ANOOP BARANWAL versus UNION OF INDIA

[2023] 9 S.C.R. 1: 2023 INSC 190

ANOOP BARANWAL

UNION OF INDIA

(Writ Petition (Civil) No.104 of 2015)

MARCH 02, 2023

[K.M. JOSEPH, AJAY RASTOGI, ANIRUDDHA BOSE,HRISHIKESH ROY AND C.T. RAVIKUMAR, JJ.]

Election Laws: Constitution of India – Arts. 324(2), 32 and142 –Appointment of Chief Election Commissioner and ElectionCommissioners – Method of – Independence of Election Commission– Constitutional validity of the practice of Union of India to appointthe members of the Election Commission – Held: The vacuum in thecase of Art.324(2) is the absence of the law which Parliament wascontemplated to enact – This Court is concerned with the devastatingeffect of continuing to leave appointments in the sole hands of theExecutive on fundamental values and also fundamental rights –Time is ripe for the Court to lay down norms – Imperative need forthe Court to step in – Vacuum exists on the basis that unlike otherappointments, it was intended all throughout that appointmentexclusively by the Executive was to be mere transient or stop gaparrangement and it was to be replaced by law made by theParliament taking away the exclusive power of the Executive – Thisconclusion is clear and inevitable and the absence of law evenafter seven decades points to the vacuum –As far as appointment tothe posts of Chief Election Commissioner and the ElectionCommissioners are concerned, the same shall be done by thePresident of India on the basis of the advice tendered by Committeeconsisting of the Prime Minister of India, the Leader of theOpposition in the Lok Sabha and, in case, there is no such Leader,the Leader of the largest Party in the Opposition in the Lok Sabhahaving the largest numerical strength, and the Chief Justice of India– This norm will continue to hold good till law is made by theParliament.

Election Laws: Constitution of India – Art.324(5) – Protectionof Election Commissioner – Whether the Election Commissioner isentitled to same protection as given to Chief Election Commissioner– Held (per K. M. Joseph, J.) (for himself, Aniruddha Bose, Hrishikesh

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ARoy and C. T. Ravikumar, JJ.): Second proviso to Article 324(5) onlyenacts the protection that the Election Commissioner or RegionalCommissioner shall not be removed from Office except on therecommendation of the Chief Election Commissioner – There isequality otherwise, which exists between the Chief ElectionCommissioner and the Election Commissioners in various matters –BThe argument that the Election Commissioner must be accorded thesame protection as is given to the Chief Election Commissioner,appears to be untenable, on plain reading of Article 324(5) – Inthe context of the said provision, the words ‘provided further’ cannotbe perceived as an additional protection to the ElectionCCommissioner – It is for Parliament acting in the constituent capacityto consider whether it would be advisable to extend the protectionto the Election Commissioners so as to safeguard and ensure theindependence of the Election Commissioners as well – Held (perAjay Rastogi, J.) Various reports have recommended that theprotection against removal available to the Chief ElectionDCommissioner should be made available to the other ElectionCommissioners to ensure the independence of the ElectionCommission – Keeping in view the importance of maintaining theneutrality and independence of the office of the Election Commissionto hold free and fair election which is sine qua non for upholdingEthe democracy as enshrined in our Constitution, it becomesimperative to shield the appointment of Election Commissioners andto be insulated from the executive interference – It is the need of thehour and advisable, to extend the protection available to the ChiefElection Commissioner under the first proviso to Article 324(5) toother Election Commissioners as well until any law is being framedFby the Parliament – The conditions of service of the ElectionCommissioners shall not be varied to his disadvantage afterappointment – Election Commission (Conditions of Service ofElection Commissioners and Transaction of Business) Act, 1991.

Election Laws: Independent Permanent Secretariat forGElection Commission – Expenditure on the Consolidated Fund ofIndia – Held (per K. M. Joseph, J.) (for himself, Aniruddha Bose,Hrishikesh Roy and C. T. Ravikumar): It is matter of policy – TheElection Commission of India is to perform the arduous andunenviable task of remaining aloof from all forms of subjugationby and interference from the Executive – The Executive can bringHan otherwise independent Body to its knees, by starving it off or

cutting off the requisite financial wherewithal and resources requiredfor its efficient and independent functioning – One cannot beoblivious to the need for articulation of details in regard to theexpenditure, which is matter of policy - Urgent need to providefor permanent Secretariat and also to provide that the expenditurebe charged on the Consolidated Fund of India – It is for the Unionof India to seriously consider bringing in the much-needed change– Union of India /Parliament may consider bringing in the necessarychanges so that the Election Commission of India becomes trulyindependent.

Constitution of India – Art. 326 – Representation of the PeopleAct, 1951 – s.62 – Right to Vote – Nature of Right – Whether StatutoryRight or Constitutional Right – Held (per K. M. Joseph, J.) (for himself,Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar, JJ.): The rightto vote is not civil right – The Right to Vote inevitably follows fromthe inclusion of person in the electoral roll – According to Art.326, where the citizen is not less than eighteen years and does nothave the disqualifications, he becomes entitled to be entered in theelectoral roll – Such person, as is indicated in Article 326, indeed,has right, which can be said to be Constitutional Right, whichmay be right subject to the restriction – Held (Ajay Rastogi, J.) – Byvirtue of Article 326, the right to vote became constitutional rightgranted to citizens – The said right was given effect by s.62 ofRepresentation of the People (ROP) Act, 1951 – The right to vote isnot just statutory right – The right to vote is an expression of thechoice of the citizen, which is fundamental right under Art.19(1)(a)– The right to vote is not limited only to Art.326, but flows throughArts.15, 17, 19, 21 – The right to vote in direct elections is afundamental right, subject to limitations laid down in Art. 326 –The right to vote is not merely constitutional right, but componentof Part III of the Constitution.

Election Laws: Constitution of India – Art.14 – Rule of Law –Role of Election Commission – Held (per K. M. Joseph, J.) (for himself,Aniruddha Bose, Hrishikesh Roy and C. T. Ravikumar, JJ.): Rule oflaw is the very bedrock of democratic form of governance – AnElection Commission which does not ensure free and fair poll asper the rules of the game, guarantees the breakdown of thefoundation of the rule of law – Any action or omission by the

AElection Commission in holding the poll which treats political partieswith an uneven hand and in an unfair or arbitrary manner wouldbe anathema to the mandate of Article 14, and therefore, cause itsbreach.

Constitution of India – Art. 142 – Power of the Court to layBdown guidelines in order to fill legislative gaps – Held (per AjayRastogi, J.): The Supreme Court has plenary power under Article142 to issue directions to do “complete justice” – The Court hascreated jurisprudence, where it has exercised its power underArticle 142 to fill legislative gaps – Supreme Court has laid downguidelines in order to fill the legislative gap on number ofCoccasions – Series of case laws authoritatively demonstrate thecommitment of Supreme Court to intervene to preserve and promotethe “Rule of Law”, by supplementing the legislative gaps till theLegislature steps in.

Partly allowing the writ petitions, the CourtDHELD:

per K. M. JOSEPH, J. (for himself, Aniruddha Bose,Hrishikesh Roy and C. T. Ravikumar, JJ.):

1. In regard to the use of Constituent Assembly debates,the law has not stood still. At any rate, whatever may be theEcontroversy, as regards its employment to discern, the purportof provision there can be no taboo involved in its use tounderstand the history of provision under the Constitution andtshe various steps leading up to and accompanying its enactment.[Para 28][51-E-F]F

2. All the Members of the constituent assembly were ofthe clear view that election must be conducted by an independentCommission. It is equally clear that the Members of theCommittees, including the Constituent Assembly, wanted theappointment to the Election Commission not to be made by theGExecutive. In short, what the Founding Fathers clearlycontemplated and intended was, that Parliament would step-inand provide norms, which would govern the appointment to sucha uniquely important post as the post of Chief ElectionCommissioner and the Election Commissioners. When theFounding Fathers, therefore, inserted the words ‘subject to theH

provisions of any law to be made by Parliament’, it was intendedthat Parliament would make law. While this Court would not go,so far as to hold that Parliament was under compellable duty,which this Court can enforce by Mandamus, to make law, allthat this Court is finding is that the Constituent Assembly clearlyintended that Parliament must make law within the meaning ofArticle 324(2) of the Constitution. [Paras 32 and 33][55-A, D, E-F; G-H]

3. It is clear that the founding fathers intended that theelections in the country must be under the superintendence,direction and control of an independent Body. The Body is theElection Commission of India. Under Article 324, the ChiefElection Commissioner is an unalterable feature or figure. ACommission can consist of only the Chief Election Commissioner.A multi-Member Commission was also contemplated by thefounding fathers. However, the post of Election Commissionerwas to be need based. For nearly four decades, there was noElection Commissioner. As noticed, it is on 16.10.1989 that thefirst two Election Commissioners were appointed. In regard tothe appointment of the Chief Election Commissioner and otherElection Commissioners, the Constitution does not provide forany criteria. It does not fix any qualifications. It does not prescribeany disqualifications in the matter of appointment as either ChiefElection Commissioner or Election Commissioner. [Para 60][72-G-H; 73-A-B]4. It cannot be disputed that there is no strict demarcationor separation of powers in India unlike the position obtaining inthe United States of America and Australia. The doctrine ofseparation of powers, no doubt, has been eloquently expoundedby Montesquieu in his work “The Spirit of Laws” and the basison which it rests is the imperative need to avoid concentration ofpower in one or two organs. Undoubtedly, an observance ofdoctrine of separation of powers has been traced to the principleof equality. Separation of powers as understood as prevailing inIndia constitutes part of the basic structure of the Constitutionof India. The theory of separation of powers in an ultimate analysisis meant to prevent tyranny of power flowing from the assumptionof excess power in one source. Its value lies in delicate butskilful and at the same time legitimate balance being struck by

Athe organs of the State in the exercise of their respective powers.This means that the essential powers which are well understoodin law cannot be deliberately encroached upon by any organ ofthe State. [Paras 81, 82 and 86][89-D-E, F-G; 92-D]

5. Judicial review has been recognized as forming part ofBthe basic structure. Judicial review of legislation is expresslyprovided in Article 13 of the Constitution. court when it declaresa law made by the legislature as unconstitutional, if it be that, it iswithin its bounds, cannot be accused of transgressing the principleof separation of powers. Declaring even law made by theParliament as unconstitutional forms part of its powers. In viewCof the enunciation of the doctrine of basic structure in India unlikeperhaps in most countries, even an amendment to theConstitution can be declared unconstitutional by the court. Suchexercise cannot expose the court to the charge that it is notobserving the limits set by the Constitution. [Para 85][91-G-H;D92-A-B]

6. The right to vote is not civil right. To cast the vote, aperson must be included in the electoral roll of the constituency.However, even if it be that he is so included, if at the time of theelection, when he casts the vote, he has incurred any of theEdisqualifications referred to in Section 16 of the 1950 Act, thenhis Right to Vote will stand eclipsed. The Right to Vote inevitablyfollows from the inclusion of person in the electoral roll, theRight to Vote may be denied in terms of the law. In keeping withthe mandate of Article 326, Parliament has made the 1950 Actand the 1951 Act. It is thereafter that the first general electionsFwere held in the country. It may be true that the 1950 Act and the1951 Act have been amended from time to time. At any givenpoint of time, placing Article 326 side-by-side with the law madeby Parliament or the law made by the State Legislature, if personis citizen of India and not below eighteen years of age, and if hedoes not incur the disqualifications, which cannot be more thanGwhat is provided in Article 326, but the content of which, may beprovided by the law made by the competent Legislature and thecitizen not less than eighteen years does not have thedisqualifications, he becomes entitled to be entered in theelectoral roll. Such person, as is indicated in Article 326, indeed,Hhas right, which can be said to be Constitutional Right, which

may be right subject to the restriction. Section 62(1) of the 1951Act, gives also the Right to Vote to such person. Any otherinterpretation would whittle down the grand object of conferringadult suffrage on citizens. Even if it is treated as statutory right,which, at any rate, cannot be divorced or separated from themandate of Article 326, the right is of the greatest importanceand forms the foundation for free and fair election, which, inturn, constitutes the right of the people to elect theirrepresentatives. [Paras 95, 122, 125,135 and 141][100-A; 115-F-G; 116-F; 122-B-E; 124-B-C]7. The cardinal importance of fiercely independent, honest,competent and fair Election Commission must be tested on theanvil of the rule of law as also the grand mandate of equality. Ruleof law is the very bedrock of democratic form of governance. Itsimply means that men and their affairs are governed by pre-announced norms. It averts democratic Government broughtto power by the strength of the ballot betraying their trust andlapsing into Government of caprice, nepotism and finallydespotism. It is the promise of avoidance of these vices whichpersuades men to embrace the democratic form of Government.An Election Commission which does not ensure free and fair pollas per the rules of the game, guarantees the breakdown of thefoundation of the rule of law. Equally, the sterling qualities mustbe possessed by an Election Commission is indispensable for anunquestionable adherence to the guarantee of equality in Article14. In the wide spectrum of powers, if the Election Commissionexercises them unfairly or illegally as much as he refuses toexercise power when such exercise becomes duty it has tellingand chilling effect on the fortunes of the political parties.Inequality in the matter of treatment of political parties who areotherwise similarly circumstanced unquestionably breaches themandate of Article 14. The Election Commissioners includingthe Chief Election Commissioner blessed with nearly infinitepowers and who are to abide by the fundamental rights must bechosen not by the Executive exclusively and particularly withoutany objective yardstick. [Para 165][138-F-H; 139-A-B, E]

8. If the drawing up of the panel itself results in fateaccompli, then, the whole exercise would be reduced to foregoneconclusion as to who would be finally appointed. What this Court

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Afinds about the method involved is, even proceeding on the basisthat the Government has the right to confine the appointee toCivil Servants that it is in clear breach of the contemplatedmandate that be it as an Election Commissioner or Chief ElectionCommissioner, the appointee should have period of six years.The philosophy behind giving reasonably long stint to theBappointee to the post of Election Commissioner or the ChiefElection Commissioner, is that it would enable the Officer to haveenough time to gear himself to the needs of the Office and to beable to assert his independence. An assured term would instil inthe appointee, the inspiration and the will to put in place anyCreforms, changes, as also the inspiration to bring out his best. Ashort-lived stint may drain the much needed desire besides thetime to fulfill the sublime objects of the high Office of the ElectionCommissioner or the Chief Election Commissioner. Any tendencytowards placating the powers that be, would wax as also the powerand the will to assert his independence may wane, bearing inDmind, the short tenure. This apparently is the underlyingphilosophy of the law made by Parliament, assuring, term of sixyears. The term of six years is separately assured to both theElection Commissioner and the Chief Election Commissioner.In other words, the object of the law and its command would stand

Edefeated and the practice lends strength to the complaint of thepetitioners. This Court must make it clear that the observationsare not meant to be an individualised assessment of the appointee,who has excellent academic qualifications. But as this Court hasnoted academic excellence which members of the civil servicemay possess cannot be substitute for values such asFindependence and freedom from bias from political affiliation.Parliament enshrined term of six years separately for the ChiefElection Commissioner and the Election Commissioner. This isthe Rule, it is found in Section 4(1). proviso cannot arrogateitself to the status of the main provision. The exception cannotGbecome the Rule. Yet, this what the appointments have beenreduced to. It undermines the independence of the ElectionCommission. The policy of the law is defeated. [Para 195][156-G-H; 157-A-F]9. The vacuum in the case of Article 324 (2) is the absenceHof the law which Parliament was contemplated to enact. Political

parties undoubtedly would appear to betray special interest innot being forthcoming with the law. The reasons are not far toseek. There is crucially vital link between the independence ofthe Election Commission and the pursuit of power, itsconsolidation and perpetuation. In the unique nature of theprovision, this Court is concerned with and the devastating effectof continuing to leave appointments in sole hands of the Executiveon fundamental values, as also the Fundamental Rights, the timeis ripe for the Court to lay down norms. In other words, the vacuumexists on the basis that unlike other appointments, it was intendedall throughout that appointment exclusively by the Executive wasto be mere transient or stop gap arrangement and it was to bereplaced by law made by the Parliament taking away theexclusive power of the Executive. This conclusion is clear andinevitable and the absence of law even after seven decades pointsto the vacuum. [Paras 220,221 and 227][173-H; 174-A-B; 175-D-E]

10. The appointment of the Chief Election Commissionerand the Election Commissioners, shall be made by the Presidenton the advice of Committee consisting of the Prime Minister,the Leader of the Opposition of the Lok Sabha, and in case noleader of Opposition is available, the leader of the largestopposition Party in the Lok Sabha in terms of numerical strength,and the Chief Justice of India. This will be subject to any law tobe made by Parliament. [Paras 230 and 231][177-H; 178-A-B]

11. The conditions of service and tenure of the ElectionCommissioners and the Regional Commissioners was to be suchas made by the Rule provided. This, however, was subject to anylaw made by Parliament. It may be true that there is equalityotherwise, which exists between the Chief Election Commissionerand the Election Commissioners in various matters dealt withunder the Act. However, Article 324 is inoperable without theChief Election Commissioner. Even on plain reading of Article324(5), this Court is of the view that in regard to the prayer thatthe Election Commissioner must be accorded the same protectionas is given to the Chief Election Commissioner, the argumentappears to be untenable. The first proviso to Article 324(5)protects the Chief Election Commissioner alone from removal

ABC

Aby providing for protection as is accorded to Judge of theSupreme Court of India. It is still further more important to noticethat the first proviso interdicts varying of the conditions of serviceof the Chief Election Commissioner to his disadvantage after theappointment. It is, thereafter, that the second proviso appears.The second proviso exclusively deals with any other ElectionBCommissioner, inter alia. The word ‘any other ElectionCommissioner’ has been provided to distinguish him from theChief Election Commissioner. Therefore, for the ElectionCommissioners other than the Chief Election Commissioner, theprotection which is clearly envisaged, as against his removal isConly that it can be effected only with the recommendation of theChief Election Commissioner. In the context of the provision,the words ‘provided further’ cannot be perceived as an additionalprotection to the Election Commissioner. It is intended only tobe standalone provision, specifically meant to deal with thecategories of persons mentioned therein. This Court would thinkDthat no more need be said and reject the contention. However, inthe light of the fact that Election Commissioners have becomepart of the Election Commission, perhaps on the basis of thevolume of work that justifies such an appointment and also theneed to have multi-Member team otherwise, it is for ParliamentEacting in the constituent capacity to consider whether it would beadvisable to extend the protection to the Election Commissionersso as to safeguard and ensure the independence of the ElectionCommissioners as well. This goes also as regards variation ofservice conditions after appointment. [Para 233][179-C-D, G; 180-A-B, B-E, G-H; 181-A]F

12. There cannot be any doubt that the Election Commissionof India is to perform the arduous and unenviable task ofremaining aloof from all forms of subjugation by and interferencefrom the Executive. One of the ways, in which, the Executive canbring an otherwise independent Body to its knees, is by starvingGit off or cutting off the requisite financial wherewithal andresources required for its efficient and independent functioning.This Court must bear in mind that to elevate it to constitutionalprovision and protection thereunder, maybe matter, which mustengage the attention of the Constituent Body. This is again aHmatter which can also be provided by way of law by Parliament.

This Court has no doubt that there is considerable merit in thecomplaint of the petitioner, which apparently, is endorsed by theElection Commission of India itself. This Court cannot beoblivious to the need for articulation of details in regard to theexpenditure, which is matter of policy, which this Court refrainsfrom doing. This Court would only make an appeal on the basisthat there is an urgent need to provide for permanent Secretariatand also to provide that the expenditure be charged on theConsolidated Fund of India and it is for the Union of India toseriously consider bringing in the much-needed changes. [Paras236 and 238][181-F-G; 182-B-D]13. The Writ Petitions are partly allowed and they aredisposed of as follows: I. As far as appointment to the posts ofChief Election Commissioner and the Election Commissionersare concerned, the same shall be done by the President of Indiaon the basis of the advice tendered by Committee consisting ofthe Prime Minister of India, the Leader of the Opposition in theLok Sabha and, in case, there is no such Leader, the Leader ofthe largest Party in the Opposition in the Lok Sabha having thelargest numerical strength, and the Chief Justice of India. Thisnorm will continue to hold good till law is made by the Parliament.II. As regards the relief relating to putting in place permanentSecretariat for the Election Commission of India and charging itsexpenditure to the Consolidated Fund of India is concerned, theCourt makes fervent appeal that the Union of India/Parliamentmay consider bringing in the necessary changes so that theElection Commission of India becomes truly independent. [Para239][182-D-H]

Dr. Jaishri Laxmanrao Patil v. Chief Minister and others(2021) 8 SCC 1; Union of India v. Assn. for DemocraticReforms (2002) 5 SCC 294 : [2002] 3 SCR 696 ;Supreme Court Advocates-on-Record Assn. and anotherv. Union of India (2016) 5 SCC 1 : [2015] 13 SCR 1;Vishaka and others v. State of Rajasthan and others(1997) 6 SCC 241:[1997] 3 Suppl. SCR 404; SpecialReference No. 1 of 1998, Re 73 (1998) 7 SCC 739 –relied on.

Rajbala and others v. State of Haryana and others.(2016) 2 SCC 445 : [2015] 12 SCR 1106; ElectionCommission of India v. State of T.N and Others (1995)3 Suppl. SCC 379, Union of India v. Association forDemocratic Reforms and Others.(2002) 5 SCC 294 :[2002] 3 SCR 696 and Election Commission of India v.Ashok Kumar (2000) 8 SCC 216 : [2000] 3 Suppl.SCR 34 – affirmed.

Supreme Court Advocates-on-Record Association andAnother v. Union of India (2016) 5 SCC 1:[2015] 13SCR 1; Indian National Congress v. Institute of SocialWelfare and Others (2002) 5 SCC 685 : [2002] 3SCR 1040; Supreme Court Advocateson-RecordAssociation and Others v. Union of India (1993) 4 SCC441 : [1993] 2 Suppl. SCR 659; Prakash Singh andOthers v. Union of India and Others (2006) 8 SCC 1 :[2006] 6 Suppl. SCR 473; Vineet Narain and Others v.Union of India and Another (1998) 1 SCC 226 : [1997]6 Suppl. SCR 595; T.N. Seshan, Chief ElectionCommissioner of India v. Union of India and others(1995) 4 SCC 611 : [1995] 2 Suppl. SCR 106 ; SamsherSingh v. State of Punjab and Another (1974) 2 SCC831 : [1975] 1 SCR 814 ; His Holiness KesavanandaBharati Sripadagalvaru v. State of Kerala and Another(1973) 4 SCC 225 : [1973] 0 Suppl. SCR 1; S.S.Dhanoa v. Union of India and Others (1991) 3 SCC567 : [1991] 3 SCR 159; I. C. Golak Nath and Othersv. State of Punjab and Another AIR 1967 SC 1643 :[1967] 2 SCR 762; Bandhua Mukti Morcha v. Unionof India and Others (1984) 3 SCC 161:[1984] 2 SCR67; In Re. Delhi Laws Act, 1912 AIR 1951 SC 332:[1951] SCR 747; Madras Bar Association v. Union ofIndia 2021 SCC OnLine SC 463; Indira Nehru Gandhiv. Raj Narain & Ors. (1975) Suppl. SCC 1 : [1976] 2SCR 347; Indian Aluminium Co. and others v. State ofKerala and others (1996) 7 SCC 637 : [1996] 2 SCR23 ; State of U.P. v. Jeet S. Bisht (2007) 6 SCC 586 :[2007] 7 SCR 705 ; Divisional Manager, Aravali GolfClub and Another v. Chander Hass and Another (2008)1 SCC 683 : [2007] 12 SCR 1084; Asif Hameed v. Stateof J & K (1989) Suppl.2 SCC 364 : [1989] 3 SCR 19;Common Cause v. Union of India and Others (1996) 1SCC 753 :[1996] 1 SCR 89 ; Divisional Manager,Aravali Golf Club and Another v. Chander Hass andAnother (2008) 1 SCC 683 : [2007] 12 SCR 1084 ;State of T.N. v. State of Kerala and another (2014) 12SCC 696 : [2014] 12 SCR 875 ; N.P. Ponnuswami v.Returning Officer, Namakkal AIR 1952 SC 64 : [1952]0 SCR 218; Jyoti Basu and Others. Debi Ghosal andOthers. (1982) 1 SCC 691 : [1982] 3 SCR 318 ; MohanLal Tripathi vs. District Magistrate, Raibraally andothers (1992) 4 SCC 80 : [1992] 3 SCR 338 ; RamaKant Pandey v. Union of India (1993) 2 SCC 438 :[1993] 1 SCR 786; Anukul Chandra Pradhan,Advocate Supreme Court v. Union of India and others(1997) 6 SCC 1 : [1997] 1 Suppl. SCR 641; ShyamdeoPd. Singh v. Nawal Kishore Yadav (2000) 8 SCC 46 :[2000] 2 Suppl. SCR 668 ; People’s Union for civilLiberties (PUCL) and Another vs. Union of India andAnother (2003) 4 SCC 399 : [ 2003] 2 SCR 1136;Kuldip Nayar and Others v. Union of India and Others(2006) 7 SCC 1 : [2006] 5 Suppl. SCR 1; K. KrishnaMurthy v. Union of India (2010) 7 SCC 202 : [2010] 6SCR 972 ; Chief Election Commissioner and Others v.Jan Chaukidar (Peoples Watch) and Others [2013] 10SCR 641; Desiya Murpokku Dravida Kazhagam(DMDK) and another v. Election Commission of India(2012) 7 SCC 340 : [2012] 3 SCR 1084 ; S.R.Chaudhuri v. State of Punjab and Others (2001) 7 SCC126 : [2001] 1 Suppl. SCR 621; B.R. Kapur v. State ofT.N. and Another (2001) 7 SCC 231:[2001] 3 Suppl.SCR 191; B.P. Singhal v. Union of India and Another(2010) 6 SCC 331; Mohinder Singh Gill and Anotherv. Chief Election Commissioner, New Delhi and Others(1978) 1 SCC 405 : [1978] 2 SCR 272 ; Digvijay Motev. Union of India and Others (1993) 4 SCC 175 : [1993]1 Suppl. SCR 553; All Party Hill Leaders ConferenceShillong v. Captain W.A. Sangma and Others (1977) 4

SCC 161 : [1978] 1 SCR 393 ; Kanhiya Lal Omar v.R.K. Trivedi and Others (1985) 4 SCC 628 : [1985] 3Suppl. SCR 1; Election Commission of India v. StateBank of India Staff Association Local Head Office Unit,Patna and Others (1995) suppl.2 SCC 13 : [1995] 1SCR 935; Common Cause (A Registered Society) v.Union of India and Others (1996) 2 SCC 752:[1996] 3SCR 1208 ; Election Commission of India v. AshokKumar and Others (2000) 8 SCC 216 : [2000] 3 Suppl.SCR 34; Ashok Shankarrao Chavan v. MadhavraoKinhalkar (2014) 7 SCC 99 : [2014] 14 SCR 1227;Abhiram Singh v. C.D. Commachen (DEAD) by LegalRepresentatives and others (2017) 2 SCC 629: [2017]1 SCR 158; Shri Sadiq Ali and another v. ElectionCommission of India, New Delhi and others (1972) 4SCC 664 : [1972] 2 SCR 318; Janata Dal (Samajwadi)v. Election Commission of India (1996) 1 SCC 235:[1995] 5 Suppl. SCR 592 ; Indian National Congress(I) v. Institute of Social Welfare and others (2002) 5SCC 685 : [2002] 3 SCR 1040 ; Subramanian Swamyv. Election Commission of India through its Secretary(2008) 14 SCC 318 : [2008] 13 SCR 846; EdapaddiK. Palaniswami v. T.T.V. Dhinakaran and others [2019]3 SCR 200; Public Interest Foundation and others v.Union of India and others (2018) 3 SCC 224 : [2018]10 SCR 141; Lakshmi Kant Pandey v. Union of India(1984) 2 SCC 244 : [1984] 2 SCR 795; Union CarbideCorporation and others. v. Union of India and others(1991) 4 SCC 584 : [1991] 1 Suppl. SCR 251; DelhiJudicial Service Association, Tis Hazari Court, Delhi v.State of Gujarat and others (1991) 4 SCC 406:[1991]3 SCR 936; Manoj Narula v. Union of India (2014) 9SCC 1 : [2014] 9 SCR 965 ; Bhanumati and others v.State of U.P. through its Principal Secretary and others(2010) 12 SCC 1 : [2010] 7 SCR 585; Kalpana Mehtaand others v. Union of India and others (2018) 7 SCC1 : [2018] 4 SCR 1 – referred to.

per AJAY RASTOGI, J.

1. Indian democracy will work only when the institutionswhich have the responsibility to preserve democracy work. Eachinstitution in our Constitution has its demarcated role, which canonly be fulfilled if the people who are running these institutionsare responsible. The people who run these institutions need tobe accountable to the people, and therefore the process ofselecting them has to ensure the independence of the institution.To strengthen the democratic processes, the institution of theElection Commission needs to be independent and demonstratetransparency and accountability. This reason is enough in itselfto call this Court to examine the institutional structure of theElection Commission of India. [Paras 25 and 28][191-B, E-F]

2. By virtue of Article 326, the right to vote became aconstitutional right granted to citizens. The said right was giveneffect by Section 62 of Representation of the People (ROP) Act,1951. Section 62(1) of ROP Act provides: “No person who is not,and except as expressly provided by this Act, every person whois, for the time being entered in the electoral roll of anyconstituency shall be entitled to vote in that constituency.” Thelegal position is that the relevant provision of the ROP Act isderived from the text of the Constitution, which in this case, isArticle 326. The right to take part in the conduct of public affairsas voter is the core of the democratic form of government,which is basic feature of the Constitution. The right to vote isan expression of the choice of the citizen, which is fundamentalright under Article 19(1)(a). The right to vote is part of citizen’slife as it is their indispensable tool to shape their own destiniesby choosing the government they want. In that sense, it is areflection of Article 21. In history, the right to vote was denied towomen and those were socially oppressed. Our Constitution tooka visionary step by extending franchise to everyone. In that way,the right to vote enshrines the protection guaranteed underArticle 15 and 17. Therefore, the right to vote is not limited onlyto Article 326, but flows through Article 15, 17, 19, 21. Article326 has to be read along with these provisions. It is declare theright to vote in direct elections as fundamental right, subject tolimitations laid down in Article 326. [Paras 46 and 68][197-D-F;205-G-H; 206-A-B]

BCD

A3. The right to vote is not merely constitutional right, buta component of Part III of the Constitution as well, it raises thelevel of scrutiny on the working of the Election Commission ofIndia, which is responsible for conducting free and fair elections.As it is question of constitutional as well as fundamental rights,this Court needs to ensure that the working of the ElectionBCommission under Article 324 facilitates the protection ofpeople’s voting rights. [Para 69][206-C-E]

4. Both Article 324 of the Constitution and the ElectionCommission (Conditions of Service of Election Commissionersand Transaction of Business) Act, 1991 are silent on the selectionCprocess of the Chief Election Commissioner and the ElectionCommissioner. [Para 90][211-F]

5. This Court has plenary power under Article 142 to issuedirections to do “complete justice”. An analysis of the judgmentsof this Court shows that the Court has created jurisprudence,Dwhere it has exercised its power under Article 142 to fill legislativegaps. The series of case laws authoritatively demonstrate thecommitment of this Court to intervene to preserve and promotethe “Rule of Law”, by supplementing the legislative gaps till theLegislature steps in. This has been done in exercise of the plenaryEpower of this Court under Article 142 of the Constitution. In orderto fill the legislative vacuum, i.e. the absence of any law made bythe Parliament for the appointment of members of the ElectionCommission and in the light of the views expressed in variousreports of the Law Commission, Election Commission, etc., thisCourt is of the considered view that the instant case thus aptlyFcalls for the exercise of the power of this Court under Article142 to lay down guidelines to govern the process of selectionand removal of Chief Election Commissioner and ElectionCommissioners, till the Legislature steps in.[Paras 109,113 and118][237-A-B; 238-G; 241-E-F]G6. In order to allow independence in the functioning of the

G6. In order to allow independence in the functioning of theElection Commission as Constitutional body, the office of ChiefElection Commissioners as well as the Election Commissionershave to be insulated from the executive interference. Theprotection available to the Chief Election Commissioners is notavailable to other Election Commissioners. Various reports haveH

recommended that the protection against removal available tothe Chief Election Commissioner should be made available tothe other Election Commissioners to ensure the independenceof the Election Commission. In the facts and circumstances,keeping in view the importance of maintaining the neutrality andindependence of the office of the Election Commission to holdfree and fair election which is sine qua non for upholding thedemocracy as enshrined in our Constitution, it becomesimperative to shield the appointment of Election Commissionersand to be insulated from the executive interference. It is theneed of the hour and advisable, to extend the protection availableto the Chief Election Commissioner under the first proviso toArticle 324(5) to other Election Commissioners as well until anylaw is being framed by the Parliament. [Paras 119,120 and125][241-G; 242-C-D; 244-D-F]

7. Until the Parliament makes law in consonance withArticle 324(2) of the Constitution, the following guidelines shallbe in effect: (1) It is declared that the appointment of the ChiefElection Commissioner and the Election Commissioners shallbe made on the recommendations made by three-memberCommittee comprising of the Prime Minister, Leader of theOpposition of the Lok Sabha and in case no Leader of Oppositionis available, the Leader of the largest opposition party in the LokSabha in terms of numerical strength and the Chief Justice ofIndia. (2) It is desirable that the grounds of removal of the ElectionCommissioners shall be the same as that of the Chief ElectionCommissioner that is on the like grounds as Judge of theSupreme Court subject to the “recommendation of the ChiefElection Commissioner” as provided under the second provisoto Article 324(5) of the Constitution of India. (3) The conditionsof service of the Election Commissioners shall not be varied tohis disadvantage after appointment. [Para 126][244-F-H; 245-A-B]

K.S. Puttaswamy and Another v. Union of India andOthers (2017) 10 SCC 1 : [2017] 10 SCR 569 –followed.

