The Election Commission

Clause (3): when another Election Commissioner is appointed, "the Chief Election Commissioner shall act as the Chairman of the Election Commission."

Clause (4) allows the President, after consulting the Commission, to appoint Regional Commissioners.

Clause (5) fixes conditions of service and carries the two provisos on which everything turns. The first: "the Chief Election Commissioner shall not be removed from his 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". The second: "any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner."

Clause (6) obliges the President and the Governors to supply staff when asked.

Broken down

The grant is over "elections", not over polling day. It covers the electoral roll as well as the conduct of the election, and "election" on Ponnuswami means the whole process: see [Articles 325 to 329].

Local body elections are not in article 324. Clause (1) names Parliament, the State Legislatures, the President and the Vice-President. Panchayat and municipal elections go to a State Election Commission under articles 243K and 243ZA: see [Grass Root Democracy: The Panchayats].

The appointment clause always contemplated a law. Those words have been in clause (2) since 1950, and Parliament made no such law until 2023.

The asymmetry in clause (5) is on the face of the article. The Chief Election Commissioner has two protections written into the Constitution: removal only in the manner and on the grounds applicable to a Supreme Court Judge, and no variation of his conditions of service to his disadvantage. An ordinary Election Commissioner has neither. His one protection is indirect: removal only on the recommendation of the Chief Election Commissioner. A Regional Commissioner is in the same position.

The width of the power

Facts. Mohinder Singh Gill v. Chief Election Commissioner, 1978 AIR 851, 1978 SCR (3) 272, decided on 2 December 1977. Counting in a Parliamentary constituency was almost complete when mob violence destroyed ballot papers and boxes from some Assembly segments. The Chief Election Commissioner, acting under article 324, cancelled the poll and ordered a fresh poll for the whole constituency. The appellant, who had all but won, moved the High Court under article 226, calling the order arbitrary and made without hearing him.

Held on jurisdiction. The petition was barred: article 329(b) is "a blanket ban on litigative challenge to electoral steps" taken to carry the election forward.

Held on article 324. The article "is a plenary provision vesting the whole responsibility for national and State elections and, therefore, the necessary powers to discharge that function". Two limits were stated. Where a valid law exists the Commission must conform to it, "but where such law is silent Art. 324 is a reservoir of power to act for the avowed purpose of . . . pushing forward a free and fair election with expedition". And it "shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice". Article 324 "does not exalt the Commission into a law unto itself".

Why it matters. It makes article 324 a source of power, not a description of an office. Every direction the Commission gives that no statute authorises, from the model code of conduct to the disclosure directions in [The Voter's Right to Know], rests on this reading. It also fences the power: the greater the power to affect rights, the greater the need to hear.

The composition of the body

Facts. T.N. Seshan v. Union of India, 1995 SCC (4) 611, JT 1995 (5) 337, decided on 14 July 1995. The Commission had been a single-member body. On 1 October 1993 the President fixed the number of other Election Commissioners at two, appointed them, and promulgated an Ordinance putting all three on a par and providing that business be transacted unanimously, failing which by majority. The Chief Election Commissioner petitioned, claiming the Commission was in substance himself.

Held. The Ordinance, by then Act 4 of 1994, and the two notifications were upheld in their entirety. "The concept of plurality is writ large on the face of Article 324", clause (2) contemplating a multi-member Commission and clause (3) providing for a Chairman because of it. The Chief Election Commissioner's permanence "cannot confer on him a higher status than the ECs". By clause (1) the Constitution-makers "entrusted the task of conducting all elections in the country to a Commission . . . and not to an individual", and even in a single-member Commission he is "merely a functionary of that body". "Nobody can be above the institution which he is supposed to serve."

Why it matters. It settles that the Commission is an institution and not an office-holder, and that the Chief Election Commissioner is a chairman and not a superior. The Court also read the second proviso as a protection and not a weapon: a recommendation for removal "must be based on intelligible, and cogent considerations", because if it were exercisable at whim "the CEC himself would become an instrument of oppression". The observations approved in the judgment are from S.S. Dhanoa, whose report has not been read here.

The appointment

Facts. Anoop Baranwal v. Union of India, decided on 2 March 2023. The report we hold carries no report reference, so the case is given by its date. Writ petitions asked the Court to lay down a fair mechanism for appointing the Chief Election Commissioner and the Election Commissioners, article 324(2) having contemplated a law Parliament never made. The matter went to a Constitution Bench.

