Our Constitution lays down the procedure for appointment of Chief Election Commissioner and other Election Commissioners in Article 324(2) in the following words:

“The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.”

As per Article 324(2) the appointment shall be made by the President, subject of course to a law made by Parliament. So, as long as a different procedure is not provided by the Parliament, the appointment shall be made by the President. And by the President alone, and by none else.

But our Supreme Court has laid down an altogether different procedure and has prescribed an altogether different authority for appointment of the Chief Election Commissioner and other Election Commissioners in a landmark judgment delivered by a 5-Judge Constitution Bench on March 2, 2023 in Anoop Baranwal v. Union of India.

 The Supreme Court has interpreted Article 324(2) in its own peculiar and arbitrary way prescribing a Committee for such appointment. The Order of the Court in its own words is as follows:

“We declare that as far as appointment to the posts of Chief Election Commissioner and the Election Commissioners are concerned, the same shall be done by the President of India on the basis of the advice tendered by a Committee consisting of the Prime Minister of India, the Leader of the Opposition in the Lok Sabha and, in case, there is no such Leader, the Leader of the largest Party in the Opposition in the Lok Sabha having the largest numerical strength, and the Chief Justice of India. This norm will continue to hold good till a law is made by the Parliament.”

 Protection against removal from office

Question:  Whether the other Election Commissioners are entitled to same protection against removal from office as is available to the Chief Election Commissioner?

The relevant Article [Article 324(5)] reads as follows:

“Subject to the provisions of any law made 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.”

In Anoop Baranwal v. Union of India the Supreme Court interprets Article 324(5) in the same ordinary way as it appears to ordinary persons. This is what the Court says:

“It is clear as day light that the first proviso protects the Chief Election Commissioner alone from removal by providing for protection as is accorded to a Judge of the Supreme Court of India. It is still further more important to notice that the first proviso interdicts varying of the conditions of service of the Chief Election Commissioner to his disadvantage after the appointment.

It is, thereafter, that the second proviso appears. The second proviso exclusively deals with any other Election Commissioner, inter alia. The word ‘any other Election Commissioner’ has been provided to distinguish him from the Chief Election Commissioner.

Therefore, for Commissioners other than the Chief Election Commissioner, the protection which is clearly envisaged, as against his removal is only that it can be effected only with the recommendation of the Chief Election Commissioner. We are of the view that in the context of the provision, the words ‘provided further’ cannot be perceived as an additional protection to the Election Commissioner. It is intended only to be a standalone provision, specifically meant to deal with the categories of persons mentioned therein.

However, we only would observe that in the light of the fact that Election Commissioners have become part of the Election Commission, perhaps on the basis of the volume of work that justifies such an appointment and also the need to have a multi-Member team otherwise, it is for Parliament acting in the constituent capacity to consider whether it would be advisable to extend the protection to the Election Commissioners so as to safeguard and ensure the independence of the Election Commissioners as well.”

Thus, the only protection available to the other Commissioners is that their removal can be effected only with the recommendation of the Chief Election Commissioner. The more stringent protection [no removal except in like manner and on like grounds as a Judge of the Supreme Court] available to the Chief Election Commissioner is thus not available to other Commissioners.