People’s Union for Civil Liberties (PUCL) and Anotherv. Union of India and Another (2003) 4 SCC 399:[2003] 2 SCR 1136 ; People’s Union for Civil Libertiesv. Union of India (2013) 10 SCC 1 : [2013] 12

ABC

SCR 283; Raj Bala v. State of Haryana and Others(2016) 1 SCC 463 : [2015] 9 SCR 113; UnnikrishnanJ.P. and Others v. State of Andhra Pradesh and Others[1993] 1 SCR 594 : (1993) 1 SCC 645; T.N. Seshan,Chief Election Commissioner of India v. Union of Indiaand Others (1995) 4 SCC 611 : [1995] 2 Suppl. SCR106 – relied on.

N.P. Ponnuswami v. Returning Officer, NamakkalConstituency and Others [1952] SCR 218 : 1952 AIR64; Mohindhr Singh Gill and Another v. Chief ElectionCommissioner, New Delhi and Others. (1978) 1 SCC405 : [1978] 2 SCR 272 ; Jyoti Basu and Others v.Debi Ghosal and Others (1982) 1 SCC 691 : [1982] 3SCR 318; Union of India v. Association for DemocraticReforms and Another (2002) 5 SCC 294 : [2002] 3 SCR696; Kuldip Nayar and Others v. Union of India andOthers (2006) 7 SCC 1 : [2006] 5 Suppl. SCR 1; DesiyaMurpokku Dravida Kazhagam (DMDK) and anotherv. Election Commission of India (2012) 7 SCC 340 :[2012] 3 SCR 1084; Vishakha v. State of Rajasthan AIR1997 SC 3011 : [1997] 3 Suppl. SCR 404; Indira NehruGandhi Smt v. Shri Raj Narain and Another AIR 1975SC 2299 : [1976] 2 SCR 347; Manoj Narula v. Unionof India (2014) 9 SCC 1 : [2014] 9 SCR 965; LakshmiKant Pandey v Union of India AIR 1984 SC 469 : [1984]2 SCR 795; Kumari Madhuri Patil and Another v Addl.Commissioner, Tribal Development and Others (1994)6 SCC 241 : [1994] 3 Suppl. SCR 50; Vineet Narainand Others v Union of India and Another. (1998) 1 SCC226 : [1997] 6 Suppl. SCR 595 ; Vishwa Jagriti MissionThrough President v Central Govt. Through CabinetSecretary and Others (2001) 6 SCC 577 : [2001] 3 SCR540; Prakash Singh and Others v Union of India andOthers (2006) 8 SCC 1 : [2006] 6 Suppl. SCR 473;Laxmi v Union of India and Others (2014) 4 SCC 427;Shakti Vahini v Union of India and Others (2018) 7SCC 192 : [2018] 3 SCR 770 - referred to.

Case Law Reference

20SUPREME COURT REPORTS

[2023] 9 S.C.R.

ANOOP BARANWAL v. UNION OF INDIA

Writ Petition (Civil) Nos.1043 Of 2017, 569 Of 2021 And 998 ofD2022.

Gopal Sankaranarayanan, Sr. Adv., Prashant Bhushan, Ms. AliceRaj, Rahul Gupta, Ms. Ria Yadav, Varinder Kumar Sharma, VarunThakur, Syed Imtiyaz, Shantanu Sharma, Ali Safeer Farooqi, SayeerAgarwal, Ms. Sharddha Saran, Aftab Ali Khan, Brajesh Pandey, ShashankERatnoo, Ashwini Kumar Upadhyay, Ashwani Kumar Dubey, Ms. TanyaSrivastva, Ms. Aditi Gupta, Ms. Jhanvi Dubey, Ms. Shivani Vij, Ms.Ishita Chowdhary, Ms. Trisha Chandran, Advs. for the Petitioner.

R. Venkataramani, AG, Tushar Mehta, SG, Balbir Singh, K. M.Nataraj, ASGs, Prasenjeet Mohapatra, Samarvir Singh, Naman Tandon,FMs. Anu Sura, Prahlad Singh, Sharath Nambiar, Vinayak Sharma, RajatNair, Ms. Priyanka Das, Manan Popli, Ms. Niranjana Singh, Ms. ShraddhaDeshmukh, Ankur Talwar, Sumit Teterwal, Chinmayee Chandra, MayankPandey, Udai Khanna, Anirudh Bhat, Nakul chengappa K.K., Ms. AkritiA. Manubarwala, Ms. Niranjana Singh, Shyam Gopal, Ms. VijayalakshmiVenkataramani, Anandh Venkataraman, Vinayak Mehrotara, ChitvanGSinghal, Praveen Vignesh, Ms. Sonali Jain, Ms. Mansi Sood, AbhishekKumar Pandey, Arvind Kumar Sharma, Mukesh Kumar Maroria, AmitSharma, Kaleeswaram Raj, Nishe Rajen Shonker, Ms. Anu K. Joy, AlimAnvar, Ms. Thulasi K. Raj, Advs. for the Respondent.

* Ed. Note: Pagination in the Index is as per the original judgment.

ABY PARLIAMENT AS CONTAINED IN ARTICLE 324 .. 59N.DEVELOPMENTS AFTER 26 JANUARY 1950; THE CHIEFELECTION COMMISSIONERS AND THE ELECTIONCOMMISSIONERS WHO WERE APPOINTED

AND THEIR TERMS ........................................................... 72

BO.A CLOSER LOOK AT S.S. DANOA (SUPRA), THE 1991ACT AND T.N. SESHAN (SUPRA) ..................................... 78P.THE CLAMOUR FOR REFORMS ..................................... 93

Q.SEPARATION OF POWERS AND JUDICIALACTIVISM .......................................................................... 116CR.IS THE RIGHT TO VOTE STATUTORY RIGHTOR CONSTITUTIONAL RIGHT? ................................. 135S.ARTICLE 326 DEMYSTIFIED .......................................... 151T.DEMOCRACY AND THE IMPORTANCE OFELECTIONS ........................................................................ 180D

U.POWERS, FUNCTIONS AND JURISDICTION OFTHE ELECTION COMMISSION OF INDIA ................... 191V.THE IMPACT OF ARTICLE 329(b) .................................. 197W.PURSUIT OF POWER; MEANS TO AN END OR ANEND IN ITSELF? ................................................................ 203EX.RULE OF LAW; FUNDAMENTAL RIGHTS ANDAN INDEPENDENT ELECTION COMMISSION .......... 205Y.THE SYMBOLS ORDER; THE MODEL CODE OFCONDUCT .......................................................................... 208FZ.INDEPENDENCE; STERLING AND INDISPENSABLEATTRIBUTE ........................................................................ 226THE CONCEPT OF LEGITIMATE POWER OFRECIPROCITY ................................................................... 226

AA. THE APPOINTMENT OF SHRI ARUN GOEL: TRIGGERG OR MERE ASIDE? ........................................................ 230

BB. IS THERE VACUUM IN ARTICLE 324? SHOULDTHE COURT INTERFERE, IF THERE IS ONE? ............ 242

CC. AN ELECTION COMMISSIONER ENTITLED TOSAME PROTECTION AS GIVEN TO CHIEFHELECTION COMMISSIONER? ........................................ 278

[K. M. JOSEPH, J.]

A. THE CASES: THE FOUR WRIT PETITIONS

1. In this clutch of writ petitions maintained under Article 32 ofthe Constitution, the Court is called upon to consider the true effect ofArticle 324 and, in particular, Article 324(2) of the Constitution. The saidsub-Article reads as follows:

“324(2) The Election Commission shall consist of the ChiefElection Commissioner and such number of other ElectionCommissioners, if any, as the President may from time to time fixand the appointment of the Chief Election Commissioner and otherElection Commissioners shall, subject to the provisions of any lawmade in that behalf by Parliament, be made by the President.”

2. Bench of two learned Judges of this Court in Writ Petition(Civil) No. 104 of 2015, passed the following Order on 23.10.2018:

“I.A. No.2 for amendment of writ petition; raising additional facts,grounds and prayer is allowed.

The matter relates to what the petitioner perceives to be arequirement of having full-proof and better system of appointmentof members of the Election Commission.

Having heard the learned counsel for the petitioner and the learnedAttorney General for India we are of the view that the mattermay require close look and interpretation of the provisions ofArticle 324 of the Constitution of India. The issue has not beendebated and answered by this Court earlier. Article 145 (3) of theConstitution of India would, therefore, require the Court to referthe matter to Constitution Bench. We, accordingly, refer thequestion arising in the present proceedings to Constitution Benchfor an authoritative pronouncement.

Post the matter before the Hon’ble the Chief Justice of India onthe Administrative Side for fixing date of hearing.”

3. We may notice the following prayers in the said Writ Petition(Civil) No. 104 of 2015:

i) issue writ of mandamus or an appropriate writ, order ordirection, commanding the Respondent: to make law for ensuring

Aa fair, just and transparent process of selection by constituting aneutral and independent collegium/ selection committee torecommend the name for the appointment of the member to theElection Commission under Article 324(2) of the Constitution ofIndia;

ii) issue writ of mandamus or an appropriate writ, order orBdirection constituting an interim neutral and independent collegium/selection committee to recommend the names for the appointmenton the vacant post of the member to the Election Commission;

iii) issue writ of mandamus or an appropriate writ, order ordirection commanding the Respondent to decide the petition ofCthe petitioner dated 03.12.2014 for making law for ensuring afair, just and transparent selection process by constituting anindependent and neutral collegiums/ selection committee forrecommending the names for members to the ElectionCommission;”

4. In Writ Petition (Civil) No. 1043 of 2017, filed by one ShriDAshwani Kumar Upadhyay, which is also Public Interest Litigation,the reliefs sought are as follows:

a) directthe Central Government to take appropriate steps toprovide same and similar protection to both the ElectionCommissioners so that they shall not be removed from their officeEexcept in like manner and on the like grounds as the Chief ElectionCommissioner;

b) direct the Central Government to take appropriate steps toprovide independent secretariat to the Election Commission ofIndia and declare its expenditure as charged on the consolidated.Ffund of India on the lines of the Lok Sabha / Rajya Sabhasecretariat;

c) direct the Central Government to take appropriate steps toconfer rule making authority on the Election Commission of Indiaon the lines of the rule making authority vested in the SupremeCourt of India to empower it to make election related rules andGcode of conduct;

d) take such other steps as this Hon’ble Court may deem fit forstrengthening the office of the Election Commission of India andallow the cost of petition to petitioner.”

5. In Writ Petition (Civil) No. 569 of 2021, filed by the Associationfor Democratic Reforms, the reliefs sought are as follows:H

“i. Issue an appropriate writ, order or direction declaring thepractice of appointment of Chief Election Commissioner andElection Commissioner solely by the executive as being violativeof Articles 324(2) and 14 of the Constitution of India.

ii. Direct the Respondent to implement an independent systemfor appointment of members of the Election Commission on thelines of recommendation of Law Commission in its 255th reportof March 2015; Second Administrative Reform Commission in itsfourth Report of January 2007; by the Dr. Dinesh GoswamiCommittee in its Report of May 1990; and by the Justice TarkundeCommittee in its Report of 1975.;”

6. In the latest and the last Writ Petition (Civil) No. 998 of 2022,Writ Petitioner is one Dr. Jaya Thakur. The relief sought is as follows:

“(a). issue writ order or directions in the nature of Mandamus tothe Respondents to implement an independent and transparentsystem for appointment of members of the. election Commissionon the lines, recommended by the Report of the Committee onElectoral Reforms of May 1990, formulated by the Ministry ofLaw and Justice, Government of India, the Report of SecondAdministrative Reforms Commission, Government of India of 2007and the Report of Law Commission of India on Electoral Reformsof March 2015 and;”

7. Having referred to the broad complaint, the reliefs sought, wemay appropriately notice the contentions of the parties.

B. THE SUBMISSIONS OF THE PETITIONERS; SHRIGOPAL SANKARANARAYANAN, LEARNED SENIORCOUNSEL IN WRIT PETITION (C) NO. 1043 OF 2017

8. In Writ Petition No. 1043 of 2017, Shri Gopal Sankaranarayananmakes the following submissions:

There is lacuna in the matter of appointment under Article 324.Of the twelve categories of unelected Constitutional Authorities, it isonly the Election Commission and the National Commission for ScheduledCastes, where qualifications and eligibility are not laid down in theConstitution or the Statute. The words ‘subject to law made’ falls intotwo broad categories. In the matter of appointments, they are representedby Articles 324, 338, 338A and 338B. The other category relates toconditions of service. Representative of this group are Articles 146, 148,229 and 243K. In the first category, Article 324 assumes criticalimportance. Shri Gopal Sankaranarayanan put forward the test that if alaw could be made under Article 324, providing for committee to selectCECs and ECs and also for their qualifications, then, there is void. If

Asuch law cannot be made, then, there is no vacuum. Continuing withthe argument about the presence of vacuum, it is contended that theunderlying rationale for the Court intervening must be the existence of afundamental norm or basic feature that needs to be secured. In thisregard, democracy and the concomitant imperative to hold free and fairelections are projected. It is contended that the other aspect, which mustBbe borne in mind, is to be not oblivious to the impact of the existence ofthe vacuum on the rights of the members of the public, both directly andindirectly. Like the Judiciary, the Election Commission must displayfearless independence. In the absence of norms regarding theappointment, central norm, viz., institutional integrity is adverselyaffected. An independent appointment mechanism would guaranteeCeschewing of even the prospect of bias. Favouritism would be largelyreduced. Right to Vote is Constitutional Right. With reference to lawprevailing in other South Asian countries and in the United Kingdom, it iscontended that clear qualification, as also eligibility conditions, have beenput in place. Mandatory tenures are made available. The removal process,which is uniform, is rigorous. It is contended that there has been suddenDchange after 2001, in the matter of appointing Chief ElectionCommissioners. Successive Governments have decided to selectincreasingly older candidates. This has resulted in casting shadow onthe much-needed independence, apart from curtailing their tenure.Inaction on the part of the Election Commission even in the face ofalarming increase of criminals in public life, must guide this Court. WithEreference to the Article, which we have adverted to, it is pointed out thatthe Election Commission has indulged in the alleged misconduct andfavouritism. vigorous appeal is made to the Court to listen to theconstitutional silence and understand the dire need for the Court to step-in. In this regard, we are reminded that this Court has played veryproactive role in matters relating to elections and electoral reforms.FInterference was noteworthy in matters relating to affidavits on assets,criminal antecedents, time-bound election petition trials, special courtsfor criminal trials of M.P.s and M.L.A.s, protection from booth capturing,freebies and NOTA. The executive underreach justifies judicial oversightand activism, particularly when more than 72 years have gone by. It iscontended that no mandamus is soughtagainst Parliament or toimplementGthe Gaikwad Law Commission Report. The following directions arepressed for until law is made. Committee of five, comprising thePrime Minister, the leader of the Opposition or of the single largest partyin the Lok Sabha, the Chief Justice of India, the Speaker of the LokSabha and an eminent jurist selected by the first four to recommendsuitable candidates, is to be appointed for appointment to the ElectionH

Commission. The petitioner would have the Court declare qualifications,which include citizenship of India, and that personshould have completedbetween 45 years and 61 years. The further qualifications are that theperson should have impeccable integrity and high moral character. Theindividual must have never had affiliation either directly or indirectly toany political party. It is also prayed that the person appointed must havebeen Member of the IAS or the IPS or Judge of the High Court. Interms of the two provisos in Article 324(5), the Election Commissionersmust be irremovable except after following the procedure in the firstproviso. An independent Secretariat must be established.The expenditureof the Election Commission should be brought on par with those of theSupreme Court, the CAG and the UPSC. The expenditure must be madenon-votable expenditure charged on the Consolidated Fund of India.

C. SUBMISSIONS ON BEHALF OF SHRI PRASHANTBHUSHAN, LEARNED COUNSEL ON BEHALF OFPETITIONER IN WRIT PETITION (CIVIL) NO. 104 OF2015.

9. An independent Election Commission is necessary for afunctioning democracy as it ensures Rule of Law and free and fairelections. The existing practice of appointment is incompatible with Article324(2) and manifestly arbitrary. This is because Article 324(2) mandatesthat Parliament should make just, fair and reasonable law. The provisionfor making law was rested on the hope that in due course of time, theGovernment would exhibit initiative to make such law and ensureindependence and integrity of the Members of the Election Commission.It is contended that there is vacuum. No power under the constitutioncan be exercised contrary to Part III of the Constitution, be it the Executiveor the Legislative power. The Government of India (Transaction ofBusiness) Rules, 1961 are silent regarding the process of selection andon the eligibility criteria. The convention invoked by the Union of Indiaof appointments being made from Members of the Bureaucracy, iscriticised as being not healthy convention. It is for the reason that it isbereft of transparency, objectivity and neutrality. This system isinaccessible to public. The Executive alone being involved in theappointment, ensures that the Commission becomes and remains apartisan Body and branch of the Executive. The independence of theCommission is intimately interlinked with the process of appointment.The concepts of power of reciprocity and loyalty to the appointing Body,referred to in Supreme Court Advocates-on-Record Association andAnother vs. Union of India1, is invoked. With reference to

Adevelopments said to have taken place recently, casting shadow onthe conduct of the Election Commission, the Report of Justice MadanB. Lokur is relied upon. Several instances of inaction or omission arepointed out. This is apart from various Commissions and Committeeswhich have highlighted the need for change. This Court has stepped-in on many occasions. It is further contended that the democracy is aBfacet of the basic structure of the Constitution.The appointment ofMembers of the Election Commission is being done on the whims andfancies of the Executive. The object of having an independent ElectionCommission is defeated. It is further contended that the ElectionCommission resolves various disputes between various political partiesCincluding the Ruling Government and other parties. This means that theExecutive cannot be the sole participator. The practice falls foul of Article14. Elaborate reference is made to the Constituent Assembly Debates.Elaborating on the powers of the Election Commission, it is pointed outthat the power to register political party under Section 29A of theRepresentative of the People Act, 1951, has come up for our consideration.DThe ruling of this Court in Indian National Congress v. Institute ofSocial Welfare and Others,[2 ]that the Election Commission acts in aquasi-judicial capacity under Section 29A is relied upon. The ElectionCommission is clothed under Rules 6 and 8 of the Election Symbols(Reservation and Allotment) Order, 1968 to recognise political partiesand allot symbols. Rule 15 of the said Order is pressed into service toEhighlight that Election Commission is empowered to take decision withreference to splintered and rival groups arising within already recognizedparties. There is power to withdraw and suspend recognition for breachof duty to follow the model code of conduct or the instructions of theCommission (See Rule 16A of the Symbol Order). It is blessed with theFpower to enforce the model code of conduct. The Election Commissioncan, in exercise of powers under Article 324(1), ban candidate fromcampaigning. The Election Commission is also empowered to removestar campaigners. Reliance is placed on the various Reports, which wewill advert to at later stage. Still further, support is sought to be drawnfrom the Second Judges case in Supreme Court Advocates-on-RecordGAssociation and Others vs. Union of India,[3]and the Judgment of this-Court declaring the NJAC unconstitutional inSupreme Court Advocateson-Record Association and Another vs. Union of India4. The learned

2(2002) 5 SCC 6853(1993) 4 SCC 441H4 (2016) 5 SCC 1

Counsel also relies upon the Judgment of this Court in Prakash Singhand Others vs. Union of India and Others,[5]relating to reforms in thePolice Administration. This is besides relying on Vineet Narain andOthers vs. Union of India and Another,[6] and the Third Judges Case inSpecial Reference No. 1 of 1998, Re7. It is contended that the Courtmay, apart from declaring appointment by the Executive of Members asunconstitutional, direct the constitution of Committee to recommendthe names for appointment on the basis of the Reports, including therecommendations of the Law Commission of India in its Two-Hundredand Fifty Fifth Report.

D. SUBMISSIONS BY SHRI JAYA THAKUR,PETITIONER IN WRIT PETITION (CIVIL) NO. 998 OF2022

10. Shri Anup G. Choudary, learned Senior Counsel assisted byVirender K. Sharma, appeared on behalf of the petitioner. It is pointedout that there is ad-hocism flowing from the legislative vacuum.RegionalCommissioners have never been appointed since 1951. The role of theElection Commission is such that in modern election process, it can beabused by simply playing with the election schedule. The instrument ofinstructions which were sought even at the time of passage ofamendments to the original Articlecan be filled in by judicialintervention.Appointment is reduced only to Bureaucrats, that too, majorlyIAS Officers. The IAS Officers work in close alliance to their politicalmasters. Appointment must be from more broad-based pool of talentlike Judicial Members. The Secretariat must have sufficient manpower.

E. SUBMISSIONS OF SHRI KALEESWARAM RAJ,LEARNED COUNSEL FOR THE INTERVENOR in WritPetition (Civil) No. 569 of 2021.

11. Shri Kaleeswaram Raj, learned Counsel for the intervenor inWrit Petition (Civil) No. 569 of 2021 would contend that the vacuum,which is projected must be conceded as democratic space which theFounding Fathers of the Constitution, left open for the future Parliamentto fill-up. It is contended that the Constituent Assembly not being anelected Body in the real sense, left many things to Parliament, whichcould claim better democratic legitimacy. Relying upon the Judges’ cases,5(2006) 8 SCC 16(1998) 1 SCC 2267(1998) 7 SCC 739

Ahe would submit that parallel may be drawn. It’s glaring instance oflegislative inaction. Sincedenial of free and fair elections vitiatesFundamental Rights of the citizens, judicial intervention is highlynecessary. The Right to Vote is now part of the Fundamental Right. Itis contended that, in fact, the Right to Vote is Constitutional Right. Heinvites our attention to instances in other jurisdictions including fromBneighbouring countries like Sri Lanka.

F. SUBMISSIONS ON BEHALF OF THE LEARNEDATTORNEY GENERAL FOR THE UNION OF INDIA

12. The learned Attorney General, Shri R. Venkataramani, wouldCaddress the following submissions:

Accepting the petitioners’ contention would involve nothing lessthan an amendment to the provisions of Article 324. The case of thepetitioners is based on various Reports including that of the Central LawCommission. The premise of the petitioners’ complaint is the failure ofthe extant mechanism and the reluctance or failure of the Union of IndiaDto redress the complaint. vacuum, which is not existent, is suggestedas the very foundation of the petitioners claim. There is no such vacuum.The learned Attorney General would point out that introduction of theCollegium or Body of persons to select the Chief Election Commissioneror the Election Commissioner, would necessitate the Court, tramplingEupon the constitutional process of aid and advise of Ministers,contemplated under Article 74 of the Constitution of India. There cannotbe merit in the contention that tenure of six years must be inexorablyguaranteed. Judicial intervention in these matters would be at the expenseof causing violence to the delicate separation of powers between theFLegislature, the Executive and the Judiciary. The cases at hand appearto be supported with reference to an aspirational ideal as against anyvacuum which is disclosed. debatably better model of selection of theCommissioner cannot form the foundation for this Court to make forayinto the working of constitutional provisions. Article 324(2) contemplatesclear procedure for appointment of Chief Election Commissioner andGthe Election Commissioners.Till law is made, providing otherwise,theFounding Fathers have laid down that the appointment of the ChiefElection Commissioner and other Election Commissioners shall be bythe President. Indisputably, the Constitution of India follows theWestminster model of Government. The powers of the President, it isHwell-settled, is to be exercised on the advice of the Council of Ministers.The President is only the formal Head of the State. The power underArticle 324(2) was always understood to be exercised by the President,acting on the aid and advise of the Council of Ministers. Article 77 providesfor the conduct of the business of the Government of India. Rules havebeen laid down thereunder. The learned Attorney General does not disputethat under the Rules, as laid down, the appointment of the Chief ElectionCommissioner and the Election Commissioners is matter which neednot engage the attention of the Council of Ministers. The Rules insteadprovide that it is the Prime Minister, who is empowered to decide uponthe person to be appointed as the Chief Election Commissioner or theElection Commissioner. In other words, the President exercises the powerunder Article 324(2) andhe proceeds to appoint person as ChiefElection Commissioner or an Election Commissioner, acting on the adviceof the Prime Minister. The contention is, it is this system, which hasbeen in place for the last more than seven decades. There is no room forconfusion. long array of Chief Election Commissioners and the ElectionCommissioners have been appointed by resorting to the legitimate methodcontemplated under Article 324(2). It is further contended that thereexists no identifiable wrong or trigger point to warrant any judicialinterference. It is pointed out that elections have been held and votingrights ensured to millions of eligible voters. Nearly 68 per cent pollingtook place. The Election Commission of India, it is contended, has enteredinto various agreements under the auspices of the United Nations underwhich the Election Commission of India shares its expertise and lendsits competent services for the conduct of elections in various othercountries. This is not case where the petitioners have been able todemonstrate that the independence of the Chief Election Commissioneror the Election Commissioner is under threat. The Election Commissionis regulated in the discharge of its functions by law in every manner. Thematters relating to the appointment of the Chief Election Commissionerand the Election Commissioner have been settled by the decision of thisCourt in T.N. Seshan, Chief Election Commissioner of India v. Unionof India and others8. It is pointed out that the Election Commission(Conditions of Service of Election Commissioners and Transaction ofBusiness) Act, 1991 (hereinafter referred to as, ‘the 1991 Act) does notdeal with the process of selection and all the details that may be connectedto it. It is commended to the Court as matter of fact that the ElectionCommissioners have been appointed from the high-ranking Members of

8 (1995) 4 SCC 611

Athe Civil Services since no Government so far has thought it fit to providefor any other source other than the Civil Services for making appointmentand the Parliament has also not intervened. The system has workedwell under Article 324(2). Any aberrations or illegalities in the matter ofappointment or acts or omissions on the part of the appointees, lendthemselves to the correctional jurisdiction of the superior courts underBits powers of judicial review. Section 4 of the 1991 Act does contemplatea six-year tenure for both the Election Commissioners’ and the ChiefElection Commissioner.Based on the observations made inT.N. Seshan(supra), Government has followed sound practice of appointing Officersfrom the Civil Services. It is contended that those who are consideredCfor appointment, must be”ripe” enough ‘for being inducted into theElection Commission’.The six-year tenure is an ideal. However, strictadherence to the same would have introduced considerable problems.This being the position, the concept of composite tenure has beenarrived at. In other words, the separate term of six years, contemplatedin Section 4 of the 1991 Act of six years each, has been understood asDbeen practically attained with the incumbent being selected and appointedin such manner that the person appointed as an Election Commissionercan look forward to an approximate tenure of six years, even though notas Election Commissioner but as an Election Commissioner and as aChief Election Commissioner. There is database of serving/retiredEOfficers of the rank of Secretary to the Government of India/ChiefSecretaries. The appointees are selected from the said database. TheMinister of Law and Justice recommends panel for the Prime Ministerand the President from the database. Unless this Court considers non-adherence to Section 4 of the 1991 Act, as constituting subversion ofthe independence of the Election Commission requiring redress thereof,Fthis Court need not consider the ‘aspirational propositions’ as principleto occupy an ‘imagined vacuum’. The Reports relied upon by thepetitioners are based on systems enshrined in other jurisdictions. It issignificant that the Constituent Assembly, though conscious of othermechanisms, deliberately chose to adopt the method found in ArticleG324(2). There is no identifiable wrong. There is no continuing wrongeither. The decisions, laying down principles, empowering this Court tolay down guidelines, are inapposite. The decisions were rendered by thisCourt in situation where there clearly existed vacuum. It is furtherpointed out that the Court was invited and persuaded to interfere, moreimportantly, when Fundamental Right was found to exist or rightH

vouch-saved under an International Treaty. In the present batch of cases,there is no Fundamental Right involved, which can support anyinterference by this Court. This is apart from Article 324(2) laying downa procedure, signalling the absence of any vacuum. The proof of thenon-existence of the vacuum is sought to be established by the fact thatseveral Chief Election Commissioners and Election Commissioners havebeen appointed according to need in the past. perceived advancementin the method of appointment, based on the Reports, including the LawCommission of India, would scarcely furnish the foundation for doingviolence to the provisions of the Constitution. We are reminded by thelearned Attorney General that this Court is being invited to apply principlesinvolved in the context of ordinary Statutes to the interpretation of theConstitution itself. The same is impermissible.

G. SUBMISSIONS OF SHRI TUSHAR MEHTA,LEARNED SOLICITOR GENERAL OF INDIA

13. Relying upon Article 53, which deals with the Executive powerof the Union, it is contended that the law contemplated under Article324(2) is the law contemplated under Article 53(3)(b). In the absence ofsuch law, the President has the constitutional power. The constitutionalvalidity of Article 324 cannot be considered as it is part of the originalConstitution. The Constitution provides for complete machinery to dealwith the appointments to the Commission. TheVineet Narain Judgmentwas dealing with lack of statutory enactment and not constitutionalprovision. Any potential direction to include any non-Executive, wouldinvolve violation of the Doctrine of Separation of Powers. Reliance isplaced on the judgment of this Court inSamsher Singh v. State of Punjaband Another9. Article 324(2) cannot lead to constitutional duty on thepart of Parliament to legislate. Reliance is placed onT.N. Seshan(supra)to contend that the President is the appointing Authority and that theChief Election Commissioner could not claim to be equated with SupremeCourt Judges. The Doctrine of Separation of Powers is emphasised.Separation of powers, it is pointed out, is reflection of democracyitself. The learned Solicitor General persuades the Court to exhibit judicialrestraint. causus omissus may not justify judicial interference. Mattersrelating to policy rightfully must remain immune from the judicial radar.What is involved in this case is essentially political question.