Held. There was a gap and the Court could fill it until Parliament acted: "The vacuum in the case of Article 324(2) is the absence of the law which Parliament was contemplated to enact." The petitions were partly allowed, and the Court declared that appointment "shall be done by the President of India on the basis of the advice tendered by a Committee consisting of the Prime Minister of India, the Leader of the Opposition in the Lok Sabha . . . and the Chief Justice of India. This norm will continue to hold good till a law is made by the Parliament." On a permanent Secretariat and on charging the Commission's expenditure to the Consolidated Fund it made "a fervent appeal" and no order. Rastogi J. added that it was desirable to extend the first proviso's protection to the other Commissioners.

Why it matters. The direction was interim on its own terms; it filled a gap the Constitution had left rather than rewriting article 324; and it locates the weakness of the Commission in appointment, not in power, the power having never been in doubt after Mohinder Singh Gill.

The law Parliament then made

Parliament has since made the law article 324(2) speaks of: the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act 2023. This book's record of its instruments describes it as "what displaced the interim collegium the Supreme Court had directed".

The Act's text has not been read for this chapter, so nothing is said here about its sections, the committee it constitutes or its commencement, and no citation is pinned to it. The structure is what matters and it does not depend on the detail: article 324(2) always contemplated a law; the direction in Anoop Baranwal was expressed to hold good only "till a law is made by the Parliament"; and once such a law exists the direction is spent by its own terms, leaving any challenge to be made against the Act.

What it does NOT mean

It does not mean the Commission is above the law. Mohinder Singh Gill says the opposite. What insulates it from the courts during an election is article 329(b), not any immunity of its own, and after the result its acts can be attacked in an election petition.

It does not mean the Election Commissioners have security of tenure. Not from the Constitution. Article 324(5) gives them only the second proviso, and T.N. Seshan is the reason that proviso is not a licence for the Chief Election Commissioner.

It does not mean the Commission decides disqualification of members. Under articles 103 and 192 that question goes to the President or the Governor, who "shall obtain the opinion of the Election Commission and shall act according to such opinion". The decision is formally theirs; the binding opinion is the Commission's.

A worked example

A general election is under way. Two days before polling, the Commission finds that a candidate's agents have been distributing cash, an offence the election law punishes but for which it gives no power to postpone a poll. The Commission postpones the poll without notice to the candidate, who moves the High Court under article 226.

Step one, is there statutory power? No; assume the statute is silent on postponement.

Step two, is there constitutional power? Yes. On Mohinder Singh Gill, where the law is silent article 324 is "a reservoir of power".

Step three, is the power unlimited? No. The order must be bona fide, must not contradict a valid statute, and must answer natural justice so far as that is realistic.

Step four, will the High Court hear the petition? No. The election has begun and article 329(b) bars it; the remedy is an election petition after the result.

Step five, what if the order had come a month before the notification? No election has begun, article 329(b) is not attracted, and article 226 is available. The date matters more than the merits.

Quick revision

• Article 324(1): superintendence, direction and control of electoral rolls and of the conduct of all elections to Parliament, the State Legislatures, the President and the Vice-President. Local body elections go instead to the State Election Commissions under articles 243K and 243ZA.
• Article 324(2): Chief Election Commissioner plus such others as the President may fix, appointed "subject to the provisions of any law made in that behalf by Parliament". Article 324(3): he chairs a multi-member Commission.
• Article 324(5): the first proviso makes the Chief Election Commissioner removable only like a Supreme Court Judge and bars variation of his conditions of service to his disadvantage; the second makes any other Election Commissioner removable only on his recommendation. That is the asymmetry.
• Mohinder Singh Gill (1977): article 324 is plenary, a reservoir of power where the law is silent, but subject to valid legislation, the rule of law, good faith and natural justice. Article 329(b) bars a writ once the election has begun.
• T.N. Seshan (1995): the Commission is a multi-member institution; the Chief Election Commissioner is Chairman, not superior; a recommendation for removal must rest on cogent grounds.
• Anoop Baranwal (2 March 2023, no citation in the report we hold): appointment on the advice of the Prime Minister, the Leader of the Opposition and the Chief Justice of India, "till a law is made by the Parliament". Parliament made such a law in 2023, whose text has not been read here.

Test yourself

1. Set out article 324(5) and explain how the protection of the Chief Election Commissioner differs from that of the other Election Commissioners.

2. "Article 324 is a reservoir of power." Name the case, the context, and the two limits stated in the same passage.

3. What was T.N. Seshan's claim, and why did the Court reject it? Quote the sentence you would use.

4. Why could the Court give directions on appointment in 2023, and what made them temporary?

5. The Commission cancels a poll a week after the notification. A candidate wants relief now. Advise him.