Should Election Commissioners Have Same Protection As CEC? Supreme Court Majority Says No, Justice Ajay Rastogi Says Yes

In a plea recommending reforms in the process of making appointments to the Election Commission, a Constitution Bench of the Supreme Court, on Thursday, declared that the appointment to the post of the Chief Election Commissioner and the Election Commissioner would be done by a three-member committee till a new law is enacted by the Parliament. The committee would comprise -

“The President of India on the basis of the advice tendered by the committee consisting of the Prime Minister,Leader of Opposition in the Lok Sabha, if no such leader then the leader of the largest party in opposition in the Lok Sabha having largest numerical strength,and the CJI.”

In his separate but concurring judgment, Justice Ajay Rastogi suggested extending the safeguard in the process of removal of Chief Election Commissioner as envisaged in the first proviso to Article 324(5) of the Constitution of India to the other Election Commissioners in order to insulate the Election Commission from the interference of the executive.

“It is the need of the hour and advisable, in my view, to extend the protection available to the CEC to the other ECs until any law is framed by the Parliament.”

As per Article 324(5), at present, the conditions of service and tenure of office of the Election Commissioners is determined by the President by rule. The Election Commissioner can be removed from office by the President at the recommendation of the Chief Election Commissioner.

Justice Rastogi was of the opinion that it is essential to add further safeguards to the existing mechanism of removal of Election Commissioners as otherwise it would affect the functioning of the institution. The intervention of the executive in the removal process without any insulation, he opined, would adversely impact the Election Commissioner’s independence.

He suggested that the safeguard provided in the first proviso to Article 324(5), which states that the Chief Election Commission cannot be removed from office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment, be extended to the other Election Commissioner to ensure independence of the institution.

The Chief Election Commissioner can only be removed in the same manner as the Judges of the Supreme Court. A Judge of the Supreme Court cannot be removed from office except by an order of the President passed after an address in each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of members present and voting, and presented to the President in the same Session for such removal on the ground of proved misbehaviour or incapacity.

The additional directions issued by Justice Rastogi are as under -

“2)It is desirable that the grounds of removal of the Election Commissioners shall be the same as that of the Chief Election Commissioner that is on the like grounds as a Judge of the Supreme Court subject to the “recommendation of the Chief Election Commissioner” as provided under the second proviso to Article 324(5) of the Constitution of India.

(3)The conditions of service of the Election Commissioners shall not be varied to his disadvantage after appointment.”

Majority judgment refuses to accept this suggestion

It is pertinent to note that in the majority judgment authored by Justice KM Joseph, the Court has very categorically rejected the contention of the petitioners that the protection granted in the first proviso to Article 324(5) of the Constitution is one available to the Chief Election Commissioner. The Court further noted that if the protection under the first proviso is extended to the Election Commissioners then they could not be removed from office except on being impeached but would be conferred with another layer of protection wherein they can be removed only when the Chief Election Commissioner recommends the removal. The majority felt that it would create an anomalous situation, as the Election Commissioners can be removed only in a manner of removal of Supreme Court judges, subject to the recommendation of the CEC.

"To put it mildly, if the Election Commissioner is accorded the protection available under the first proviso to the Chief Election Commissioner, the result will be as follows. He would be entitled to not only claim immunity from removal except on being impeached like a Judge of the Supreme Court but he would be conferred with a further protection even after the impeachment or before the impeachment starts, that the Chief Election Commissioner must also recommend the removal", Justice KM Joseph wrote.

It opined that it would be befitting for the Parliament to consider whether the protection regarding removal as well as variation of service conditions after appointment can be extended to the Election Commissioners as a safeguard to ensure the independence of the institution. 

[Case Status: Anoop Baranwal v. Union of India | WP(C) No. 104/2015]

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