The government wants to contend that the removal of the election commissioner can only be made by the government in power. If the government decides to remove the election commissioner it can call for a recommendation of the CEC, as a safety valve.

It is important that the provisions of Article 324 are construed in a manner so as to strengthen the independence and impartiality of the EC. We live with a constitutional flaw that an independent EC is appointed by members of a political party when it is in government. The appointment process can suffer from an institutional bias. Must the vigil on their performance and the removal process also be vitiated by the same bias particularly when the Constitution did not so provide?

Firstly, there are two separate provisos in Article 324(5); one providing that CEC is not to be removed except under an impeachment process and second that an election commissioner or a regional commissioner not to be removed except on the recommendation of CEC. The resolution of two houses of Parliament is always binding on the political executive or the president in regard to the impeachment. Nobody has ever suggested that the parliamentary resolution on impeachment is only a safety valve and not a condition.

If the first proviso to Article 324(5) in the context of removal of a CEC is binding, can an absurd interpretation be placed on the Constitution that the second proviso containing a condition precedent for removal of an election commissioner is merely recommendatory.

... contd.