Article 324 of the Indian Constitution establishes the Election Commission of India (ECI) and vests in it the superintendence, direction, and control of the preparation of electoral rolls and the conduct of all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President. Clause (5) of this Article is crucial as it lays down the provisions concerning the service conditions, tenure, and importantly, the procedure for removal of the Chief Election Commissioner and other Election Commissioners, thereby addressing the crucial aspect of their independence and security of tenure.
This clause is fundamental to ensuring the impartial functioning of the Election Commission by protecting its members, particularly the Chief Election Commissioner, from arbitrary executive interference, which is vital for conducting free and fair elections in a democracy. It balances the rule-making power of the executive (President) with the legislative power of Parliament while providing distinct safeguards for the removal of the CEC compared to other Election Commissioners.
Original Text
(5) Subject to the provisions of any law made in this behalf by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:
Provided that 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:
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.
Detailed Explanation
Article 324(5) consists of a main clause and two provisos that collectively define the terms of service, tenure, and removal procedures for the members of the Election Commission.
The main clause states that the conditions of service and tenure of office for the Election Commissioners (which includes the Chief Election Commissioner and other Election Commissioners) and Regional Commissioners are determined by the President through rules. This grants the executive initial authority in framing these rules. However, this power is explicitly made “subject to the provisions of any law made in this behalf by Parliament.” This means that if Parliament enacts a law concerning the service conditions and tenure of these officials, that law will override the rules made by the President. This establishes the supremacy of parliamentary legislation on this matter, reflecting the principle of legislative control over the executive’s rule-making power.
The first proviso introduces significant safeguards for the Chief Election Commissioner (CEC). It states that the CEC can only be removed from office in the same manner and on the same grounds as a Judge of the Supreme Court. The removal process for a Supreme Court Judge (under Article 124(4)) is stringent, requiring an address by both Houses of Parliament supported by a special majority (majority of total membership and not less than two-thirds of members present and voting) on grounds of proved misbehaviour or incapacity, presented to the President. This difficult removal process is designed to provide the CEC with strong security of tenure, insulating the office from political pressure and executive whims, much like the judiciary. Furthermore, this proviso adds that the conditions of service of the CEC cannot be varied to their disadvantage after their appointment. This provision is aimed at preventing the executive or legislature from using adverse changes in service conditions (like salary, allowances, etc.) as a means to pressure or punish the CEC, further reinforcing the independence of the office.
The second proviso deals with the removal of other Election Commissioners and Regional Commissioners. It specifies that they cannot be removed from office except on the recommendation of the Chief Election Commissioner. This grants the CEC significant authority over the other members of the commission regarding their security of tenure. While the CEC enjoys high security of tenure akin to a Supreme Court Judge, the other Election Commissioners’ tenure is, in terms of removal, dependent on the CEC’s recommendation. This structure, especially prominent after the ECI became a multi-member body, places the CEC in a position of preeminence regarding the removal of other commissioners.
Detailed Notes
- Subject to Parliamentary Law: The power of the President to determine the conditions of service and tenure of Election Commissioners and Regional Commissioners by rule is subordinate to any law made by Parliament on the same subject. Parliamentary law, if it exists, will prevail.
- Presidential Rule-Making Power: In the absence of parliamentary law, the President determines the conditions of service and tenure through rules.
- Chief Election Commissioner (CEC) Removal: The CEC can only be removed in the same manner and on the same grounds as a Judge of the Supreme Court.
- Manner: Address by both Houses of Parliament passed by a special majority (majority of total membership + 2/3rd of members present and voting).
- Grounds: Proved misbehaviour or incapacity.
- CEC Service Conditions: The conditions of service of the Chief Election Commissioner cannot be varied to their disadvantage after their appointment. This protects the CEC’s financial independence.
- Other Election Commissioners and Regional Commissioners Removal: They can be removed from office only on the recommendation of the Chief Election Commissioner.
- Security of Tenure: The removal process provides a high degree of security of tenure, particularly for the CEC, which is essential for the independent functioning of the ECI.
- CEC’s Authority: The second proviso gives the CEC significant power over the removal of other Election Commissioners and Regional Commissioners.
Additional Comments
- The distinct removal procedures for the CEC and other Election Commissioners have been a subject of debate, particularly regarding the independence of the multi-member ECI. Critics argue that making the removal of other ECs dependent on the CEC’s recommendation, while the CEC’s removal is much harder, could potentially concentrate too much power in the CEC’s hands or affect the collegiality and independent functioning of the multi-member body.
- The Supreme Court has, in various judgments related to the ECI, emphasized the importance of the independence of the commission and its members, flowing from Article 324(5) and other related provisions.
- Demands have sometimes been raised by civil society and political actors to make the removal process of other Election Commissioners and Regional Commissioners similar to that of the Chief Election Commissioner to ensure equal security of tenure and independence for all members of the multi-member ECI. This would require a constitutional amendment or a specific law by Parliament pursuant to the main clause of 324(5).
- The “conditions of service” encompass aspects like salary, allowances, leave, pension, etc., while “tenure of office” refers to the duration for which the office is held. These are subject to the rules made by the President or law by Parliament.
Summary
Article 324(5) outlines the framework for the service conditions, tenure, and removal of the Chief Election Commissioner, other Election Commissioners, and Regional Commissioners. The President determines their conditions and tenure via rules, but this is subject to overriding legislation passed by Parliament. The Chief Election Commissioner enjoys robust security of tenure, removable only in the same manner and on the same grounds as a Supreme Court Judge, and their service conditions cannot be altered to their disadvantage post-appointment. In contrast, other Election Commissioners and Regional Commissioners can only be removed from office based on the recommendation of the Chief Election Commissioner. These provisions are fundamental to safeguarding the independence of the Election Commission of India.