Guest (n/a) 01 February 2009

Can the CEC recommend EC's removal suo motu?

1 Replies

Prakash Yedhula (Lawyer) 01 February 2009

The Supreme Court in the Seshan case held that the Article 324(5) proviso for the removal from office of the CEC only through impeachment (as in the case of Supreme Court judges) as well as the proviso that the Election Commissioners shall not be removed except on the recommendation of the CEC (“based on intelligible, and cogent considerations”) was designed to protect the independence of the Election Commission as a body from political or executive arbitrariness. The Court specifically held that “if…the power [of recommending removal of an Election Commissioner] were to be exercisable by the CEC as per his whim and caprice, the CEC himself would become an instrument of oppression and would destroy the independence of the ECs…if they are required to function under the threat of the CEC recommending their removal.”

The well-accepted legal position is that the three-member Election Commission is a constitutional body of co-equals, with equal voting power, and the CEC is the first among equals with certain leadership and administrative responsibilities. Crucially, Election Commissioners, being appointed by the President, that is, the political government, without consultation with the CEC, can be removed only by the President, that is, the political government. (The CEC as well as ECs apply to the President for leave and forward their tour programmes to her.) A necessary constraint on the executive’s power is that ECs cannot be removed without the recommendation of the CEC – after a formal reference is made by the executive.