uncontrolled powers to execute them, it is both necessary and desirable that the powers are not exercised by one individual, however, all-wise he may be. It ill conforms the tenets of the democratic rule. It is true that the independence of an institution depends upon the persons who man it and not on their number.
A single individual may sometimes prove capable of withstanding all the pulls and pressures, which many may not. However, when vast powers are exercised by an institution which is accountable to none, it is politic to entrust its affairs to more hands than one. It helps to assure judiciousness and want of arbitrariness. The fact, however, remains that where more individuals than one, man an institution, their roles have to be clearly defined, if the functioning of the institution is not to come to a naught.”
The Court found that it was not a case of removal of the Election Commissioners within the meaning of the second proviso to Article 324(5).
Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991
Article 324(5) contemplates a law being made to regulate the conditions of service and the tenure of Office of the Election Commissioners. A Committee known as the Goswami Committee, made certain recommendations. On its heels, Parliament passed an Act titled ‘The Chief Election Commissioner and other Commissioners (Conditions of Service) Act, 1991.
Dhanoa Case(Supra) led to certain changes in the 1991 Act. The changes were introduced through an Ordinance published in the Gazette of India on 01.10.1993. It, inter alia, provided for a new Chapter III, which contemplates that as far as possible, all business shall be transacted unanimously (Section 10(2) of the 1991 Act). Section 10(3) provides that subject to Section 10(2), in case of difference of opinion, the matter is to be decided according to the opinion of the majority. This, it must be noticed, was introduced in the context of the observations in S.S. Dhanoa (supra).
By the Ordinance dated 01.10.1993, other far-reaching changes were introduced, which, inter alia, provided for bringing the Election Commissioners substantially on par with the Chief Election Commissioner. The Chief Election Commissioner, it must be noticed, under the 1991 Act, was to be paid a salary equal to the Judge of the Supreme Court. The Election Commissioner was to be paid the salary equal to the Judge of the High Court. After the amendment, they stand equated.
The 1991 Act also provided that the Chief Election Commissioner would be entitled to continue in Office till the age of 65 years whereas the Election Commissioner was to continue in Office till he attains the age of 62 years. The age of superannuation of the Chief Election Commissioner and the Election Commissioner was brought on par by the Ordinance insofar as both were entitled to continue for a period of six years subject to their liability to vacate Office should they attain the age of 65 years before the expiry of six years from the date on which they assumed Office.
However, under the first proviso to Article 324(5), the Chief Election Commissioner can be removed from his Office only in the manner and on the like grounds as the Judge of the Supreme Court of India. The first proviso also prohibits the conditions of service of the Chief Election Commissioner being varied to his disadvantage after his appointment. In the matter of the removal of the Election Commissioner or a Regional Commissioner the second proviso to Article 324(5) provides the safeguard for the Election Commissioner or a Regional Commissioner that they cannot be removed except on the recommendation of the Chief Election Commissioner.
On 01.10.1993, again, in exercise of the powers under Article 324(2), the President fixed until further orders, the number of Election Commissioners other than the Chief Election Commissioner at two. Two Election Commissioners also came to be appointed w.e.f. 01.10.1993. The Ordinance, which had been passed on 01.10.1993, became Act No. 4 of 1994 on 04.01.1994. This led to certain Writ Petitions being filed calling in question the Ordinance including at the instance of Shri T.N. Seshan, who, it must be noticed, was appointed earlier on 12.12.1990 as the Chief Election Commissioner. He challenged the Ordinance on various grounds.
T.N. Seshan, Chief Election Commissioner of India v. Union of India(1995)[2]
Matters engaged the attention of the Constitution Bench and its decision is reported in T.N. Seshan, Chief Election Commissioner of India v. Union of India and others[3]. The Constitution Bench, we may notice, made the following observations:
“10. The Preamble of our Constitution proclaims that we are a Democratic Republic. Democracy being the basic feature of our constitutional set-up, there can be no two opinions that free and fair elections to our legislative bodies alone would guarantee the growth of a healthy democracy in the country. In order to ensure the purity of the election process it was thought by our Constitution-makers that the responsibility to hold free and fair elections in the country should be entrusted to an independent body which would be insulated from political and/or executive interference.
