INTRODUCTION

Perhaps the framers of the Constitution did not outline the procedure for conducting
business in a multi-member Election Commission, since they did not feel the need to do so,
considering high constitutional functionaries were to man the Commission. However, the
actual functioning of multi-member Election Commissions have proved otherwise. Thus,
there was the need to define the relationship that should bind the Chief Election
Commissioner and the Election Commissioners, to ensure the smooth functioning of the
Commission. The given article involves a critical analysis of the position of the Chief
Election Commissioner (hereinafter referred to as the CEC) with respect to Election
Commissioners (hereinafter referred to as the ECs), all of whom form part of
a constitutional body called the Election Commission (hereinafter referred to as the
Commission). Established under Article 324 of the Constitution, it is intended to oversee the
entire election process to ensure free and fair elections are taking place. Since India follows a
democratically elected form of government, the importance of free and fair elections cannot
be over-emphasized.

The Commission can exist as a single or even as a multi-member body. The framers of
the Constitution provided for but did not make mandatory a multi-member body, to ensure
uncontrolled powers are not in the hands of the CEC alone. But it was only in 1989, that ECs
were appointed for the first time. The existing constitutional provisions, as will be noted, do
provide for the appointment of the ECs, but do not specify the manner of functioning of the
Commission if it has more members than the CEC alone. Therefore, it became necessary lay
down procedural rules concerning the functioning of the Commission and define the roles of
the CEC and the ECs. The first important judicial decision in this connection was SS Dhanoa
v. Union of India, followed by TN Seshan v. Union of India. Both the decisions differed
substantially on a number of points of law. While the former placed the CEC at a higher
position as compared to the ECs, the latter established that they are all equally placed. The
present legal position fully supports the Supreme Court decision in the latter case.

THE ROLE OF THE ELECTION COMMISSION IN INDIA

A. IMPORTANCE OF FREE AND FAIR ELECTIONS IN A DEMOCRACY

In a democracy, sovereign power is in the hands of the collective body of the people, who
alone decide who their representatives shall be, and how they shall govern over them. Free
and fair elections are a must in any democracy, as this is the only means by which the people
can chose their representatives. All modern democracies therefore have a system of elections,
through which their head of state is decided.

Inherent in the notion of free and fair elections is that everyone should enjoy equal political
rights. Inequalities may exist in society and in the economy, but politically everyone should
be equally placed in so far as choosing their representatives is concerned. This has led to the
emergence of universal adult franchise, meaning all those who are adults will be entitled to
vote. Thereby, a number of undemocratic requirements intended to limit the electorate
strength stand done away with, such as holding property, educational qualifications, etc. The
principle of one man, one vote, and one value is what can best sum up the concept of
universal adult franchise.

The process of elections, so as to be truly meaningful has to be free and fair. For this purpose,
it is necessary to ensure there is an independent and impartial body to oversee the process of
elections. Ideally, it should consist of representatives completely insulated from all kinds of
extraneous pulls and pressures, like those likely to be exerted by the ruling party. Its actions
must be judicially reviewable if found to be patently mala fide, but should not otherwise be
subject to any executive or legislative control.

In India, the Constituent Assembly chose to enact specific constitutional provisions with
respect to elections, in contrast to the usual practice of other constitutions that simply confer
authority to the national legislature to enact laws in this respect. The Drafting Committee on
Fundamental Rights prepared a report to the effect that the independence of elections and
avoidance of any executive interference should be a fundamental right. As Dr. Ambedkar
said, “Many people felt that if the elections were conducted under the auspices of an
executive authority … which did not have sufficient power that will certainly vitiate the
process of free elections.” The House did not incorporate this as a fundamental right, but
without any kind of dissent decided that there has to be an independent body called the
“Election Commission” that has to be free from all kinds of executive interference. All this
indicates the high degree of importance placed upon free and fair elections by the Constituent
Assembly.

