A Critical Study Of The Position Of The Chief Election Commissioner In The Light Of Cases Such As Ss Dhanoa V. Union Of India And Tn Seshan Case

INTRODUCTION

Perhaps the framers of the Constitution did not outline the procedure for conducting business in a multi-member Election Commission, since they did not feel the need to do so, considering high constitutional functionaries were to man the Commission. However, the actual functioning of multi-member Election Commissions have proved otherwise. Thus, there was the need to define the relationship that should bind the Chief Election Commissioner and the Election Commissioners, to ensure the smooth functioning of the Commission. The given article involves a critical analysis of the position of the Chief Election Commissioner (hereinafter referred to as the CEC) with respect to Election Commissioners (hereinafter referred to as the ECs), all of whom form part of a constitutional body called the Election Commission (hereinafter referred to as the Commission). Established under Article 324 of the Constitution, it is intended to oversee the entire election process to ensure free and fair elections are taking place. Since India follows a democratically elected form of government, the importance of free and fair elections cannot be over-emphasized.

The Commission can exist as a single or even as a multi-member body. The framers of the Constitution provided for but did not make mandatory a multi-member body, to ensure uncontrolled powers are not in the hands of the CEC alone. But it was only in 1989, that ECs were appointed for the first time. The existing constitutional provisions, as will be noted, do provide for the appointment of the ECs, but do not specify the manner of functioning of the Commission if it has more members than the CEC alone. Therefore, it became necessary lay down procedural rules concerning the functioning of the Commission and define the roles of the CEC and the ECs. The first important judicial decision in this connection was SS Dhanoa v. Union of India, followed by TN Seshan v. Union of India. Both the decisions differed substantially on a number of points of law. While the former placed the CEC at a higher position as compared to the ECs, the latter established that they are all equally placed. The present legal position fully supports the Supreme Court decision in the latter case.

THE ROLE OF THE ELECTION COMMISSION IN INDIA

A. IMPORTANCE OF FREE AND FAIR ELECTIONS IN A DEMOCRACY

In a democracy, sovereign power is in the hands of the collective body of the people, who alone decide who their representatives shall be, and how they shall govern over them. Free and fair elections are a must in any democracy, as this is the only means by which the people can chose their representatives. All modern democracies therefore have a system of elections, through which their head of state is decidecided.

The notion of free and fair elections is that everyone should enjoy equal political rights. Inequalities may exist in society and in the economy, but politically everyone should be equally placed in so far as choosing their representatives is concerned. This has led to the emergence of universal adult franchise, meaning all those who are adults will be entitled to vote. Thereby, a number of undemocratic requirements intended to limit the electorate strength stand done away with, such as holding property, educational qualifications, etc. The principle of one man, one vote, and one value is what can best sum up the concept of universal adult franchise.

The process of elections, so as to be truly meaningful has to be free and fair. For this purpose, it is necessary to ensure there is an independent and impartial body to oversee the process of elections. Ideally, it should consist of representatives completely insulated from all kinds of extraneous pulls and pressures, like those likely to be exerted by the ruling party. Its actions must be judicially reviewable if found to be patently mala fide, but should not otherwise be subject to any executive or legislative control.

In India, the Constituent Assembly chose to enact specific constitutional provisions with respect to elections, in contrast to the usual practice of other constitutions that simply confer authority to the national legislature to enact laws in this respect. The Drafting Committee on Fundamental Rights prepared a report to the effect that the independence of elections and avoidance of any executive interference should be a fundamental right. As Dr. Ambedkar said, “Many people felt that if the elections were conducted under the auspices of an executive authority … which did not have sufficient power that will certainly vitiate the process of free elections.” The House did not incorporate this as a fundamental right, but without any kind of dissent decided that there has to be an independent body called the “Election Commission” that has to be free from all kinds of executive interference. All this indicates the high degree of importance placed upon free and fair elections by the Constituent Assembly.

