The Constitution provides in article 324(2) that the Election Commission shall consist of the CEC and such number of ECs as the President may from time to time fix. Clause (5) of article 324 provides that the Parliament may prescribe the conditions of service and tenure of the CEC and ECs. Parliament enacted in this behalf the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, replacing the rules made by the President under the said clause (5). The conditions of service of the CEC and ECs in the aforesaid Act of 1991 as amended in 1993 were made identical and equated with those of a judge of the Supreme Court. CEC and ECs now serve for a period of six years or till the age of 65 years, whichever is earlier.
It is noteworthy, however, that the law is silent with regard to the further appointment of the CEC and ECs to any post or office under the government after their retirement. There is also nothing in the Conditions of Service Act to prohibit a CEC or EC from joining any political party after retirement. The Election Commission of India has over the years since its inception achieved a name for itself as a body which is neutral and whose track record of conducting free and fair election is exemplary. The importance of the role of a neutral Election Commission in our democratic set-up cannot be over-emphasised.
In this connection it would be appropriate to recall the following observations of the Supreme Court in T.N. Seshan v. Union of India and Others [(1995) 4 SCC 611]: "Democracy being the basic feature of our constitutional set-up, there can be no two opinions that free and fair elections to our legislative bodies alone can guarantee the growth of a healthy democracy in the country. In order to ensure the purity of the election process, it was thought by our constitution-makers that the responsibility to hold free and fair elections in the country should be entrusted to an independent body which would be insulated from political and/or executive interference. It is inherent in a democratic set-up that the agency which is entrusted the task of holding elections to the legislatures should be fully insulated so that it can function as an independent agency free from external pressures from the party in power or executive of the day. This objective is achieved by the setting up of an Election Commission, a permanent body, under Article 324(1) of the Constitution."
Our polity has undergone considerable changes in the last 60 years and from the days of dominance of a single party, we have moved away to rule by a coalition of parties and with more and more regional parties playing a national role. In such an increasingly fragmented polity where multi-party coalitions, in government as well as in opposition, are becoming the order of the day, the role of the Election Commission as a neutral umpire providing a level playing field is assuming ever greater importance. More than ever before, there now is a felt-need to emphasise the neutrality of the Commission and the Commissioners. With this background, it does not appear appropriate to have retired CECs and ECs accepting offices under the Government and, worse still, joining political parties. Both hit at the very root of the principle of neutrality of the CEC and ECs as the general perception would be one of lack of it in either circumstance. One way to articulate a strong sense of neutrality expected of them, in my view, is to mandate against any post-retirement employment for the ECs.
There appears a need therefore, in order that no fingers are raised against any CEC or EC doubting their neutrality and impartiality, to consider amendment of the Conditions of Service Act to provide that no CEC or EC shall be eligible for further appointment to any office or post under the government (including the office of Governor or Lt. Governor), after his retirement and further also to provide that a CEC and EC shall be prohibited from joining any political party at least for ten years after demitting office. In this context, it may be relevant to point out that the Dinesh Goswami Committee on Electoral Reforms set up by the Government in 1990, had recommended that the CEC and ECs should not be eligible for any further office under the government, including the office of Governor and Lt. Governor, and that an EC should be eligible only for appointment as CEC. A Constitutional Amendment Bill, namely, the Constitution (Seventieth Amendment) Bill, 1990, was also introduced in the Rajya Sabha on 30th March, 1990, based on the said recommendation of the Goswami Committee. The Bill, however, was withdrawn sometime in November-December, 1993. In the meanwhile through an enactment in 1991 the conditions of service of CEC and ECs were prescribed and thereafter in October, 1993 the Commission became a multi-member body, but without the restriction on post retirement appointment.
It would be appropriate to mention here that the chairman and members of UPSC and State Public Service Commission are ineligible under Article 319 for further employment under the government of India or any state government after retirement, except in those very commissions as chairman. It is another matter, however, that the spirit of this provision is being violated by appointing them as governors on the technicality that the office of the governor is not a office under the government, which is unfortunate. The Central Vigilance Commission Act, 2003 also provides, in section 5(6), that on ceasing to hold office, the Central Vigilance Commissioner and every other Vigilance Commissioner shall be ineligible for (a) any diplomatic assignment or appointment which is required by law to be made by the President by warrant under his hand and seal, and (b) further employment to any office of profit under the government of India or the government of a state. There is every justification to apply the same ratio to the ECs/CEC as applied to the C.V.C. and Vigilance Commissioners.
I therefore propose for your kind consideration for the issue of an advice to the Government to amend the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 to prohibit the appointment of a CEC or EC to any office the appointment which is required by Law to be made by and under the hand and seal of the President and to any office of profit under the government of India or the government of a state and further to prohibit the CEC and ECs from joining any political party for a period of 10 years after demitting office as CEC or EC.