Ashok Lavasa: Can the Election Commission untie knots of its own making?

Article 324 of the Constitution gives the Election Commission of India (ECI) wide powers. Article 324 gives the Election Commission superintendence, direction and control of elections and electoral rolls. Courts have read this very broadly. It covers almost everything connected with conducting elections. Section 21 of the Representation of the People Act, 1950 allows a special revision of rolls when they are thought to be inaccurate. This is the legal basis for the ongoing Special Intensive Revision (SIR) of electoral rolls. The SIR is the exercise at the centre of the present dispute.

The ECI has worked as a three-member body since 1989. It has one Chief Election Commissioner (CEC) and two Election Commissioners (ECs). In the 1990s, a dispute arose over whether the CEC could overrule the other two. This dispute reached the Supreme Court. The Court held that the Election Commission is a three member body with equal power decided by majority, not by the CEC alone. This is why the present dispute feels unusual. The two ECs recorded fourteen formal letters of objection over about ten months. This suggests the majority-decision norm may not have been followed in practice. The ECI also has quasi-judicial powers. It settles disputes over splits and mergers of recognised political parties. It does this under the Election Symbols (Reservation and Allotment) Order, 1968. It also fixes the election schedule on its own authority, not the Home Ministry. This shows how wide and varied its constitutional role actually is.

The two offices inside the ECI are not equally protected, though. The Chief Election Commissioner has stronger removal protection than the other two Commissioners. The CEC can only be removed through a process similar to impeaching a Supreme Court judge. An EC, however, can be removed by the President on the CEC's own recommendation. In Anoop Baranwal v Union of India (2023), the Supreme Court tried to fix this imbalance. It directed that a committee should choose the CEC and ECs. The committee should have the Prime Minister, the Leader of the Opposition and the Chief Justice of India. This was to continue until Parliament made a law. Parliament's Chief Election Commissioner and other Election Commissioners Act, 2023 then replaced the Chief Justice with a Union Cabinet Minister. The Prime Minister nominates this Minister. This gave the government an effective majority on the selection panel.

The Election Commission fixes the election schedule on its own authority under Article 324. It is not the Union Ministry of Home Affairs that does this. The ECI is a three-member body, not five-member.