B. PERMANENT ELECTION COMMISSION WITH CEC AS PERMANENT INCUMBENT

There were two broad approaches before the Constituent Assembly. On the one hand, it could have appointed a permanent body consisting of 4 – 5 representatives who would continue in office continuously. Since elections are not a daily affair, that would have proved to be unnecessary, and was therefore not adopted. But rejecting this approach would have meant the absence of an election machinery. On the other hand, the President could have been permitted to appoint an ad hoc body as and when elections were approaching. Finally, it was decided to adopt a middle path, by having a permanent body called the Election Commission consisting of the CEC as its permanent incumbent. The basic, skeletal machinery would thus be available at all times. At the same time, the President could add to that machinery by appointing other members of the Commission, thereby ensuring that the additional work burden at the time of elections could be successfully handled.

In the Constituent Assembly, Prof. Shibban Lal Saksena desired that the CEC and the ECs should be removed by the same process – on the same grounds and in the same manner as a judge of the Supreme Court. Also, he contended that there should be an express provision to the effect that the service conditions of the ECs shall not be altered to their disadvantage after their appointment, as had been provided to the CEC. For some reason, this amendment was not accepted. On a plain reading of the relevant constitutional provisions, it would have appeared that there is a clear distinction between the CEC and the ECs.

In so far as the terms and conditions of service of the ECs are concerned, the President was given full authority to decide upon the same by framing rules. The relevant constitutional provisions simply laid down the manner of removal of the CEC. As justified by the framers of the Constitution, this provision was found necessary to ensure the independent functioning of the Commission, by insulating it from executive control. Clearly, the aim of having an independent and impartial election machinery would have been defeated had the executive been in a position to simply remove the CEC. However, it is surprising no similar provision was expressly guaranteed to the ECs, since it cannot be said a multi-member Commission could not have been envisaged at that point of time. The President can remove the ECs upon the recommendations of the ECs, but those recommendations are required to be founded upon relevant considerations. Should that not be so, judicial review shall extend, even to the extent of quashing such a removal. Therefore, it may be inferred that there is as such no lack of constitutional protection to the ECs. The constitutional protection enjoyed by the CEC may not be expressly provided to the ECs, but the manner of removal of both the CEC and the ECs does not appear to give scope for any mala fide action that may affect the independence of the Commission.

The requirements to be fulfilled by an election machinery include, as held by the Supreme Court in NP Ponnuswami v. Returning Officer, Namakkal Constituency :

There should be a set of rules and laws making provisions to all matters in relation to elections. It should be decided as to how these rules are to be made.

There should be an executive charged with the duty of securing the due conduct of elections.

There should be a judicial tribunal to decide all disputes arising in connection with elections.

Part XV of the Constitution deals with elections. The second requirement is satisfied by Article 324, while Articles 327 and 328 deal with the first. Article 329 deals with the third one.

C. THE CONSTITUTION AND THE COMMISSION

The researcher shall now briefly examine the relevant constitutional provisions relating to the Commission. Under Article 324 (1), the superintendence, direction and control of elections is in the hands of the Election Commission, which is to conduct all elections to the offices of the President, Vice-President, and the Parliament and state legislatures. Since it enjoys the status of an independent constitutional body, there were even proposals to authorize it to conduct elections to the Panchayats and Nagar Palikas as well, but these did not take the shape of law. The entire process of conducting elections (including preparation of electoral rolls) is done by the Commission. This provision being fairly widely worded enables the Commission to exercise its authority in relation to all those issues in connection with elections.

Under Article 324 (2) the President may appoint ECs in consultation with the CEC. With respect to their appointment, it should be noted their appointment is not mandatory. It shall be done keeping in mind the requirements of the Commission from time to time. For this reason, their number is not fixed. They are thus intended to assist the CEC in discharging his functions. An increased work burden in itself will not justify their appointment. The duties to be performed have to be of such nature so as to warrant their appointment. Their appointment has to be on justifiable grounds, that the judiciary may call into question. The appointment of ECs shall be subject to the provisions of any law passed by the Parliament in this respect. They shall be appointed upon the recommendations of the CEC, but this does not place him at a higher position. Drawing an analogy, in the Supreme Court, and even in the High Courts, the judges are appointed by the President in consultation with the Chief Justice. But this does not mean the Chief Justice is at a higher position as compared to the judges. His decisions are not binding upon the other judges, they being free to decide a case as they please in accordance with the relevant legal principles.

