The recommendation of the CEC to the President has created a constitutional crisis. The Law Minister's statement that the Chief Election Commissioner (CEC) cannot suo motu recommend the removal of the Election Commissioner (EC) is constitutionally indefensible given the text and structure of the Constitution and the Supreme Court decisions. The entire issue is based on the second provision to Article 324(5) of the Constitution – “Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.” There are four compelling constitutional reasons enabling the CEC to directly recommend the removal of the EC to the President without waiting for the President to refer the matter to the CEC. Any other interpretation could subvert the very purpose of the Election Commission as an impartial body
First, there is nothing in the text of Article 324(5) which mandates that the CEC must give its recommendation only after a referral by the President. A referral from one constitutional authority to another is an important constitutional process and wherever such a referral has been contemplated by the Constitution before effecting a removal, it has been expressly laid down. To illustrate, if any question arises as to whether a Member of Parliament has become subject to any disqualifications, the Constitution mandates that the “question shall be referred for the decision of the President” and the President inturn has to “obtain the opinion of the Election Commission” (See Article 103 and Article 191) Similarly, before a member of the Union Public Service Commission is removed, the President has to refer the matter to the Supreme Court (Article 317) No such requirement of a prior reference from the President to the CEC is contemplated by the Constitution with regard to the removal of the EC.
Second, any interpretation which would require a prior referral by the President to the CEC could threaten the concept of free and fair elections. If an EC acts blatantly in favor of the ruling party, the President – who acts on the advise of the Union Cabinet – may not refer the issue of removal of the EC to the CEC since the ruling government is a beneficiary of the bias. The CEC would be helpless in that situation. This is not a mere hypothetical and past record of Central Governments has shown that it is a distinct possibility. Such a scenario could threaten the very concept of free and fair elections which has been declared by the Supreme Court as a part of the basic structure of the Constitution.
Third, the constitutional structure of the Election Commission itself would suggest that a referral from the President is not a condition precedent for the CEC to recommend a removal of the EC. Under Article 324(5), a Regional Commissioner and an Election Commissioner have been placed on equal footing as far as removal from office is concerned. The CEC as the head of the organization is better positioned to examine the conduct of a Regional Commissioner working in different parts of the country and recommend his removal to the President if his conduct is not in the interests of the organization. It may not serve the constitutional purpose if the CEC has to wait for a referral from the President to recommend an action against an errant Regional Election Commissioner. The same logic would apply with equal force to the removal of an Election Commissioner. The CEC is better positioned to examine the behavior of the Election Commissioner who is part of the Election Commission rather than the Central Government. On the contrary, the Central Government is not expected to supervise the working of the Election Commission, much less the behavior of the Election Commissioner or the Regional Commissioner. Requiring a formal referral from the President before the CEC gives his recommendation would make the Election Commission a toothless body in taking action against errant members of the body.
Fourth, the Supreme Court ruling in the TN Seshan v. Union of India case ((1995) 4 SCC 611) supports this conclusion. To protect the EC and RC’s from the whims and caprice of the CEC, the Supreme Court mandated that the “recommendation for removal must be based on intelligible and cogent considerations which would have relation to the efficient functioning of the Election Commission.” The Court emphasized that the “CEC must exercise this power only when there exist valid reasons which are conducive to the efficient functioning of the Commission.” The Supreme Court conceived the of the CEC’s power to recommend a removal of the EC as a “power” which must be exercised only when there exists valid reasons and not when the issue has been referred to the CEC by the President.
This takes us to the next issue - is the recommendation of the CEC binding on the President? Under Article 103(2), with respect to the disqualification of an MP, the Constitution mandates that the President shall obtain the “opinion” of the Election Commission and “act according to such opinion”. Article 324(5) does not have a similar provision. But if the CEC report discloses valid reasons, the President has to act on those recommendations. Taking the contrary view would mean that that a partisan EC would continue to be part of the Election Commission despite a Report from the CEC merely because the Central Government through the President chooses not to act on the recommendation. The opinion of the CEC is binding on the President in the same manner as the recommendation from the Chief Justice with regard to appointment of judges is binding on the President.
The Election Commission is a critical institution for the functioning of Indian democracy. Every effort must be made to maintain its independence. The timing of the current CEC’s Report is debatable and can be resolved after examining the CEC Report on its merits. The larger question for this country is whether Indian democracy can afford an Election Commission to be headed by a person who has been declared by the Shah Commission as a person “unfit to hold any public office which demands an attitude of fair play and consideration for others”.