B. PERMANENT ELECTION COMMISSION WITH CEC AS PERMANENT

INCUMBENT

There were two broad approaches before the Constituent Assembly. On the one hand, it could
have appointed a permanent body consisting of 4 – 5 representatives who would continue in
office continuously. Since elections are not a daily affair, that would have proved to be
unnecessary, and was therefore not adopted. But rejecting this approach would have meant
the absence of an election machinery. On the other hand, the President could have been
permitted to appoint an ad hoc body as and when elections were approaching. Finally, it was
decided to adopt a middle path, by having a permanent body called the Election Commission
consisting of the CEC as its permanent incumbent. The basic, skeletal machinery would thus
be available at all times. At the same time, the President could add to that machinery by
appointing other members of the Commission, thereby ensuring that the additional work
burden at the time of elections could be successfully handled.

In the Constituent Assembly, Prof. Shibban Lal Saksena desired that the CEC and the ECs
should be removed by the same process – on the same grounds and in the same manner as a
judge of the Supreme Court. Also, he contended that there should be an express provision to
the effect that the service conditions of the ECs shall not be altered to their disadvantage after
their appointment, as had been provided to the CEC. For some reason, this amendment was
not accepted. On a plain reading of the relevant constitutional provisions, it would have
appeared that there is a clear distinction between the CEC and the ECs.

In so far as the terms and conditions of service of the ECs are concerned, the President was
given full authority to decide upon the same by framing rules. The relevant constitutional
provisions simply laid down the manner of removal of the CEC. As justified by the framers
of the Constitution, this provision was found necessary to ensure the independent
functioning of the Commission, by insulating it from executive control. Clearly, the aim of
having an independent and impartial election machinery would have been defeated had the
executive been in a position to simply remove the CEC. However, it is surprising no similar
provision was expressly guaranteed to the ECs, since it cannot be said a multi-member
Commission could not have been envisaged at that point of time. The President can remove
the ECs upon the recommendations of the ECs, but those recommendations are required to be
founded upon relevant considerations. Should that not be so, judicial review shall extend,
even to the extent of quashing such a removal. Therefore, it may be inferred that there is as
such no lack of constitutional protection to the ECs. The constitutional protection enjoyed
by the CEC may not be expressly provided to the ECs, but the manner of removal of both the
CEC and the ECs does not appear to give scope for any mala fide action that may affect the
independence of the Commission.

The requirements to be fulfilled by an election machinery include, as held by the Supreme

Court in NP Ponnuswami v. Returning Officer, Namakkal Constituency :

There should be a set of rules and laws making provisions to all matters in relation to
elections. It should be decided as to how these rules are to be made.

There should be an executive charged with the duty of securing the due conduct of elections.

There should be a judicial tribunal to decide all disputes arising in connection with elections.

Part XV of the Constitution deals with elections. The second requirement is satisfied
by Article 324, while Articles 327 and 328 deal with the first. Article 329 deals with the third
one.

C. THE CONSTITUTION AND THE COMMISSION

The researcher shall now briefly examine the relevant constitutional provisions relating to
the Commission. Under Article 324 (1), the superintendence, direction and control of
elections is in the hands of the Election Commission, which is to conduct all elections to the
offices of the President, Vice-President, and the Parliament and state legislatures. Since it
enjoys the status of an independent constitutional body, there were even proposals to
authorize it to conduct elections to the Panchayats and Nagar Palikas as well, but these did
not take the shape of law. The entire process of conducting elections (including preparation
of electoral rolls) is done by the Commission. This provision being fairly widely worded
enables the Commission to exercise its authority in relation to all those issues in connection
with elections.

Under Article 324 (2) the President may appoint ECs in consultation with the CEC. With
respect to their appointment, it should be noted their appointment is not mandatory. It shall be
done keeping in mind the requirements of the Commission from time to time. For this reason,
their number is not fixed. They are thus intended to assist the CEC in discharging his
functions. An increased work burden in itself will not justify their appointment. The duties to
be performed have to be of such nature so as to warrant their appointment. Their appointment
has to be on justifiable grounds, that the judiciary may call into question. The appointment of
ECs shall be subject to the provisions of any law passed by the Parliament in this respect.
They shall be appointed upon the recommendations of the CEC, but this does not place him
at a higher position. Drawing an analogy, in the Supreme Court, and even in the High Courts,
the judges are appointed by the President in consultation with the Chief Justice. But this does
not mean the Chief Justice is at a higher position as compared to the judges. His decisions are
not binding upon the other judges, they being free to decide a case as they please in
accordance with the relevant legal principles.