Under Article 324 (3) in a multi-member Commission, the President shall act as the Chairman of the body. By virtue of being the Chairman, to what extent may he control the ECs in discharge their functions? In the first place, should he be allowed to control the ECs in performing their functions, the independence of the Commission shall stand directly affected. The very purpose for which the ECs are appointed shall thereby be defeated. The appointment of ECs ensures there is a system of checks and balances in force to check the CEC, to ensure that he does not exceed his jurisdiction. Their independence is therefore a must.

The relevant constitutional provisions have taken adequate care to ensure the independence of this body from all kinds of executive influences. Under Article 324 (5), the CEC can be dismissed only in the same manner as a judge of the Supreme Court. Further, his conditions of service cannot be changed to his disadvantage after his appointment. The same constitutional protections have not been expressly extended to the ECs, as they can be removed only on the recommendations of the CEC. The Commission may require staff to help it in discharging its function of conducting elections. Under Article 324 (6), the President or the Governor of a state shall ensure all necessary staff is provided to it for this purpose. However, there is a distinction between ordinary staff and ECs, the latter may be appointed only when the work burden of the Commission is such that it cannot be discharged by using ordinary staff.

Considering the nature of functions to be performed by it, the Commission has been armed with widest possible powers. Since it is beyond the scope of this article to discuss all these powers, the writer shall deal with them in brief. The Commission can go to the extent of ordering a repoll in those constituencies wherein elections have not been conducted fairly. The final word as to which symbol shall be allotted to which party shall be decided by the Commission itself. In all contingencies that have not been provided for by the law, the Commission may pass necessary orders.

The conduct of free and fair elections is what is intended to be achieved. Therefore, if the conditions in a state are conducive due to breakdown of law and order, or due to other factors that in the opinion of the appropriate authorities shall prevent the people from choosing their candidates in a fair manner, the Commission may postpone elections, but only for a reasonable period of time. In Yadav Reddy v. Election Commission of India, a Division Bench of the Supreme Court refused to interfere with the Election Commission’s order for postponing elections for the Bihar Assembly for a definite period of time, due to the conditions prevailing in Bihar at that point of time.

In recent years, there has been a lot of concern about the manner in which elections are to be funded. In this respect, the Commission has the authority to issue directions, in the process of conducting elections, requiring all political parties to provide details of their expenditure in the elections, and the sources of their funds. (Held in Common Cause (A Registered Society) v. Union of India).

THE CHIEF ELECTION COMMISSIONER – NOT A “FIRST AMONG EQUALS”

A. FACTS OF THE SS DHANOA CASE

I. On 7th October 1989, the President, in exercise of his powers under Article 324 (2), issued a notification fixing the number of Election Commissioners at two.

II. On 16th October 1989, by a subsequent notification issued in exercise of the same power, he appointed SS Dhanoa (the petitioner) and VS Seigell as the Election Commissioners. By another notification issued on the same day, he made rules to regulate regulated their conditions of service.

III. According to these rules, an EC shall hold office for a term of 5 years or till he attains the age of 65 years, whichever happens earlier.

IV. On 1st January 1990, the President issued another notification in exercise of the same power rescinding the previous notifications with immediate effect.