H. SUBMISSIONS OF SHRI BALBIR SINGH, LEARNEDADDITIONAL SOLICITOR GENERAL

9(1974) 2 SCC 831

A14. Shri Balbir Singh forcefully contended that there is no vacuumand no trigger. Unlike the position obtaining inVishakha, there is no direneed made out. The efficient working of the Election Commissionunerringly points to independence, informing its functioning. Severalelections have been conducted under its aegis. The Election Commissionof India is recognised all over the world. utopian model cannot be theBpremise for inserting guidelines, when the existing provisions are workingwell. The extent of neutrality and transparency invoked by the petitionerscannot be sound basis for the Court to interfere.

ANALYSIS

CI.‘THE FRAMING OF INDIA’S CONSTITUTION’ BY B.SHIVARAO

15. It is apposite that we understand the historical perspectiveincluding the debates in the Constituent Assembly. In the work, the‘Framing of India’s Constitution’by B. Shivarao, we find the followingDnarrative as regards the topic of Franchise and Elections.

“Election Commission

In the Government of India Act, 1935, and in the earlier statuesthe conduct of elections was left to the executive – the Central orProvincial Governments, according as election to the Central orEState Legislature was concerned. In the discussions in theConstituent Assembly, there emerged almost from the beginninga consensus of opinion that the right to vote should be treated asa fundamental right of the citizen and that, in order to enable himto exercise this right freely, an independent machinery to controlFelections should be set up, free from local pressures and politicalinfluences.

There was considerable discussion on these issues in theFundamental Rights Sub-Committee and the Minorities Sub-Committee. K.M. Munshi’s draft articles on fundamental rightsincluded the following clause:

Every citizen has the right to choose the Government and thelegislators of the Union and his State on the footing of equality inaccordance with the law of the Union or the unit, as the case maybe, in free, secret and periodic elections.

This clause was considered by the Fundamental Rights Sub-Committee at its meeting held on March 29, 1947. The sub-committee approved that

(1) universal adult suffrage must be guaranteed by the Constitution;

(2) elections should be free, secret and periodic; and

(3) elections should be managed by an independent commissionset up under Union law.

To give effect to these conclusions, the following recommendationwas drafted for inclusion in the sub-committee’s report:

(1) Every citizen not below 21 years of age shall have the right tovote at any election to the Legislature of the Union and of anyunit thereof, or, where the Legislature is bicameral, to the lowerchamber of the Legislature, subject to such disqualifications onthe ground of mental incapacity, corrupt practice or crime as maybe imposed, and subject to such qualifications relating to residencewithin the appropriate constituency as may be required by or underthe law.

(2) The law shall provide for free and secret voting and forperiodical elections to the Legislature.

(3) The superintendence, direction and control of all elections tothe Legislature, whether of the Union or of unit, including theappointment of Election Tribunals, shall be vested in an ElectionCommission for the Union or the unit, as the case may be,appointed in all cases in accordance with the law of the Union.

There was some difference of opinion about vesting so muchpower in the Union in the matter of Election Commissions. It willbe seen that, in terms of the recommendation made by the sub-committee, the appointment of all Election Commissions,irrespective of whether they were to function in relation to electionsto the Legislature of the Union or in relation to elections to theLegislature of unit was to be regulated by Union law. Somemembers of the sub-committee felt that it would be an infringementof the rights of the units if such over-riding authority was given toUnion law in matters relating to elections to the Legislatures ofthe units. Nevertheless the recommendation as included in thedraft was adopted by the sub-committee by majority vote’.

The Minorities Sub-Committee considered these provisions at itsmeeting held on April 17, and accepted these recommendations.The only point that arose at the meeting of this Sub-Committeewas raised by Syama Prasad Mukerjee, who thought that theminorities should be effectively represented in these ElectionCommissions. On the other hand Jairamdas Daulatram did notthink it practicable to provide for separate representation forminorities. He suggested that the Election Commissions shouldbe so constituted that they would function as impartial bodies andinspire confidence among all parties and communities. Acceptingthis suggestion, the Minorities Sub-Committee proposed in its reportthat Election Commissions should be independent and quasi-judicialin character.

The Advisory Committee on Fundamental Rights, Minorities, andTribal and Excluded Areas considered this matter at its meetingsof April 20 and 21. There was unanimous acceptance of theDprinciples formulated by the Fundamental Rights Sub-Committee.Discussion centred mainly on the question whether the chapteron fundamental rights was the proper place for laying down thesematters which pertained to electoral law. C. Rajagopalachari wasof the view that franchise would not ordinarily be part offundamental rights; and P.R. Thakur pointed out that the proposalEnot only made adult franchise compulsory, but also provided fordirect elections, thereby prejudging the issue of direct elections;he expressed the view that the Advisory Committee, dealing as itdid with fundamental rights, could not appropriate the jurisdictionto decide on this issue. Ambedkar, on the other hand, was clearlyFand emphatically of the opinion that adult franchise and all provisionfor its free and fair exercise should be recognized as in the natureof fundamental rights. He said:

So far as this committee is concerned, my point is that weshould support the proposition that the committee is in favourof adult suffrage. The second thing that we have guaranteedin this fundamental right is that the elections shall be free andthe elections shall be by secret voting ... We have not said thatthey shall be direct or they shall be indirect. This is matterthat may be considered at another stage ... The third propositionwhich this fundamental clause enunciates is that in order that

elections may be free in the real sense of the world, they shallbe taken out of the hands of the Government of the day, andthat they should be conducted by an independent body whichwe may here call an Election Commission. We have also givenpermission in sub-clause (3) of this clause that each unit mayappoint its own Commission. The only thing is that the lawshall be made by the Union. The reason for this is that later onthere will be clause in the Constitution which will impose anobligation upon the Union Government to protect theConstitution framed by themselves for the units. Thereforewe suggested that the Union should have the power of makinga law, although the administration of that law may be left to thedifferent units.

There was unanimous support for the principles enunciated byAmbedkar but Rajagopalachari argued that it would not be properto deal with this issue as fundamental right. It could not be takenfor granted, he said, that the Union Legislature would be electedby the direct vote of all citizens from all India. He thereforesuggested that these matters relating to franchise should be dealtwith when they arose in connection with the Constitution and notbe prejudged as fundamental rights. Eventually compromisesolution suggested by Govind Ballabh Pant was adopted, and itwas decided that these recommendations need not go as part ofthe clauses on fundamental rights; but that in the letter forwardingthe report of the Advisory Committee the Chairman should makeit clear that the committee recommended the adoption of theseproposals.

In accordance with this decision the Advisory Committeerecommended that, instead of being included in the chapter offundamental rights, the provision regarding the setting up of anindependent Election Commission, along with the other twoproposals regarding adult franchise and free and fair elections tobe held periodically, should find place in some other part of theConstitution.

In his memorandum on the principles of model ProvincialConstitution circulated on May 30, 1947, B.N. Rau, theConstitutional Adviser, included provision that thesuperintendence, direction and control of elections, including the

appointment of election tribunals, should be vested in the Governoracting in his discretion, subject to the approval of the Council ofState. Likewise, in the memorandum on the Union Constitution,circulated on the same date, he included similarly comprehensiveprovision that the control of central elections, including theappointment of election tribunals, should be vested in the Presidentacting in his discretion; the intention of this provision was to makeavailable to the President the advice of the Council of State.

The Provincial Constitution Committee in its report of June 27,1947, accepted the suggestions in the Constitutional Adviser’smemorandum but deleted the reference to the approval of theCouncil of State. The Union Constitution Committee deleted allthe suggestions for the exercise of discretionary powers by thePresident and also the proposal for Council of State. Thecommittee however took definite step in the direction of acentralized authority in the matter of elections: according to itsrecommendations, all powers of supervision, direction and controlin respect of the federal as well as provincial elections would bevested in Commission to be appointed by the President. TheUnion Powers Committee expanded this proposal by the inclusionin the Federal Legislative List of the subject “All Federal elections:and Election Commission to superintend, direct and control allFederal and Provincial elections”.

The provisions suggested in the model Provincial Constitution cameup for discussion in the Constituent Assembly on July 18, 1947.

The Constitutional Adviser in his Draft Constitution of October,1947 provided that the superintendence, direction and control ofall elections to the Federal parliament and Provincial Legislatures(including the appointment of Election Tribunals for the decisionof doubts and disputes in connection with elections to Parliamentand to Provincial Legislatures) and of all elections to the officesof President, Vice-President, Governor and President. TheDrafting Committee altered this scheme and in its draft the powerof appointing an Election Commission for supervising elections tothe office of Governor and to the State Legislature was vested inthe Governor. The Drafting Committee expressed the definiteopinion that the Election Commission for provincial elections shouldbe appointed by the Governor. This view underwent radical

change subsequently and on June 15, 1947, when the article cameup for discussion in the Constituent Assembly, Ambedkarintroduced new article which made comprehensive provisionfor Central Election Commission to be in charge of all Centraland State elections.”

J. THE CONSTITUENT ASSEMBLY DEBATES

16. Draft Article 289 went on to blossom into Article 324 of theConstitution. Regarding the Draft Article 289 it is apposite that we noticethe following developments and discussions. On 15[th] June, 1949, thefollowing discussions are noticed. Amendment No.99 was moved byDr. B.R. Ambedkar to the original Article 289. The original Article 289read as follows:

“289. The superintendence, directions and control of elections tobe vested in an Election Commission.

(1) The superintendence, direction and control of the preparationof the electoral rolls for, and the conduct of, all elections toParliament and to the Legislature of every State and of electionsto the offices of President and Vice-President held under thisConstitution, including the appointment of election tribunals forthe decision of doubts and disputes arising out of or in connectionwith elections to Parliament and to the Legislatures of States shallbe vested in Commission (referred to in his Constitution as theElection Commission) to be appointed by the President.(2) The Election Commission shall consist of the Chief ElectionCommissioner and such number of other Election Commissioners,if any, as the President may, from time to time appoint, and whenany other Election Commissioner is so appointed, the Chief ElectionCommissioner shall act as the Chairman of the Commission.

(3) Before each general election to the House of the People andto the Legislative Assembly of each State and before the firstgeneral election and thereafter before each biennial election tothe Legislative Council of each State having such Council, thePresident shall also appoint after consultation with the ElectionCommission such Regional Commissioners as he may considernecessary to assist the election Commission in the performanceof the functions conferred on it by clause (1) of this article.

(4) The conditions of service and tenure of office of the ElectionCommissioners and the Regional Commissioners shall be such asthe President may by rule determine: Provided that the ChiefElection Commissioner shall not be removed from the office exceptin like manner and on the like grounds as judge of the SupremeCourt and the conditions of the service of the Chief ElectionCommissioner shall not be varied to his disadvantage after hisappointment: Provided further that any other ElectionCommissioner or Regional Commissioner shall not be removedfrom office except on the recommendation of the Chief ElectionCommissioner.

(5) The President or the Governor or Ruler of State shall, whenso requested by the Election Commission, make available to theElection Commission or to Regional Commissioner such staffas may be necessary for the discharge of the functions conferredon the Election Commission by clause (1) of this article.”

D17. The amendment moved contemplated substitution of theoriginal Article 289 inter alia as follows:

“(2) The Election Commission shall consist of the Chief ElectionCommissioner and such number of other Election Commissioners,if any, as the President may, from time to time appoint, and whenEany other Election Commissioner is so appointed, the Chief ElectionCommissioner shall act as the Chairman of the Commission.

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(4) The conditions of service and tenure of office of the ElectionFCommissioners and the Regional Commissioners shall be such asthe President may by rule determine:

Provided that the Chief Election Commissioner shall not beremoved from the office except in like manner and on the likegrounds as judge of the Supreme Court and the conditions ofthe service of the Chief Election Commissioner shall not be variedGto his disadvantage after his appointment:

Provided further that any other Election Commissioner or aRegional Commissioner shall not be removed from office excepton the recommendation of the Chief Election Commissioner.”

18. Dr. B.R. Ambedkar had this to state inter alia:

“The House will remember that in very early stage in theproceedings of the Constituent Assembly, Committee wasappointed to deal with what are called Fundamental Rights. ThatCommittee made report that it should be recognised that theindependence of the elections and the avoidance of anyinterference by the executive in the elections to the Legislatureshould be regarded as fundamental right and provided for in thechapter dealing with Fundamental Rights. When the matter cameup before the House, it was the wish of the House that whilethere was no objection to regard this matter as of fundamentalimportance, it should be provided for in some other part of theConstitution and not in the Chapter dealing with FundamentalRights. But the House affirmed without any kind of dissent that inthe interests of purity and freedom of elections to the legislativebodies, it was of the utmost importance that they should be freedfrom any kind of interference from the executive of the day. Inpursuance of the decision of the House, the Drafting Committeeremoved this question from the category of Fundamental Rightsand put it in separate part containing articles 289, 290 and so on.Therefore, so far as the fundamental question is concerned thatthe election machinery should be outside the control of theexecutive Government, there has been no dispute. What article289 does is to carry out that part of the decision of the ConstituentAssembly. It transfers the superintendence, direction and controlof the preparation of the electoral rolls and of all elections toParliament and the Legislatures of States to body outside theexecutive to be called the Election Commission.That is theprovision contained in sub-clause (1).

Sub-clause (2) says that there shall be Chief ElectionCommissioner and such other Election Commissioners as thePresident may, from time to time appoint. There were twoalternatives before the Drafting Committee, namely, either to havea permanent body consisting of four or five members of the ElectionCommission who would continue in office throughout without anybreak, or to permit the President to have an ad hoc body appointedat the time when there is an election on the anvil. The Committee,has steered middle course. What the Drafting Committeeproposes by sub-clause (2) is to have permanently in office oneman called the Chief Election Commissioner, so that the skeleton

Amachinery would always be available. Election no doubt willgenerally take place at the end of five years; but there is thisquestion, namely that bye-election may take place at any time.The Assembly may be dissolved before its period of five yearshas expired. Consequently, the electoral rolls will have to be keptup to date all the time so that the new election may take placeBwithout any difficulty. It was therefore felt that having regard tothese exigencies, it would be sufficient if there was permanentlyin session one officer to be called the Chief Election Commissioner,while when the elections are coming up, the President may furtheradd to the machinery by appointing other members to the ElectionCCommission.

Now, Sir, the original proposal under article 289 was that thereshould be one Commission to deal with the elections to the CentralLegislature, both the Upper and the Lower House, and that thereshould be separate Election Commission for each province andDeach State, to be appointed by the Governor or the Ruler of theState. Comparing that with the present article 289, there isundoubtedly, radical change. This article proposes to centralizethe election machinery in the hands of single Commission to beassisted by regional Commissioners, not working under theprovincial Government, but working under the superintendenceEand control of the central Election Commission. As I said, this isundoubtedly radical change. But, this change has becomenecessary because today we find that in some of the provinces ofIndia, the population is mixture…”

(Emphasis supplied)

19. Professor Shibban Lal Saksena gave notice of an amendmentto the amendment to Article 289 which, inter alia, stated that after theword ‘appoint’ in clause (2), the words “subject to confirmation by two-third majority in joint session of both the Houses of Parliament” beinserted. He also proposed that in clause (4), the words “ParliamentGmay by law determine” be substituted for the words “President may byrule determine”. There were certain other amendments proposed byProf. Saksena. Prof. Saksena further went on to make the followingstatement:

“..Of course it shall be completely independent of the provincialHExecutives but if the President is to appoint this Commission,

naturally it means that the Prime Minister appoints this Commission.He will appoint the other Election Commissioners on hisrecommendations. Now this does not ensure theirindependence…”

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“So what I want is this that even the person who is appointedoriginally should be such that he should be enjoying the confidenceof all parties—his appointment should be confirmed not only bymajority but by two-thirds majority of both the Houses. If it is onlya bare majority, then the party in power could vote confidence inhim but when I want 2/3rd majority it means that the other partiesmust also concur in the appointment so that in order that realindependence of the Commission may be guaranteed, in orderthat everyone even in opposition may not have anything to sayagainst the Commission, the appointments of the Commissionersand the Chief Election Commissioner must be by the Presidentbut the names proposed by him should be such as command theconfidence of two-thirds majority of both the Houses ofLegislatures.”

xxxxxxxxx

“I want that in future, no Prime Minister may abuse thisright, and for this I want to provide that there should be two-thirdsmajority which should approve the nomination by the President.Of course there is danger where one party is in huge majority.As I said just now it is quite possible that if our Prime Ministerwants, he can have man of his own party, but I am sure he willnot do it. Still if he does appoint party-man, and the appointmentcomes up for confirmation in joint session, even small oppositionor even few independent members can down the Prime Ministerbefore the bar of public opinion in the world. Because we are in amajority we can have anything passed only theoretically. So theneed for confirmation will invariably ensure proper choice.”

(Emphasis Supplied)

20. On 16[th] June 1949, we notice that Shri H.V. Pataskar statedas follows:

“As I said, so far as I can see, article 289(2) is quite enough forthe purpose. Even under article 289(2) we can appoint not merely

some officials of the Government as Election Commissioners, butpeople of the position of High Court Judges; we can make thempermanent; we can make them as Independent as we are tryingto make them in the case of the Central Commission.”

(Emphasis Supplied)

B21. Pandit Hirday Nath Kunzru addressed the following concernsand suggested as follows:

“Here two things are noticeable: the first is that it is only the ChiefElection Commissioner that can feel that he can discharge hisduties without the slightest fear of incurring the displeasure of theCexecutive, and the second is that the removal of the other ElectionCommissioners will depend on the recommendations of one manonly, namely the Chief Election Commissioner. Howeverresponsible he may be, it seems to me very undesirable that theremoval of his colleagues who will occupy positions as responsibleDas those of judges of the Supreme Court should depend on theopinion of one man. We are anxious, Sir, that the preparation ofthe electoral rolls and the conduct of elections should be entrustedto people who are free from political bias and whose impartiallycan be relied upon in all circumstances.But, by leaving greatEdeal of power in the hands of the President we have given roomfor the exercise of political influence in the appointment of theChief Election Commissioner and the other ElectionCommissioners and officers by the Central Government. The ChiefElection Commissioners will have to be appointed on the adviceof the Prime Minister, and, if the Prime Minister suggests theF-appointment of partyman the President will have no option butto accept the Prime Minister’s nominee, however unsuitable hemay be on public grounds. (Interruption). Somebody asked mesuitable why it should be so.”

xxx

“My remedy for the defects that I have pointed out is that Parliamentshould be authorised to make provision for these matters by law.Again, Sir, this article does not lay down the qualifications ofpersons who are chosen as Chief Election Commissioners or asElection Commissioners. And, as I have already pointed out, in

the matter of removal, the Election Commissioners are not on thesame footing as the Chief Election Commissioner.”

(Emphasis Supplied)

22. Shri K.M. Munshi expressed the following views:

“Between two elections, normally there would be period of fiveyears. We cannot have an Election Commission sitting all the timeduring those five years doing nothing. The Chief ElectionCommissioner will continue to be whole-time officer performingthe duties of his office and looking after the work from day to day,but when major elections take place in the country, either Provincialor Central, the Commission must be enlarged to cope with thework. More members therefore have to be added to theCommission. They are no doubt to be appointed by the President,but as the House will find, they are to be appointed from time totime. Once they are appointed for particular period they are notremovable at the will of the President. Therefore, to that extenttheir independence is ensured. So there is no reason to believethat these temporary Election Commissioners will not have thenecessary measure of independence. Any way the Chief ElectionCommissioner an independent officer, will be the Chairman andbeing permanent officer will have naturally directing andsupervising power over the whole Commission. Therefore, it isnot correct to say that independence of the Commission is takenaway to any extent.We must remember one thing, that after all an election department-is not like judiciary, quasiindependent organ of Government.It is the duty and the function of the Government of the day tohold the elections. The huge electorates which we are putting upnow, the voting list which will run into several crores—all thesemust necessarily require large army of election officers, of clerks,of persons to control the booths and all the rest of them. Now allthis army cannot be set up as machinery independent ofGovernment.It can only be provided by the Central Government,by the Provincial Government or by the local authorities as now.It is not possible nor advisable to have kingdom within kingdom,so that the election matters could be left to an entirely independentorgan of the Government. machinery, so independent, cannot

be allowed to sit as kind of Super-Government to decide whichGovernment shall come into power. There will be great politicaldanger if the Election Tribunal becomes such political power inthe country.Not only it should preserve its independence, but itmust retain impartiality. Therefore, the Election Commission mustremain to large extent an ally of the Government; not only that,but it must, considerable extent, be subsidiary to Governmentexcept in regard to the discharge of the functions allotted to it bylaw.

“Therefore, the Parliament as well as the State Legislatures arefree to make all provisions with regard to election, subject, ofCcourse, to this particular amendment, namely, the superintendence,direction and control of the Election tribunal. Today, for instance,the elections re controlled by officers appointed either by the Centeror the Provinces as the case may be. What is now intended is thatthey should not be subjected to the day-to-day influence of theDGovernment nor should they be completely independent ofGovernment, and therefore sort of compromise has been madebetween the two positions; but I agree with my honourable Friend,Pandit Kunzru that for the sake of clarity, at any rate, to allay anydoubts clause (2) requires little amendment. At the beginning ofclause (2) the following words may be added; “subject to theEprovisions of law made in this behalf by Parliament.”

(Emphasis Supplied)

23. Dr. B.R. Ambedkar made the following remarks:

“Now with regard to the question of appointment I must confessthat there is great deal of force in what my Friend ProfessorSaksena said that there is no use making the tenure of the ElectionCommissioner fixed and secure tenure if there is no provision inthe Constitution to prevent either fool or knave or personwho is likely to be under the thumb of the Executive.My provision—I must admit-—does not contain anything to provide againstnomination of an unfit person to the post of the Chief ElectionCommissioner or the other Election Commissioners. I do want toconfess that this is very important question and it has given mea great deal of headache and I have no doubt about it that it isgoing to give this House great deal of headache. In the U.S.A.

they have solved this question by the provision contained in article2 Section (2) of their Constitution whereby certain appointmentswhich are specified in Section (2) of article 2 cannot be made bythe President without the concurrence of the Senate; so that sofar as the power of appointment is concerned, although it is vestedin the President it is subject to check by the Senate so that theSenate may, at the time when any particular name is proposed,make enquiries and satisfy itself that the person proposed is aproper person. But it must also be realised that that is verydilatory process, very difficult process. Parliament may not bemeeting at the time when the appointment is made and theappointment must be made at once without waiting. Secondly, theAmerican practice is likely and in fact does introduce politicalconsiderations in the making of appointments. Consequently, whileI think that the provisions contained in the American Constitutionis very salutary check upon the extravagance of the Presidentin making his appointments, it is likely to create administrativedifficulties and I am therefore hesitating whether I should at alater stage recommend the adoption of the American provisionsin our Constitution. The Drafting Committee had paid considerableattention to this question because as I said it is going, to be one ofour greatest headaches and as via media it was thought that ifthis Assembly would give or enact what is called an Instrument ofInstructions to the President and provide therein some machinerywhich it would be obligatory on the President to consult beforemaking any appointment, I think the difficulties which are felt asresulting from the American Constitution may be obviated andthe advantage which is contained therein may be secured. At thisstage it is impossible for me to see or anticipate what attitude thisHouse will take when the particular draft Instructions come beforethe House. If the House rejects the proposal of the DraftingCommittee that there should be an Instrument of Instructions tothe President which might include, among other things, provisionwith regard to the making of appointments, this problem wouldthen be solved by that method. But, as I said, it is quite difficult forme to anticipate what may happen. Therefore in order to meetthe criticism of my honourable Friend Professor Saksena,supported by the criticism of my honourable Friend Pandit Kunzru,I am prepared to make certain amendments in amendment No.

A99. I am sorry I did not have time to circulate these amendments,”but when I read them the House will know what I am proposing.

(Emphasis Supplied)

24. Thereafter, he proposed that an amendment which read asfollows:B

“The appointment of the Chief Election Commissioner and otherElection Commissioners shall, subject to the provisions of any lawmade in this behalf by Parliament, be made by the President.”

(Emphasis Supplied)

C25. We notice that the amendment which was proposed byProfessor Shibban Lal Saksena which we have noticed came to benegatived and the amendment which was proposed by Dr. B.R.Ambedkar was adopted. Thus, Article 289 as amended was added tothe Constitution. It is this Article which appears in the Constitution asArticle 324.D26. At this stage, we may only notice the following comment,however, in the work by Shiva Rao: -

“By leaving great deal of power in hands of the President, itgave room for the exercise of political influence by the CentralEGovernment in the appointment of the Chief ElectionCommissioner and the other Election Commissioners. His remedywas that Parliament should be authorized to make provision forthese matters by law. K.M. Munshi, while supporting Ambedkar’sproposal suggested in order to meet Kunzru’s criticism anamendment requiring that the appointment of the Chief ElectionFCommissioner and the other Election Commissioners would besubject to law made by Parliament; and that the power of thePresident to make rules regulating their conditions of service wouldlikewise be subject to any law made by Parliament. With thesemodifications the article was adopted: at the revision stage it wasGnumbered as article 324.”

27. The Constituent Assembly of India can proximately be tracedto the deliberations of the cabinet mission. The broad features were asfollows. The members of the constituent assembly were to be electednot on the basis of adult suffrage. At the time, i.e., in 1946, India was stillHunder British rule. British India broadly consisted of the Governors

provinces and the Chief Commissioner’s provinces. There were also alarge number of princely states. An interim government, no doubt, basedon elections, was put in place. There were also at the same time,provincial legislative bodies. The members of the Constituent Assemblycame to be elected by the members of the provincial assemblies andthey were not directly elected by the people of the country as such. ShriKaleeswaram Raj is, therefore, correct that the Constituent Assemblywas not directly elected by the people. There were changes which werenecessitated by the partition. Suffice it to note that there were 238members representing the Governors and others provinces. This is besides89 sent by the princely states. The first meeting of the Assembly washeld on 9[th] December, 1946.One Shri B.N.Rau was appointed as theconstitutional advisor. He made draft constitution. drafting committee,drawn from the members of the constituent assembly in turn with thehelp of the Secretariat as well, brought out two drafts further, which inturn, were published.Public discussion ensued. Thereafter, the draftarticles were discussed in the constituent assembly.There were furtheramendments. It is to be noticed also that the humongous task necessarilyled to the creation of several committees. The most prominent of themcan be perceived as the drafting committee, the advisory committee andvarious sub-committees which included the sub-committee onfundamental rights.

K. THE USE OF CONSTITUENT ASSEMBLY DEBATES

28. In regard to the use of Constituent Assembly debates, the lawhas not stood still. At any rate, whatever may be the controversy, asregards its employment to discern, the purport of provision there canbe no taboo involved in its use to understand the history of provisionunder the Constitution and the various steps leading up to andaccompanying its enactment. In this regard, we may refer to the followingview expressed in His Holiness Kesavananda BharatiSripadagalvaru v. State of Kerala and Another10:

“1598. If the debates in the Constituent Assembly can be lookedinto to understand the legislative history of provision of theConstitution including its derivation, that is, the various steps leadingup to and attending its enactment, to ascertain the intention of themakers of the Constitution, it is difficult to see why the debates

10 (1973) 4 SCC 225

Aare inadmissible to throw light on the purpose and general intentof the provision. After all, legislative history only tends to revealthe legislative purpose in enacting the provision and thereby shedslight upon legislative intent.It would be drawing an invisibledistinction if resort to debates is permitted simply to show thelegislative history and the same is not allowed to show theBlegislative intent …”

(Emphasis supplied)

29. In fact, in recent Judgment by Justice Ashok Bhushan, whichis partly concurring and partly dissenting, reported in Dr. JaishriCLaxmanrao Patil v. Chief Minister and others11, has approved, afterreferring to the decisions of this Court on the point, ‘the use of ConstituentAssembly debates’.

L. CONCLUSIONS ABOUT HISTORICAL PERSPECTIVESINCLUDING THE LIGHT SHED BY THE CONSTITUENTASSEMBLY DEBATESD

30. The members of the Constituent Assembly were undoubtedlyconcerned over the need to ensure independence of the ElectionCommission. Under the Government of India Act, 1935, the earlier law,it was the Executive which was conferred the power to conduct theEelection. Initially, there was consensus of opinion, in fact, that the rightto vote was to be made fundamental right. In fact, in the draft Articleby Shri K.M. Munshi, he contemplated providing for right to choose forevery citizen and free secret and periodic election.The FundamentalRights Sub-Committee also approved that there must be universal adultfranchise guaranteed by the Constitution.The election was to be free,Fsecret and periodic. Most importantly, the Fundamental Rights Sub-Committee in the meeting held on 29.03.1947 contemplated that anindependent Commission must be set up under Union law. Arecommendation providing for an Election Commission being appointedin all cases with the law of the Union was made. Further, it becomesGclear from perusal of the work ‘Framing of India’s Constitution’ by B.Shiva Rao that some disputes arose relating to so much power beingconferred on the Union in the matter of elections. The dispute essentiallyrelated to clothing the Commission with power to conduct elections inregard to the State Legislatures, besides the Union Legislature. TheMinority Sub-Committee also made report that the Election Commissionshould be independent and quasi-judicial in character.The AdvisoryCommittee on Fundamental Rights, Minority, Tribal and Excluded Areaalso accepted the principles formulated by the Fundamental Rights Sub-Committee. However, the view was expressed by Shri C. Rajagopalacharithat the right to vote should not be part of fundamental right. Dr.Ambedkar, however, specifically opined that in order that election maybe free in the real sense of the word, they shall be taken out of the handsof the government of the day,and be conducted by the independentbody called the Election Commission. Shri C. Rajagopalachari, however,persevered with the theme that the matter relating to franchise may notfind itselfamong the provisions providing for Fundamental Rights. ShriGovind Vallabh Pant suggested compromise and the AdvisoryCommittee thereby recommended that instead of being included in theChapter on Fundamental Rights, the provisions relating to franchise andto an independent Election Commission should be located in anotherpart of the Constitution. In his work, the Framing of India’sConstitution,by B. Shivarao has not minced words by commenting that by leaving agreat deal of power in the hands of the President, it gave room forexercising political influence in the appointment of the ElectionCommissioner and other election commissioners. The remedy, it wasfound, which was contemplated was, that the Parliament would make alaw to regulate the matter. As we have noticed, there was severe criticism,particularly by Shri Kunzuru and Professor Shiben Lal Saxena, and itwas thereupon, that Shri K.M. Munshi while supporting Ambedkar’samendment to the original article, recommended that the appointmentbe subject to the law made by the Parliament. It is on this fundamentalbasis that the amendment which was proposed by Dr. Ambedkar to theoriginal article was adopted.