It is inherent in a democratic set-up that the agency which is entrusted the task of holding elections to the legislatures should be fully insulated so that it can function as an independent agency free from external pressures from the party in power or executive of the day. This objective is achieved by the setting up of an Election Commission, a permanent body, under Article 324(1) of the Constitution. The superintendence, direction and control of the entire election process in the country has been vested under the said clause in a commission called the Election Commission.
Clause (2) of the said article then provides for the constitution of the Election Commission by providing that it shall consist of the CEC and such number of ECs, if any, as the President may from time to time fix. It is thus obvious from the plain language of this clause that the Election Commission is composed of the CEC and, when they have been appointed, the ECs. The office of the CEC is envisaged to be a permanent fixture but that cannot be said of the ECs as is made manifest from the use of the words “if any”.
Dr Ambedkar while explaining the purport of this clause during the debate in the Constituent Assembly said: “Sub-clause (2) says that there shall be a Chief Election Commissioner and such other Election Commissioners as the President may, from time to time appoint. There were two alternatives before the Drafting Committee, namely, either to have a permanent body consisting of four or five members of the Election Commission who would continue in office throughout without any break, or to permit the President to have an ad hoc body appointed at the time when there is an election on the anvil. The Committee has steered a middle course.
What the Drafting Committee proposes by sub-clause (2) is to have permanently in office one man called the Chief Election Commissioner, so that the skeleton machinery would always be available.”
It is crystal clear from the plain language of the said clause (2) that our Constitution- makers realised 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. Clause (3) of the said article makes it clear that when the Election Commission is a multi-member body the CEC shall act as its Chairman. What will be his role as a Chairman has not been specifically spelt out by the said article and we will deal with this question hereafter. Clause (4) of the said article further provides for the appointment of RCs to assist the Election Commission in the performance of its functions set out in clause (1). This, in brief, is the scheme of Article 324 insofar as the constitution of the Election Commission is concerned.”
The Court went on to disagree with certain parts of the Judgment in S.S. Dhanoa (supra). The Court, inter alia, held that the Election Commission of India can be a Single-Member Body or a multi-Member Body. It was further held as follows:
“16. While it is true that under the scheme of Article 324 the conditions of service and tenure of office of all the functionaries of the Election Commission have to be determined by the President unless determined by law made by Parliament, it is only in the case of the CEC that the first proviso to clause (5) lays down that they cannot be varied to the disadvantage of the CEC after his appointment. Such a protection is not extended to the ECs. But it must be remembered that by virtue of the Ordinance the CEC and the ECs are placed on a par in the matter of salary, etc.
Does the absence of such provision for ECs make the CEC superior to the ECs? The second ground relates to removability. In the case of the CEC he can be removed from office in like manner and on the like ground as a Judge of the Supreme Court whereas the ECs can be removed on the recommendation of the CEC. That, however, is not an indicia for conferring a higher status on the CEC. To so hold is to overlook the scheme of Article 324 of the Constitution. It must be remembered that the CEC is intended to be a permanent incumbent and, therefore, in order to preserve and safeguard his independence, he had to be treated differently.
That is because there cannot be an Election Commission without a CEC. That is not the case with other ECs. They are not intended to be permanent incumbents. Clause (2) of Article 324 itself suggests that the number of ECs can vary from time to time. In the very nature of things, therefore, they could not be conferred the type of irremovability that is bestowed on the CEC. If that were to be done, the entire scheme of Article 324 would have to undergo a change.