V. The petitioner challenged the notification of 1st January 1990 in his writ petition.

B. MANNER OF ABOLITION OF POSTS OF ECs

The petition challenged the manner of abolition of the posts of the ECs. The court upheld the validity of the final Presidential notification. The scope of judicial review extends to he abolition of their posts was open to judicial review, as was the creation of their posts. Therefore, if their appointment itself is not found to be justifiable, the same may be successfully challenged and quashed too. Due to the absence of any procedural rules in relation to the manner of functioning of a multi-member Commission, their appointment was found to have rendered the functioning of the Commission unworkable. Thus, the abolition of their posts was held to be wholly justifiable. The contention that this affected the overall independence of the Commission was rejected, since the government did not act at the instance of the CEC in abolishing their posts. The CEC had not recommended their removal, a fact not only supported by the available evidence on record, but also admitted to by the ECs. The decisions were taken unanimously, notwithstanding minor differences of opinion. However, considering the difficulties in the functioning of the Commission due the creation of their posts, the government could have either allowed the ECs to continue or would have had to frame rules governing their conduct. Simply because the government chose to abolish their posts was not held to be a sufficient ground to successfully allege mala fide actions on part of the CEC or even the government.

The ECs were appointed to assist the Commission in handling the increased burden due to the 61st Constitution Amendment Act, and the 64th and 65th Constitution Amendment Bills relating to elections to Panchayats and Nagar Palikas. However, at the time of issuing the said notification, both grounds appeared to be non-existent. While revision of electoral rolls had already been completed by July 1989, both the Amendment Bills failed in Parliament. So, there were no justifiable grounds to warrant the appointment of the ECs. Moreover, it was held that the body has to decide whether it wants greater secretarial or other staff at its disposal, or whether it would like to have Commissioners. The nature and not quantum of work has to be decided upon first, before putting forth a demand for the appointment of Commissioners. Their appointment shall not be necessary if ordinary staff can deal with the work. The inference that may be drawn is that ECs are to be appointed only when the work burden is of such nature so as to be handled only by ECs. Moreover, the President appointed the ECs without consulting the CEC. In fact, he came to know about their appointment only after it was done. Though not questioned by the Supreme Court, this clearly suggested extraneous considerations guiding the President in appointing them. In the light of the aforesaid, the very appointment of the ECs was not warranted, thus the abolition of their posts was found to be completely consistent with the overall constitutional scheme in this respect.

Under Article 324 (2) the President shall have the authority to decide whether or not to appoint ECs. Since he enjoys the authority to create these posts, he can also abolish their posts when he finds that there is not enough requirements to warrant their appointment. It cannot be contended that they have suffered a material loss since the abolition of their posts was in the nature of an exigency attached to their office.

C. POSITION OF THE CEC IN RESPECT OF THE ECs

The existing constitutional provisions are silent on the position of the CEC with respect to the ECs. The framers of the Constitution perhaps chose to remain silent about the manner in which the Commission has to transact its business. The functions of the Commission are public functions, essentially administrative but at times also quasi-judicial and legislative in nature. The Commission was to be manned by the CEC, a senior public official, due to which it was felt that his and his colleagues’ sagacity and wisdom would not require any procedural rules to be laid down in this respect. However, the functioning of the first multi-member Commission proved otherwise.

The composition of the Commission is such that it shall always consist of the CEC, a permanent incumbent. The appointment of the ECs is not necessary, but can be done by the President from time to time depending upon the requirements. He is free to increase or reduce their number too. Further in the exercise of this power he may be regulated by any law passed by the Parliament. In comparison, that is not the case with the CEC who has to be present at all times. In a multi–member Commission, the CEC acts as the Chairman. If the Commission is a single-member body, he alone takes all the decision on behalf of the Commission. In both situations, it is the CEC who has an upper hand, as by way of his being the Chairman he enjoys a superior position. Far from being bound by the views of the ECs, he is actually in a position to override the same. In this connection, the Supreme Court in the present case compared his position to that of the Prime Minister and Chief Ministers, who may override the views of their Council of Ministers. This reasoning appear to be erroneous since it would not be possible for the Prime Minister or a Chief Minister to continue in office without commanding their support, for which he would have to consider their views. Also, simply by way of being the Prime Minister or Chief Minister, he is in no position to impose himself upon his Council of Ministers.