31. Professor Saxena was emphatic that the draft amended Article289, which contemplated appointment being made by the President,without anything more, would necessarily mean that the Prime Ministerwould end up appointing the Commission. He warned that it would notensure their independence. He was clear that in future, no Prime Ministershould abuse the right to appoint.Shri H.V. Pataskar felt Article 289(2)sufficed. The thought which comforted the Member was not merelysomeofficial of the Government could be appointed as Election Commissionersbut people in the position of High Court Judges. Pandit Hirday NathKunzru clearly articulated the anxiety and the need for the preparation

Aof the electoral roll and the conduct of the elections, being entrusted topeople, who were free from political bias and whose impartiality couldbe relied upon ‘in all circumstances’. The plight of the President, whohas to act on the advice of the Prime Minister, was highlighted. It wasthe learned Member, who suggested the remedy for the defect, thatisthat the Parliament should be authorised to make provisions for theseBmatters, by law.This was also the view of the Sub-Committee onFundamental Rights. Shri K. M. Munshi, took the view that the ElectionCommission must remain to large extent an ally of the Government.The pursuit of independence of the Election Commission, he felt, shouldnot result in there arising ‘a kingdom within kingdom’. It was not to beCa quasi-independent organ of the Government. This is on the basis thatthe Election Commission would necessarily have to rely upon Officers,who would have to be provided by the Government. Finally, we find Dr.Ambedkar acknowledging the existence of great deal of merit in thefear that guaranteeing fixed and secured tenure, was of no use, ifthere was no provision in the Constitution, which would stand in the wayDof either an incompetent or unfair official, becoming and running theElection Commission. In particular, Dr. Ambedkar foresaw the dangerof the Election Commissioners, being persons who were likely to beunder the control of the Executive. The provision, as proposed to beamended by Dr. Ambedkar, it was admitted by Dr. Ambedkar himself,Edid not provide against an ‘unfit’ person being appointed to the ElectionCommission. Thereafter, he predicted that the question will emerge asone of the greatest headaches. He found solace in the prospect of aninstrument of instructions being issued to the President, which wouldguide the President in the matter of appointment to the Election. Noticingthe uncertainty about the prospect, however, it was and to allay theFapprehensions voiced by both Professor Saxena and Pandit Kunzru, thatArticle 324(2), as it presently obtains, came to be proposed by way ofthe amendment to the amendment of the original Article. In other words,before the words ‘be made by the President’, the words ‘subject toprovisions of any law made in this behalf by Parliament’. came to beinserted.G32. We understand the historical perspective, and the deliberationsof the Fundamental Rights Sub-Committee, the Drafting Committee andthe other Sub-Committees and, finally, of the Constituent Assembly itself,to be as follows:HA golden thread runs through these proceedings.All the Members were of the clear view that election must beconducted by an independent Commission. It was radical departurefrom the regime prevailing under the Government of India Act, 1935.The Members very well understood that providing for appointment ofMembers of the Election Commission by the President would mean thatthe President would be bound to appoint the Election Commissioner solelyon the advice of the Executive, which, in sense, was understood as onthe advice of the Prime Minister. The model of appointment prevailing inthe United States was deliberated and not approved. Though, Shri K.M. Munshi was not in favour of giving complete independence to theElection Commission and felt that it should be an ally of the Government,it clearly did not represent the views of the predominant majority of theMembers. Right to Vote was, to begin with, considered so sacrosanctthat it was originally contemplated as Fundamental Right. However,finally, as we have already noticed, it was found more appropriate that itshould be contained in separate part of the Constitution, which is theposition obtaining under the Constitution. It is equally clear that theMembers of the Committees, including the Constituent Assembly, wantedthe appointment to the Election Commission not to be made by theExecutive. The uncertain prospect of an instrument of instructions, finallyled the Assembly to adopt the amendment suggested by Dr. Ambedkar,which, as we have noticed, was initially the suggestion made by PanditKunzru, and what is more, even seconded by Shri K. M. Munshi. Inshort, what the Founding Fathers clearly contemplated and intended was,that Parliament would step-in and provide norms, which would governthe appointment to such uniquely important post as the post of ChiefElection Commissioner and the Election Commissioners. In this regard,we notice the final words of Dr. Ambedkar in regard to the debatesurrounding Article 324, was that he felt sorry that he did not have timeto circulate the amendments.

33. It is important that we understand that when the FoundingFathers, therefore, inserted the words ‘subject to the provisions of anylaw to be made by Parliament’, it was intended that Parliament wouldmake law. While we would not go, so far as to hold that Parliamentwas under compellable duty, which this Court can enforce by aMandamus, to make law, all that we are finding is that the ConstituentAssembly clearly intended that Parliament must make law within themeaning of Article 324(2). Such an understanding of Article 324(2) may

Abe contrasted with similar provisions in the Constitution, which alsocontemplated enabling the making of law by Parliament. This brings usto the question relating to an evaluation of similar provisions in theConstitution.

M. ARTICLES IN THE CONSTITUTION, WHICHBEMPLOY THE WORDS ‘SUBJECT TO ANY LAW’ TOBE MADE BY PARLIAMENT ASCONTAINED INARTICLE 324

34. One of the contentions of the respondent-Union is that thisCourt must bear in mind the snowballing effect of the interpretationCcanvassed by the petitioners being accepted on other situations governedby other Articles.

35. Articles in the Constitution, which employ the words ‘subjectto any law’ to be made by Parliament as contained in Article 324.

D36. Article 98 provides that each House of Parliament shall havea separate Secretarial Staff. Article 98(2) provides that Parliament may,by law, regulate the recruitment and conditions of the staff. Article 98(3)empowers the President, in consultation with the Speaker of the Houseof People or Chairman of the Council of States, to make Rules, tillParliament makes law. Apart from the dissimilarity, it is to be noticedEthat, even in the matter governed by Article 98, if not law, Rules are togovern.

37. Article 137 declares that, subject to the provisions of any lawmade by Parliament or Rules made under Article 145, Supreme CourtFshall have the power of review. It will be noticed that in the first place,the Supreme Court has framed rules, regulating the power to review.The absence of law made by Parliament would have little effect. Thepurport of Article 137 has absolutely no comparison with Article 324(2).Article 142(2) uses the same expression, viz., ‘subject to the provisionsof any law made by Parliament’ and it provides that the Supreme CourtGis to have power for ordering the attendance of any person, the discoveryor protection of any document or the investigation or punishment for anycontempt. Patently, the absence of any law under Article 142cannotproduce the impact, which Article 324(2) is capable of producing and,what is more, vouchsafed by the debates in the Constituent Assembly.

38. Article 145 uses the expression ‘subject to the provisions ofany law made by Parliament’, Supreme Court can make Rules forregulating the practice and procedure of the Court. It is self-evident thatit bears no resemblance to the context, purpose and background of Article324(2).

39. Article 146 of the Constitution of India reads as follows:

“146. Officers and servants and the expenses of the SupremeCourt

(1) Appointments of officers and servants of the Supreme Courtshall be made by the Chief Justice of India or such other Judge orofficer of the Court as he may direct: Provided that the Presidentmay by rule require that in such cases as may be specified in therule, no person not already attached to the Court shall be appointedto any office connected with the Court, save after consultationwith the Union Public Service Commission

(2) Subject to the provisions of any law made by Parliament, theconditions of service of officers and servants of the SupremeCourt shall be such as may be prescribed by rules made by theChief Justice of India or by some other Judge or officer of theCourt authorised by the Chief Justice of India to make rules forthe purpose: Provided that the rules made under this clause shall,so far as they relate to salaries, allowances, leave or pensions,require the approval of the President

(3) The administrative expenses of the Supreme Court, includingall salaries, allowances and pensions payable to or in respect ofthe offices and servants of the Court, shall be charged upon theConsolidated Fund of India, and any fees or other moneys taken

by the court shall form part of that Fund.”

40. Article 146(2) is essentially matter which deals with theconditions of service of Officers and Servants of Supreme Court. Inregard to the said employees, the Founding Fathers have provided forRule-making power with the Chief Justice of India. We are clear in ourminds that apart from the fact, the rule-making power is lodged with theChief Justice of India, there cannot be any valid comparison betweenthe employees of the Supreme Court and the members of theElection

ACommission. There is no safeguard provided against the removal as iscontemplated for the Chief Election Commissioner and ElectionCommissioners. Article 148 deals with appointment of the Comptrollerand Auditor General of India. It reads as follows:

“148. Comptroller and Auditor General of India

(1) There shall be Comptroller and Auditor General of Indiawho shall be appointed by the President by warrant under hishand and seal and shall only be removed from office in like mannerand on the like grounds as Judge of the Supreme Court

(2) Every person appointed to be the Comptroller and AuditorGeneral of India shall, before he enters upon his office, make andsubscribe before the President, or some person appointed in thatbehalf by him, an oath or affirmation according to the form set outfor the purpose in the Third Schedule

D(3) The salary and other conditions of service of the Comptrollerand Auditor General shall be such as may be determined byParliament by law and, until they are so determined, shall be asspecified in the Second Schedule: Provided that neither the salaryof Comptroller and Auditor General nor his rights in respect ofleave of absence, pension or age of retirement shall be varied toEhis disadvantage after his appointment

(4) The Comptroller and Auditor General shall not be eligible forfurther office either under the Government of India or under theGovernment of any State after he has ceased to hold his office

(5) Subject to the provisions of this Constitution and of any lawmade by Parliament, the conditions of service of persons servingin the Indian Audit and Accounts Department and theadministrative powers of the Comptroller and Auditor Generalshall be such as may be prescribed by rules made by the PresidentGafter consultation with the Comptroller and Auditor General

(6) The Administrative expenses of the office of the Comptrollerand Auditor General, including all salaries, allowances and pensionspayable to or in respect of pensions serving in that office, shall becharged upon the Consolidated Fund of India.”

41. As far as the appointment of the Comptroller and AuditorGeneral is concerned, it is governed by Article 148 (1) and the FoundingFathers have provided beyond the pale of any doubt that the appointmentof the Comptroller and Auditor General, vital and indispensable as he isfor the affairs of the nation, his appointment is to be made by the President.The safeguard, however, considered suitable to ensure his independencehas been declared by providing that the CAG can be removed only inlike manner and on like grounds as Judge of the Supreme Court. Instark contrast, Article 324 (2) has, while it has provided for theappointment of the Chief Election Commissioner and the ElectionCommissioners by the President, it has been made subject to law to bemade by the Parliament.No such provision is provided in Article 148 (1).We cannot be oblivious to the fact that this is apart from providing forthe safeguard in the first proviso to Article 324 (5) that the Chief ElectionCommissioner shall not be removed except in like manner and like groundsas Judge of Supreme Court of India. Still further, there is thirddistinguishing feature between the Chief Election Commissioner and theCAG again located in the first proviso to Article 324 (5). It is declaredthat the conditions of service of the Chief Election Commissioner shallnot be varied to his disadvantage after his appointment. The Chief ElectionCommissioner and Election Commissioners stand on far higher pedestalin the constitutional scheme of things having regard to the relationshipbetween their powers, functions and duties and the upholding of thedemocratic way of life of the nation, the upkeep of Rule of Law and thevery immutable infusion of life into the grand guarantee of equality underArticle 14.42. Article 187 provides for Secretariat for the State Legislature.Except for the difference in the Legislative Body being the StateLegislature and the Governor taking the place of the President, it mirrorsArticle 98 of the Constitution.

43. Article 229 deals with Officers, servants and expenses ofHigh Court. There cannot be any valid comparison between the ChiefElection Commissioner and the Election Commissioners contemplatedunder Article 324 (2) and the Officers and servants of the High Court.The very fact that Officers covered by Article 229 (2) are not extendedany protection against removal, itself not merely furnishes significantstarting point but may itself be conclusive of the dissimilarity between

Athe persons associated with the Central Election Commission and theemployees covered by Article 229 (2).

44. Article 229(2) deals with the Officers, expense and servantsof the High Court. Since Article 229 is pari materia with Article 146(2), we would find merit in the same rationale, which we have furnishedBfor not comparing the employees with the persons governed by Article324 (2).

45. Article 243 (k) is part of Part IX of the Constitution, whichwas inserted by the Constitution (Seventy Third) Amendment Act, 1992.Part IX deals with the panchayats. Article 243 (k) reads as follows:C

“243K. Elections to the Panchayats The superintendence, directionand control of the preparation of electoral rolls for, and the conductof, all elections to the Panchayats shall be vested in State ElectionCommission consisting of State Election Commissioner to beappointed by the Governor.D

(2) Subject to the provisions of any law made by the Legislatureof State the conditions of service and tenure of office of theState Election Commissioner shall be such as the Governor mayby rule determine: Provided that the State Election Commissionershall not be removed from his office except in like manner and onEthe like ground as Judge of High Court and the conditions ofservice of the State Election Commissioner shall not be varied tohis disadvantage after his appointment.

(3) The Governor of State shall, when so requested by the StateFElection Commission, make available to the State ElectionCommission such staff as may be necessary for the discharge ofthe functions conferred on the State Election Commission by clause(1).

(4) Subject to the provisions of this Constitution, the LegislatureGof State may, by law, make provision with respect to all mattersrelating to, or in connection with, elections to the Panchayats.”

46. Article 243(k)(1) contemplates the appointment of the StateElection Commissioner to be made by the Governor. Article 243(k)(2)contemplates that the conditions of service and the tenure of the StateHElection Commissioner is to be such as may be made by the Governor

by Rule and this is, however, made subject to the provisions of any lawmade by the Legislature of State. It is, no doubt, again true that theParliament, while inserting Article 243K, has partly insulated the StateElection Commissioner by providing that he shall not be removed fromOffice except in like manner and on like ground as Judge of the HighCourt. Similarly, in the proviso to Article 243K(2), the conditions of serviceof the State Election Commissioner cannot be varied to his disadvantageafter his appointment. It must be noticed that Parliament was aware ofthe mandate of Article 324(2) when it inserted Article 243. Parliamenthas carefully chosen not to provide for the making of any law as regardsthe appointment of the State Election Commissioner. In fact, this mayleave no choice for Court to step-in and provide for the matter ofappointment as regards the State Election Commissioner. However, weneed not explore the matter further having regard to the stark contrastbetween Article 243K on the one hand and Article 324(2) on the other.As far as the conditions and tenure forming the subject matter of lawto be made by the Legislature of the State, we would think that in keepingwith the position and the subject matter of Article 243K(2), it may not beapposite to project Article 243K(2) as premise to reject the request ofthe petitioners to place the interpretation on Article 324(2), if it is otherwisejustified.

47. Article 338(2) provides that subject to the provisions of anylaw made by Parliament, the National Commission for Scheduled Castewas to consist of Chairman, Vice-Chairman and three other Membersand the conditions of service and tenure of Office, were to be such asthe President, may by Rule, determine. An identical provision is containedin Article 338A(2) as regards National Commission for Scheduled Tribes.Not unnaturally, in Article 338B(2), similar provisions are contained inregard to National Commission for Backward Classes. What is, however,pertinent to notice is Article 338(3). It provides:

“The Chairperson, the Vice-Chairperson and other Members ofthe Commission shall be appointed by the President by warrantunder his hand and seal.”

Identical provisions have been made vide Article 338A and Article338B.

48. We would notice that pertinently, Articles 338, 338A and 338Bcontemplates law to regulate the conditions of service and tenure of

62SUPREME COURT REPORTS

Athe Members of the National Commission for Scheduled Castes,Scheduled Tribes and Backward Classes. Article 324(5) contemplates alaw being made to regulate the conditions of service and the tenure ofOffice of the Election Commissioners. Most pertinently, Parliament hasenacted the 1991 Act, as contemplated in Article 324(5). It is, when itcomes to providing for the appointment of the Election Commissioners,Bwhich was clearly in the contemplation of the Founding Fathers that nolaw has been made. The old regime continues. In regard to the Membersof the National Commissions, covered by Articles 338, 338A and 338B,the Constitution is clear that the appointment is to be made by President.C49. Article 367(3) deals with the meaning of foreign State forthe purpose of the Constitution and after declaring it to be ‘any State’other than India, makes it, subject to proviso, which declares thatsubject to the provisions of any law made by Parliament, the Presidentmay, by order, declare any State not to be foreign State for suchpurposes, as may be specified in the Order. The matter is governed fullyDby the Constitution (Declaration as to Foreign States) Order, 1950. Apartfrom the apparent absence of any imperative need for law, the matteris governed by an Order, which is issued under the Constitution, whichitself would be of statutory nature and also issued under an enablingprovision of the Constitution itself.

ENo further discussion is needed to conclude that Article 324(2) isunique in its setting and purpose.

N. DEVELOPMENTS AFTER 26 JANUARY 1950; THECHIEF ELECTION COMMISSIONERS AND THEELECTION COMMISSIONERS WHO WERE APPOINTEDFAND THEIR TERMS

50. In the year 1951, Shri Sukumar Sen was appointed as the firstChief Election Commissioner of India. He was Civil Servant and aformer Chief Secretary of the State of West-Bengal. His term was tolast for eight years and two hundred and seventy-three days. Shri KalyanGSundaram, the second Chief Election Commissioner, again Civil Servant,the first Law Secretary and who also chaired the Indian Law Commissionfor the period from 1968 to 1971, was appointed as Chief ElectionCommissioner on 20.12.1958 and his term terminated on 30.09.1967. Itis noteworthy that his term also lasted eight years and two hundred andHeighty-four days.

51. The Government of India (Transaction of Business) Rules,1961 have been referred to by the parties. Insofar as it is relevant, wemay notice them. Under Rule 8, the cases to be submitted to the PrimeMinister and President, are described as all cases of the nature specifiedin the Third Schedule. In the Third Schedule, Serial No.22 describesappointment, resignation and removal of the Chief Election Commissionerand other Election Commissioners in Column 1 under the heading ‘natureof cases’. Article 324 is referred to, under the Column ‘authority towhom the matter is submitted, it is indicated ‘the Prime Minister and thePresident’.

52. Shri S.P. Sen Verma was the third Chief Election Commissionerand he was appointed on 01.10.1967 and he continued till 30.09.1972(his term lasted for five years). Shri Nagendra Singh, Civil Servantand Member of the Constituent Assembly and who, later on, becamethe Judge of the International Court of Justice, had short tenure as thefourth Chief Election Commissioner from 01.10.1972 to 06.02.1973 (histerm lasted for one hundred and twenty-eight days). The fifth ChiefElection Commissioner was Shri T. Swaminathan, who was also CivilServant, having become Cabinet Secretary as well and his stint asChief Election Commissioner was from 07.02.1973 to 17.06.1977 (histerm lasted for four years and ten days). Shri S.L. Shakdher wasappointed as the Sixth Chief Election Commissioner. He was also CivilServant and Secretary General of the Lok Sabha. His term commencedon 18.06.1977 and expired on 17.06.1982 (his term lasted for four yearsand three hundred and sixty-four days). Shri R. K. Trivedi, the SeventhChief Election Commissioner, was also Civil Servant, and he had aterm of three years and one hundred and ninety-six days. Shri R.V.S.Perishastri was the Eighth Chief Election Commissioner. He was theSecretary to Government and his term lasted from 01.01.1986 till25.11.1990. It was for the first time that Election Commissioners, two innumber, viz., Shri V. S. Seigell and Shri S. S. Dhanoa came to be appointedas Election Commissioners on 16.10.1989. However, as we shall see ingreater detail, the Notification dated 16.10.1989 came to be rescindedon 01.01.1990. The same came to be challenged by Shri S.S. Dhanaoand it culminated in the Judgment of this Court reported inS.S. Dhanoav. Union of India and Others12. Committee known as the GoswamiCommittee, made certain recommendations. On its heels, ParliamentAB

Apassed an Act titled ‘The Chief Election Commissioner and otherCommissioners (Conditions of Service) Act, 1991 (hereinafter referredto as, ‘the 1991 Act’). It is noteworthy that this is the law made byParliament and relatable to Article 324(5), which contemplated lawmade by Parliament regulating conditions of service of the Chief ElectionCommissioner and the Election Commissioners. Smt. V.S. Ramadevi,Bwho had the shortest tenure as the ninth Chief Election Commissionerwas drawn from the Civil Services. Her term lasted for sixteen days.The Tenth Chief Election Commissioner was none other than Shri T. N.Sheshan, who was the Eighteenth Cabinet Secretary of India and had aterm of six years commencing from 12.12.1990 till 11.12.1996. The 1991CAct came to be amended, initially, by an Ordinance, and later, by lawmade by Parliament, the Ordinance being published on 01.10.1993. ShriM.S. Gill and Shri G.V.G. Krishnamurthy were appointed as ElectionCommissioners, w.e.f., 01.10.1993. The amendment and the appointmentscame to be challenged by Shri T. N. Seshan, the Chief ElectionCommissioner and others and the challenge was repelled by ConstitutionDBench of this Court and the Judgment is reported inT.N. Seshan,(supra).We would observe that what was essentially contemplated by foundingFathers was an Election Commission, which was to consist of permanentfigure, viz., the Chief Election Commissioner and such ElectionCommissioners, as may be necessary. For nearly forty years after theEadoption of the Constitution of India, there were only Chief ElectionCommissioners. After the Judgment in T.N.Seshan (supra), it will benoticed that thereafter, the Election Commission of India became teamconsisting of the Chief Election Commissioner and the two ElectionCommissioners. With the term ofShri T. N. Seshan coming to an end11.12.1996, the trend began of appointing the Election CommissionersFas Chief Election Commissioners. Thus, Shri M.S. Gill became the ChiefElection Commissioner. Shri M.S. Gill was also Civil Servant. He servedas Chief Election Commissioner for period of four years and sixty-nine days, i.e., from 12.12.1996 till 13.06.2001. Shri G.V.G. Krishnamurthycontinued till 30.09.1999 (nearly six years) as Election Commissioner.Shri James Michael Lyngdoh became an Election Commissioner in theGyear 1997 and was made the Chief Election Commissioner on 14.06.2001,on the expiry of the term of Shri M.S. Gill, and he continued till 07.02.2004(the term lasted two years and two hundred and sixty-nine days).Thereafter, we may notice, for the period 2000 to 2022, the details of theElection Commissioners and the Chief Election Commissioners and theHlength of the tenure, which is as follows:

O. CLOSER LOOK AT S.S. DANOA (SUPRA), THE 1991ACT AND T.N. SESHAN (SUPRA)

53. It was on 07.10.1989 that the President, in exercise of hispowers under Clause 2 of Article 324 of the Constitution, fixed the numberof Election Commissioners as two. This was to continue until furtherorders. Later on, on 16.10.1989, two persons of which, one was ShriS.S. Dhanoa, were appointed as the Election Commissioners. It was forthe first time after Independence that Election Commissioners wereappointed, thereby making the Election Commission of India multi-Member Commission. In other words, till 16.10.1989, the Chief ElectionCommissioner constituted the Election Commission of India. The multi-Member Commission was, however, short-lived affair. In less thanthree months’ time, on 01.01.1990, exercising power under Article 324(2),the President notified, with immediate effect, the rescinding of theNotification dated 07.10.1989, by which Notification, the two posts of

AElection Commissioner had been created. Another Notification rescindingthe Notification dated 16.10.1989, by which the two ElectionCommissioners were appointed, came to be issued. The latterNotifications came to be challenged by Shri S.S. Dhanoa before thisCourt. Bench of two learned Judges dismissed the Writ Petition. ThisCourt took the view, inter alia, that the framers of the Constitution didBnot want to give same status to the Election Commissioners as wasconferred on the Chief Election Commissioner. In the course of this13Judgment in S.S. Dhanoa v. Union of India and others, this Court,inter alia, observed as follows:

“17. … There is no doubt that there is an important distinctionCbetween the Council of Ministers and the Election Commission inthat whereas the Prime Minister or the Chief Minister is appointedby the President or the Governor and the other Ministers areappointed by the President or the Governor on the advice of thePrime Minister or the Chief Minister, the appointment of both theDChief Election Commissioner and the other ElectionCommissioners as the law stands today, is made by the Presidentunder Article 324(2) of the Constitution. It has, however, to benoted that the provisions of the said article have left the matter ofappointment of the Chief Election Commissioner and the otherElection Commissioners to be regulated by law to be made byEthe Parliament, and the President exercises the power of appointingthem today because of the absence of such law which has yet tobe made.…”

(Emphasis supplied)

F54. We may notice paragraph 18, dealing with the manner in whicha multi-Member Commission must act. Thereafter, the Court went on tofind that there was really no need to have appointed the ElectionCommissioners and, still further made the following observations:

“26. There is no doubt that two heads are better than one, andGparticularly when an institution like the Election Commission isentrusted with vital functions, and is armed with exclusiveuncontrolled powers to execute them, it is both necessary anddesirable that the powers are not exercised by one individual,-however, allwise he may be. It ill conforms the tenets of the

H13 (1991) 3 SCC 567

democratic rule. It is true that the independence of an institutiondepends upon the persons who man it and not on their number. Asingle individual may sometimes prove capable of withstanding allthe pulls and pressures, which many may not.However, whenvast powers are exercised by an institution which is accountableto none, it is politic to entrust its affairs to more hands than one. Ithelps to assure judiciousness and want of arbitrariness. The fact,however, remains that where more individuals than one, man aninstitution, their roles have to be clearly defined, if the functioningof the institution is not to come to naught.”

(Emphasis supplied)

55. The Court found that it was not case of removal of theElection Commissioners within the meaning of the second proviso toArticle 324(5).

56. This led to certain changes in the 1991 Act. The changeswere introduced through an Ordinance published in the Gazette of Indiaon 01.10.1993. It, inter alia, provided for new Chapter III, whichcontemplates that as far as possible, all business shall be transactedunanimously (Section 10(2) of the 1991 Act). Section 10(3) providesthat subject to Section 10(2), in case of difference of opinion, the matteris to be decided according to the opinion of the majority. This, it must benoticed, was introduced in the context of the observations inS.S. Dhanoa(supra). By the Ordinance dated 01.10.1993, other far-reaching changeswere introduced, which, inter alia, provided for bringing the ElectionCommissioners substantially on par with the Chief Election Commissioner.The Chief Election Commissioner, it must be noticed, under the 1991Act, was to be paid salary equal to the Judge of the Supreme Court.The Election Commissioner was to be paid the salary equal to the Judgeof the High Court. After the amendment, they stand equated. The 1991Act also provided that the Chief Election Commissioner would be entitledto continue in Office till the age of 65 years whereas the ElectionCommissioner was to continue in Office till he attains the age of 62years. The age of superannuation of the Chief Election Commissionerand the Election Commissioner was brought on par by the Ordinanceinsofar as both were entitled to continue for period of six years subjectto their liability to vacate Office should they attain the age of 65 yearsbefore the expiry of six years from the date on which they assumedOffice. However, under the first proviso to Article 324(5), the Chief

AElection Commissioner can be removed from his Office only in themanner and on the like grounds as the Judge of the Supreme Court ofIndia. The first proviso also prohibits the conditions of service of theChief Election Commissioner being varied to his disadvantage after hisappointment. In the matter of the removal of the Election Commissioneror Regional Commissioner the second proviso to Article 324(5) providesBthe safeguard for the Election Commissioner or Regional Commissionerthat they cannot be removed except on the recommendation of the ChiefElection Commissioner. On 01.10.1993, again, in exercise of the powersunder Article 324(2), the President fixed until further orders, the numberof Election Commissioners other than the Chief Election CommissionerCat two. Two Election Commissioners also came to be appointed w.e.f.01.10.1993. The Ordinance, which had been passed on 01.10.1993,became Act No. 4 of 1994 on 04.01.1994. This led to certain Writ Petitionsbeing filed calling in question the Ordinance including at the instance ofShri T.N. Seshan, who, it must be noticed, was appointed earlier on12.12.1990 as the Chief Election Commissioner. He challenged theDOrdinance on various grounds. Matters engaged the attention of theConstitution Bench and its decision is reported in T.N. Seshan, ChiefElection Commissioner of India v. Union of India and others14. TheConstitution Bench, we may notice, made the following observations:“10. The Preamble of our Constitution proclaims that we are aEDemocratic Republic. Democracy being the basic feature of ourconstitutional set-up, there can be no two opinions that free andfair elections to our legislative bodies alone would guarantee thegrowth of healthy democracy in the country. In order to ensurethe purity of the election process it was thought by our Constitution-Fmakers that the responsibility to hold free and fair elections in thecountry should be entrusted to an independent body which wouldbe insulated from political and/or executive interference. It isinherent in democratic set-up that the agency which is entrustedthe task of holding elections to the legislatures should be fullyinsulated so that it can function as an independent agency freeGfrom external pressures from the party in power or executive ofthe day. This objective is achieved by the setting up of an ElectionCommission, permanent body, under Article 324(1) of theConstitution. The superintendence, direction and control of theentire election process in the country has been vested under theH14 (1995) 4 SCC 611

said clause in commission called the Election Commission. Clause(2) of the said article then provides for the constitution of theElection Commission by providing that it shall consist of the CECand such number of ECs, if any, as the President may from timeto time fix. It is thus obvious from the plain language of this clausethat the Election Commission is composed of the CEC and, whenthey have been appointed, the ECs. The office of the CEC isenvisaged to be permanent fixture but that cannot be said of theECs as is made manifest from the use of the words “if any”. DrAmbedkar while explaining the purport of this clause during thedebate in the Constituent Assembly said:

“Sub-clause (2) says that there shall be Chief ElectionCommissioner and such other Election Commissioners as thePresident may, from time to time appoint. There were twoalternatives before the Drafting Committee, namely, either to havea permanent body consisting of four or five members of the ElectionCommission who would continue in office throughout without anybreak, or to permit the President to have an ad hoc body appointedat the time when there is an election on the anvil. The Committeehas steered middle course. What the Drafting Committeeproposes by sub-clause (2) is to have permanently in office oneman called the Chief Election Commissioner, so that the skeletonmachinery would always be available.”

It is crystal clear from the plain language of the said clause (2)that our Constitution-makers realised the need to set up anindependent body or commission which would be permanently insession with at least one officer, namely, the CEC, and left it tothe President to further add to the Commission such number ofECs as he may consider appropriate from time to time. Clause(3) of the said article makes it clear that when the ElectionCommission is multi-member body the CEC shall act as itsChairman. What will be his role as Chairman has not beenspecifically spelt out by the said article and we will deal with thisquestion hereafter. Clause (4) of the said article further providesfor the appointment of RCs to assist the Election Commission inthe performance of its functions set out in clause (1). This, inbrief, is the scheme of Article 324 insofar as the constitution ofthe Election Commission is concerned.”

A57. This Court went on to disagree with certain parts of theJudgment in S.S. Dhanoa (supra). The Court, inter alia, held that theElection Commission of India can be single-Member Body or multi-Member Body. It was further held as follows:

“16. While it is true that under the scheme of Article 324 theBconditions of service and tenure of office of all the functionariesof the Election Commission have to be determined by the Presidentunless determined by law made by Parliament, it is only in thecase of the CEC that the first proviso to clause (5) lays down thatthey cannot be varied to the disadvantage of the CEC after hisappointment. Such protection is not extended to the ECs. But itCmust be remembered that by virtue of the Ordinance the CECand the ECs are placed on par in the matter of salary, etc. Doesthe absence of such provision for ECs make the CEC superior tothe ECs? The second ground relates to removability. In the caseof the CEC he can be removed from office in like manner and onDthe like ground as Judge of the Supreme Court whereas theECs can be removed on the recommendation of the CEC. That,however, is not an indicia for conferring higher status on theCEC. To so hold is to overlook the scheme of Article 324 of theConstitution. It must be remembered that the CEC is intended tobe permanent incumbent and, therefore, in order to preserveEand safeguard his independence, he had to be treated differently.That is because there cannot be an Election Commission withouta CEC. That is not the case with other ECs. They are not intendedto be permanent incumbents. Clause (2) of Article 324 itselfsuggests that the number of ECs can vary from time to time. InFthe very nature of things, therefore, they could not be conferredthe type of irremovability that is bestowed on the CEC. If thatwere to be done, the entire scheme of Article 324 would have toundergo change. In the scheme of things, therefore, the powerto remove in certain cases had to be retained. Having insulatedthe CEC from external political or executive pressures, confidenceGwas reposed in this independent functionary to safeguard theindependence of his ECs and even RCs by enjoining that theycannot be removed except on the recommendation of the CEC.This is evident from the following statement found in the speechof Shri K.M. Munshi in the Constituent Assembly when heHsupported the amended draft submitted by Dr Ambedkar:

“We cannot have an Election Commission sitting all the time duringthose five years doing nothing. The Chief Election Commissionerwill continue to be whole-time officer performing the duties ofhis office and looking after the work from day to day but whenmajor elections take place in the country, either Provincial orCentral, the Commission must be enlarged to cope with the work.More members therefore have to be added to the Commission.They are no doubt to be appointed by the President. Therefore, tothat extent their independence is ensured. So there is no reason tobelieve that these temporary Election Commissioners will not havethe necessary measure of independence.”

Since the other ECs were not intended to be permanent appointeesthey could not be granted the irremovability protection of the CEC,a permanent incumbent, and, therefore, they were placed underthe protective umbrella of an independent CEC.This aspect ofthe matter escaped the attention of the learned Judges whodecided Dhanoa case [(1991) 3 SCC 567] . We are also of theview that the comparison with the functioning of the executiveunder Articles 74 and 163 of the Constitution in paragraph 17 ofthe judgment, with respect, cannot be said to be apposite.”