Under Article 324 (3) in a multi-member Commission, the President shall act as the
Chairman of the body. By virtue of being the Chairman, to what extent may he control the
ECs in discharge their functions? In the first place, should he be allowed to control the ECs in
performing their functions, the independence of the Commission shall stand directly affected.
The very purpose for which the ECs are appointed shall thereby be defeated. The
appointment of ECs ensures there is a system of checks and balances in force to check the
CEC, to ensure that he does not exceed his jurisdiction. Their independence is therefore a
must.

The relevant constitutional provisions have taken adequate care to ensure the independence
of this body from all kinds of executive influences. Under Article 324 (5), the CEC can be
dismissed only in the same manner as a judge of the Supreme Court. Further, his conditions
of service cannot be changed to his disadvantage after his appointment. The
same constitutional protections have not been expressly extended to the ECs, as they can be
removed only on the recommendations of the CEC. The Commission may require staff to
help it in discharging its function of conducting elections. Under Article 324 (6), the
President or the Governor of a state shall ensure all necessary staff is provided to it for this
purpose. However, there is a distinction between ordinary staff and ECs, the latter may be
appointed only when the work burden of the Commission is such that it cannot be discharged
by using ordinary staff.
Considering the nature of functions to be performed by it, the Commission has been armed
with widest possible powers. Since it is beyond the scope of this article to discuss all these
powers, the writer shall deal with them in brief. The Commission can go to the extent of
ordering a repoll in those constituencies wherein elections have not been conducted fairly.
The final word as to which symbol shall be allotted to which party shall be decided by the
Commission itself. In all contingencies that have not been provided for by the law, the
Commission may pass necessary orders.

The conduct of free and fair elections is what is intended to be achieved. Therefore, if the
conditions in a state are conducive due to breakdown of law and order, or due to other factors
that in the opinion of the appropriate authorities shall prevent the people from choosing their
candidates in a fair manner, the Commission may postpone elections, but only for a
reasonable period of time. In Yadav Reddy v. Election Commission of India, a Division Bench
of the Supreme Court refused to interfere with the Election Commission's order for
postponing elections for the Bihar Assembly for a definite period of time, due to the
conditions prevailing in Bihar at that point of time.

In recent years, there has been a lot of concern about the manner in which elections are to be
funded. In this respect, the Commission has the authority to issue directions, in the process of
conducting elections, requiring all political parties to provide details of their expenditure in
the elections, and the sources of their funds. (Held in Common Cause (A Registered Society)
v. Union of India).

THE CHIEF ELECTION COMMISSIONER – NOT A “FIRST AMONG EQUALS”

A. FACTS OF THE SS DHANOA CASE

I. On 7th October 1989, the President, in exercise of his powers under Article 324 (2), issued a notification fixing the number of Election
Commissioners at two.

II. On 16th October 1989, by a subsequent notification issued in exercise of the same power,
he appointed SS Dhanoa (the petitioner) and VS Seigell as the Election Commissioners. By
another notification issued on the same day, he made rules to regulate regulated their
conditions of service.

III. According to these rules, an EC shall hold office for a term of 5 years or till he attains the
age of 65 years, whichever happens earlier.

IV. On 1st January 1990, the President issued another notification in exercise of the same
power rescinding the previous notifications with immediate effect.