The constitutional provisions expressly provide for not altering the conditions of service of the CEC to his disadvantage after his appointment, although the same has not been guaranteed to the ECs. Moreover, the CEC cannot be removed except for the manner and on the grounds of a judge of the Supreme Court. However, no such protection has been provided to the ECs. Thus, it was held that as far conditions of service and manner of removal are concerned, the ECs, far from being at par with the CEC, are actually at par with the Regional Commissioners, the only distinguishing feature being that Regional Commissioners do not form part of the Commission. Since their conditions of service and manner of removal are the same, it was held that the position of the CEC is higher than that of both the ECs and the Regional Commissioners, both of whom are placed at the same status and level of authority.

In deciding on this issue, the Supreme Court held that the CEC is not intended to be a “primus inter parties (first among equals) but is intended to be placed at a higher position.”

D. PROCEDURAL RULES FOR FUNCTIONING OF THE COMMISSION IN CASE OF A MULTI-MEMBER BODY

In a multi-member body, in the absence of any express provisions, the business has to be conducted as far as possible in a unanimous manner. But a unanimous decision may not be possible in all circumstances; therefore decisions may also be binding if taken by a majority. At the same time, considering the nature of functions being discharged by the Commission, there would have to be scope for decisions by majority since its functions are essentially administrative in nature are also partly judicial and legislative. In the present case, while recognizing these broad guiding principles, it was held that the procedural rules relating to the functioning of the Commission should be clearly spelt out either by a statue or in the form of rules framed before or at the time of appointment of the ECs. It was further held that to ensure the smooth functioning of the Commission, till such rules are not framed, the ECs should not be appointed at all. A multi-member Commission may be desirable, but it is necessary to define the roles of all those who man this Commission, otherwise that shall affect the very functioning of the Commission, preventing it from discharging the vital function of conducting elections in a free and fair manner.

E. DESIRABILITY OF A MULTI-MEMBER COMMISSION

The Commission is entrusted with the all-important function of conducting elections. Being armed with exclusive and uncontrolled powers to perform such functions, it is prudent that such powers are not in the hands of a single individual. Not only human prudence, but also settled democratic principles require the same. A single individual may sometimes successfully withstand pulls and pressures, but sometimes may not. Since the institution is not accountable to anyone, the best means to prevent arbitrary action would have been to provide for the appointment of ECs. The following words of the Constituent Assembly are noteworthy in this connection:

“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 duties of his office and looking after the work from day to day but when major elections take place, the Commission must be enlarged to cope with the work.”

In the SS Dhanoa case, the Supreme Court did not oppose a multi-member Commission, by abolishing the posts of the ECs, but instead intended to ensure the smooth functioning of this body because of which it decided to abolish their posts.

THE CHIEF ELECTION COMMISSIONER IS NO MORE THAN A “FIRST AMONG EQUALS”

A. FACTS OF THE TN SESHAN CASE

I. In exercise of his powers under Article 123 of the Constitution, the President promulgated an Ordinance (No. 32 of 1993) called “The Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Amendment Ordinance, 1993” in order to amend “The Chief Election Commissioner and Other Commissioners (Conditions of Service) Act, 1991”.

II. On 1st October 1993, the day on which this Ordinance had been issued, he issued another notification under Article 324 (2) by which he fixed the number of ECs at two, and under another notification appointed Mr. MS Gill and Mr. GVG Krishnamurthy as the ECs w.e.f. the said date.

III. The first writ petition was filed by a journalist, Mr. S Ramaswamy who prayed for a declaration that the Ordinance was arbitrary, unconstitutional and void. He also prayed for the writ of certiorari to quash the said notifications.

IV. The second writ petition was filed by the CEC himself (Mr. TN Seshan) claiming similar relief. The other two writ petitions were filed challenging the constitutionality of the Ordinance and the said notifications.

