In 2019 general assembly elections, Ashok Lavasa’s dissent in the ECI’s “clean chits” to one of the political parties gives us an occasion to turn back the pages of legal history and understand how the Election Commission came to be a multi-member body in the first place.
To understand this, it becomes important for us to revisit T.N. Seshan v. UOI[1]. Since independence there was only one head of the Election Commission i.e. Chief Election Commissioner. However, in 1993 the then government amended the law and brought an Ordinance[2] with President’s assent under Article 342(2)[3] of the Indian Constitution, fixing the number of EC’s at two and appointed Mr. M.S. Gill and Mr. G.V.G. Krishnamurthy as the two EC’s. The then CEC, T.N. Seshan accused the govt. of taking such an action to prevent him from taking any action against alleged violation of code of conduct by the ruling party and also curb his powers. Thus, he (along with few other petitioners) moved the Supreme Court by way of a writ petition.
The two issues that were to be decided by the court were:- 1.)Whether the appointment of the other election commissioners was intra-vires the constitution of India and 2.) Constitutional validity of the Ordinance and therefore the Act, and the orders thereto.
The petitioners contented that Centre’s intention behind issuance of the notifications and appointments was mala fide and the Ordinance was only issued with the purpose of side-lining CEC and eroding his authority. They also argued that Section 9[4] and 10[5] of the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 are ultra vires the constitution and inconsistent with Article 324 of the Indian Constitution as the said Article did not give any power to Parliament to frame rules for transaction of business of the EC and also does not lay down any procedures/rules for the functioning of a multi-member Commission. Section 9 of the said act deals with the transaction of business of EC and Section 10 deals with the disposal of business by EC. Section 10 was also challenged on the ground that it is arbitrary, unworkable and violative of Article 14[6] of the Indian Constitution. The final argument made by the petitioners was that the role of the additional Commissioners is only to tender advice to the CEC.
The respondents denied the allegations of there being any connections between the discomfiture of the then ruling party at Centre and conversion of Election Commission into a multi-member body. It argued that the concerned Ordinance was framed in accordance with the observations in S.S. Dhanoa v. Union of India[7] as per which vast discretionary powers, with virtually no checks and balances, should not be left in the hands of a single individual. It was contended that the plain language of Article 324(2) envisages a multi-member Commission and any act undertaken to achieve this object cannot be termed as ultra vires or mala fide. It was also contended that the said provision is neither arbitrary nor violative of Article 14 as in case of a difference of opinion, the majority view shall prevail which exhibits democratic principles. It was also contended that Section 9 and Section 10 are intra vires the Constitution and no mala fides can be attributed to the exercise of President’s legislative power under Article 123[8] of the Indian constitution.
The whole issue came to end when the apex court handed down its decision, upholding the appointment of the additional Commissioners and rejecting the petitioner’s argument in whole.
The Court, referring to Dhanoa case[9], held that there is no doubt that that two heads are better than one, particularly when an institution like the EC is entrusted with vital functions.
Pertaining to the question of putting ECs and RCs on the same level as that of CEC, the court overruled its earlier decision in Dhanoa case on this score and emphatically declared that the Act treating CEC at par with ECs is not unconstitutional and said that Article 324(1)[10] entrusts the task of conducting all elections in the country to a commission and not to an individual. It further stated that nobody can be above the institution which he is supposed to serve and is merely the creature of this Institution. Answering to petitioners’ contention that Art. 324 does not lay down any procedures/rules for the functioning of a multi-member Commission, court, referred to Halsbury’s Laws of England and observed that the principle of majority is the default form of decision-making in a multi-member body, and can validly fill the procedural void left by Art. 324. A.M. Ahmadi, the then CJI, said that that idea of considering the additional Commissioners as advisors to the CEC runs against the grain of Article 324 and would render them mere “ornamental” functionaries. The Court also held that no mala fide intention can be attributed to the President or the Council of Ministers for expanding the size of the Commission as this reform had been in the works for a long time.
To deal with the question of legislative competence of the Parliament or President to intervene by way of Legislation/Ordinances, the Court adopted a very clever tactic to side-step this argument by stating that even if Petitioner’s argument were to be accepted, the procedure evolved by the Commission itself would, in any case, have to be the same as that which had been evolved through the Ordinance.[11]
The observations made by the apex court comes in handy and the net result is, now, the CEC is the primus inter parties, i.e., first among the equals in the multimember body. The appointment of ECs ensures a system where there are checks and balances on the CEC to ensure that it does not have uncontrolled powers. Putting the ECs at the same pedestal as that of CEC is important for ECs to function independently otherwise they would be reduced to the status of non-functional and mere advisors and the purpose of their appointment would not be fulfilled. An analogy can be drawn between the relationship shared by CEC and ECs and the one shared by Chief Justice and judges. Just like CJ, the CEC is not in a position to influence ECs in course of discharging their functions. The rule of majority has been adopted in the process of decision making as in a multi-member body it is very difficult to come to a unanimous conclusion at all times. The removal process under Article 324(5) somewhat seems to put CEC at a higher pedestal as the CEC can only be removed on the grounds of proven misbehaviour or incapacity whereas, the EC’s can be removed on the recommendation of the CEC. However, a ray of hope could be found in the court's interpretation that the recommendation by CEC must satisfy the test, viz., intelligible and cogent considerations having nexus with the functioning of the Commission.[12]
Thus, T.N. Seshan v. Union of India reflects the idea that any constitutional institution is greater than an individual and it is the duty of the office bearers of these institutions to uphold the spirit of the Constitution by fulfilling their duties cautiously and harmoniously.
Footnotes
[1] T.N. Seshan, Chief Election commissioner of India v. Union of India , (1995) 4 S.C.C. 611. [2] The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Ordinance, 1991. [3] Article 342(2), The Constitution of India, 1950. [4] Section 9, The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. [5] Section 10, The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. [6] Article 14, The Constitution of India, 1950. [7] S.S. Dhanoa v. Union of India, (1991) 3 S.C.C. 584. [8] Article 123, The Constitution of India, 1950. [9] Ibid [10] Article 324(1), The Constitution of India, 1950. [11] Aditya Prasanna Bhattacharya, Contextualising Ashok Lavasa’s Dissents: A Legal History of T.N. Seshan v Union of India, LAW SCHOOL POLICY REVIEW (May 8, 2019, 4:45 PM), https://lawschoolpolicyreview.com/2019/05/08/contextualising-ashok-lavasas-dissents-a-legal-history-of-t-n-seshan-v-union-of-india/
[12] D. Sura Reddy, Apex Court's Verdict Apropos of Article 324 - An Appraisal, , Vol. 38, JILI 249, 249-252 (1996).
Submitted by,
Samarth Agarwal,
National Law University, Jodhpur.