When Election Commission was rocked by internal disputes

: From Sukumar Sen's tenure, during which the first general election in India was held in 1951-52, to October 16, 1986, the Election Commission had only one member: the Chief Election Commissioner. In S.S. Dhanoa v. Union of India (1991), the Supreme Court stressed that under Article 342(2) of the Constitution, the President could fix and appoint as many Election Commissioners as he may, from time to time, determine, though it was desirable to have a multi-member commission. In October 1989, when the Rajiv Gandhi government was in power, the President notified the appointment of Mr. Dhanoa and V.S. Seigell as Election Commissioners to complete the team with Chief Election Commissioner R.V.S. Peri Sastry. The premise was the increased workload in conducting the elections after the minimum voting age was lowered from 21 to 18, but political observers then saw it as a move by the government to hem Mr. Sastry in. The multi-member arrangement was short-lived as the President revoked his 1989 notification after the new V.P. Singh government took over and was not in favour of the appointments made by the previous government. Mr. Dhanoa went to court, which said it was the President's discretion to determine the number of Election Commissioners. In the current situation, when two Election Commissioners, Sukhbir Singh Sandhu and Vivek Joshi, have objected to the style of functioning of Chief Election Commissioner Gyanesh Kumar, here is a look at the episodic disputes on the panel that have broken out in public.

When did the Election Commission return to be a three-member body?

On October 1, 1993, the President appointed M.S. Gill and G.V.G. Krishnamurthy as Election Commissioners. Ever since, the commission has been a three-member body. The President promulgated an Ordinance, later enacted as the Chief Election Commissioner and Election Commissioners (Condition of Service) Amendment Act, with retrospective effect from October 1, 1993. The Act explicitly granted coordinate powers to the Election Commissioners, solving a grey area in the Constitution. In the Dhanoa judgment, the court had suggested that this be solved through legislation.

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Chief Election Commissioner T.N. Seshan challenged in the Supreme Court the appointments of the two Commissioners, which were seen as a move by the P.V. Narasimha Rao government to check Mr. Seshan's powers. A Constitution Bench ruled that the commission should take its decisions unanimously, and in case of a difference of opinion, by a majority. The Bench held that the fact that the "CEC is a permanent incumbent [in the scheme of Article 324 of the Constitution] cannot confer on him a higher status than the other Election Commissioners because the latter are not permanent appointees". If Article 324 does not contemplate a multi-member body, "the impugned notifications providing for the other Election Commissioners cannot be faulted solely on that ground", it said.

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The Bench directed that Deputy Election Commissioner D.S. Bagga "will forthwith hand over the charge to Mr. M.S. Gill till the CEC resumes duty" if, as was reported, "the incumbent CEC has proceeded on leave, leaving the office in charge of Mr. Bagga". The Bench asked the three incumbents to "forgive and forget' and start on a clean slate of mutual respect and confidence.

Why did the commission became a divided house in 2009?

After a period of relative calm, trouble erupted again in the commission. On January 16, 2009, Chief Election Commissioner N. Gopalaswami sent a suo motu recommendation to the President to remove Election Commissioner Navin Chawla from office on the charge of bias. This came after BJP leader L.K. Advani's petition to the President on March 16, 2006, seeking the removal of Mr. Chawla. A month later, party leader V.K. Malhotra sent a copy of the petition to the Chief Election Commissioner.

Again, the BJP leaders took the matter up with him in January 2008 after the party withdrew its petition in the Supreme Court in August 2007. Mr. Gopalaswami served a notice on Mr. Chawla and took a whole year to come up with the adverse recommendation, The Hindu said in an exclusive report. He rejected the BJP's allegations, but claimed that he based his assessment on his own experience and observations of Mr. Chawla's work as Election Commissioner.

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"In his affidavit submitted to the Supreme Court, Mr. Gopalaswami departed from precedent to claim that the CEC had suo motu power to recommend the removal of an Election Commissioner," The Hindu reported. "He interpreted his predecessor B.B. Tandon's view as being the same as his. Actually, Mr. Tandon's view was shaped by an opinion given by Ashok Desai, former Attorney General, in April 2006. That opinion clearly held that under Article 324(5), which was elaborately interpreted by the Supreme Court in its judgment in T.N. Seshan, Chief Election Commissioner v. Union of India (1995), 'the CEC cannot act on his own and must await the reference through proper channels to be able to act on a complaint or petition seeking the removal of an EC'."

President Pratibha Patel rejected Mr. Gopalaswami's recommendation.

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What happened in 2019?

On May 4, 2019, Election Commissioner Ashok Lavasa wrote to Chief Election Commissioner Sunil Arora asking why his observations were not recorded in the order passed against BJP candidate Gulab Chand Kataria in the Lok Sabha election that year, censuring him on April 24. Mr. Lavasa had given dissenting opinions while the commissioner cleared four election campaign speeches of Prime Minister Narendra Modi and one of Amit Shah, who was the BJP president then. Mr. Lavasa had written thrice to Mr. Arora, conveying his decision to stay away from the proceedings related to the model code if dissenting views were not added to the orders.

On May 21, the commission decided by a majority of 2:1 that dissenting opinions on disputes regarding the model code of conduct will not be made part of any final order and will not be included in internal files, as is precedent.

Mr. Lavasa resigned in August 2020 when there were two more years to go in his tenure, and he was in line to succeed Mr. Arora as the Chief Election Commissioner.