A debate has been initiated in sections of the media as to whether the recommendation of the chief election commissioner (CEC) for removal of an election commissioner is binding on the government. Some, including the government of India, have also questioned whether the CEC is empowered to suo motu make a recommendation for removal of an election commissioner.

Article 324 of the Constitution provides for the creation of an election commission (EC) with the powers of “superintendence, direction and control” of elections in India. Some specific powers of the commission are defined in legislations enacted by the Indian Parliament. Where the legislative space is unoccupied, Article 324 is a reservoir of residuary power with regard to free and fair conduct of elections.

Article 324 gives administrative primacy to the CEC. The EC can consist of a CEC and such other election commissioners as may be provided from time to time. There is, however, one fundamental flaw in the Constitution. The Constitution does not provide the qualifications for appointment of an election commissioner or CEC. It merely provides that the appointment shall be made by the president, on the aid and advice of the council of ministers. Members of the EC are thus to be appointed by the political executive.

The EC is a regulator of free and fair elections. It is expected to be impartial and yet its appointment is to be made by the government of the day.

Realising this inadequacy in the Constitution, B.B. Tandon, the erstwhile CEC, had written to the then president, A.P.J. Abdul Kalam, suggesting that a national debate be initiated for amending this provision — for constituting a collegium to make the appointment of members of the EC in order to ensure that its members are impartial and independent. However, Article 324(5) lays down the procedure for removal of the CEC and the other election commissioners. It provides for removal of the CEC on the like grounds and in the like manner as a judge of the Supreme Court, that is, through an impeachment process as envisaged under Article 124(4) of the Constitution. The second proviso to Article 324(5) states that the election commissioner or a regional commissioner shall not be removed from office except on the recommendation of the CEC.

... contd.