V. The petitioner challenged the notification of 1st January 1990 in his writ petition.
B. MANNER OF ABOLITION OF POSTS OF ECs

The petition challenged the manner of abolition of the posts of the ECs. The court upheld the
validity of the final Presidential notification. The scope of judicial review extends to he
abolition of their posts was open to judicial review, as was the creation of their posts.
Therefore, if their appointment itself is not found to be justifiable, the same may be
successfully challenged and quashed too. Due to the absence of any procedural rules in
relation to the manner of functioning of a multi-member Commission, their appointment was
found to have rendered the functioning of the Commission unworkable. Thus, the abolition of
their posts was held to be wholly justifiable. The contention that this affected the overall
independence of the Commission was rejected, since the government did not act at the
instance of the CEC in abolishing their posts. The CEC had not recommended their removal,
a fact not only supported by the available evidence on record, but also admitted to by the
ECs. The decisions were taken unanimously, notwithstanding minor differences of opinion.
However, considering the difficulties in the functioning of the Commission due the creation
of their posts, the government could have either allowed the ECs to continue or would have
had to frame rules governing their conduct. Simply because the government chose to abolish
their posts was not held to be a sufficient ground to successfully allege mala fide actions on
part of the CEC or even the government.

The ECs were appointed to assist the Commission in handling the increased burden due to
the 61st Constitution Amendment Act, and the 64th and 65th Constitution Amendment
Bills relating to elections to Panchayats and Nagar Palikas. However, at the time of issuing
the said notification, both grounds appeared to be non-existent. While revision of electoral
rolls had already been completed by July 1989, both the Amendment Bills failed in
Parliament. So, there were no justifiable grounds to warrant the appointment of the ECs.
Moreover, it was held that the body has to decide whether it wants greater secretarial or other
staff at its disposal, or whether it would like to have Commissioners. The nature and not
quantum of work has to be decided upon first, before putting forth a demand for the
appointment of Commissioners. Their appointment shall not be necessary if ordinary staff
can deal with the work. The inference that may be drawn is that ECs are to be appointed only
when the work burden is of such nature so as to be handled only by ECs. Moreover, the
President appointed the ECs without consulting the CEC. In fact, he came to know about
their appointment only after it was done. Though not questioned by the Supreme Court, this
clearly suggested extraneous considerations guiding the President in appointing them. In the
light of the aforesaid, the very appointment of the ECs was not warranted, thus the abolition
of their posts was found to be completely consistent with the overall constitutional scheme in
this respect.

Under Article 324 (2) the President shall have the authority to decide whether or not to
appoint ECs. Since he enjoys the authority to create these posts, he can also abolish their
posts when he finds that there is not enough requirements to warrant their appointment. It
cannot be contended that they have suffered a material loss since the abolition of their posts
was in the nature of an exigency attached to their office.
C. POSITION OF THE CEC IN RESPECT OF THE ECs

The existing constitutional provisions are silent on the position of the CEC with respect to
the ECs. The framers of the Constitution perhaps chose to remain silent about the manner in
which the Commission has to transact its business. The functions of the Commission are
public functions, essentially administrative but at times also quasi-judicial and legislative in
nature. The Commission was to be manned by the CEC, a senior public official, due to which
it was felt that his and his colleagues’ sagacity and wisdom would not require any procedural
rules to be laid down in this respect. However, the functioning of the first multi-member
Commission proved otherwise.

The composition of the Commission is such that it shall always consist of the CEC, a
permanent incumbent. The appointment of the ECs is not necessary, but can be done by the
President from time to time depending upon the requirements. He is free to increase or reduce
their number too. Further in the exercise of this power he may be regulated by any law passed
by the Parliament. In comparison, that is not the case with the CEC who has to be present at
all times. In a multi–member Commission, the CEC acts as the Chairman. If the Commission
is a single-member body, he alone takes all the decision on behalf of the Commission. In both
situations, it is the CEC who has an upper hand, as by way of his being the Chairman he
enjoys a superior position. Far from being bound by the views of the ECs, he is actually in a
position to override the same. In this connection, the Supreme Court in the present case
compared his position to that of the Prime Minister and Chief Ministers, who may override
the views of their Council of Ministers. This reasoning appear to be erroneous since it would
not be possible for the Prime Minister or a Chief Minister to continue in office without
commanding their support, for which he would have to consider their views. Also, simply by
way of being the Prime Minister or Chief Minister, he is in no position to impose himself
upon his Council of Ministers.