(Emphasis supplied)

58. Dealing with the argument that as the Chief ElectionCommissioner is designated as the Chairman, it put him on higherpedestal, this Court, inter alia, held as follows:

“19. … The function of the Chairman would, therefore, be topreside over meetings, preserve order, conduct the business ofthe day, ensure that precise decisions are taken and correctlyrecorded and do all that is necessary for smooth transaction ofbusiness. The nature and duties of this office may vary dependingon the nature of business to be transacted but by and large thesewould be the functions of Chairman. He must so conduct himselfat the meetings chaired by him that he is able to win the confidenceof his colleagues on the Commission and carry them with him.This Chairman may find difficult to achieve if he thinks thatothers who are members of the Commission are his subordinates.The functions of the Election Commission are essentiallyadministrative but there are certain adjudicative and legislativefunctions as well. The Election Commission has to lay down certain

Apolicies, decide on certain administrative matters of importanceas distinguished from routine matters of administration and alsoadjudicate certain disputes, e.g., disputes relating to allotment ofsymbols. Therefore, besides administrative functions it may becalled upon to perform quasi-judicial duties and undertakesubordinate legislation-making functions as well. See MohinderBSingh Gill v. Chief Election Commr [(1978) 1 SCC 405 : (1978)2 SCR 272] . We need say no more on this aspect of the matter.”

59. Still further, we may notice the following discussion, whichbrings out the rationale for treating the Chief Election Commissionerdifferently from the Elections Commissioners:C

“21. We have pointed out the distinguishing features from Article324 between the position of the CEC and the ECs. It is essentiallyon account of their tenure in the Election Commission that certaindifferences exist. We have explained why in the case of ECs theremovability clause had to be different. The variation in the salary,Detc., cannot be determinative factor otherwise that would oscillatehaving regard to the fact that the executive or the legislature hasto fix the conditions of service under clause (5) of Article 324.The only distinguishing feature that survives for consideration isthat in the case of the CEC his conditions of service cannot beEvaried to his disadvantage after his appointment whereas there isno such safeguard in the case of ECs. That is presumably becausethe posts are temporary in character. But even if it is not so, thatfeature alone cannot lead us to the conclusion that the final wordin all matters lies with the CEC. Such view would render theposition of the ECs to that of mere advisers which does not emergeF”from the scheme of Article 324.

(Emphasis supplied)

60. It is clear that the founding fathers intended that the electionsin the country must be under the superintendence, direction and controlGof an independent Body. The Body is the Election Commission of India.Under Article 324, the Chief Election Commissioner is an unalterablefeature or figure. Commission can consist of only the Chief ElectionCommissioner. multi-Member Commission was also contemplated bythe founding fathers. However, the post of Election Commissioner wasto be need based. For nearly four decades, there was no ElectionH

Commissioner. As we have noticed, it is on 16.10.1989 that the first twoElection Commissioners were appointed. In regard to the appointmentof the Chief Election Commissioner and other Election Commissioners,the Constitution does not provide for any criteria. It does not fix anyqualifications. It does not prescribe any disqualifications in the matter ofappointment as either Chief Election Commissioner or ElectionCommissioner.

61. The appointees have been bureaucrats drawn from the CivilServices. Article 324(5) deals with the conditions of service and tenureof Office of the Election Commissioners and the RegionalCommissioners. Till Parliament made any law with regard to the same,the founding fathers clothed the President with power to lay down theconditions of service and tenure of Office by Rule. It is to lay down theconditions of service and tenure of Office that Parliament has enactedthe 1991 Act. The first proviso to sub-Article 324(5) acts as guaranteeagainst the removal of the Chief Election Commissioner except on likegrounds and similar manner Judge of the Supreme Court can beremoved. The conditions of service of the Chief Election Commissionershall not be varied to his disadvantage after his appointment. This meansthat Parliament cannot, nor can the Government by Rule, either removethe Chief Election Commissioner, except by impeaching him in the mannerprovided for the removal of Judge of Supreme Court nor can Parliamentmake law nor Government Rule to vary the conditions of service ofthe Chief Election Commissioner to his disadvantage, after he is appointed.The first proviso to Article 324(5) operates as singular insulation toprotect the Chief Election Commissioner from either being arbitrarilyremoved or his conditions of service being varied to his disadvantage.But as contemplated by the founding fathers, protection against arbitraryremoval or protection againstvarying of conditions of the appointmentwere not the sole safeguards.Far more vital was the appointment of the‘right man’ and the need to take it out of the exclusive hands of theexecutive.

P. THE CLAMOUR FOR REFORMS

62. In the year 1990, the Government of India constituted aCommittee under the Chairmanship of the then Law Minister, Shri DineshGoswami and it is hereinafter referred to as the ‘Goswami Committee’.It made several recommendations relating to electoral reforms. TheCommittee, inter alia, recommended as follows:

“CHAPTER II

Electoral Machinery

1.Set up of multi-member Commission

1. The Election Commission should be multi-member body withthree members.

2. The Chief Election Commissioner should be appointed by thePresident in consultation with the Chief Justice of India and theLeader of the Opposition (and in case no Leader of Opposition isavailable, the consultation should be with the Leader to the largestopposition group in the Lok Sabha).

3. The consultation process should have statutory backing.

4. The appointment of other two Election Commissioners shouldbe made in consultation with Chief Justice of India, the Leader ofthe Opposition (in case no Leader of Opposition is available, theconsultation should be with the Leader to the largest oppositiongroup in the Lok Sabha) and the Chief Election Commissioner.

5. The appointment of Regional Commissioners for different zonesis not favoured. Such appointments should be made only as andwhen necessary and not on permanent footing.

2. Steps for securing independence of the Commission

6. The protection of salary and other allied matters relating to theChief Election Commissioner and the Election Commissionersshould be provided for in the Constitution itself on the analogy ofthe provisions in respect of the Chief Justice and Judges of theSupreme Court. Pending such measures being taken, aparliamentary law should be enacted.

7. The expenditure of the Commission should continue to be ‘voted’as of now.

8. The Chief Election Commissioner and the ElectionCommissioners should be made ineligible not only for anyappointment under the Government but also to any office includingthe office of Governor appointment to which is made by thePresident.

9. The tenure of the Chief Election Commissioner and otherElection Commissioners should be for term of five years orsixty-five years of age, whichever is later and they should in no

case continue in office beyond sixty-five years and for more thanten years in all.”

63. In the year 1991, Parliament enacted the Election Commission(Conditions of Service of Election Commissioners and Transaction ofBusiness) Act, 1991. Section 3 provides, as it stands, that there shall bepaid to the Chief Election Commissioner and other ElectionCommissioners salary, which is equal to the salary of the Judge of theSupreme Court. Section 4 deals with the term of Office and reads asfollows:

“4. Term of office. —The Chief Election Commissioner or anElection Commissioner shall hold office for term of six yearsfrom the date on which he assumes his office:

Provided that where the Chief Election Commissioner or anElection Commissioner attains the age of sixty-five years beforethe expiry of the said term of six years, he shall vacate his officeon the date on which he attains the said age:

Provided further that the Chief Election Commissioner or anElection Commissioner may, at any time, by writing under his handaddressed to the President, resign his office.

Explanation.—For the purpose of this section, the term of six yearsin respect of the Chief Election Commissioner or an ElectionCommissioner holding office immediately before thecommencement of this Act, shall be computed from the date onwhich he had assumed office.”

64. Section 5 deals with the leave available to both the ChiefElection Commissioner or an Election Commissioner. The power to grantrelief or refuse leave to them vests with the President. Section 6 dealswith their right to pension. Section 7 deals with the right to subscribe tothe general provident fund. Section 8 provides for other conditions ofservice:

“8. Other conditions of service.—Save as otherwise provided inthis Act, the conditions of service relating to travelling allowance,provision of rent-free residence and exemption from payment ofincome-tax on the value of such rent-free residence, conveyancefacilities, sumptuary allowance, medical facilities and such otherconditions of service as are, for the time being, applicable to

AJudge of the Supreme Court under Chapter IV of the SupremeCourt Judges (Conditions of Service) Act, 1958 (41 of 1958) andthe rules made thereunder, shall, so far as may be, apply to theChief Election Commissioner and other Election Commissioners.”

65. Under Section 9, the business of the Election Commissioner isBto be transacted in accordance with the 1991 Act. Section 10 providesfor disposal of business by Election Commission, it reads as follows:

“10. Disposal of business by Election Commission. — (1) TheElection Commission may, by unanimous decision, regulate theprocedure for transaction of its business as also allocation of itsCbusiness amongst the Chief Election Commissioner and otherElection Commissioners.

(2) Save as provided in sub-section (1), all business of the ElectionCommission shall, as far as possible, be transacted unanimously.

(3) Subject to the provisions of sub-section (2), if the Chief ElectionDCommissioner and other Election Commissioners differ in opinionon any matter, such matter shall be decided according to the opinionof the majority.”

66. In the year 1993, the Government of India constituted, what isknown as the ‘Vohra Committee’. It made certain recommendations inEregard to the CBI and the IB. Five years thereafter, in 1998, Governmentof India appointed Committee under the Chairmanship of Shri IndrajitGupta Committee on State funding of elections. The Committee submittedits Report in December, 1998. The conclusion and summary of therecommendations are found in Chapter 9 and they include variousFrecommendations relating to funding of political parties.

67. In the year 2002, National Commission for reviewing thework of the Constitution, under the Chairmanship of the Former ChiefJustice of India, M.N. Venkatachaliah, made 58 recommendationsinvolving amendments to the Constitution, 86 recommendations relatingto legislative measures and the rest involved Executive action. In relationGto electoral processes and political parties, various recommendationswere made by the Commission. One of the recommendations, which isof relevance to the cases before us is as follows:

“The Chief Election Commissioner and the other ElectionCommissioners should be appointed on the recommendation of

Body consisting of the Prime Minister, Leader of the Oppositionin the Lok Sabha, the Leader of the Opposition in the Rajya Sabha,the Speaker of the Lok Sabha and the Deputy Chairman of theRajya Sabha. It was further recommended that similar procedureshould be adopted in the case of appointment of the State ElectionCommissioners.”

68. In the year 2004, the Election Commission of India, on02.08.2004 made certain proposal on electoral reforms to the Governmentof India. The proposals included affidavits to be filed by candidates oncriminal antecedents, their assets, etc. The aspect about criminalisationof politics is noted as an issue being raised by the Commission from1998 onwards. The Commission was of the opinion that keeping personaccused of serious criminal charge and where the Court had framedcharges, out of the electoral arena, would be reasonable restriction ingreater public interest. Among the various reforms it proposed, we noticethe following:

“12. COMPOSITION OF ELECTION COMMISSION ANDCONSTITUTIONAL PROTECTION OF ALL MEMBERS OFTHE COMMISSION AND INDEPENDENT SECRETARIATFOR THE COMMISSION

Election Commission of India is an independent constitutional bodycreated by the Constitution of India vide Article 324. Clause (I) ofArticle 324 has vested the superintendence, direction and controlof the preparation of electoral rolls for, and the conduct of, allelections to Parliament and to the Legislature of every State andof elections to the offices of President and Vice-President of Indiain the Election Commission.

Under Clause (2) of Article 324, the Election Commission shallconsist of the Chief Election Commissioner and such number ofother Election Commissioners, if any, as the President may fromto time fix and the appointment of the Chief Election Commissionerand Election Commissioners shall, subject to the provisions of anylaw made in that behalf by Parliament, be made by the President.

The President has, by Order dated 1.10.1993 under Clause (2) ofArticle 324, fixed the number of Election Commissioners as twountil further orders.

Although the Constitution permits the President to fix the numberof Election Commissioners at any number without any limit, it isfelt that in the interest of smooth and effective functioning of theElection Commission, the number of Election Commissionersshould not be unduly large and should remain as two as presentlyfixed, in addition to the Chief Election Commissioner. The three-member body is very effective in dealing with the complexsituations that arise in the course of superintending, directing andcontrolling the electoral process, and allows for quick responsesto developments in the field that arise from time to time and requireimmediate solution. Increasing the size of this body beyond theexisting three-member body would, in the considered opinion ofthe Commission, hamper the expeditious manner in which it hasnecessarily to act for conducting the elections peacefully and in afree and fair manner.

In order to ensure the independence of the Election CommissionDand to keep it insulated from external pulls and pressures, Clause(5) of Article 324 of the Constitution, inter alia, provides that theChief Election Commissioner shall not be removed from his officeexcept in like manner and on like grounds as Judge of theSupreme Court. However, that Clause (5) of Article 324 does notprovide similar protection to the Election Commissioners and itEmerely says that they cannot be removed from office except onthe recommendation of the Chief Election Commissioner. Theprovision, in the opinion of the Election Commission, is inadequateand requires an amendment to provide the very same protectionand safeguard in the matter of removability of ElectionFCommissioners from office as is available to the Chief ElectionCommissioner.

The independence of the Election Commission upon which theConstitution makers laid so much stress in the Constitution wouldbe further strengthened if the Secretariat of the ElectionCommission consisting of officers and staff at various levels isalso insulated from the interference of the Executive in the matterof their appointments, promotions, etc., and all such functions areexclusively vested in the Election Commission on the lines of theSecretariats of the Lok Sabha, and Rajya Sabha, Registries of theSupreme Court and High Courts, etc.Independent Secretariat is

vital to the functioning of the Election Commission as anindependent constitutional authority. In fact, the provision ofindependent Secretariat to the Election Commission has alreadybeen accepted in principle by the Goswami Committee on ElectoralReforms and the Government had, in the Constitution (SeventiethAmendment) Bill, 1990, made provision also to that effect. ThatBill was, however, withdrawn in 1993 as the Government proposedto bring in more comprehensive Bill.”

(Emphasis supplied)

69. As regards expenses of Election Commission, we find thefollowing complaint and solution:

“13. EXPENSES OF ELECTION COMMISSION TO BETREATED AS CHARGED

The Commission had sent proposal that the expenditure of theCommission should be charged on the Consolidated Fund of India.The Government had moved in the 10th Lok Sabha “The ElectionCommission (Charging of Expenses on the Consolidated Fund ofIndia) Bill, 1994” with the objective of providing for the salaries,allowances and pension payable to the Chief ElectionCommissioner and other Election Commissioners and theadministrative expenses including salaries, allowances and pensionof the staff of the Election Commission to be expenditure chargedupon the Consolidated Fund of India. Similar provisions alreadyexist in respect of the Supreme Court, Comptroller & AuditorGeneral and the Union Public Service Commission, which are,like the Election Commission, independent constitutional bodies.To secure its independent functioning the Commission is of theopinion that the Bill, which lapsed with the dissolution of the 10thLok Sabha in 1996, needs reconsideration.”

70. The next milestone to be noticed is the Second AdministrativeReforms Commission Report made in January, 2007. The Commissionconsisted of Shri Veerappa Moily, the then Law Minister, as itsChairperson and five other Members.We find the following in thesummary of its recommendations, inter alia. It recommended that theCollegium headed by the Prime Minister, with the Speaker of the LokSabha, the leader of the Opposition in the Lok Sabha, the Law Ministerand the Deputy Chairman of the Rajya Sabha, as Members, should make

Arecommendations for consideration of the President for appointment ofthe Chief Election Commissioner and the Election Commissioners. Inthe year 2010, the Ministry of Law and Justice, Government of India,had constituted Committee on Electoral Reforms. The Report, it made,in the year 2010 indicates the background which led to the constitutionof the Committee. Reference is made to various earlier Reports as alsoBthe efforts being made by the Election Commission. It made variousrecommendations relating to electoral reforms. Under the head‘measures for Election Commission’, an update on the ElectionCommission’s recommendations, includes the following:

[K. M. JOSEPH, J.]

71. In regard to appointment of Chief Election Commissioner andother Election Commissioners, we notice the following remarks:“

(Emphasis supplied)”

72. In the year 2015, Law Commission of India, in its Two Hundredand Fifty Fifth Report dated 12.03.2015, dealing with the electoral reformsin India, made various recommendations in regard to strengthening theOffice of the Election Commission of India. After referring to Article324(2), the fact of the appointments being discussed in the ConstituentAssembly, Article 324(2) leaving it to the Parliament to legislate, therecommendation of the Goswami Committee in 1990, we find thefollowing discussion:

“6.10.4 This was followed by the introduction of the Constitution(Seventieth Amendment) Bill 1990, which was introduced in theRajya Sabha on 30th May 1990 providing that the CEC would beappointed by the President after consultation with the Chairmanof the Rajya Sabha, the Speaker of the Lok Sabha, and the Leaderof the Opposition (or the leader of the largest party) in the LokSabha. The CEC was further made part of the consultativeprocess in the appointment of the Election Commissioners.However, on 13th June 1994, the Government moved motion towithdraw the Bill, which was finally withdrawn with the leave ofthe Rajya Sabha on the same day.

6.10.5 Consequently, in the absence of any Parliamentary lawgoverning the appointment issue, the Election Commissioners areappointed by the government of the day, without pursuing any

consultation process. This practice has been described as requiringthe Law Ministry to get the file approved by the Prime Minister,who then recommends name to the President. Thus, there is noconcept of collegium and no involvement of the opposition.

6.10.6 The Commissioners are appointed for six year period, orBup to the age of 65 years, whichever is earlier. Further, there areno prescribed qualifications for their appointment, althoughconvention dictates that only senior (serving or retired) civilservants, of the rank of the Cabinet Secretary or Secretary to theGovernment of India or an equivalent rank, will be appointed. TheSupreme Court in Bhagwati Prashad Dixit Ghorewala v RajivCGandhi rejected the contention that the CEC should possessqualifications similar to that of Supreme Court judge, despitebeing placed on par with them in terms of the removal process.”

73. We find that under the caption ‘Comparative Practices’, theReport contains the following discussion:D

“(ii) Comparative practices

6.11.1 An examination of comparative practices is instructive. InSouth Africa, the Independent Electoral Commission comprisesof five members, including one judge. They are appointed by theEPresident on the recommendations of the National Assembly,following nominations by National Assembly inter-partycommittee, which receives list of at least eight candidates. Thislist of (at least) eight nominees is recommended by the SelectionCommittee, which has four members being, the President of theConstitutional Court; representative of the Human RightsFCommission and the Commission on Gender Equality each; andthe Public Prosecutor.

6.11.2 In Ghana too, the seven member Election Commission isappointed by the President on the advice of the Council of State,with the Chairman and two Deputy Chairmen having permanentGtenure.

6.11.3 In Canada, the Chief Electoral Officer of “ElectionsCanada” is appointed by House of Commons resolution for anon-renewable ten-year term, and to protect their independencefrom the government, he/she reports directly to Parliament.In theHUnited States, the six Federal Election Commissioners are

appointed by the President with the advise and consent of theSenate. The Commissioners can be members of political party,although not more than three Commissioners can be members ofthe same party.

6.11.4 In all these cases thus, it is clear that the appointment ofthe Election Commissioners or the electoral officers is aconsultative process involving the Executive/Legislature/otherindependent bodies.”

74. Thereafter, under the caption ‘the Recommendation’, we findthe following:

“(iii) Recommendations

6.12.1 Given the importance of maintaining the neutrality of theECI and to shield the CEC and Election Commissioners fromexecutive interference, it is imperative that the appointment ofElection Commissioners becomes consultative process.

6.12.2 To this end, the Commission adapts the GoswamiCommittee’s proposal with certain modifications. First, theappointment of all the Election Commissioners (including the CEC)should be made by the President in consultation with three-member collegium or selection committee, consisting of the PrimeMinister, the Leader of the Opposition of the Lok Sabha (or theleader of the largest opposition party in the Lok Sabha in terms ofnumerical strength) and the Chief Justice of India. The Commissionconsiders the inclusion of the Prime Minister is important as arepresentative of the current government.

6.12.3 Second, the elevation of an Election Commissioner shouldbe on the basis of seniority, unless the three member collegium/committee, for reasons to be recorded in writing, finds suchCommissioner unfit.

6.12.4 Such amendments are in consonance with the appointmentprocess in Lokpal and Lokayuktas Act, 2013, the Right toInformation Act, 2005 and the Central Vigilance Commission Act,2003.

6.12.5 Pursuant to Article 324(2), an amendment can be broughtto the existing Election Commission (Conditions of Service ofElection Commissioners and Transaction of Business) Act, 1991

Ato amend the title and insert new Chapter 1A on the appointmentof Election Commissioners and the CEC as follows:

• Act and Short Title: The Act should be renamed the “ElectionCommission (Appointment and Conditions of Service of ElectionCommissioners and Transaction of Business) Act, 1991”.

• The short title should state, “An Act to determine the appointmentand conditions of service of the Chief Election Commissioner andother Election Commissioners and to provide for the procedurefor transaction of business by the Election Commission and formatters connected therewith or incidental thereto.”

• Chapter I-A – Appointment of Chief Election Commissionerand Election Commissioners.

2A. Appointment of Chief Election Commissioner and ElectionCommissioners – (1) The Election Commissioners, including theChief Election Commissioners, shall be appointed by the PresidentDby warrant under his hand and seal after obtaining therecommendations of Committee consisting of:

(a) the Prime Minister of India – Chairperson

(b) the Leader of the Opposition in the House of the People –MemberE

c) the Chief Justice of India – Member

Provided that after the Chief Election Commissioner ceases tohold office, the senior-most Election Commissioner shall beappointed as the Chief Election Commissioner, unless theFCommittee mentioned in sub-section (1) above, for reasons to berecorded in writing, finds such Election Commissioner to be unfit.

Explanation: For the purposes of this sub-section, “the Leader ofthe Opposition in the House of the People” shall, when no suchLeader has been so recognised, include the Leader of the singleGlargest group in opposition of the Government in the House of thePeople.”

75. In regard to the aspect about the permanent and independentSecretariat of the Election Commission of India, it was noticed that togive effect to the Goswami Committee recommendation, the ConstitutionHSeventieth Amendment Bill, 1990 was introduced on 30.05.1990 and

that it was subsequently withdrawn in 1993 in view of the changedcomposition of the Election Commission of India, on it becoming multi-Member Body pursuant to the 1991 Act and on the ground that the Billneeded some amendments. The Bill, however, the Law Commissionnoticed, was never introduced. Thereafter, the Law Commission referredto the recommendations of the Election Commission itself for seekingappointment of an independent Secretariat. The Law Commission,accordingly, recommended insertion of Article 324(2A), inter alia,providing for separate, independent and permanent secretarial stafffor the Election Commission. In regard to the need for equating the twoElection Commissioners with the Chief Election Commissioner and notingthat Election Commissioners were clearly superior to the RegionalCommissioners, the Law Commission recommended changes in Article324(5) as well. The amended Article 324, as proposed by the LawCommission of India, in its Report, reads as follows:

“324. Superintendence, direction and control of elections to bevested in an Election Commission. -(1) The superintendence,direction and control of the preparation of the electoral rolls for,and the conduct of, all elections to Parliament and to the Legislatureof every State and of elections to the offices of President andVice-President held under this Constitution shall be vested in aCommission (referred to in this Constitution as the ElectionCommission)

(2) The Election Commission shall consist of the Chief ElectionCommissioner and such number of other Election Commissioners,if any, as the President may from time to time fix and theappointment of the Chief Election Commissioner and other ElectionCommissioners shall, subject to the provisions of any law made inthat behalf by Parliament, be made by the President.

(2A) (1): The Election Commission shall have separateindependent and permanent secretarial staff.

(2) The Election Commission may, by rules prescribed by it,regulate the recruitment, and the conditions of service of personsappointed, to its permanent secretarial staff.

(3) When any other Election Commissioner is so appointed theChief Election Commissioner shall act as the Chairman of theElection Commission.

(4) Before each general election to the House of the People andto the Legislative Assembly of each State, and before the firstgeneral election and thereafter before each biennial election tothe Legislative Council of each State having such Council, thePresident may also appoint after consultation with the ElectionCommission such Regional Commissioners as he may considernecessary to assist the Election Commission in the performanceof the functions conferred on the Commission by clause (1).

(5): Subject to the provisions of any law made by Parliament, theconditions of service and tenure of office of the RegionalCommissioners shall be such as the President may by ruledetermine;

Provided that the Chief Election Commissioner and any otherElection Commissioner shall not be removed from his office exceptin like manner and on the like grounds as Judge of the SupremeCourt andthe conditions of service of the Chief ElectionDCommissioner and any other Election Commissioner shall not bevaried to his disadvantage after his appointment:

Provided further that Regional Commissioner shall not beremoved from office except on the recommendation of the ChiefElection Commissioner.

(6) The President, or the Governor of State, shall, when sorequested by the Election Commission, make available to theElection Commission or to Regional Commissioner such staffas may be necessary for the discharge of the functions conferredon the Election Commission by clause (1).”

76. There is newspaper Report of The Hindu dated 04.06.2012,which appears to project the demand of Shri L.K. Advani, that Collegiumbe put in place for appointment to the Constitutional Body and taking thestand that the present system of appointment did not inspire confidenceamong the people. There is also reference to the Report of the CitizensCommission of Elections. It appears to be prepared by the former Judgeof this Court Shri Madan B. Lokur and Shri Wajahat Habibullah, formerChief Information Commissioner. In the said Report, we find the Article‘Are Elections in India Free and Fair’ by Shri M.G. Devasahayan. Underthe head ‘ECI – functioning an autonomy’, we find the following criticism:

�ECI has plenipotentiary powers drawn from Article 324 ofthe Constitution of India to conduct free and fair election.

�In addition, Supreme Court has ruled: “when Parliament orany State Legislature made valid law relating to, or inconnection to elections, the Commission, shall act inconformity with, not in violation of such provisions, but wheresuch law is silent, Article 324 is reservoir of power to actfor the avowed purpose of pushing forward free and fairelection with expedition…”.

�But ECI is just not using such powers, because ECs arethe appointees of the Government of the day and not throughan independent process of collegium. The case of onedissenting EC, who was side-lined and then eased out hascaused irretrievable damage to ECI’s independence andintegrity!

�This compromises the autonomy of the ECI and createsdoubts about the neutrality of the CEC and the ECs, andconsequently, the neutrality of the Commission itself. This

poses serious danger to the fairness and integrity of notonly the elections, but democracy itself…”

(Emphasis supplied)

77. In the year 2016, we find the following proposed electoralreforms essentially related to Article 324(5), being proposals made bythe Election Commission itself.

“Clause (5) of Article 324 of the Constitution provides that theChief Election Commissioner shall notbe removed from his officeexcept in the same manner and on the same grounds as Judgeof theSupreme Court. The Chief Election Commissioner and thetwo Election Commissioners enjoy thesame decision makingpowers which is suggestive of the fact that their powers are atpar with eachother. However, Clause (5) of Article 324 of theConstitution does not provide similar protection to theElectionCommissioners and it merely says that they cannot be removedfrom office except on therecommendation of the Chief ElectionCommissioner.

The reason for giving protection to Chief Election Commissioneras enjoyed by Supreme Court Judge in matters of removability

Afrom office was in order to ensure the independence ofCommissionfrom external pulls and pressure. However, therationale behind not affording similar protection toother ElectionCommissioners is not explicable. The element of ‘independence’sought to be achieved under the Constitution is not exclusively foran individual alone but for the whole institution. Thus, theBindependence of the Commission can only be strengthened if theElection Commissioners are also provided with the same protectionas that of the Chief ElectionCommissioner.

Proposed amendmentThe present constitutional guarantee is inadequate and requiresCan amendment to provide the sameprotection and safeguard inthe matter of removability of Election Commissioners as is availabletothe Chief Election Commissioner.”

Q. SEPARATION OF POWERS AND JUDICIALACTIVISMD

78. In I. C. Golak Nath and Others v. State of Punjab andAnother,[15 ]Justice Subba Rao held speaking for this Court:

“It (the Constitution) demarcates their jurisdiction minutely andexpects them to exercise their respective powers withoutoverstepping their limits. They should function within the spheresEallotted to them. No authority created under the Constitution issupreme; the Constitution is supreme and all the authorities functionunder the supreme law of the land.”

79. What is this jurisdiction which is demarcated? JusticeR.S.Pathak speaking for the Bench inBandhua Mukti Morcha v. UnionF16of India and Othersheld:

“It is common place that while the Legislature enacts the lawthe Executive implements it and the Court interpret it and, in doingso, adjudicates on the validity of executive action and, under ourConstitution, even judges the validity of the legislation itself.”

The question would arise as to whether the powers/functions arecast in stone or whether the aforesaid powers/functions can legitimatelybe exercised/discharged by the other organs. We may in this regardagain advert to what this Court held in the aforesaid case (supra):

15AIR 1967 SC 1643H16 (1984) 3 SCC 161

“And yet it is well recognized that in certain sphere the Legislatureis possessed of judicial power, the executive possesses measureof both legislative and judicial functions, and the court, in its dutyof interpreting the law, accomplishes in its perfect action in amarginal degree of legislative exercise. Nonetheless fine anddelicate balance is envisaged under our Constitution between theseprimary institutions of the State.”

80. The High Courts and this Court make Rules under the powergranted to them. No doubt, they will be acting as delegates of theLegislature but the exercise of power in such cases would be legislativein nature. When an Ordinance is made under Article 123 by the Executive,that is, the Union of India, it is case of the Executive exercising legislativepower.When Parliament adjudges man guilty of contempt of itself andpunishes him, the proceedings are informed by the attribute of judicialpower.

81. It cannot be disputed that there is no strict demarcation orseparation of powers in India unlike the position obtaining in the UnitedStates of America and Australia.(See In Re. Delhi Laws Act,191217).The doctrine of separation of powers, no doubt, has beeneloquently expounded by Montesquieu in his work “The Spirit of Laws”and the basis on which it rests is the imperative need to avoid concentrationof power in one or two organs. Undoubtedly, an observance of doctrineof separation of powers has been traced to the principle of equality (See18Madras Bar Association v. Union of India. Justice Y.V.Chandrachud,as His Lordship then was, speaking in Indira Nehru Gandhi v. RajNarain & Ors.[19] held inter alia as follows:

“But the principle of separation of powers is not magic formulafor keeping the three organs of the State within the strict confinesof their functions.”

82. Separation of powers as understood as prevailing in Indiaconstitutes part of the basic structure of the Constitution of India (SeeHis Holiness Kesavananda Bharati Sripadagalvaru v. State ofKerala and Another20) and I.R. Coelho (Dead) by LRs v. State ofT.N.[21]

17 AIR 1951 SC 33218 2021 SCC OnLine SC 46319 (1975) Suppl. SCC 1

20 (1973) 4 SCC 225

21 (2007) 2 SCC 1

A83. In Indian Aluminium Co. and others v. State of Kerala andothers22, this Court, while dealing with the alleged encroachment by theLegislature of the boundaries set by the Doctrine of Separation of Powerslaid down, inter alia, as follows:

“(1) The adjudication of the rights of the parties is the essentialBjudicial function. Legislature has to lay down the norms of conductor rules which will govern the parties and the transactions andrequire the court to give effect to them;

(2) The Constitution delineated delicate balance in the exerciseof the sovereign power by the legislature, executive and judiciary;

(3) In democracy governed by the rule of law, the legislatureexercises the power under Articles 245 and 246 and othercompanion articles read with the entries in the respective lists inthe Seventh Schedule to make the law which includes power toamend the law.

D(4) Courts in their concern and endeavour to preserve judicialpower equally must be guarded to maintain the delicate balancedevised by the Constitution between the three sovereignfunctionaries. In order that the rule of law permeates to fulfilconstitutional objectives of establishing an egalitarian social order,Ethe respective sovereign functionaries need free play in their jointsso that the march of social progress and order remains unimpeded.The smooth balance built with delicacy must always be maintained;”84. Apart from the power to make subordinate legislation as adelegate of the Legislature, do the superior courts make law or is itFentirely tabooed? In other words, when the court decides lis, is thefunction of the court merely to apply law to the facts as found or docourts also make law? The theory that the courts cannot or do not makelaws is myth which has been exploded long while ago. We may onlyin this regard refer to what Justice S.B. Sinha opined on behalf of thisCourt in the decision reported in State of U.P. v. Jeet S. Bisht23:G

“77. Separation of powers is favourite topic for some of us.Each organ of the State in terms of the constitutional schemeperforms one or the other functions which have been assigned to

22 (1996) 7 SCC 637H23 (2007) 6 SCC 586

the other organ. Although drafting of legislation and itsimplementation by and large are functions of the legislature andthe executive respectively, it is too late in the day to say that theconstitutional court’s role in that behalf is non-existent. The judge-made law is now well recognised throughout the world. If one isto put the doctrine of separation of power to such rigidity, itwould not have been possible for any superior court of any country,whether developed or developing, to create new rights throughinterpretative process.