In the scheme of things, therefore, the power to remove in certain cases had to be retained. Having insulated the CEC from external political or executive pressures, confidence was reposed in this independent functionary to safeguard the independence of his ECs and even RCs by enjoining that they cannot be removed except on the recommendation of the CEC. This is evident from the following statement found in the speech of Shri K.M. Munshi in the Constituent Assembly when he supported the amended draft submitted by Dr Ambedkar:
“We cannot have an Election Commission sitting all the time during those five years doing nothing. The Chief Election Commissioner will continue to be a whole-time officer performing the duties of his office and looking after the work from day to day but when major elections take place in the country, either Provincial or Central, the Commission must be enlarged to cope with the work. More members therefore have to be added to the Commission. They are no doubt to be appointed by the President. Therefore, to that extent their independence is ensured. So there is no reason to believe that these temporary Election Commissioners will not have the necessary measure of independence.”
Since the other ECs were not intended to be permanent appointees they could not be granted the irremovability protection of the CEC, a permanent incumbent, and, therefore, they were placed under the protective umbrella of an independent CEC. This aspect of the matter escaped the attention of the learned Judges who decided Dhanoa case [(1991) 3 SCC 567]. We are also of the view that the comparison with the functioning of the executive under Articles 74 and 163 of the Constitution in paragraph 17 of the judgment, with respect, cannot be said to be apposite.”
Dealing with the argument that as the Chief Election Commissioner is designated as the Chairman, it put him on a higher pedestal, this Court, inter alia, held as follows:
“19. … The function of the Chairman would, therefore, be to preside over meetings, preserve order, conduct the business of the day, ensure that precise decisions are taken and correctly recorded and do all that is necessary for smooth transaction of business. The nature and duties of this office may vary depending on the nature of business to be transacted but by and large these would be the functions of a Chairman. He must so conduct himself at the meetings chaired by him that he is able to win the confidence of his colleagues on the Commission and carry them with him. This a Chairman may find difficult to achieve if he thinks that others who are members of the Commission are his subordinates.
The functions of the Election Commission are essentially administrative but there are certain adjudicative and legislative functions as well. The Election Commission has to lay down certain policies, decide on certain administrative matters of importance as distinguished from routine matters of administration and also adjudicate certain disputes, e.g., disputes relating to allotment of symbols. Therefore, besides administrative functions it may be called upon to perform quasi-judicial duties and undertake subordinate legislation-making functions as well. We need say no more on this aspect of the matter.”
Still further, we may notice the following discussion, which brings out the rationale for treating the Chief Election Commissioner differently from the Elections Commissioners:
“21. We have pointed out the distinguishing features from Article 324 between the position of the CEC and the ECs. It is essentially on account of their tenure in the Election Commission that certain differences exist. We have explained why in the case of ECs the removability clause had to be different. The variation in the salary, etc., cannot be a determinative factor otherwise that would oscillate having regard to the fact that the executive or the legislature has to fix the conditions of service under clause (5) of Article 324.
The only distinguishing feature that survives for consideration is that in the case of the CEC his conditions of service cannot be varied to his disadvantage after his appointment whereas there is no such safeguard in the case of ECs. That is presumably because the posts are temporary in character. But even if it is not so, that feature alone cannot lead us to the conclusion that the final word in all matters lies with the CEC. Such a view would render the position of the ECs to that of mere advisers which does not emerge from the scheme of Article 324.”
It is clear that the founding fathers intended that the elections in the country must be under the superintendence, direction and control of an independent Body. The Body is the Election Commission of India. Under Article 324, the Chief Election Commissioner is an unalterable feature or figure. A Commission can consist of only the Chief Election Commissioner. A multi-Member Commission was also contemplated by the founding fathers. However, the post of Election Commissioner was to be need based.
For nearly four decades, there was no Election Commissioner. As we have noticed, it is on 16.10.1989 that the first two Election Commissioners were appointed. In regard to the appointment of the Chief Election Commissioner and other Election Commissioners, the Constitution does not provide for any criteria. It does not fix any qualifications. It does not prescribe any disqualifications in the matter of appointment as either Chief Election Commissioner or Election Commissioner. The appointees have been bureaucrats drawn from the Civil Services.
Reference
Anoop Baranwal v. UOI, (2023)
[1] (1991) 3 SCC 567
[2] (1995) 4 SCC 611
[3] Ibid