The constitutional provisions expressly provide for not altering the conditions of service of
the CEC to his disadvantage after his appointment, although the same has not been
guaranteed to the ECs. Moreover, the CEC cannot be removed except for the manner and on
the grounds of a judge of the Supreme Court. However, no such protection has been provided
to the ECs. Thus, it was held that as far conditions of service and manner of removal are
concerned, the ECs, far from being at par with the CEC, are actually at par with the Regional
Commissioners, the only distinguishing feature being that Regional Commissioners do not
form part of the Commission. Since their conditions of service and manner of removal are the
same, it was held that the position of the CEC is higher than that of both the ECs and the
Regional Commissioners, both of whom are placed at the same status and level of authority.

In deciding on this issue, the Supreme Court held that the CEC is not intended to be
a “primus inter parties (first among equals) but is intended to be placed at a higher
position.”
D. PROCEDURAL RULES FOR FUNCTIONING OF THE COMMISSION IN CASE
OF A MULTI-MEMBER BODY

In a multi-member body, in the absence of any express provisions, the business has to be
conducted as far as possible in a unanimous manner. But a unanimous decision may not be
possible in all circumstances; therefore decisions may also be binding if taken by a majority.
At the same time, considering the nature of functions being discharged by the Commission,
there would have to be scope for decisions by majority since its functions are essentially
administrative in nature are also partly judicial and legislative. In the present case, while
recognizing these broad guiding principles, it was held that the procedural rules relating to
the functioning of the Commission should be clearly spelt out either by a statue or in the form
of rules framed before or at the time of appointment of the ECs. It was further held that to
ensure the smooth functioning of the Commission, till such rules are not framed, the ECs
should not be appointed at all. A multi-member Commission may be desirable, but it is
necessary to define the roles of all those who man this Commission, otherwise that shall
affect the very functioning of the Commission, preventing it from discharging the vital
function of conducting elections in a free and fair manner.

E. DESIRABILITY OF A MULTI-MEMBER COMMISSION

The Commission is entrusted with the all-important function of conducting elections. Being
armed with exclusive and uncontrolled powers to perform such functions, it is prudent that
such powers are not in the hands of a single individual. Not only human prudence, but also
settled democratic principles require the same. A single individual may sometimes
successfully withstand pulls and pressures, but sometimes may not. Since the institution is
not accountable to anyone, the best means to prevent arbitrary action would have been to
provide for the appointment of ECs. The following words of the Constituent Assembly are
noteworthy in this connection:

“We cannot have an Election Commission sitting all the time during those five years doing
nothing. The Chief Election Commissioner will continue to be a whole-time officer
performing duties of his office and looking after the work from day to day but when major
elections take place, the Commission must be enlarged to cope with the work.”

In the SS Dhanoa case, the Supreme Court did not oppose a multi-member Commission, by
abolishing the posts of the ECs, but instead intended to ensure the smooth functioning of this
body because of which it decided to abolish their posts.

THE CHIEF ELECTION COMMISSIONER IS NO MORE THAN A “FIRST

AMONG EQUALS”

A. FACTS OF THE TN SESHAN CASE

I. In exercise of his powers under Article 123 of the Constitution, the President promulgated
an Ordinance (No. 32 of 1993) called “The Chief Election Commissioner and Other Election
Commissioners (Conditions of Service) Amendment Ordinance, 1993” in order to
amend “The Chief Election Commissioner and Other Commissioners (Conditions of Service)
Act, 1991”.

II. On 1st October 1993, the day on which this Ordinance had been issued, he issued another
notification under Article 324 (2) by which he fixed the number of ECs at two, and under
another notification appointed Mr. MS Gill and Mr. GVG Krishnamurthy as the ECs w.e.f.
the said date.

III. The first writ petition was filed by a journalist, Mr. S Ramaswamy who prayed for a
declaration that the Ordinance was arbitrary, unconstitutional and void. He also prayed for
the writ of certiorari to quash the said notifications.

IV. The second writ petition was filed by the CEC himself (Mr. TN Seshan) claiming similar
relief. The other two writ petitions were filed challenging the constitutionality of the
Ordinance and the said notifications.

V. In the course of the pendency of these petitions, the Ordinance became an Act without any
change. Since the petitions involved an interpretation of Article 324 of the Constitution, they
were placed before a Constitution Bench that decided upon the petitions.