V. In the course of the pendency of these petitions, the Ordinance became an Act without any change. Since the petitions involved an interpretation of Article 324 of the Constitution, they were placed before a Constitution Bench that decided upon the petitions.

B. AMENDING ACT OF THE CEC AND ECs (CONDITIONS OF SERVICE) ACT, 1991 NOT UNCONSTITUTIONAL

The CEC alleged mala fide action on part of the President in issuing the said notifications, since the actual purpose was to enable the ruling party to extract favors from the ECs by sidelining the CEC and eroding his authority. Sections 9 and 10 of the Ordinance were challenged as unconstitutional. Further, it was contended Article 324 did not provide for the Parliament to frame rules for transaction of the business of the Commission. The Ordinance was however upheld in entirety. Section 9 of the Ordinance required that the business of the Commission be transacted in accordance with the provisions of the Act, while Section 10 specified that the business of the Commission may be carried out by unanimous decision as far as possible, but in cases of there being no unanimity the rule of majority shall prevail.

C. NO SUPERIOR STATUS ON THE CEC

The relevant constitutional provisions require that there has to be a permanent body known as the Election Commission, to be headed by the CEC, a permanent incumbent. It may be a single or a multi-member body. Since the Constituent Assembly provided for a multi-member Commission, it cannot be said that there should not be a multi-member Commission, since the same would be unworkable. In the SS Dhanoa case, there were no grounds to justify the creation of the posts of the ECs in the first place, due to which the government was found unjustified in creating these posts. At the same time, the court observed that there can be a multi-member Commission since the same has been provided for under the Constitution, and even upheld its desirability.

In providing for a multi-member Commission, the framers of the Constitution would have obviously realized that unanimity on all issues would not have been possible. However, they would also not have supposed that such high-ranking constitutional functionaries would fail to settle differences of opinion in a dignified manner. Therefore, no procedural rules were laid down as concerns how they should conduct business of the body. Those who hold constitutional posts have to collectively ensure the smooth functioning of the body without letting differences of opinion act as impediments in the process.

In contending that the CEC enjoys a higher status as compared to the ECs, the petitioners largely relied upon the SS Dhanoa case, citing the following grounds in aid of their contention:

i. The CEC enjoys the same conditions of service as those of a Supreme Court judge, but the ECs did not enjoy the same conditions of service before the Ordinance got passed.

ii. The CEC can be removed only in the same manner as a judge of the Supreme Court, whereas the ECs can be dismissed upon the recommendations of the CEC.

iii. The conditions of service of the CEC cannot be altered to his disadvantage after his appointment, though the ECs enjoy no similar protection.

iv. In a multi-member Commission the CEC acts as its Chairman.

v. The CEC is a permanent incumbent but the posts of the ECs can be abolished, as happened in the SS Dhanoa case.

The President has to determine the conditions of service and tenure of office of all the functionaries of the Commission subject to the laws passed by the Parliament in this respect. The constitutional protection against conditions of service being altered to his disadvantage has been extended only to the CEC. But the Ordinance has placed both the CEC and the ECs at the same level as far as their salary is concerned. Thus, in the opinion of the court there was absolutely no distinction between the CEC and the ECs in so far as their conditions of service are concerned.

The relevant constitutional provisions lay down that the CEC can be removed only in the same manner as a judge of the Supreme Court because he is a permanent incumbent, in the absence of whom there cannot be an Election Commission. The purpose herein is to safeguard his independence. The same cannot be guaranteed to the ECs since they may or may not be appointed, their number not being fixed. Moreover, it may reasonably be inferred that if such a high constitutional functionary such as the CEC is kept insulated from all executive influences, it is quite logical that he would protect the independence of the ECs. In so far as their independence is concerned, the following words of the Constituent Assembly are important:

In a multi-member Commission, the CEC has to act as the Chairman. The relevant constitutional provisions simply confer on him the status of a permanent incumbent, but that in itself, in the opinion of the Supreme Court in this case did not place him at a higher position. He shall have to act as the Chairman of this body since it has its own staff that deals with questions such as preparing electoral rolls, etc. That staff (not including the ECs) shall be under the control of the CEC. The relevant constitutional provisions have not specified his role as the Chairman of this body, nor has this been discussed on the floor of the Constituent Assembly. According to the SS Dhanoa case in a multi-member body there has to be a Chairman, but he shall stand above the other members of such a body in so far as rights, and authority are concerned. However, this line of reasoning is completely inapplicable to the Commission. No member of an institution can ever claim to be higher than the institution that he represents. He may take the decisions individually, but those shall be decisions of the body, not his individual decisions. Thus, even if there is a single-member Commission, the CEC alone will have to take all the decisions, but he shall have to do so within the scope of authority that he enjoys because of the Commission. The decisions shall be the decisions of the Commission. As aptly held in this case, “He is a creature of the institution, he can exist only if the institution exists.” It may be said that the CEC is no more than a functionary of the Commission. Whether the Commission is a single or multi-member one shall have no bearing on his position, since he is no more than a functionary, meant to represent the institution.

But this brings one to the question of the role to be played by the Chairman in any multi-member body.

Relying upon the definition of “Chairman” as given in a number of dictionaries, it was concluded that the role of a Chairman is to preside over the meetings of the Board of Directors. He is under a duty to preside over the proceedings; ensuring decisions are taken and properly recorded. In other words, he will be required to do all that is needed for the smooth conduct of the business of the organization. Further, he has to be able to win the confidence of his colleagues. He will surely not be able to do so if he considers them to be no more than his subordinates. The nature of functions to be performed by this body is such the ECs would far from able to function independently and would only be reduced to the status of non-functional if he is given a higher position. As it has already been noted, the Commission is in addition to administrative functions also required to discharge functions that are legislative and quasi-judicial in nature. Also, the ECs form part of the Commission unlike the Regional Commissioners. In such a situation, they should be able to effectively participate in the process of decision–making. But all this requires their being placed at same level as the CEC. Otherwise, the ECs would be no more than mere advisors, who would not have had any say in the functioning of the Commission. Not only would that be inconsistent their being a part of the Commission, but also would go against the need to appoint them to ensure a system of checks and balances within the Commission (the purpose for which Constituent Assembly provided for a multi-member Commission).

Finally, though it has been provided that the conditions of service of the CEC cannot be altered to his disadvantage after his appointment, the same has not been extended to the ECs. The logical explanation for this is that their appointment is only temporary in nature. However, not calling this an important consideration, it was held that this in itself would not be enough to lead the court to the conclusion that the CEC is at a higher position as compared to the ECs.

In conclusion, it was held that the CEC is at par with the ECs. Citing the instance of other multi-member bodies such as the Union and State Public Service Commissions, wherein there is a Chairman, Vice-Chairman and other members, it was held that there has to be close co-operation between all the members to ensure the smooth functioning of the body.

D. SUBSEQUENT DECISIONS ON THE ROLE OF CEC IN A MULTI-MEMBER COMMISSION

In Election Commission of India v. Dr. Subramaniam Swamy, a procedure for functioning of the Election Commission was laid down under which the involvement of the CEC in all the decisions of this body was not held to be necessary. The writ petition challenged the election of Ms. J Jayalalitha

(then the CM of Tamil Nadu), alleging she was not entitled to be a member of the Legislative Assembly since she was a partner in a partnership firm that had entered into a contract with the state government. The Governor has to act on the opinion of the Election Commission in deciding whether a member of the Legislative Assembly should be disqualified or not. In interpreting the meaning of “the opinion of the Election Commission”, it was held that the Commission can sit in Benches as do the as do judges of the Supreme Court and High Courts. However, the exclusion of the CEC from the process of decision – making is not what is intended. Instead, the underlying logic is that since all the members of the Commission stand equally placed, therefore may sit in Benches. In such a capacity, the judges are not supposed to consult the Chief Justice, but are required to apply legal principles and decide the case. The analogy between the ECs and judges of the higher judiciary is well supported by this case. Again, all the functionaries may participate in the process of decision – making but that is not necessary. This clearly establishes that there is intended to be equality between the CEC and the ECs.