78. Separation of powers in one sense is limit on activejurisdiction of each organ. But it has another deeper and morerelevant purpose: to act as check and balance over the activitiesof other organs. Thereby the active jurisdiction of the organ isnot challenged; nevertheless there are methods of prodding tocommunicate the institution of its excesses and shortfall in duty.Constitutional mandate sets the dynamics of this communicationbetween the organs of polity. Therefore, it is suggested to notunderstand separation of powers as operating in vacuum.Separation of powers doctrine has been reinvented in moderntimes.

83. If we notice the evolution of separation of powers doctrine,traditionally the checks and balances dimension was onlyassociated with governmental excesses and violations. But intoday’s world of positive rights and justifiable socialandeconomic entitlements, hybrid administrative bodies, privatefunctionaries discharging public functions, we have to performthe oversight function with more urgency and enlarge the fieldof checks and balances to include governmental inaction.Otherwise we envisage the country getting transformed into stateof repose. Social engineering as well as institutional engineeringtherefore forms part of this obligation.”

(Emphasis supplied)

85. Separation of powers is part of the basic structure of theConstitution of India. Equally, judicial review has been recognised asforming part of the basic structure. Judicial review of legislation isexpressly provided in Article 13 of the Constitution. court when itdeclares law made by the legislature as unconstitutional, if it be that, it

Ais within its bounds, cannot be accused of transgressing the principle ofseparation of powers. Declaring even law made by the Parliament asunconstitutional forms part of its powers. In view of the enunciation ofthe doctrine of basic structure in India unlike perhaps in most countries,even an amendment to the Constitution can be declared unconstitutionalby the court. Such exercise cannot expose the court to the charge that itBis not observing the limits set by the Constitution.

86. While it may be true that the Constitution is supreme and alldisputes must finally attain repose under the aegis of the Constitution, inone sense the final arbiter of what is the law must be the court. While itmay be true that by removing the text forming the premise for judicialCverdict, the lawgiver may revisit the judgment, it is not open to thelegislature to don the robes of Judge and arrogate to itself the judicialfunction. The theory of separation of powers in an ultimate analysis ismeant to prevent tyranny of power flowing from the assumption of excesspower in one source. Its value lies in delicate but skilful and at theDsame time legitimate balance being struck by the organs of the State inthe exercise of their respective powers. This means that the essentialpowers which are well understood in law cannot be deliberatelyencroached upon by any organ of the State.

87. Creative judicial activism has been subject of bothEcontroversy reaching brickbats as also bouquets to the courts. Underthe Constitution which clothes both citizens and persons with fundamentalrights besides tasking the State with the achieving of goals declared inthe Directive Principles, judicial activism as opposed to mere passiverole may be the much-needed choice. Judicial activism, however, musthave sound juridical underpinning and cannot degenerate into mereFexercise of subjectivism.

88. The learned Solicitor General is right therefore that judicialrestraint may be virtue in the elevated region of constitutional law.Being the grundnorm, it is indeed rarefied field where the court musttread wearily (See Divisional Manager, Aravali Golf Club andGAnother v. Chander Hass and Another24). This Court indeed hasadmonished against the court itself running the Government. In AsifHameed v. State of J & K,[25 ]no doubt this court refers to the followingobservations of Frankfurter, J. in para 18:

24 (2008) 1 SCC 683H25 (1989) Suppl.2 SCC 364

“All power is, in Madison’s phrase, “of an encroaching nature”.Judicial power is not immune against this human weakness. Italso must be on guard against encroaching beyond its properbounds, and not the less so since the only restraint upon it is self-restraint....

Rigorous observance of the difference between limits of powerand wise exercise of power — between questions of authorityand questions of prudence — requires the most alert appreciationof this decisive but subtle relationship of two concepts that tooeasily coalesce. No less does it require disciplined will to adhereto the difference. It is not easy to stand aloof and allow want ofwisdom to prevail to disregard one’s own strongly held view ofwhat is wise in the conduct of affairs. But it is not the business ofthis Court to pronounce policy. It must observe fastidious regardfor limitations on its own power, and this precludes the court’sgiving effect to its own notions of what is wise or politic. Thatself-restraint is of the essence in the observance of the judicialoath, for the Constitution has not authorized the judges to sit injudgment on the wisdom of what Congress and the executivebranch do.”

89. In the work “Judicial Activism” in India by SP Sathe, the learnedauthor in the chapter ‘Legitimacy of Judicial Activism’ observes: -

“Legitimacy of Judicial Activism

The realist school of jurisprudence exploded the myth that thejudges merely declared the pre-existing law or interpreted it andasserted that the judges made the law. It stated that the law waswhat the courts said it was. This is known as legal scepticism andwas really reaction to Austin’s definition of law as commandof the political sovereign. According to analytical jurisprudence acourt merely found the law or merely interpreted the law. TheAmerican realist school or jurisprudence asserted that the judgesmade law, though interstitially. Jerome Frank, Justice Holmes,Cardozo, and Llewellyn were the chief exponents of this school.The Indian Supreme Court not only makes law, as understood inthe sense of the realist jurisprudence, but actually has started‘legislating’ exactly in the way in which legislature legislates.Judicial law-making in the realist sense in what the Court does

when it expands the meanings of the words ‘personal liberty’ or‘due process of law’ or ‘freedom of speech and expression’. Whenthe Court held that commercial speech (advertisement) wasentitled to the protection of freedom of speech and expression, itwas judicial law-making in the realist sense. Similarly, the basicstructure doctrine or the parameters for reviewing the President’saction under article 356 or the wider meanings of the words ‘life’,‘liberty’, and ‘procedure established by law’ in article 21 of theConstitution by the Supreme Court are instances of judicial law-making in the realist sense.

When, however, the Court lays down guidelines for inter-countryadoption, against sexual harassment of working women at theworkplace, or for abolition of child labour, it is not judicial law-making in the realist sense these are instances of judicialexcessivism that fly in the face of the doctrine of separation ofpowers. The doctrine of separation of powers envisages that thelegislature should make law, the executive should execute it, andthe judiciary should settle disputes in accordance with the existinglaw. In reality such watertight separation exists nowhere and isimpracticable. Broadly it means that one organ of the State shouldnot perform function that essentially belongs to another organ.While law-making through interpretation and expansion of the

meanings of open-textured expressions such as ‘due process oflaw’, ‘equal protection of law’, or ‘freedom of speech andexpression’ is legitimate judicial function, the making of an entirelynew law, which the Supreme Court has been doing throughdirections in the above-mentioned cases, is not legitimate judicialfunction. True, the Court has not supplanted but has merelysupplemented the legislature through such directions. It has saidin each case that it legislated through directions only because nolaw existed to deal with situations such as inter-country adoptionor sexual harassment of working women and that its directioncould be replaced by legislation of the legislature.”

90. In the work, “The Nature of the Judicial Process” by BenjaminN. Cardozo, in the lecture, “The Method of Sociology - The Judge as aLegislator.” Justice Cardozo observes under the following subject: -

“THE JUDGE AS LEGISLATOR

…No doubt the limits for the judge are narrower. He legislatesonly between gaps. He fills the open spaces in the law. How farhe may go without travelling beyond the walls of the intersticescannot be staked out for him upon chart. He must learn it forhimself as he gains the sense of fitness and proportion that comeswith years of habitude in the practice of an art. Even within thegaps, restrictions not easy to define, but felt, however impalpablethey may be, by every judge and lawyer, hedge and circumscribehis action.They are established by the traditions of the centuries,by the example of other judges, his predecessors and his colleagues,by the collective judgment of the profession, and by the duty ofadherence to the pervading spirit of the law.

…The process, being legislative, demands the legislator’s wisdom.

…Customs, no matter how firmly established, are not law, theysay, until adopted by the courts. Even statues are not law becausethe courts must fix their meaning. That is the view of Gray in his“Nature and Sources of the Law.” “The true view, as I submit,”he says, “is that the Law is what the Judges declare; that statues,precedents, the opinions of learned experts, customs and moralityare the sources of the Law.” So, Jethro Brown in paper on“Law and Evolution,” tells us that statue, till construed, is notreal law. It is only “ostensible” law, Real law, he says, is not foundanywhere except in the judgment of court…

..They have the right to legislate within gaps, but often there areno gaps. We shall have false view of the landscape if we look atthe waste spaces only, and refuse to see the acres already sownand fruitful..

..The judge, even when he is free, is still not wholly free. He is notto innovate at pleasure. He is not knight-errant, roaming at willin pursuit of his own ideal of beauty or of goodness. He is to drawhis inspiration from consecrated principles. He is not to yield tospasmodic sentiment, to vague and unregulated benevolence. Heis to exercise discretion informed by tradition, methodized byanalogy, disciplined by system, and subordinated to “the primordialnecessity of order in the social life.” Wide enough in all conscienceis the field of discretion that remains.”

(Emphasis Supplied)

A91. Close to the aspect of separation of powers, is controversialsubject of judicial activism. In the work “Judicial Activism, Authority,Principles and Policy in The Judicial Method” by Hon’ble Justice MichaelKirby, we find of particular interest, the following:

“The acute needs of the developing countries of theBCommonwealth have sometimes produced an approach toconstitutional interpretation that is unashamedly described as“activist”, including by judges themselves. Thus in India, at leastin most legal circles, the phrase “judicial activism” is not viewedas one of condemnation. So urgent and numerous are the needsof that society that anything else would be regarded by many –Cincluding many judges and lawyers – as an abdication of the finalcourt’s essential constitutional role.

One instance may be cited from Indian experience: the expansionof the traditional notion of standing to sue in public interest litigation.The Indian Supreme Court has upheld the right of prisoners, theDpoor and other vulnerable groups to enlist its constitutionaljurisdiction by simply sending letter to the Court. This might notseem appropriate in developed country. Yet it appears perfectlyadapted to the nation to which the Indian Constitution speaks.Lord Chief Justice Woolf recently confessed to having beenEastounded at first by the proactive approach of the Indian SupremeCourt in this and other aspects. However, he went on:“…I soon realised that if that Court was to perform its essentialrole in Indian society, it had no option but to adopt the course it didand I congratulate it for the courage it has shown.””

(Emphasis Supplied)

92. Unlike demands of formal democracy, the hallmark of asubstantive democracy and if we may say so, liberal democracy mustbe borne in mind. Democracy is inextricably intertwined with power tothe people. The ballot, is more potent than the most powerful gun.GDemocracy facilitates peaceful revolution at the hands of the commonman if elections are held in free and fair manner. Elections can beconflated with non-violent coup capable of unseating the most seeminglypowerful governing parties, if they do not perform to fulfil the aspirationsof the governed. Democracy is meaningful only if the sublime goalsenshrined in the preamble to the Constitution receive the undividedH

attention of the rulers, namely, social, political and economic justice. Theconcepts of liberty, equality and fraternity must not be strange bedfellowsto the ruling class. Secularism, basic feature of the Constitution mustinform all actions of the State, and therefore, cannot be spurned butmust be observed in letter and spirit. Democracy can be achieved onlywhen the governing dispensation sincerely endeavours to observe thefundamental rights in letter and spirit. Democracy also, needless to say,would become fragile and may collapse, if only lip service is paid to therule of law. We cannot be oblivious to the fact that the founding fathershave contemplated that not only must India aspire for democratic formof government and life but it is their unambiguous aim that India must bea Democratic Republic.The conventional definition of ‘Republic’ isthat it is Body Polity, in which, the Head of State is elected. However,the republican character of our democracy also means that the majorityabides by the Constitution ensuring rights granted under it and also pursuesgoals enshrined in it. brute majority generated by democratic processmust conform to constitutional safeguards and the demands ofconstitutional morality. Democratic Republic contemplates thatmajoritarian forces which may be compatible with democracy, mustbe counter balanced by protection accorded to those not in the majority.When we speak about the minority, the expression is not to be conflatedwith or limited to linguistic or religious minorities. These are aspectswhich again underly the need for an independent election commission.

93. It may be true that the resort to courts is not remedy for allills in society (see Common Cause v. Union of India and Others26)We are equally cognizant that the courts must not try to run aGovernmentnor behave like emperors. We also take notice of the following words ofthis Court in Divisional Manager, Aravali Golf Club and Another v.Chander Hass and Another,[27 ]where the merit of exercising judicialrestraint has been emphasized.

“33. Judicial restraint is consistent with and complementary tothe balance of power among the three independent branches ofthe State. It accomplishes this in two ways. First, judicial restraintnot only recognises the equality of the other two branches withthe judiciary, it also fosters that equality by minimising inter-branch

26 (1996) 1 SCC 753

27 (2008) 1 SCC 683

interference by the judiciary. In this analysis, judicial restraint mayalso be called judicial respect, that is, respect by the judiciary forthe other coequal branches. In contrast, judicial activism’sunpredictable results make the judiciary moving target and thusdecreases the ability to maintain equality with the co-branches.Restraint stabilises the judiciary so that it may better function in asystem of inter-branch equality.”

“34. Second, judicial restraint tends to protect the independenceof the judiciary. When courts encroach into the legislative oradministrative fields almost inevitably voters, legislators and otherelected officials will conclude that the activities of judges shouldbe closely monitored. If judges act like legislators or administratorsit follows that judges should be elected like legislators or selectedand trained like administrators. This would be counterproductive.The touchstone of an independent judiciary has been its removalfrom the political or administrative process. Even if this removalhas sometimes been less than complete, it is an ideal worthy ofsupport and one that has had valuable effects.”

“38. The moral of this story is that if the judiciary does not exerciserestraint and overstretches its limits there is bound to be reactionfrom politicians and others. The politicians will then step in andcurtail the powers, or even the independence, of the judiciary (infact the mere threat may do, as the above example demonstrates).The judiciary should, therefore, confine itself to its proper sphere,realising that in democracy many matters and controversies arebest resolved in non-judicial setting.”

FHowever, we may also listen to the following words.

“39. We hasten to add that it is not our opinion that judges shouldnever be “activist”. Sometimes judicial activism is useful adjunctto democracy such as in the School Segregation and Human Rightsdecisions of the US Supreme Court vide Brown v. Board ofEducation[347 US 483 : 98 L Ed 873 (1954)],Miranda v. Arizona [384 US 436 : 16 L Ed 2d 694 (1966)],Roe v. Wade [410 US 113 : 35 L Ed 2d 147 (1973)] , etc. or thedecisions of our own Supreme Court which expanded the scopeof Articles 14 and 21 of the Constitution. This, however, should beresorted to only in exceptional circumstances when the situation

[K. M. JOSEPH, J.]

forcefully demands it in the interest of the nation or the poorerand weaker sections of society but always keeping in mind thatordinarily the task of legislation or administrative decisions is forthe legislature and the executive and not the judiciary.”

(Emphasis Supplied)

94. Constitution Bench Judgment reported in State of T.N. v.State of Kerala and another28 summarised its conclusions on theconstitutional principles relating to separation of powers as follows:

“126.1. Even without express provision of the separation ofpowers, the doctrine of separation of powers is an entrenchedprinciple in the Constitution of India. The doctrine of separationof powers informs the Indian constitutional structure and it is anessential constituent of rule of law. In other words, the doctrine ofseparation of power though not expressly engrafted in theConstitution, its sweep, operation and visibility are apparent fromthe scheme of Indian Constitution. Constitution has madedemarcation, without drawing formal lines between the threeorgans—legislature, executive and judiciary. In that sense, evenin the absence of express provision for separation of powers, theseparation of powers between the legislature, executive andjudiciary is not different from the Constitutions of the countrieswhich contain express provision for separation of powers.

126.2. Independence of courts from the executive and legislatureis fundamental to the rule of law and one of the basic tenets ofIndian Constitution. Separation of judicial power is significantconstitutional principle under the Constitution of India.

126.3. Separation of powers between three organs—thelegislature, executive and judiciary—is also nothing but aconsequence of principles of equality enshrined in Article 14 ofthe Constitution of India. Accordingly, breach of separation ofjudicial power may amount to negation of equality under Article14. Stated thus, legislation can be invalidated on the basis ofbreach of the separation of powers since such breach is negationof equality under Article 14 of the Constitution.”

R. IS THE RIGHT TO VOTE STATUTORY RIGHT ORA CONSTITUTIONAL RIGHT?

28 (2014) 12 SCC 696

A95. The right to vote is not civil right. Bench of six learnedJudges in N.P. Ponnuswami v. Returning_Officer, Namakkal,[29 ]in thecontext of Article 329(b) held that the right to vote was creature of astatute or special law and must be subject to limitations imposed by it.The matter arose from challenge to the rejection of the nominationmaintained in writ petition and the question which substantially aroseBwas the impact of Article 329(b). No doubt, the court examined PartXV of the Constitution and about Articles 325 and 326, the Court held asfollows:

“The other two Articles in Part XV i.e. Article 325 and 326 dealwith two matters of principle to which the Constitution framersChave attached much importance. They are (1) Prohibition againstdis crimination in the preparation of, or eligibility for inclusion in,the electoral rolls, on grounds of religion, race, caste, sex or anyof them; and (2) adult sufferage.”

The Court really was not concerned with the question as to whetherDArticle 326 provided for Constitutional right to vote.

96. In Jyoti Basu and Others. Debi Ghosal and Others30, theCourt was dealing with challenge to the High court rejecting anapplication in an Election Petition to strike out the names of certain partiesfrom the array of parties. The Court inter alia held that Article 326Eprovides for elections to be held on the basis of adult franchise. Thereafter,the Court held as follows:

“7. The nature of the right to elect, the right to be elected and theright to dispute an election and the scheme of the constitutionaland statutory provisions in relation to these rights have beenFexplained by the Court in N.P. Ponnuswami v. ReturningOfficer, Namakkal Constituency [(1952) 1 SCC 94 : AIR 1952SC 64 : 1952 SCR 218 : 1952 SCJ 100] and JaganNath v. Jaswant Singh [AIR 1954 SC 210 : 1954 SCR 892 : 1954SCJ 257] . We proceed to state what we have gleaned from whatGhas been said, so much as necessary for this case.

8. right to elect, fundamental though it is to democracy, is,anomalously enough, neither fundamental right nor commonlaw right. It is pure and simple, statutory right.So is the right to

29AIR 1952 SC 64H301982 (1) SCC 691

be elected. So is the right to dispute an election. Outside of statute,there is no right to elect, no right to be elected and no right todispute an election.”

(Emphasis supplied)

97. Mohan Lal Tripathi vs. District Magistrate, Raibraally andothers31 was case wherein the appellant who was elected directlyunder Section 43 of the U.P. Municipalities Act was removed by no-confidence motion. It was his contention that his removal wasundemocratic as it was sought to be done by smaller and differentbody than the one that elected him. It is in these facts that the court interalia held as follows:

“..But electing representatives to govern is neither ‘fundamentalright’ nor ‘common right’ but special right created by thestatutes or ‘political right’ or ‘privilege’ and not ‘natural[‘,absolute’ or ‘vested right’.

This Court was not dealing with the impact of Article 326. Itfollowed the judgement in N.P. Ponnuswamy(supra).

98. In Rama Kant Pandey v. Union of India32, Bench of threelearned judges was dealing with petition challenging the validity of theRepresentation of the People (Amendment Ordinance) Act, 1992 on theground of violation of Articles 14, 19 and 21. Section 52 providing forcountermanding of polls was amended. It was in the context of the saidchallenge, the Court noted that the right to vote or to stand as candidatefor election was neither fundamental nor civil right. It purported tofollow the views which originated in Ponnuswamy case (supra).

99. In Anukul Chandra Pradhan, Advocate Supreme Court v.Union of India and others33, Bench of three learned Judges, whiledealing with challenge to Section 62(5) of the 1951 Act, on the groundthat it violated Article 14 and 21 of the Constitution, upheld Section 62(5).We may only notice the following views expressed by the Court:

“5. There are provisions made in the election law which excludeGpersons with criminal background of the kind specified therein,from the election scene as candidates and voters. The object is to

31(1992) 4 SCC 80

32 (1993) 2 SCC 438

33 (1997) 6 SCC 1

Aprevent criminalisation of politics and maintain probity in elections.Any provision enacted with view to promote this object must bewelcomed and upheld as subserving the constitutional purpose.The elbow room available to the legislature in classification dependson the context and the object for enactment of the provision. Theexisting conditions in which the law has to be applied cannot beBignored in adjudging its validity because it is relatable to the objectsought to be achieved by the legislation. Criminalisation of politicsis the bane of society and negation of democracy. It is subversiveof free and fair elections which is basic feature of theConstitution. Thus, provision made in the election law to promoteCthe object of free and fair elections and facilitate maintenance oflaw and order which are the essence of democracy must, therefore,be so viewed. More elbow room to the legislature for classificationhas to be available to achieve the professed object.”

100. The Court also found other reasons to justify the provision. ItDwas noted that permitting every person in prison to vote, would lead to aresource crunch in terms of police force required to facilitate the right.The Court also went on to hold that the Right to Vote is also subject tolimitations imposed by the Statute. The specific question, as to whetherit constituted Constitutional Right under Article 326, as such, was notpresented for adjudication.E101. InShyamdeo Pd. Singh v. Nawal Kishore Yadav34, Benchof three learned judges while dealing with case arising out of an electionpetition had this to say about Article 326:

“9. Article 326 of the Constitution is founded on the doctrine ofFadult suffrage. It provides that every person who is citizen ofIndia and who is not less than 18 years of age on such date asmay be fixed in that behalf by or under any law made by theappropriate legislature and is not otherwise disqualified under theConstitution or any law made by the appropriate legislature on theground of non-residence, unsoundness of mind, crime or corruptGor illegal practice, shall be entitled to be registered as voter atany such election. This Article clearly contemplates law beingenacted by an appropriate legislature providing for qualificationsand disqualifications subject to which citizen of India not lessthan 18 years of age shall be entitled to be registered as voter

H34(2000) 8 SCC 46

[K. M. JOSEPH, J.]

and exercise his right to franchise. Article 327 provides for lawbeing made by Parliament subject to the provisions of theConstitution with respect to all matters relating to or in connectionwith elections to either House of Parliament or to the House oreither House of the Legislature of State which law may includeprovisions for the preparation of electoral rolls, the delimitation ofconstituencies and all other matters necessary for securing thedue constitution of such House or Houses.

102. The Court, inter alia, after referring to Section 62 of the1951 Act, held as follows:

“… person who is not entered in the electoral roll of anyconstituency is not entitled to vote in that constituency thoughhemay be qualified under the Constitution and the law to exercisethe right to franchise. To be entitled to cast ballot the personshould be entered in the electoral roll…”

It was further held:

“15. perusal of the abovesaid provisions leads to certainirresistible inferences. Article 326 of the Constitution havingrecognised the doctrine of adult suffrage has laid downconstitutional parameters determinative of the qualifications anddisqualifications relating to registration as voter at any election.The two Articles, i.e., Article 326 and Article 327 contemplatesuch qualifications and disqualifications being provided for, amongstother things, by the appropriate legislature. The fountain sourceof the 1950 Act and the 1951 Act enacting provisions on suchsubject are the said two Articles of the Constitution. The provisionsof Section 16 of the 1950 Act and Section 62 of the 1951 Act readin juxtaposition go to show that while Section 16 of the 1950 Actprovides for “disqualifications for registration” in an electoral roll,(qualifications having been prescribed by Section 27 thereof),Sections 62 of the 1951 Act speaks of “right to vote” which rightis to be determined by reference to the electoral roll of theconstituency prepared under the 1950 Act. The eligibility forregistration of those enrolled having been tested by reference toSection 16 or Section 27 of the Act, as the case may be, and theelectoral roll having been prepared, under the 1950 Act if personis or becomes subject to any of the disqualifications provided in

Aclauses (a), (b) and (c) of sub-section (1) of Section 16, twoconsequences may follow. His name may forthwith be struck offthe electoral roll, in which the name is included, under sub-section(2) of Section 16 of the 1950 Act. Even if the name is not sostruck off yet the person is disqualified from exercising right tovote at the election by virtue of sub-section (2) of Section 62 ofBthe 1951 Act. The qualifications prescribed for enrolment in theelectoral roll as provided by clause (b) of sub-section (5) of Section27 of the 1950 Act are: (i) ordinary residence in teachers’constituency, (ii) being engaged in the relevant educationalinstitution for total period of at least three years within the sixCyears immediately before the qualifying date. The inquiry intoavailability of these eligibility qualifications, under the Scheme ofthe 1950 Act is to be made at the time of preparation of the electoralroll or while entering or striking out name in or from the electoralroll. Section 62 of the 1951 Act does not provide that personwho is not qualified to be enrolled as an elector in the electoral rollDshall not be entitled to vote at the election. To put it briefly adisqualification under Section 16 of the 1950 Act has relevancefor and bearing on the right to vote under Section 62 of the 1951Act but being not qualified for enrolment in the electoral roll underSection 27 of the 1950 Act has no relevance for or bearing on theEright to vote at an election under Section 62 of the 1951 Act. Thatis the distinction between “disqualification” and “not beingqualified”.It is, however, relevant to notice that the case arose from achallenge to the result of an election held to legislative council andFSection 27 referred to dealt with legislative councils and not legislativeassemblies.

103. In Union of India v. Assn. for Democratic Reforms35, theHigh Court gave certain directions to the Election Commission on thebasis that the right of the voter to make the right choice depended uponGthe availability of information about the past of the candidates and itmust be disclosed to the voters. This Court found that for the health ofdemocracy and fair elections and for ensuring the purity of elections andhaving regard to the width of the jurisdiction of the Election Commissionunder Article 324 (1) of the Constitution, the directions given by the

35(2002) 5 SCC 294H

High court was justified. This Court however issued certain directionswhich modified the directions of the High Court. It is in the context ofthese facts, the Court,inter alia, held as follows:

“46 (7). Under our Constitution, Article 19(1)(a) provides forfreedom of speech and expression. Voter’s speech or expressionin case of election would include casting of votes, that is tosay, voter speaks out or expresses by casting vote. For thispurpose, information about the candidate to be selected is must.Voter’s (little man — citizen’s) right to know antecedents includingcriminal past of his candidate contesting election for MP or MLAis much more fundamental and basic for survival ofdemocracy. The little man may think over before making his choiceof electing law-breakers as law-makers.”

104. The directions led to the insertion of Sections 33A and 33B.Under Section 33B, it was inter alia provided thatnotwithstanding anyjudgment, no candidate was liable to disclose or furnish any suchinformation in respect of his election which is not required to be disclosedor furnished under the Representation of the People Act, 1951 or therules made thereunder. In People’s Union for civil Liberties (PUCL)and Another vs. Union of India and Another36 Justice M.B. Shahwhile dealing with the nature of the right to vote, inter alia held that “theright of the voter to know the bio data of the candidate was the foundationof democracy”. It was concluded by the learned judge that Section 33Bof the amended Act was illegal and invalid. Justice P. Venkatarama Reddiin the same case went on hold as follows:

“With great reverence to the eminent Judges, I would like to clarifythat the right to vote, if not fundamental right, is certainly aconstitutional right. The right originates from the Constitution andin accordance with the constitutional mandate contained in Article326, the right has been shaped by the statute, namely the RP Act.That, in my understanding, is the correct legal position as regardsthe nature of the right to vote in elections to the House of thePeople and Legislative Assemblies. It is not very accurate todescribe it as statutory right, pure and simple. Even with thisclarification, the argument of the learned Solicitor-General thatthe right to vote not being fundamental right, the information

Awhich at best facilitates meaningful exercise of that right cannotbe read as an integral part of any fundamental right, remains to besquarely met. Here, distinction has to be drawn between theconferment of the right to vote on fulfilment of requisite criteriaand the culmination of that right in the final act of expressingchoice towards particular candidate by means of ballot. ThoughBthe initial right cannot be placed on the pedestal of fundamentalright, but, at the stage when the voter goes to the polling boothand casts his vote, his freedom to express arises. The casting ofvote in favour of one or the other candidate tantamounts toexpression of his opinion and preference and that final stage inCthe exercise of voting right marks the accomplishment of freedomof expression of the voter. That is where Article 19(1)(a) isattracted. Freedom of voting as distinct from right to vote is thusa species of freedom of expression and therefore carries with itthe auxiliary and complementary rights such as right to secureinformation about the candidate which are conducive to theDfreedom. None of the decisions of this Court wherein the propositionthat the right to vote is pure and simple statutory right wasdeclared and reiterated, considered the question whether thecitizen’s freedom of expression is or is not involved when citizenentitled to vote casts his vote in favour of one or the otherEcandidate.”

(Emphasis supplied)

Justice D.M. Dharmadhikari also agreed with the followingconclusion No.2 at para 123 which contains the judgment of Justice P.Venkatarama Reddi:F

“(2) The right to vote at the elections to the House of the Peopleor Legislatives Assembly is constitutional right but not merely astatutory right; freedom of voting as distinct from right to vote is afacet of the fundamental right enshrined in Article 19(1)(a). thecasting of vote in favour of one or the other candidate marks theGaccomplishment of freedom of expression of the voter.”

105. In Kuldip Nayar and Others v. Union of India andOthers37, the question which actually fell for consideration was the validityof certain amendment which came into force on 28.08.2003. By the

Amendment, the requirement of domicile in the State concerned forbeing elected to the Council of States was deleted. The ConstitutionBench in the course of its judgment referred to PUCL(supra) and thecourt observed as follows:

“361. The argument of the petitioners is that the majority viewin People’s Union for Civil Liberties [(2003) 4 SCC 399] ,therefore, was that right to vote is constitutional right besidesthat it is also facet of fundamental right under Article 19(1)(a)of the Constitution.

362. We do not agree with the above submission. It is clear that afine distinction was drawn between the right to vote and thefreedom of voting as species of freedom of expression, whilereiterating the view in Jyoti Basu v. Debi Ghosal [(1982) 1 SCC691] that right to elect, fundamental though it is to democracy, isneither fundamental right nor common law right, but pure andsimple, statutory right.

363. Even otherwise, there is no basis to contend that the right tovote and elect representatives of the State in the Council of Statesis constitutional right. Article 80(4) merely deals with the mannerof election of the representatives in the Council of States as anaspect of the composition of the Council of States. There is nothingin the constitutional provisions declaring the right to vote in suchelection as an absolute right under the Constitution.”

106. It will be noticed that the Council of States is not the same asthe House of the People within the meaning of Article 326. We cannotoverlook the following observations:

“448. It shows that the right to vote in “free and fair elections” isalways in terms of an electoral system prescribed by nationallegislation. The right to vote derives its colour from the rightto “free and fair elections”; that the right to vote is empty withoutthe right to “free and fair elections”. It is the concept of “free andfair elections” in terms of an electoral system which providescontent and meaning to the “right to vote”. In other words, “rightto vote” is not (sic) an ingredient of the free and fair elections. Itis essential but not the necessary ingredient.”

107. In K. Krishna Murthy v. Union of India38, ConstitutionBench was dealing with the constitutional validity of certain aspects of38(2010) 7 SCC 202

Athe reservation policy in regard to the composition of elected local self-government institutions. The Bench relied upon M.M. Tripathi case(supra) and observed as follows:

“..It is well-settled principle in Indian Law, that the right to voteand contest elections does not have the status of fundamentalBrights. Instead, they are in the nature of legal rights which can becontrolled though legislative means…”

108. The request of the petitioner therein to reconsider theprecedent wherein the right of political participation was categorised asstatutory right was turned down. No doubt, this case was not dealingCwith elections to the House of the People or the State Legislature.