B. AMENDING ACT OF THE CEC AND ECs (CONDITIONS OF SERVICE) ACT,

1991 NOT UNCONSTITUTIONAL

The CEC alleged mala fide action on part of the President in issuing the said notifications,
since the actual purpose was to enable the ruling party to extract favors from the ECs by
sidelining the CEC and eroding his authority. Sections 9 and 10 of the Ordinance were
challenged as unconstitutional. Further, it was contended Article 324 did not provide for the
Parliament to frame rules for transaction of the business of the Commission. The Ordinance
was however upheld in entirety. Section 9 of the Ordinance required that the business of the
Commission be transacted in accordance with the provisions of the Act, while Section
10 specified that the business of the Commission may be carried out by unanimous decision
as far as possible, but in cases of there being no unanimity the rule of majority shall prevail.

C. NO SUPERIOR STATUS ON THE CEC

The relevant constitutional provisions require that there has to be a permanent body known
as the Election Commission, to be headed by the CEC, a permanent incumbent. It may be a
single or a multi-member body. Since the Constituent Assembly provided for a multi-member
Commission, it cannot be said that there should not be a multi-member Commission, since
the same would be unworkable. In the SS Dhanoa case, there were no grounds to justify the
creation of the posts of the ECs in the first place, due to which the government was found
unjustified in creating these posts. At the same time, the court observed that there can be a
multi-member Commission since the same has been provided for under the Constitution, and
even upheld its desirability.

In providing for a multi-member Commission, the framers of the Constitution would have
obviously realized that unanimity on all issues would not have been possible. However, they
would also not have supposed that such high-ranking constitutional functionaries would fail
to settle differences of opinion in a dignified manner. Therefore, no procedural rules were
laid down as concerns how they should conduct business of the body. Those who
hold constitutional posts have to collectively ensure the smooth functioning of the body
without letting differences of opinion act as impediments in the process.

In contending that the CEC enjoys a higher status as compared to the ECs, the petitioners
largely relied upon the SS Dhanoa case, citing the following grounds in aid of their
contention:

i. The CEC enjoys the same conditions of service as those of a Supreme Court judge, but the
ECs did not enjoy the same conditions of service before the Ordinance got passed.

ii. The CEC can be removed only in the same manner as a judge of the Supreme Court,
whereas the ECs can be dismissed upon the recommendations of the CEC.

iii. The conditions of service of the CEC cannot be altered to his disadvantage after his
appointment, though the ECs enjoy no similar protection.

iv. In a multi-member Commission the CEC acts as its Chairman.

v. The CEC is a permanent incumbent but the posts of the ECs can be abolished, as happened
in the SS Dhanoa case.

The President has to determine the conditions of service and tenure of office of all the
functionaries of the Commission subject to the laws passed by the Parliament in this respect.
The constitutional protection against conditions of service being altered to his disadvantage
has been extended only to the CEC. But the Ordinance has placed both the CEC and the ECs
at the same level as far as their salary is concerned. Thus, in the opinion of the court there
was absolutely no distinction between the CEC and the ECs in so far as their conditions of
service are concerned.

The relevant constitutional provisions lay down that the CEC can be removed only in the
same manner as a judge of the Supreme Court because he is a permanent incumbent, in the
absence of whom there cannot be an Election Commission. The purpose herein is to
safeguard his independence. The same cannot be guaranteed to the ECs since they may or
may not be appointed, their number not being fixed. Moreover, it may reasonably be inferred
that if such a high constitutional functionary such as the CEC is kept insulated from all
executive influences, it is quite logical that he would protect the independence of the ECs. In
so far as their independence is concerned, the following words of the Constituent Assembly
are important:

In a multi-member Commission, the CEC has to act as the Chairman. The

relevant constitutional provisions simply confer on him the status of a permanent incumbent,
but that in itself, in the opinion of the Supreme Court in this case did not place him at a
higher position. He shall have to act as the Chairman of this body since it has its own staff
that deals with questions such as preparing electoral rolls, etc. That staff (not including the
ECs) shall be under the control of the CEC. The relevant constitutional provisions have not
specified his role as the Chairman of this body, nor has this been discussed on the floor of the
Constituent Assembly. According to the SS Dhanoa case in a multi-member body there has
to be a Chairman, but he shall stand above the other members of such a body in so far as
rights, and authority are concerned. However, this line of reasoning is completely
inapplicable to the Commission. No member of an institution can ever claim to be higher than
the institution that he represents. He may take the decisions individually, but those shall be
decisions of the body, not his individual decisions. Thus, even if there is a single-member
Commission, the CEC alone will have to take all the decisions, but he shall have to do so
within the scope of authority that he enjoys because of the Commission. The decisions shall
be the decisions of the Commission. As aptly held in this case, “He is a creature of the
institution, he can exist only if the institution exists.” It may be said that the CEC is no more
than a functionary of the Commission. Whether the Commission is a single or multi-member
one shall have no bearing on his position, since he is no more than a functionary, meant to
represent the institution.

But this brings one to the question of the role to be played by the Chairman in any multi-
member body.

Relying upon the definition of “Chairman” as given in a number of dictionaries, it was

concluded that the role of a Chairman is to preside over the meetings of the Board of
Directors. He is under a duty to preside over the proceedings; ensuring decisions are taken
and properly recorded. In other words, he will be required to do all that is needed for the
smooth conduct of the business of the organization. Further, he has to be able to win the
confidence of his colleagues. He will surely not be able to do so if he considers them to be no
more than his subordinates. The nature of functions to be performed by this body is such the
ECs would far from able to function independently and would only be reduced to the status of
non-functional if he is given a higher position. As it has already been noted, the Commission
is in addition to administrative functions also required to discharge functions that are
legislative and quasi-judicial in nature. Also, the ECs form part of the Commission unlike the
Regional Commissioners. In such a situation, they should be able to effectively participate in
the process of decision–making. But all this requires their being placed at same level as the
CEC. Otherwise, the ECs would be no more than mere advisors, who would not have had any
say in the functioning of the Commission. Not only would that be inconsistent their being a
part of the Commission, but also would go against the need to appoint them to ensure a
system of checks and balances within the Commission (the purpose for which Constituent
Assembly provided for a multi-member Commission).

Finally, though it has been provided that the conditions of service of the CEC cannot be
altered to his disadvantage after his appointment, the same has not been extended to the ECs.
The logical explanation for this is that their appointment is only temporary in nature.
However, not calling this an important consideration, it was held that this in itself would not
be enough to lead the court to the conclusion that the CEC is at a higher position as compared
to the ECs.

In conclusion, it was held that the CEC is at par with the ECs. Citing the instance of other
multi-member bodies such as the Union and State Public Service Commissions, wherein
there is a Chairman, Vice-Chairman and other members, it was held that there has to be close
co-operation between all the members to ensure the smooth functioning of the body.

D. SUBSEQUENT DECISIONS ON THE ROLE OF CEC IN A MULTI-MEMBER

COMMISSION

In Election Commission of India v. Dr. Subramaniam Swamy, a procedure for functioning of

the Election Commission was laid down under which the involvement of the CEC in all the
decisions of this body was not held to be necessary. The writ petition challenged the election
of Ms. J Jayalalitha

(then the CM of Tamil Nadu), alleging she was not entitled to be a member of the Legislative
Assembly since she was a partner in a partnership firm that had entered into a contract with
the state government. The Governor has to act on the opinion of the Election Commission in
deciding whether a member of the Legislative Assembly should be disqualified or not. In
interpreting the meaning of “the opinion of the Election Commission”, it was held that the
Commission can sit in Benches as do the as do judges of the Supreme Court and High Courts.
However, the exclusion of the CEC from the process of decision - making is not what is
intended. Instead, the underlying logic is that since all the members of the Commission stand
equally placed, therefore may sit in Benches. In such a capacity, the judges are not supposed
to consult the Chief Justice, but are required to apply legal principles and decide the case. The
analogy between the ECs and judges of the higher judiciary is well supported by this
case. Again, all the functionaries may participate in the process of decision – making but that
is not necessary. This clearly establishes that there is intended to be equality between the
CEC and the ECs.