This decision has significantly changed the position of the CEC. Proceeding along the same lines as the TN Seshan case did, this decision laid down that the CEC is no different from an ordinary member of the Commission. His absence in a particular decision does not mean that the decision suffers from any flaw. Thus, by way of being the Chairman in a multi-member Commission, he does no more than preside over the functioning of the Commission. Had he been placed at a higher position, no decisions would have been possible without his participation.

CONCLUSION

On the basis of the aforesaid, the researcher has come to the following conclusions:

1. The importance of free and fair elections in India is beyond doubt. The Election Commission established as an independent body under the mandate of the Constitution has to conduct elections in a free and fair manner. The fundamental consideration that shall therefore guide the courts in deciding cases in relation to the Commission is to under all circumstances ensure that it is able to function independently of all kinds of extraneous influences.

2. The approach adopted by the Constituent Assembly is definitely the best possible course that could have been taken in the light of the circumstances and choices available to it. The present Election Commission is a basic skeletal machinery for conducting elections, present at all points of time. In addition, more members may be appointed whenever there is an increased requirement.

3. The appointment of ECs has to be warranted by requirements. There has to be an increased work burden that can be handled only by the ECs so as to warrant their appointment. If the work is such that employing ordinary staff can serve the purpose then that shall be preferred.

4. The desirability of a multi-member Commission is supported by judicial decision, settled democratic principles and human prudence. At the same time, there have to be procedural rules that specify the kind of relationship that shall bind the members of such a body (in the present case the CEC and the ECs). Presently, the relevant statutes and judicial decisions lay down that the business should be transacted in a unanimous manner as far as possible. If there is no unanimity on issues, the rule of majority shall apply. But the latter is equally important since when the functions involve taking decisions, there may not be a unanimous opinion at all times.

5. The CEC is in no way superior as compared to the ECs. They are all equally placed in so far as their powers and functions are concerned. This legal position appears to be perfectly sound, since it ensures that the ECs who are appointed are not just advisors, but can exercise authority. Thus, their independence is guaranteed, enabling them to act as a watchdog in the exercise of the Commission’s powers. The fundamental consideration of the independence of the Commission is thus ensured. The CEC is no more than a first among equals.

6. The relationship between the CEC and ECs is largely similar to that of the Chief Justice and judges. The former is not in a position to influence the latter in the course of discharging their functions. The judges of the Supreme Court and High Courts can sit in benches, thus showing that the presence of the Chief Justice is not necessary in all the decisions of the court. Similarly, the Commission may also sit in benches, with the participation of the CEC not a must in all the decisions of the Commission.

7. The Chairman in a multi-member body is not more than a functionary representing the body. Even if he alone takes all the decisions, the decisions shall be those of the Commission and not his own. He can never be higher than the institution he is meant to serve since he shall exist only so long as that institution does. His role is to preside over the proceedings of the body, ensuring that its business is conducted in a smooth manner. In any such body, the other members shall be able to act independently only if they are placed at par and not subordinate to him.

APPENDIX 1

TABLE OF CASES

· Common Cause (A Registered Society) v. Union of India, (1996) 2 SCC 752

· Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851

· NP Ponnuswami v. Returning Officer, Namakkal Constituency, AIR 1952 SC 64

· SS Dhanoa v. Union of India, (1991) 3 SCC 567, 584

· SS Party v. Election Commission of India, AIR 1967 SC 898

· TN Seshan v. Union of India, (1995) 4 SCC 611

· Yadav Reddy v. Election Commission of India

APPENDIX 2

LIST OF REFERENCES

· Constituent Assembly Debates, Volume IV and www.manupatra.com

· Pylee, MV, “An Introduction to the Constitution”, 2ndReprint, 1995

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