109. In People’s Union for Civil Liberties v. Union of India39,[the second PUCL case], Bench of three learned Judges recognisedthe right of the person to express his disapproval of the candidates whostood for election by pressing button which would indicate ‘none of theDabove’ (NOTA). In the course of this judgment dealing with the firstPUCL judgment (supra), the Court held as follows:

“After careful perusal of the verdicts of this Court in KuldipNayar [(2006) 7 SCC 1], Assn. for Democratic Reforms [(2002)5 SCC 294] and People’s Union for Civil Liberties [(2003) 4SCC 399] , we are of the considered view that KuldipENayar [(2006) 7 SCC 1] does not overrule the other two decisionsrather it only reaffirms what has already been said by the aforesaidtwo decisions. The said paragraphs recognise that right to vote isa statutory right and also in People’s Union for CivilLiberties [(2003) 4 SCC 399] it was held that “a fine distinctionFwas drawn between the right to vote and the freedom of votingas species of freedom of expression”. Therefore, it cannot besaid that Kuldip Nayar [(2006) 7 SCC 1] has observed anythingto the contrary. In view of the whole debate of whether these twodecisions were overruled or discarded because of the openingline in para 362 of Kuldip Nayar [(2006) 7 SCC 1] i.e. “We doGnot agree with the above submissions” we are of the opinion thatthis line must be read as whole and not in isolation. The contentionof the petitioners in Kuldip Nayar [(2006) 7 SCC 1] was thatmajority view in People’s Union for Civil Liberties [(2003) 4SCC 399] held that right to vote is constitutional right besidesthat it is also facet of the fundamental right under Article 19(1)(a)of the Constitution. It is this contention on which the ConstitutionBench did not agree too in the opening line in para 362 and thereafterwent on to clarify that in fact in People’s Union for CivilLiberties [(2003) 4 SCC 399], fine distinction was drawnbetween the right to vote and the freedom of voting as speciesof freedom of expression. Thus, there is no contradiction as to thefact that right to vote is neither fundamental right nor aconstitutional right but pure and simple statutory right. The samehas been settled in catena of cases and it is clearly not an issuein dispute in the present case.With the above observation, wehold that there is no doubt or confusion persisting in the ConstitutionBench judgment of this Court in Kuldip Nayar [(2006) 7 SCC 1]and the decisions in Assn. for Democratic Reforms [(2002) 5SCC 294] and People’s Union for Civil Liberties [(2003) 4 SCC399] do not stand impliedly overruled.”

(Emphasis supplied)

S. ARTICLE 326 DEMYSTIFIED

110. Article 326 reads as follows:

“326. Elections to the House of the People and to the LegislativeAssemblies of States to be on the basis of adult suffrage.—Theelections to the House of the People and to the LegislativeAssembly of every State shall be on the basis of adult suffrage;that is to say, every person who is citizen of India and who is notless than 2 [eighteen years] of age on such date as may be fixedin that behalf by or under any law made by the appropriateLegislature and is not otherwise disqualified under this Constitutionor any law made by the appropriate Legislature on the ground ofnon-residence, unsoundness of mind, crime or corrupt or illegalpractice, shall be entitled to be registered as voter at any suchelection.”

111. It is necessary to notice Articles 327 and 328:

“327. Power of Parliament to make provision with respect toelections to Legislatures.—Subject to the provisions of thisConstitution, Parliament may from time to time by law makeprovision with respect to all matters relating to, or in connection

Awith, elections to either House of Parliament or to the House oreither House of the Legislature of State including the preparationof electoral rolls, the delimitation of constituencies and all othermatters necessary for securing the due constitution of such Houseor Houses.”

B“328. Power of Legislature of State to make provision withrespect to elections to such Legislature.—Subject to the provisionsof this Constitution and in so far as provision in that behalf is notmade by Parliament, the Legislature of State may from time totime by law make provision with respect to all matters relating to,or in connection with, the elections to the House or either HouseCof the Legislature of the State including the preparation of electoralrolls and all other matters necessary for securing the dueconstitution of such House or Houses.”

112. We may proceed to decode Article 326. In the first part, theConstitution provides that election to the House of the People and to theDLegislative Assembly of every State, shall be on the basis of adultsuffrage. This is followed by the words, which is intended to expoundwhat ‘adult suffrage’ means. The Founding Fathers have, in unmistakableterms, declared that elections to the two Legislative Bodies in question,shall be thrown open to participation to every person, who is:

a) citizen of India;

b) Is not less than eighteen years of age. The conditionmust be fulfilled as regards the qualification withreference to ‘such date’;

FII.‘Such date’ is to be as specified in or under law made bythe appropriate Legislature. The appropriate Legislaturewould mean, Parliament in the case of elections to theHouse of People and the Legislative Assembly of theconcerned State, in the case of the Legislative Assembly;

III.The person, who is citizen and not less than eighteen yearsGas on the date as indicated in the law, as aforesaid, Article326 continues to declare must not be disqualified under theConstitution or any law made by the appropriate Legislature.

IV.The appropriate Legislature can make law providing fora disqualification, however, only as provided in Article 326Hitself. In other words, Article 326 has limited the power of

[K. M. JOSEPH, J.]

the Legislature concerned in the matter of stipulatingdisqualifications. What are those disqualifications, whichcan be stipulated by law?

V.The disqualifications, which can be provided by law areas follows:

a. Non-residence;

b. Unsoundness of mind;

c. Crime;

d. Corrupt practice;

e. Illegal practice;

VI.Moving forward, and proceeding on the basis that personis citizen and is not less than eighteen years on the relevantdate and is not disqualified in terms of what we have indicatedjust herein before, viz., under any of the grounds indicatedas ‘a’ to ‘e’, then Article 326 declares that such personshall be entitled to be registered as voter at any suchelection. The words ‘any such election’ would meanelections either to the House of the People or the House ofthe Legislative Assembly. We again reiterate that allconditions being present, as we have referred to withreference to Article 326, the person becomes entitled to beregistered as voter.

113. Accordingly, it is that Parliament enacted in 1950, TheRepresentation of Peoples Act, 1950 (hereinafter referred to as ‘the1950 Act’). Part III provides for electoral rolls for AssemblyConstituencies. Section 14(b), as substituted w.e.f. 01.03.1956, defines‘qualifying date’:

“”Qualifying date”, in relation to the preparation or revision ofevery electoral roll under this Part, means the 1st day of Januaryof the year in which it is so prepared or revised:”

114. We are omitting reference to the proviso as it related only tothe year 1989. Section 15 of the 1950 Act declares that for everyconstituency, there must be an electoral roll prepared under the said Actunder the supervision, direction and control of the Election. Section 16provides as follows:

A“16. Disqualifications for registration in an electoral roll.—(1) Aperson shall be disqualified for registration in an electoral roll ifhe—

(a) is not citizen of India; or

(b) is of unsound mind and stands so declared by competentBcourt; or

(c) is for the time being disqualified from voting underthe provisionsof any law relating to corrupt practices and other offences inconnection with elections.

C(2) The name of any person who becomes so disqualifiedafterregistration shall forthwith be struck off the electoral roll in whichit is included:

Provided that the name of any person struck off the electoral rollof constituency by reason of disqualification under clause (c)Dof sub-section (1) shall forthwith be re-instated in that roll ifsuchdisqualification is, during the period such roll is in force,removed under any law authorising such removal.”115. With effect from 30.12.1958, Section 19 of the 1950 Actreads as follows:

E“19. Conditions of registration. — Subject to the foregoingprovisions of this Part, every person who —

(a) is not less than eighteen years of age on the qualifying date,and

(b) is ordinarily resident in constituency,

Fshall be entitled to be registered in the electoral roll for thatconstituency.”

116. It will be clear, therefore, that the requirement of minimumage of eighteen years, as provided in Article 326, is to be determinedGwith reference to such date, as may be fixed by or under any law, is tobe understood as the qualifying date and it is to be understood as the 1stday of January of the year, in which the electoral roll is prepared orrevised.

117. Section 20 deals with the meaning of ‘ordinarily resident’. Itprovides for various circumstances in which person shall not be deemedH

to be ordinarily resident as also circumstances in which he is deemed tobe ordinarily resident. Article 326 read with the provisions in the 1950Act, which we have indicated, together provide the disqualifications fora person to be not included in an electoral roll. Before the deletion of thewords ‘and illegal’ in Section 16(c), it provided for corrupt and illegalpractices, which were relatable to the last part of Article 326. However,the words ‘illegal practices’ have been omitted by Act 58 of 1960 w.e.f.26.12.1960. Apparently, being relatable to ‘crime’, to be found in Article326, Section 16(c) declares that person may be disqualified forregistration in the electoral roll on the basis of other offences in connectionwith elections.This means that person would be disqualified forregistration in the electoral roll, if he is disqualified under any law relatingto corrupt practices or any other offence in connection with elections.

118. In 1951, Parliament enacted The Representation of the PeopleAct, 1951 (hereinafter referred to as, ‘the 1951 Act’).

119. Thereunder, the word ‘election’ has been defined in Section2(d) to mean ‘an election to fill seat or seats in either House ofParliament or in the House or either House of the Legislature of State.Section 2(e) defines the word ‘elector’ to mean ‘in relation to aconstituency means person whose name is entered in the electoralroll of that constituency for the time being in force and who is notsubject to any of the disqualifications mentioned in section 16 ofthe Representation of the People Act, 1950 (43 of 1950)’. UnderPart II, Chapter I deals with qualifications for membership of Parliament.Chapter II deals with qualifications for membership of State Legislatures.Chapter III of the 1951 Act provides for disqualifications for membershipof Parliament and State Legislatures. Section 8, falling in Chapter III,deals with disqualification upon conviction for certain offences. Variousoffences are enumerated with the conditions attached therein. Section8A deals with disqualification for membership, for both Parliament andState Legislatures, on the ground of corrupt practices. Section 11A, as itstands, reads:

“11A. Disqualification arising out of conviction and corruptpractices.— (1) If any person, after the commencement of thisAct,—

is convicted of an offence punishable under section 171E or section171F of the Indian Penal Code (45 of 1860), or under section 125

Aor section 135 or clause (a) of sub-section (2) of section 136 ofthis Act,

he shall, for period of six years from the date of the convictionor from the date on which the order takes effect, be is qualified

for voting at any election.

(2) Any person disqualified by decision of the President undersub-section (1) of section 8A for any period shall be disqualifiedfor the same period for voting at any election.

(3) The decision of the President on petition submitted by anyperson under sub-section (2) of section 8A in respect of anyCdisqualification for being chosen as, and for being, member ofeither House of Parliament or of the Legislative Assembly orLegislative Council of State shall, so far as may be, apply inrespect of the disqualification for voting at any election incurredby him under clause (b) of sub-section (1) of section 11A of thisDAct as it stood immediately before the commencement of theElection Laws (Amendment) Act, 1975 (40 of 1975), as if suchdecision were decision in respect of the said disqualification forvoting also.”

120. It is to be noted that Section 11A falls in Chapter IV, whichdeals with disqualifications for voting. Chapter IXA of the Indian PenalECode, 45 of 1860 deals with offences relating to elections. Undueinfluence at elections, personation at elections and bribery, are madepunishable offences and are offences relating to elections.

121. In the 1951 Act, Chapter IV deals with ‘The poll’. Section62 deals with the Right to Vote. It reads as follows:F

“62. Right to vote.—

(1) No person who is not, and except as expressly provided bythis Act, every person who is, for the time being entered in theelectoral roll of any constituency shall be entitled to vote in thatGconstituency.

(2) No person shall vote at an election in any constituency if he issubject to any of the disqualifications referred to in section 16 ofthe Representation of the People Act, 1950 (43 of 1950).

(3) No person shall vote at general election in more than oneHconstituency of the same class, and if person votes in more than

one such constituency, his votes in all such constituencies shall bevoid.

(4) No person shall at any election vote in the same constituencymore than once, notwithstanding that his name may have beenregistered in the electoral roll for the constituency more than once,and if he does so vote, all his votes in that constituency shall bevoid.

(5) No person shall vote at any election if he is confined in aprison, whether under sentence of imprisonment or transportationor otherwise, or is in the lawful custody of the police:

Provided that nothing in this sub-section shall apply to personsubjected to preventive detention under any law for the time beingin force.

(6) Nothing contained in sub-sections (3) and (4) shall apply to aperson who has been authorised to vote as proxy for an electorunder this Act in so far as he votes as proxy for such elector.”

122. Section 62(1) of the 1951 Act means the following:

person, who is not entered in the electoral roll of constituency,shall not be entitled to vote in that constituency. On the other hand,every person, who is, for the time being, entered in the electoral roll ofany constituency, is declared entitled to vote in the constituency. Section62(2) then proceeds to declare that no person shall vote at an election inany constituency, if he is subject to any of the disqualifications referredto in Section 16 of the 1950 Act. In our view, the meaning of the Section62(1) read with Section 62(2) is the following:

To cast the vote, person must be included in the electoral roll ofthe constituency. However, even if it be that he is so included, if at thetime of the election, when he casts the vote, he has incurred any of thedisqualifications referred to in Section 16 of the 1950 Act, then his Rightto Vote will stand eclipsed.

123. Section 62(3) forbids person, who may find his name in theelectoral roll of more than one constituency of the same class, fromcasting his vote in more than one constituency. In such an eventuality,notwithstanding the fact that his name is so included, if he votes in morethan one constituency, his ballot will be void in regard to all theconstituencies in which he casts his vote.

A124. Equally, under Section 62(4), if his name is included morethan once in the electoral roll of the same constituency and should hecast his vote more than once, all the votes in regard to the said constituencyare declared void.

125. Section 62(5) enacts prohibition against the person castingBhis vote, if he is confined to prison. This would mean that while aperson’s name may be included in an electoral roll, which would entitlehim, ordinarily, to cast his vote, however, Section 62(5) deprives him ofhis right to cast his vote, when he is so confined. We have noticed thatthe validity of this provision has been upheld in Anukul(supra). Also,we find the same view taken in Chief Election Commissioner andCOthers v. Jan Chaukidar (Peoples Watch) and Others40, whereinthis Court has upheld the validity of Section 62(5). person may be soconfined, if he is under sentence of imprisonment or transportation orotherwise or if he is in the custody of police. We may, at this juncture,notice one feature. Article 326, undoubtedly, provides for adult suffrage.It declares that if person is citizen and is above eighteen years of ageDand he is not disqualified as provided in Article 326 by or under any law,then, such person shall be entitled to have his name entered in the electoralroll. It does not expressly say that he shall have the right to cast his vote.The right to cast the vote, as such, is expressly conferred under Section62(1), undoubtedly, on person, whose name is entered in the electoralEroll. We have already noticed the interplay of Section 62(1) and Section62(2). Equally, we may notice that even if person is included in theelectoral roll, if he is in confinement in prison, it would not entitle himor rather it would disentitle him to cast his vote. In other words, whileordinarily, the Right to Vote inevitably follows from the inclusion of aperson in the electoral roll, the Right to Vote may be denied in terms ofFthe law as we have noticed. The mere inclusion of person’s namemore than once in an electoral roll in constituency, it has been declared,also would not entitle him to vote more than once [See Section 62(4)].Equally, inclusion of person’s name in the electoral roll of more thanone constituency, would not entitle person to cast his vote, in terms ofGsuch inclusion in more than one constituency [See Section 62(3)]. Nodoubt, we do notice that this Court has issued notice in case, whichinvolves challenge to Section 62(5) of the 1951 Act.

126. Section 16(1)(b) of the 1950 Act, provides for disqualificationfor person of unsound mind to be registered in an electoral roll. ThereH40(2013) 7 SCC 507

[K. M. JOSEPH, J.]

is condition, which is that, he must be so declared by competentcourt. Unsoundness of mind is also to be found in Article 326 as adisqualification. Section 16(1)(c) of the 1950 Act, it is to be noticed,disqualifies person for registration in an electoral roll, if he is for thetime being disqualified from voting under any law relating to corruptpractices and other offences in connection with elections. If such personis included in such electoral roll, his name is to be struck off from theelectoral roll [See Section 16(2)]. Section 11A of the 1951 Act providesfor disqualifications from voting. We have already noticed its contents.127. In Desiya Murpokku Dravida Kazhagam (DMDK) andanother v. Election Commission of India41, dealing with the validity ofthe Symbols Order 1968, providing for recognition and allotment basedon the criteria mentioned therein, Justice Chelameswar authored dissent.In the course of his dissent, the learned Judge, after adverting to Articles81 and 170, which respectively provided for the composition of the LokSabha and the Legislative Assemblies, and, more particularly, that theMembers of the said Legislative Bodies, would be chosen by directelections and after adverting to Articles 325 and 326, held as follows:

“98. The cumulative effect of all the abovementioned provisionsis that the Lok Sabha and the Legislative Assemblies are to consistof members, who are to be elected by all the citizens, who are of18 years of age and are not otherwise disqualified, by valid law,to be voters. Thus, constitutional right is created in all citizens,who are 18 years of age to choose (participate in the electoralprocess) the members of the Lok Sabha or the LegislativeAssemblies. Such right can be restricted by the appropriatelegislature only on four grounds specified under Article 326.”

128. In this regard, we may also notice the Judgment of this Courtin Rajbala and others v. State of Haryana and others42. Therein aBench of two learned Judges was dealing with the constitutionality ofthe Haryana Panchayati Raj (Amendment) Act, 2015, under which,certain categories of person were rendered incapable of contestingelections. One such category was persons who did not possess specifiededucational qualifications. Justice Chelameswar speaking for the Bench,held as follows:

41 (2012) 7 SCC 340

42 (2016) 2 SCC 445

“31. The right to vote of every citizen at an election either to theLok Sabha or to the Legislative Assembly is recognised underArticles 325 and 326 subject to limitations (qualificationsand disqualifications) prescribed by or under the Constitution.On the other hand, the right to vote at an election either to theRajya Sabha or to the Legislative Council of State is confinedonly to Members of the electoral colleges specified under Articles80(4) and (5) and Articles 171(3)(a), (b), (c) and (d) [ “171. (3) Ofthe total number of members of the Legislative Council of aState—(a) as nearly as may be, one-third shall be elected byelectorates consisting of members of municipalities, district boardsand such other local authorities in the State as Parliament may bylaw specify;(b) as nearly as may be, one-twelfth shall be electedby electorates consisting of persons residing in the State who havebeen for at least three years graduates of any university in theterritory of India or have been for at least three years in possessionof qualifications prescribed by or under any law made byParliament as equivalent to that of graduate of any suchuniversity;(c) as nearly as may be, one-twelfth shall be elected byelectorates consisting of persons who have been for at least threeyears engaged in teaching in such educational institutions withinthe State, not lower in standard than that of secondary school,as may be prescribed by or under any law made by Parliament;(d)as nearly as may be, one-third shall be elected by the members ofthe Legislative Assembly of the State from amongst persons whoare not members of the Assembly;(e) the remainder shall benominated by the Governor in accordance with the provisions ofclause (5).”] respectively. In the case of election to the RajyaSabha, the electoral college is confined to elected members ofLegislative Assemblies of various States and representatives ofUnion Territories [ “80. (4) The representatives of each State inthe Council of States shall be elected by the elected members ofthe Legislative Assembly of the State in accordance with thesystem of proportional representation by means of the singletransferable vote.”]. In the case of the Legislative Council, theelectoral college is divided into four parts consisting of: (i) membersof various local bodies specified under Article 171(3)(a); (ii) certainqualified graduates specified under Article 171(3)(b); (iii) personsengaged in the occupation of teaching in certain qualified institutions

[K. M. JOSEPH, J.]

described under Article 171(3)(c); and (iv) Members of theLegislative Assembly of the State concerned. Interestingly, personsto be elected by the electors falling under any of theabovementioned categories need not belong to that category, inother words, need not be voter in that category. [G.Narayanaswami v. G. Pannerselvam, (1972) 3 SCC 717, pp. 724-25, para 14:”14. Whatever may have been the opinions ofConstitution-makers or of their advisers, whose views are cited inthe judgment under appeal, it is not possible to say, on perusal ofArticle 171 of the Constitution, that the Second Chambers set upin nine States in India were meant to incorporate the principle ofwhat is known as ‘functional’ or ‘vocational’ representation whichhas been advocated by Guild-Socialist and Syndicalist Schools ofPolitical Thought. Some of the observations quoted above, in thejudgment under appeal itself, militate with the conclusions reachedthere. All that we can infer from our constitutional provisions isthat additional representation or weightage was given to personspossessing special types of knowledge and experience by enablingthem to elect their special representatives also for LegislativeCouncils. The concept of such representation does not carry withit, as necessary consequence, the further notion that therepresentative must also possess the very qualifications of thosehe represents.”]”

129. Thereafter the Court also held as follows:

“38. We, therefore, proceed on the basis that, subject to restrictionsmentioned above, every citizen has constitutional right to electand to be elected to either Parliament or the State Legislatures.”

130. Still further, the Court held as follows:

“The right to vote at an election to the Lok Sabha or the LegislativeAssembly can only be subjected to restrictions specified in Article326. It must be remembered that under Article 326, the authorityto restrict the right to vote, can be exercised by the appropriateLegislature.”

131. What are the incidents of legal right? In Salmond onJurisprudence, we find the following discussion about the characteristicsof legal right:

ABC

A“(1) It is vested in person who may be distinguished as theowner of the right, the subject of it, the person entitled, the personof inherence.

(2) It avails against person, upon whom lies the correlativeduty. He may be distinguished as the person bound, or as theBsubject of the duty, or as the person of incidence.(3) It obliges the person bound to an act or omission in favour ofthe person entitled. This may be termed the content of the right.

(4) The act or omission relates to some thing (in the widest senseof that word), which may be termed the object or subject-matterCof the right.

(5) Every legal right has title, that is to say, certain facts orevents by reason of which the right has become vested in itsowner.”

132. Article 168 of the Constitution reads as follows:D“168. Constitution of Legislatures in States

(1) For every State there shall be Legislature which shall consistof the Governor, and

(a) in the States of Bihar, Madhya Pradesh, Maharashtra,EKarnataka and Uttar Pradesh, two houses:

(b) in other States, one House

(2) Where there are two Houses of the Legislature of State,one shall be known as the Legislative Council and the other as theFLegislative Assembly, and where there is only one House, it shallbe known as the Legislative Assembly.”

133. perusal of Article 168(2) would lead us to the followinginevitable conclusion:

Wherever there are two Houses in Legislature of State, one isGdesignated as Legislative Assembly and the other is called LegislativeCouncil. In States, where there is only one House, it will be called theLegislative Assembly. So, it is that Article 170 deals with the compositionof Legislative Assemblies whereas Article 171 deals with the compositionof Legislative Councils. We may bear in mind that Section 27 of theH1950 Act[referred to in Shyamdeo Pd. Singh(supra)] actually deals

with the preparation of electoral roll for the Legislative Council and notthe Legislative Assembly. We make this observation only to remindourselves that there is distinction between the Legislature of Stateand Legislative Assembly. Article 168 deals with the constitution of theLegislatures of the States. Apart from the Governor, LegislativeAssembly, when there is only one House, would be the other constituentpart of the Legislature of the State. Therefore, Article 326 deals withthe House of the People, and the Legislative Assembly. It does not dealwith Legislative Councils. As far as Article 327 is concerned, it dealswith power of Parliament to make law with respect to all matters orrelating to election in connection to either House of Parliament. Equally,Parliament can make law in regard to either House of the Legislature ofa State, including the preparation of electoral roll. However, there is acaveat. Article 327 begins with the words ‘subject to the provisions ofthis Constitution’. This would mean that Article 327 is subject to Article326. Therefore, since Article 326 provides for the specific heads ofdisqualification in regard to election to the House of the People and tothe Legislative Assembly, the power to make law under Article 327 maynot be available, overcoming the limitation as regards the grounds ofdisqualification enumerated in Article 326. This limitation is found evenin Article 328, which deals with the powers of the State Legislature.

134. Undoubtedly, the Founding Fathers contemplated conferringthe right to participate in elections to the House of People and theLegislative Assemblies on all citizens, who were of certain age. Theright was, however, subject to the condition that they were not to bedisqualified. The disqualifications, again, were, however, limited to whatwas contained in Article 326. The disqualifications, no doubt, were to be

expressly provided by law to be made by the appropriate Legislature.Thedisqualification or rather qualification included the aspect of residence.Section 20 of the 1950 Act elaborates upon the concept of residence.Likewise, in the matter of corrupt practices and other crimes in connectionwith elections, within the meaning of Section 16(c) of the 1950 Act, thematter is to be regulated by the law.

135. Having noticed all the relevant provisions and bearing in mindthe characteristics of legal right, we find as follows:

Since every legal right, which would include Constitutional Right,[as the Constitution is also law though the grundnorm and not law for thepurpose of Article 13,] must have title, we must ascertain whether

Acitizen of India, who is not less than eighteen years, as, on the ‘qualifyingdate’, as found by us, has right. Since, the title to legal right means,“the facts or events, by reason of which, the rights become vested in itsowner”, who is the person of inherence, we will explore, whether Article326 contains the facts and reasons and whether it also contains thecontent of Right. In keeping with the mandate of Article 326, ParliamentBhas made the 1950 Act and the 1951 Act.It is thereafter that the firstgeneral elections were held in the country. It may be true that the 1950Act and the 1951 Act have been amended from time to time. At anygiven point of time, placing Article 326 side-by-side with the law madeby Parliament or the law made by the State Legislature, we would findCthat, if person is citizen of India and not below eighteen years of age,and if he does not incur the disqualifications, which cannot be more thanwhat is provided in Article 326, but the content of which, may be providedby the law made by the competent Legislature and the citizen not lessthan eighteen years does not have the disqualifications, he becomesentitled to be entered in the electoral roll. Such person, as is indicated inDArticle 326, indeed, has right, which can be said to be ConstitutionalRight, which may be right subject to the restriction. Section 62(1) of the1951 Act, as we have noticed, gives also the Right to Vote to such aperson. Any other interpretation would whittle down the grand object ofconferring adult suffrage on citizens.

E136. The mere fact that for the creation of Right, one needs tolean on certain facts, which may consist of law, which, in turn, is in themain respects dictated to by the constitutional provision, may not detractfrom the existence of Right. Article 19 confers fundamental freedoms,which are understood as Fundamental Rights. The Fundamental RightsFcan be regulated by law made under Article 19(2) to Article 19(6). Couldit be said that, in view of the power to regulate the Fundamental Right,no right exists?We are conscious that in the case of Fundamental Rightsunder Article 19, it could be said that the Right exists and it is only madesubject to law, which may be made. However, could it be said thatwhenever law is made by Parliament, acting even within the boundariesGof Article 326, by amending or adding to the disqualifications, even if itbe limited by the disqualifications declared in Article 326, that such lawcould be described as falling foul of the Constitution, as contained inArticle 326?

137. Take for instance, new corrupt practice is added by law.HWould it be vulnerable on the ground that it takes away the Constitutional

right under Article 326? We would think that it may not. What would bethe position if the Legislature had not provided for any corrupt practiceor crime as disqualification. Then there would be no suchdisqualification.However, the appropriate Legislature is also limited inthe matter of the disqualifications by Article 326. In that sense, it couldbe said that Article 326 provides constitutional right, subject torestrictions which the law provides for, which must finally be traced toits shores. Section 62(1) of the 1950 Act provides the fulfilment of thegoal of adult suffrage guaranteed in Article 326. Article 326(3) and Article326(4) are only meant to provide against the misuse of the right. Section62(2) is clearly reconcilable with Article 326. Section 62(5) again appearsto be restriction.138. In regard to Article 326, we may observe, when the FoundingFathers clearly created right on the citizen, who was an adult, (the agewas originally 21 years and it was lowered to 18 years), to have hisname entered in the electoral roll unless he has incurred disqualifications,which, in turn, were limited to those mentioned in Article 326, they wereto be provided by law. It is clear that law necessarily had to be made.The law was, indeed, made as we have noted by the 1950 and 1951Acts, providing for the true contours of the disqualification limited towhat was provided in Article 326. Imagine situation, if Parliament hadnot passed 1950 and 1951 Acts, it would have led to situation wherethe foundational democratic process of holding elections to the House ofthe People and the Legislative Assemblies would have been renderedimpossible. law had to be made and it was made. Not making the lawwould have led to constitutional breakdown. We make these remarksto remind ourselves that treating the Constitution as the grundnorm,providing the very edifice of the State and the Legal System, the makingof the law by the Legislative Body, which is power entrusted to theLegislative Branch, may come with duty. conferment of legislativepower, as is done under Article 245 read with Article 246 of theConstitution, is not to be confused with the making of the law underArticle 326. The conferment of legislative power under Article 245read with Article 246 is the essential legislative powers in terms of theseparation of power envisaged broadly under the Constitution.

139. We have noticed that we cannot and we need not finallypronounce on this aspect, in view of the fact that Constitution Benchof this Court, which we have noticed in Kuldip Nayar (supra) hasproceeded to hold that there is no Constitutional Right.

140. What is important is that the Court noted in Anukul(supra)that holding of free and fair elections constitute basic feature of theConstitution and approved of the view apparently that the Right to Electis fundamental to democracy [See Jyoti Basu(supra)].

141. Even if it is treated as statutory right, which, at any rate,Bcannot be divorced or separated from the mandate of Article 326, theright is of the greatest importance and forms the foundation for freeand fair election, which, in turn, constitutes the right of the people toelect their representatives. We would for the purpose of the lis in questionrest content to proceed on the said basis.

CT. DEMOCRACY AND THE IMPORTANCE OFELECTIONS

142. Dr. B.R. Ambedkar made the following pertinent observationsregarding democracy in the course of his speech in the ConstituentAssembly on 25.11.1949:

“What we must do is not to be content with mere politicaldemocracy. We must make our political democracy socialdemocracy as well. Political democracy cannot last unless therelies at the base of it social democracy. What does socialdemocracy mean? It means way of life which recognizes liberty,equality and fraternity as the principles of life. These principles

— liberty, equality and fraternity — are not to be treated asseparate items in trinity. They form union of trinity in thesense that to divorce one from the other is to defeat the verypurpose of democracy. Liberty cannot be divorced from equality,equality cannot be divorced from liberty. Nor can liberty andequality be divorced from fraternity. Without equality, liberty wouldproduce the supremacy of the few over the many. Equality withoutliberty would kill individual initiative. Without fraternity, liberty andequality could not become natural course of things. It wouldrequire constable to enforce them. We must begin byacknowledging the fact that there is complete absence of twothings in Indian society. One of these is equality. On the socialplane, we have in India society based on the principle of gradedinequality, which means elevation for some and degradation forothers. On the economic plane, we have society in which thereare some who have immense wealth as against many who live inabject poverty.

[K. M. JOSEPH, J.]

On January 26, 1950, we are going to enter into life ofcontradictions. In politics we will have equality and in social andeconomic life we will have inequality. In politics we will berecognizing the principle of one man, one vote and one vote, onevalue. In our social and economic life we shall, by reason of oursocial and economic structure, continue to deny the principle ofone man, one value. How long shall we continue to live this life ofcontradictions? How long shall we continue to deny equality inour social and economic life? If we continue to deny it for long,we will do so only by putting our political democracy in peril. Wemust remove this contradiction at the earliest possible moment orelse those who suffer from inequality will blow up the structure ofpolitical democracy which we have so laboriously built up.”