This decision has significantly changed the position of the CEC. Proceeding along the same
lines as the TN Seshan case did, this decision laid down that the CEC is no different from an
ordinary member of the Commission. His absence in a particular decision does not mean that
the decision suffers from any flaw. Thus, by way of being the Chairman in a multi-member
Commission, he does no more than preside over the functioning of the Commission. Had he
been placed at a higher position, no decisions would have been possible without his
participation.

CONCLUSION

On the basis of the aforesaid, the researcher has come to the following conclusions:

1. The importance of free and fair elections in India is beyond doubt. The Election
Commission established as an independent body under the mandate of the Constitution has
to conduct elections in a free and fair manner. The fundamental consideration that shall
therefore guide the courts in deciding cases in relation to the Commission is to under all
circumstances ensure that it is able to function independently of all kinds of extraneous
influences.

2. The approach adopted by the Constituent Assembly is definitely the best possible course
that could have been taken in the light of the circumstances and choices available to it. The
present Election Commission is a basic skeletal machinery for conducting elections, present
at all points of time. In addition, more members may be appointed whenever there is an
increased requirement.

3. The appointment of ECs has to be warranted by requirements. There has to be an increased

work burden that can be handled only by the ECs so as to warrant their appointment. If the
work is such that employing ordinary staff can serve the purpose then that shall be preferred.

4. The desirability of a multi-member Commission is supported by judicial decision, settled

democratic principles and human prudence. At the same time, there have to be procedural
rules that specify the kind of relationship that shall bind the members of such a body (in the
present case the CEC and the ECs). Presently, the relevant statutes and judicial decisions lay
down that the business should be transacted in a unanimous manner as far as possible. If there
is no unanimity on issues, the rule of majority shall apply. But the latter is equally important
since when the functions involve taking decisions, there may not be a unanimous opinion at
all times.

5. The CEC is in no way superior as compared to the ECs. They are all equally placed
in so far as their powers and functions are concerned. This legal position appears to be
perfectly sound, since it ensures that the ECs who are appointed are not just advisors,
but can exercise authority. Thus, their independence is guaranteed, enabling them to act
as a watchdog in the exercise of the Commission’s powers. The fundamental
consideration of the independence of the Commission is thus ensured. The CEC is no
more than a first among equals.

6. The relationship between the CEC and ECs is largely similar to that of the Chief Justice
and judges. The former is not in a position to influence the latter in the course of discharging
their functions. The judges of the Supreme Court and High Courts can sit in benches, thus
showing that the presence of the Chief Justice is not necessary in all the decisions of the
court. Similarly, the Commission may also sit in benches, with the participation of the CEC
not a must in all the decisions of the Commission.

7. The Chairman in a multi-member body is not more than a functionary representing the
body. Even if he alone takes all the decisions, the decisions shall be those of the Commission
and not his own. He can never be higher than the institution he is meant to serve since he
shall exist only so long as that institution does. His role is to preside over the proceedings of
the body, ensuring that its business is conducted in a smooth manner. In any such body, the
other members shall be able to act independently only if they are placed at par and not
subordinate to him.

APPENDIX 1

TABLE OF CASES

· Common Cause (A Registered Society) v. Union of India, (1996) 2 SCC 752

· Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851

· NP Ponnuswami v. Returning Officer, Namakkal Constituency, AIR 1952 SC 64

· SS Dhanoa v. Union of India, (1991) 3 SCC 567, 584

· SS Party v. Election Commission of India, AIR 1967 SC 898

· TN Seshan v. Union of India, (1995) 4 SCC 611

· Yadav Reddy v. Election Commission of India

APPENDIX 2

LIST OF REFERENCES

· Constituent Assembly Debates, Volume IV

· Pylee, MV, “An Introduction to the Constitution”, 2ndReprint, 1995

· Saharay, HK, "Constitution of India - An Analytical Approach", 3rd Edition, Eastern Law
House, Calcutta
· Singh, Dr. Avtar, “College Law Dictionary”, Wadhwa, 2002, Nagpur

· Singh, MM, “Constitution of India”, World Press, 197