143. In Indira Nehru Gandhi Smt. v. Raj Narain and another143, this Court adverted to the importance of elections in democracyas follows:

“198. … Democracy postulates that there should be periodicalelections, so that people may be in position either to re-elect theold representatives or, if they so choose, to change therepresentatives and elect in their place other representatives.Democracy further contemplates that the elections should be freeand fair, so that the voters may be in position to vote forcandidates of their choice. Democracy can indeed function onlyupon the faith that elections are free and fair and not rigged andmanipulated, that they are effective instruments of ascertainingpopular will both in reality and form and are not mere ritualscalculated to generate illusion of defence to mass opinion. Freeand fair elections require that the candidates and their agents shouldnot resort to unfair means or malpractices as may impinge uponthe process of free and fair elections. Even in the absence ofunfair means and malpractices, some times the result of an electionis materially affected because of the improper rejection of ballotpapers. …”

144. Aharon Barak, President of Supreme Court of Israel in hisbook ‘The Judge in Democracy’ articulates concepts about democracysuccinctly. He says the following while answering the difficult questionas to what is democracy:

A“What is democracy? According to my approach, democracy is arich and complex normative concept. It rests on two bases. Thefirst is the sovereignty of the people. This sovereignty is exercisedin free elections, held on regular basis, in which the people choosetheir representatives, who in turn represent their views. This aspectof democracy is manifested in majority ruleand in the centralityBof the legislative body through which the people’s representativesact.

This is formal aspect of democracy. It is of central importance,since without if the regime is not democratic.

CThe second aspect of democracy is reflected in the rule of values(other than the value of majority rule) that characterize democracy.The most important of these values are separation of powers, therule of law, judicial independence, human rights, and basic principlesthat reflect yet other values (such as morality and justice), socialobjectives (such as the public peace and security), and appropriateDways of behavior (reasonableness, good faith). This aspect ofdemocracy is the rule of democratic values. This is substantiveaspect of democracy. It too is of central importance. Without it, aregime is not democratic.

Both aspects, the formal and the substantive, are necessary forEdemocracy.They are “nuclear characteristics.” I discussed themin one case, holding that “these characteristics are based ... uponthe recognition of the sovereignty of the people manifested infree and egalitarian elections; recognition of the nucleus of humanrights, among them dignity and equality, the existence of separationFof powers, the rule of law, and an independent judiciary.”

(Emphasis Supplied)

145. He dilates on the qualities that inform substantive democracyas follows: -

“Democracy is not satisfied merely by abiding by proper electionsGand legislative supremacy. Democracy has its own internal moralitybased on the dignity and equality of all human beings. Thus, inaddition to formal requirements (elections and the rule of themajority), there are also substantive requirements. These arereflected in the supremacy of such underlying democratic valuesHand principles as separation of powers, the rule of law, and

independence of the judiciary. They are based on such fundamentalvalues as tolerance, good faith, justice, reasonableness, and publicorder. Above all, democracy cannot exist without the protection–of individual human rights rights so essential that they must beinsulated from the power of the majority.

Democracy is not just the law of rules and legislative supremacy;it is multidimensional concept. It requires recognition of both thepower of the majority and the limitations on that power.”

(Emphasis Supplied)

146. On the topic of Change and Stability and elaborating on ‘TheDilemma of Change’, the learned Judge writes: -

“The Dilemma of Change

The need for change presents the judge with difficult dilemma,because change sometimes harms security, certainty, and stability.The judge must balance the need for change with the need forstability. Professor Roscoe Pound expressed this well more thaneighty years ago: “Hence all thinking about law has struggled toreconcile the conflicting demands of the need of stability and ofthe need of change. Law must be stable and yet it cannot standstill.”

Stability without change is degeneration. Change without stabilityis anarchy. The role of judge is to help bridge the gap betweenthe needs of society and the law without allowing the legal systemto degenerate or collapse into anarchy. The judge must ensurestability with change, and change with stability.Like the eagle inthe sky, which maintains its stability only when it is moving, so toois the law stable only when it is moving. Achieving this goal isvery difficult. The life of the law is complex. It is not mere logic.It is not mere experience. It is both logic and experience together.The progress of case law throughout history must be cautious.The decision is not between stability or change. It is question ofthe speed of the change. The decision is not between rigidity or”flexibility. It is question of the degree of flexibility.

(Emphasis Supplied)

147. In S.R. Chaudhuri v. State of Punjab and Others,[44], thisCourt had to deal with the question whether the person who was not a44(2001) 7 SCC 126

EFG

AMember of the Assembly and who failed to get himself elected duringthe period of six consecutive months, after appointment as Minister, couldbe reappointed as Minister without being elected after the expiry of theperiod of six consecutive months.The decision involved the interpretationof Article 164, and in particular, Article 164 (4) of the Constitution ofIndia. Article 164 reads as follows.B

“164. Other provisions as to Ministers. — (1) The Chief Ministershall be appointed by the Governor and the other Ministers shallbe appointed by the Governor on the advice of the Chief Minister,and the Ministers shall hold office during the pleasure of theGovernor:C

Provided that in the States of Bihar, Madhya Pradesh and Orissa,there shall be Minister in charge of tribal welfare who may inaddition be in charge of the welfare of the Scheduled Castes andBackward Classes or any other work.

D(2) The Council of Ministers shall be collectively responsible tothe Legislative Assembly of the State.

(3) Before Minister enters upon his office, the Governor shalladminister to him the oaths of office and of secrecy according tothe forms set out for the purpose in the Third Schedule.

E(4) Minister who for any period of six consecutive months isnot member of the Legislature of the State shall at the expirationof that period cease to be Minister.

(5) The salaries and allowances of Ministers shall be such as theLegislature of the State may from time to time by law determineFand, until the Legislature of the State so determines, shall be asspecified in the Second Schedule.”

Bench of three Learned Judges of this Court disapproving ofthe resort to repeated appointments without the Minister getting electedheld as follows:G

“21. Parliamentary democracy generally envisages(i) representation of the people, (ii) responsible government,and (iii) accountability of the Council of Ministers to theLegislature. The essence of this is to draw direct line of authorityfrom the people through the Legislature to the executive.TheHcharacter and content of parliamentary democracy in the ultimate

analysis depends upon the quality of persons who man theLegislature as representatives of the people. It is said that“elections are the barometer of democracy and the contestantsthe lifeline of the parliamentary system and its set-up”.”

“33. Constitutional provisions are required to be understood andinterpreted with an object-oriented approach. Constitution mustnot be construed in narrow and pedantic sense. The words usedmay be general in terms but, their full import and true meaning,has to be appreciated considering the true context in which thesame are used and the purpose which they seek to achieve.Debates in the Constituent Assembly referred to in an earlier partof this judgment clearly indicate that non-member’s inclusion inthe Cabinet was considered to be “privilege” thatextends only for six months, during which period the member mustget elected, otherwise he would cease to be Minister. It is asettled position that debates in the Constituent Assembly may berelied upon as an aid to interpret constitutional provision becauseit is the function of the court to find out the intention of the framersof the Constitution.We must remember that Constitution is notjust document in solemn form, but living framework for theGovernment of the people exhibiting sufficient degree of cohesionand its successful working depends upon the democratic spiritunderlying it being respected in letter and in spirit. The debatesclearly indicate the “privilege” to extend “only” for six months.””

(Emphasis supplied)

148. In B.R. Kapur v. State of T.N. and Another,[45] interpretingArticle 164 again Constitution Bench which also relied upon ConstituentAssembly Debates held that non-legislator could become ChiefMinister or Minister under Article 164 only if he had the qualification formembership of the legislative body and was also not disqualified withinthe meaning of Article 191. Of relevance to the cases before us are thefollowing observations of Justice G.B. Pattanaik which are as follows: -

“In democracy, constitutional law reflects the value that peopleattach to orderly human relations, to individual freedom under thelaw and to institutions such as Parliament, political parties, freeelections and free press.

xxxxxxxxxxxx

45(2001) 7 SCC 231

The said Constitution occupies the primary place. Notwithstandingthe fact, we have written constitution, in course of time, widevariety of rules and practices have evolved which adjust operationof the Constitution to changing conditions.

xxxx

Many important rules of constitutional behaviour, which areobserved by the Prime Minister and Ministers, members of theLegislature, Judges and civil servants are contained neither in Actsnor in judicial decisions. But such rules have been nomenclaturedby the constitution-writers to be the rule of “the positive moralityCof the constitution” and sometimes the authors provide the nameto be “the unwritten maxims of the constitution”— rules ofconstitutional behaviour, which are considered to be binding byand upon those who operate the Constitution but which are notenforced by the law courts nor by the presiding officers in theHouse of Parliament.”

(Emphasis supplied)

149. In B.P. Singhal v. Union of India and Another46, dealingwith Article 156(1) which declares that Governor shall hold officeduring the pleasure of the President. This Court held after declaring thatEthe Governor is not an agent of the ruling party at the Centre, as follows:-

“71. When Governor holds office during the pleasure of theGovernment and the power to remove at the pleasure of thePresident is not circumscribed by any conditions or restrictions, itfollows that the power is exercisable at any time, without assigningFany cause. However, there is distinction between the need for acause for the removal, and the need to disclose the cause forremoval. While the President need not disclose or inform the causefor his removal to the Governor, it is imperative that cause mustexist.”

As regards the Limitations/ Restrictions on the exercise of removalGof Governor, this Court observed as follows: -

“(iv)Limitations/Restrictions upon the power under Article156(1) of the Constitution of India

46(2010) 6 SCC 331H

48. We may now examine whether there are any express orimplied limitations or restrictions on the power of removal ofGovernors under Article 156(1). We do so keeping in mind thefollowing words of Holmes, J.:

“… the provisions of the Constitution are not mathematicalformulas having their essence in their form; they are organic, livinginstitutions… The significance is vital, nor formal; it is to be gatherednot simply by taking the words and dictionary, but by consideringtheir origin and the line of their growth” (see Gompers v. UnitedStates [58 L Ed 1115 : 233 US 604 (1913)] , L Ed p. 1120).”

(Emphasis supplied)

U. POWERS, FUNCTIONS AND JURISDICTION OFTHE ELECTION COMMISSION OF INDIA

150. Article 324 is plenary provision clothing the ElectionCommission with the entire responsibility to hold the National and Stateelections and carries with it the necessary powers to discharge itsfunctions. However, the Commission cannot act against law framedby Parliament or the State Legislature. The power of the Commission isalso subject to norms of fairness and it cannot act arbitrarily. The actioncannot be mala fide. Article 324 governs in matters not covered bylegislation. Being high functionary who is expected to function fairlyand legally if he does otherwise, the courts can veto the illegal action(See Mohinder Singh Gill and Another v. Chief Election Commissioner,New Delhi and Others,[47]).

151. The Election Commission under Article 324 can postpone anelection on the basis of the opinion that there existed disturbed conditionsin the State or some area of the State thus making of holding free andfair elections not possible. The court followed the views in the MohinderSingh Gill case (supra) that democracy depends on the man as much ason the Constitution [See Digvijay Mote v. Union of India andOthers48]. The Election Commission is endowed with the power torecognise political parties and to decide disputes arising among them.Itcan also adjudicate controversies between splinter groups within politicalparty. The Commission has been found to have the power to issue thesymbols order. This right has been traced to Article 324 [(See All Party

47(1978) 1 SCC 405)

48(1993) 4 SCC 175

AHill Leaders Conference Shillong v. Captain W.A. Sangma and Others49,and Kanhiya Lal Omar v. R.K. Trivedi and Others50)].

152. Recognising the magnitude of the exercise involved in ensuringfree and fair elections, this Court declared that in case of conflict ofopinion between the Election Commission and the Government, as toBthe adequacy of the machinery to deal with the state of law and order,the assessment of the Election Commission was to prima facie prevail.This Court, no doubt, also observed that mutually acceptablecoordinating machinery may be put in place (seeElection Commission51of India v. State of T.N and Others).C153. While dealing with the power of the Election Commission torequisition such staff “for election duty” and disagreeing with theCommission that it could requisition the service of the employees of theState Bank of India, this Court declared that the election commission didnot have untrammelled power. The power must be traced to theConstitution or law (see Election Commission of India v. State BankDof India Staff Association Local Head Office Unit, Patna andOthers52).

154. The Election Commission has power to issue directions forthe conduct of elections requiring the political parties to submit the detailsof the expenditure incurred or authorised by them for the purpose of theEelection of their respective candidates. This power was traced to thewords “conduct of elections” [SeeCommon Cause (A RegisteredSociety) v. Union of India and Others53].

155. All powers though not specifically provided but necessaryfor effectively holding the elections are available to the ElectionFCommission. [See Election Commission of India v. Ashok Kumar andOthers54].

156. Article 324 is reservoir of power to be used for holdingfree and fair elections. The Commission as creature of the Constitutionmay exercise it in an infinite variety of situations. In democracy, theGelectoral process plays strategic role. The commission can fill up the49(1977) 4 SCC 16150(1985) 4 SCC 62851(1995) Suppl. 3 SCC 37952(1995) suppl.2 SCC 1353(1996) 2 SCC 752H54(2000) 8 SCC 216

vacuum by issuing directions until there is law made. This was laiddown in the context of directions aimed at securing information aboutthe candidates [See Union of India v. Association for DemocraticReforms and Others55].

157. Following spate of violence in the State of Gujarat andupon the dissolution of the Assembly, the Commission took the view thatit may not be possible to hold the election though Article 174(1) mandatedthat there shall not be more than six months in between the last sessionof the assembly and the first meeting of the next session. After findingthat Article 174 did not apply to dissolved assembly as was indeed thecase, this Court reiterated that the words ‘superintendence, control,direction as also ‘the conduct of all elections’ were the broadest terms.This court also found that if there is no free and fair periodic election, itis the end of democracy.[See (2000) 8 SCC 237]. The said judgmentwas rendered while answering reference made to this Court underArticle 143 of the Constitution.

158. The Election Commission has the power to lay down certainbenchmark to be achieved by party in State politics before it could berecognised as political party [See Desiya Murpokku DravidaKazhagam (DMDK) v. Election Commission of India and Others56].Justice J. Chelameswar wrote dissenting opinion.

159. While dealing with the aspect of jurisdiction of the ElectionCommission under Section 10A of the 1951 Act to ascertain whetherthere has been failure to lodge true, correct and genuine accounts ofbona fide election expenditure and that it did not exceed the maximumlimit, the Election Commission has been found to have overarching powersand it has been described as ‘guardian of democracy’.In this regard,we notice the following words of this Court in Ashok ShankarraoChavan v. Madhavrao Kinhalkar57 :

“67. In this context, we also keep in mind the Preamble to theConstitution which in liberal words states that the People of Indiahaving solemnly resolved to constitute India into SovereignSocialist Secular Democratic Republic and to secure to all citizensjustice, liberty, equality and fraternity. In such large democraticcountry such as ours, if purity in elections is not maintained, and

55(2002) 5 SCC 294

56(2012) 7 SCC 340

57 (2014) 7 SCC 99

Afor that purpose when the Constitution makers in their wisdomthought it fit to create an authority, namely, the ElectionCommission and invested with it the power of superintendence,control and also to issue directions, it must be stated that suchpower invested with the said constitutional authority should not bea mere empty formality but an effective and stable one, in whomBthe citizens of this country can repose in and look upon to ensurethat such unscrupulous elements and their attempts to enter intopolitical administration of this vast country are scuttled. In thatrespect, since the ruling of this vast country is always in the handsof the elected representatives of the people, the enormous powersCof the Election Commission as the guardian of democracy shouldbe recognised. It is unfortunate that those who are really interestedin the welfare of society and who are incapable of indulging inany such corrupt practices are virtually side-lined and are treatedas totally ineligible for contesting the elections.”

(Emphasis supplied)

160. Under Article 103(2) and Article 192(2), the President andthe Governor are to act on the opinion of the Election Commission asregards the question of disqualification of the Member of Parliamentand of the Legislature of State, respectively. This is the advisoryEjurisdiction of the Election Commission. It exercises vast administrativepowers. Further, the Election Commission discharges quasi-judicialfunctions also.

V. THE IMPACT OF ARTICLE 329(b)

161. Article 329 (b) declares as follows:F

“(b) no election to either House of Parliament or to the House oreither House of the Legislature of State shall be called in questionexcept by an election petition presented to such authority and insuch manner as may be provided for by or under any law madeby the appropriate Legislature.”

G162. Regarding the impact of Article 329(b), Bench of threelearned judges after an exhaustive review of the earlier case law has setdown the following summary of conclusions in the case of ElectionCommission of India v. Ashok Kumar58:

58 (2000) 8 SCC 216H

“31. The founding fathers of the Constitution have consciouslyemployed use of the words “no election shall be called in question”in the body of Section 329(b) and these words provide thedeterminative test for attracting applicability of Article 329(b). Ifthe petition presented to the Court “calls in question an election”the bar of Article 329(b) is attracted. Else it is not.

32. For convenience sake we would now generally sum up ourconclusions by partly restating what the two Constitution Bencheshave already said and then adding by clarifying what followstherefrom in view of the analysis made by us hereinabove:

(1) If an election, (the term election being widely interpreted soas to include all steps and entire proceedings commencing fromthe date of notification of election till the date of declaration ofresult) is to be called in question and which questioning may havethe effect of interrupting, obstructing or protracting the electionproceedings in any manner, the invoking of judicial remedy has tobe postponed till after the completing of proceedings in elections.

(2) Any decision sought and rendered will not amount to “callingin question an election” if it subserves the progress of the electionand facilitates the completion of the election. Anything donetowards completing or in furtherance of the election proceedingscannot be described as questioning the election.

(3) Subject to the above, the action taken or orders issued byElection Commission are open to judicial review on the well-settledparameters which enable judicial review of decisions of statutorybodies such as on case of mala fide or arbitrary exercise ofpower being made out or the statutory body being shown to haveacted in breach of law.

(4) Without interrupting, obstructing or delaying the progress ofthe election proceedings, judicial intervention is available ifassistance of the court has been sought for merely to correct orsmoothen the progress of the election proceedings, to remove theobstacles therein, or to preserve vital piece of evidence if thesame would be lost or destroyed or rendered irretrievable by thetime the results are declared and stage is set for invoking thejurisdiction of the court.

A(5) The court must be very circumspect and act with cautionwhile entertaining any election dispute though not hit by the bar ofArticle 329(b) but brought to it during the pendency of electionproceedings. The court must guard against any attempt atretarding, interrupting, protracting or stalling of the electionproceedings. Care has to be taken to see that there is no attemptBto utilise the court’s indulgence by filing petition outwardlyinnocuous but essentially subterfuge or pretext for achieving anulterior or hidden end. Needless to say that in the very nature ofthe things the court would act with reluctance and shall not act,except on clear and strong case for its intervention having beenCmade out by raising the pleas with particulars and precision andsupporting the same by necessary material.

33. These conclusions, however, should not be construed as asummary of our judgment. These have to be read along with theearlier part of our judgment wherein the conclusions have beenDelaborately stated with reasons.”

163. We would, therefore, find that the Election Commission ofIndia has been charged with the duty and blessed with extraordinarypowers to hold elections to both Parliament and state legislatures fromtime to time.This is an enormous task.The power it possesses underEArticle 324 is plenary. It is only subject to any law which may be madeby Parliament or by the State Legislature. Undoubtedly, the ElectionCommission is duty bound to act in fair and legal manner. It mustobserve the provisions of the Constitution and abide by the directions ofthe Court. The same being done, it can draw upon nearly infinite reservoirof power. Once the poll is notified,[which again is call to be taken byFthe Election Commission itself, and indeed capable of being misused andthe subject of considerable controversy, if bias or subservience to thepowersthat be, isbetrayed], it assumes unusual powers. Its writ lies acrossGovernments over the length and breadth of the country. Officers of theGovernment who come under its charge become subject to theGsuperintendence of the Commission. The fate of the political parties andits candidates, and therefore, of democracy itself to great measure isallowed to rest in the hands of the Election Commission. While theremay be officers who assist the Commission, vitally important decisionshave to be taken by those at the helm of the affairs. It is the ChiefElection Commissioner and the Election Commissioners at whose table

the buck must stop.It is in this scenario, we bear in mind that when adecision is taken in the process of the holding of the poll, that subject toproceedings which are initiated in courts which conduce to the effectiveholding of the poll, any proceeding which seeks to bring the electionprocess under shadow is tabooed. The significance of this aspect isthat it adds to the enormity of the powers and responsibilities of theElection Commission. Awaiting the outcome of the poll to question theelection before the tribunal may result in many illegal, unfair and malafide decisions by the Election Commission passing muster for the day.Once the election results are out, the matter is largely reduced to faitaccompli.In fact, many time an omission or delayin taking decisioncan itself be fatal to the holding of free and fair poll. The reliefvouchsafed in an election petition may not by itself provide just solutionto the conduct of election in an illegal, mala fide or unfair manner.Theseobservations have direct connection with the question with which weare concerned with, namely, the need to take the appointment of themembers of the Election commission out of the exclusive hands of theexecutive, namely, the party which not unnaturally has an interest inperpetuating itself in power.

W. PURSUIT OF POWER; MEANS TO AN END ORAN END IN ITSELF?

164. The basic and underlying principle central to democracy ispower to the people through the ballot. Abrahim Lincoln declareddemocracy to be Government of the people, by the people and for thepeople. political party or group or coalition assumes reigns ofgovernance. The purpose of achieving power is to run the Government.No doubt, the Government must be run in accordance with the dictate ofthe Constitution and the laws. Political parties not unnaturally come outwith manifestos containing charter of promises they intend to keep.Without attaining power, men organised as political parties cannot achievetheir goals. Power becomes, therefore, means to an end. The goal canonly be to govern so that the lofty aims enshrined in the directive principlesare achieved while observing the fundamental rights as also the mandateof all the laws. What is contemplated is lawful Government. So far sogood. What, however, is disturbing and forms as we understand thesubstratum of the complaints of the petitioner is the pollution of the streamor the sullying of the electoral process which precedes the gaining ofpower. Can ends justify the means? There can be no doubt that the

Astrength of democracy and its credibility, and therefore, its enduringnature must depend upon the means employed to gain power being asfair as the conduct of the Government after the assumption of power byit.The assumption of power itself through the electoral process in thedemocracy cannot and should not be perceived as an end. The end atany rate cannot justify the means. The means to gain power in aBdemocracy must remain wholly pure and abide by the Constitution andthe laws. An unrelenting abuse of the electoral process over period oftime is the surest way to the grave of the democracy. Democracy cansucceed only in so far as all stakeholders uncompromisingly work at itand the most important aspect of democracy is the very process, theCelectoral process, the purity of which alone will truly reflect the will ofthe people so that the fruits of democracy are truly reaped. The essentialhallmark of genuine democracy is the transformation of the ‘Ruled’into citizenry clothed with rights which in the case of the IndianConstitution also consist of Fundamental Rights, which are also beingfreely exercised and the concomitant and radical change of the rulerDfrom an ‘Emperor’ to public servant. With the accumulation of wealthand emergence of near monopolies or duopolies and the rise of certainsections in the Media, the propensity for the electoral process to beafflicted with the vice of wholly unfair means being overlooked by thosewho are the guardians of the rights of the citizenry as declared by thisECourt would spell disastrous consequences.X. RULE OF LAW; FUNDAMENTAL RIGHTS AND ANINDEPENDENT ELECTION COMMISSION

165. The cardinal importance of fiercely independent, honest,competent and fair Election Commission must be tested on the anvil ofFthe rule of law as also the grand mandate of equality. We expatiate.Rule of law is the very bedrock of democratic form of governance. Itsimply means that men and their affairs are governed by pre-announcednorms.It averts democratic Government brought to power by thestrength of the ballot betraying their trust and lapsing into GovernmentGof caprice, nepotism and finally despotism. It is the promise of avoidanceof these vices which persuades men to embrace the democratic form ofGovernment. An Election Commission which does not ensure free andfair poll as per the rules of the game, guarantees the breakdown of thefoundation of the rule of law. Equally, the sterling qualities which wehave described which must be possessed by an Election Commission isHindispensable for an unquestionable adherence to the guarantee of equalityin Article 14. In the wide spectrum of powers, if the Election Commissionexercises them unfairly or illegally as much as he refuses to exercisepower when such exercise becomes duty it has telling and chillingeffect on the fortunes of the political parties. Inequality in the matter oftreatment of political parties who are otherwise similarly circumstancedunquestionably breaches the mandate of Article 14. Political parties mustbe viewed as organisations representing the hopes and aspirations of itsconstituents, who are citizens. The electorate are ordinarily, supportersor adherents of one or the other political parties. We may note that therecognition of NOTA, by this Court enabling voter to express his distrustfor all the candidates exposes the disenchantment with the electoralprocess which hardly augurs well for democracy. Therefore, any actionor omission by the Election Commission in holding the poll which treatspolitical parties with an uneven hand, and what is more, in an unfair orarbitrary manner would be anathema to the mandate of Article 14, andtherefore, cause its breach. There is an aspect of citizen’s right to votebeing imbued with the fundamental freedom under Article 19(1)(a). Theright of the citizen to seek and receive information about the candidateswho should be chosen by him as his representative has been recognisedas fundamental right [SeePublic Interest Foundation (supra)]. TheElection Commissioners including the Chief Election Commissionerblessed with nearly infinite powers and who are to abide bythefundamental rights must be chosen not by the Executive exclusivelyand particularly without any objective yardstick.

Y. THE SYMBOLS ORDER; THE MODEL CODE OFCONDUCT

166. Apart from the 1950 and 1951 Acts, the Code of ElectionRules, 1961 came to be made. In the year 1968,The Election Symbols(Reservation and Allotment) Order, 1968[hereinafter referred to as, ‘theSymbols Order’] came to be made by Notification dated 31.08.1968, inexercise of powers conferred under Article 324 of the Constitution readwith Section 29A of the 1951 Act and Rules 5 and 10 of the Conduct ofElections Rules. The Symbols Order deals with allotment and classificationof symbols. Political parties are broadly divided into recognised politicalparties or unrecognised political parties. recognised party may be anational party or state party. Conditions for recognition of party asnational party and state party are separately laid down. Paragraph-15 ofthe Symbols Order reads as follows:

A“15. Power of Commission in relation to splinter groups or rivalsections of recognised political party–

When the Commission is satisfied on information in its possessionthat there are rival sections or groups of recognised politicalparty each of whom claims to be that party, the Commission may,Bafter taking into account all the available facts and circumstancesof the case and hearing such representatives of the sections orgroups and other persons as desire to be heard, decide that onesuch rival section or group or none of such rival sections or groupsis that recognised political party and the decision of the Commissionshall be binding on all such rival sections or groups.”

C167. Paragraph-16 deals with power of the Commission in caseof amalgamation of two political parties.

168. In the very same year, that is 1968, Model Code of Conductalso came to be issued. As of date, large body of norms, forming partof the Model Code of Conduct, have been put in place. The Model CodeDof Conduct for Guidance of Political Parties and Candidates provides,inter alia, as follows:

“1. No party or candidate shall include in any activity which mayaggravate existing differences or create mutual hatred or causetension between different castes and communities, religious orElinguistic.

xxxxxx

3. There shall be no appeal to caste or communal feelings forsecuring votes. Mosques, Churches, Temples or other places ofworship shall not be used as forum for election propaganda.F

4. All parties and candidates shall avoid scrupulously all activitieswhich are “corrupt practices” and offences under the electionlaw, such as bribing of voters, intimidation of voters, impersonationof voters, canvassing within 100 meters of polling stations, holdingpublic meetings during the period of 48 hours ending with the hourGfixed for the close of the poll, and the transport and conveyanceof voters to and from polling station.”

169. Thereafter, it proceeds to deal with meetings, processions,polling day conduct. In regard to the party in power, we find the followingas part of the Model Code of Conduct. Part VII of the Model Code ofHConduct, inter alia, reads as follows:

“VII. Party in Power

The party in power whether at the Centre or in the State or Statesconcerned, shall ensure that no cause is given for any complaintthat it has used its official position for the purposes of its electioncampaign and in particular –

XXXXXXXXXXXX

1. (b) Government transport including official air-crafts, vehicles,machinery and personnel shall not be used for furtherance of theinterest of the party in power;

XXXXXXXXXXXX

3. Rest houses, dak bungalows or other Governmentaccommodation shall not be monopolized by the party in power orits candidates and such accommodation shall be allowed to beused by other parties and candidates in fair manner but no partyor candidate shall use or be allowed to use such accommodation(including premises appertaining thereto) as campaign office orfor holding any public meeting for the purposes of electionpropaganda;

4. Issue of advertisement at the cost of public exchequer in thenewspapers and other media and the misuse of official mass mediaduring the election period for partisan coverage of political newsand publicity regarding achievements with view to furtheringthe prospects of the party in power shall be scrupulously avoided.

5. Ministers and other authorities shall not sanction grants/payments out of discretionary funds from the time elections areannounced by the Commission; and”

There are other aspects relating to Election Manifestos. There isa clear need for fearless and independent Election Commission ofIndia to give full effect to these salutary principles.

170. Paragraph-16A of the Symbols Order inserted by Notificationdated 18.02.1994, reads as follows:

“16A. Power of Commission to suspend or withdraw recognitionof recognised political party for its failure to observe ModelCode of Conduct or follow lawful directions and instructions ofthe Commission-

ANotwithstanding anything in this Order, if the Commission issatisfied on information in its possession that political party,recognised either as National party or as State party under theprovisions of this Order, has failed or has refused or is refusing orhas shown or is showing defiance by its conduct or otherwise (a)to observe the provisions of the ‘Model Code of Conduct forBGuidance of Political Parties and Candidates’ as issued by theCommission in January, 1991 or as amended by it from time totime, or (b) to follow or carryout the lawful directions andinstructions of the Commission given from time to time with aview to furthering the conduct of free, fair and peaceful electionsCor safeguarding the interests of the general public and theelectorate in particular, the Commission may, after taking intoaccount all the available facts and circumstances of the case andafter giving the party reasonable opportunity of showing cause inrelation to the action proposed to be taken against it, either suspend,subject to such terms as the Commission may deem appropriate,Dor withdraw the recognition of such party as the National Party”or, as the case may be, the State Party.

(Emphasis supplied)

171. In Abhiram Singh v. C.D. Commachen (DEAD) by LegalERepresentatives and others59, Bench of seven learned Judges of thisCourt had to interpret the word ‘his’ in Section 123 of the Representationof the People Act. By 4:3 majority, this Court held that the word ‘his’in Section 123(3) of the Representation of the People Act, 1951, for thepurpose of maintaining the purity of the electoral process, must be givena broad and purposive interpretation so that any appeal made to an electorFby candidate or his agent or by any other person with the consent ofthe candidate or his election agent, to vote or refrain from voting, interalia, on the grounds of religion and caste, would constitute corruptpractice. Dr. T.S. Thakur, C.J., wrote concurring Judgment and wefind it apposite to notice the following passage from his Judgment on theGimportance of India being secular country and about according anyparticular religion, special privileges, being violation of the basic principlesof democracy:

“35. At the outset, we may mention that while considering themischief sought to be suppressed by clauses (2), (3) and (3-A) ofH59(2017) 2 SCC 629

Section 123 of the Act, this Court observed in ZiyauddinBurhanuddin Bukhari v. Brijmohan Ramdass Mehra [ZiyauddinBurhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC17, decided by Bench of three learned Judges.] that the historical,political and constitutional background of our democratic set-upneeded adverting to. In this context, it was said that ourConstitution-makers intended secular democratic republic wheredifferences should not be permitted to be exploited. …

62. … Dr Radhakrishnan, the noted statesman/philosopher hadto say about India being secular State in the following passage:

“When India is said to be secular State, it does not mean thatwe reject reality of an unseen spirit or the relevance of religion tolife or that we exalt irreligion. It does not mean that secularismitself becomes positive religion or that the State assumes divineprerogatives. Though faith in the Supreme is the basic principle ofthe Indian tradition, the Indian State will not identify itself with orbe controlled by any particular religion. We hold that no one religionshould be given preferential status, or unique distinction, that noone religion should be accorded special privileges in national lifeor international relations for that would be violation of the basicprinciples of democracy and contrary to the best interests of religionand Government. This view of religious impartiality, ofcomprehension and forbearance, has prophetic role to playwithin the national and international life. No group of citizens shallarrogate to itself rights and privileges, which it denies to others.No person should suffer any form of disability or discriminationbecause of his religion but all like should be free to share to thefullest degree in the common life. This is the basic principleinvolved in the separation of church and State.”

(Emphasis supplied)”

172. The Model Code of Conduct, the views of this Court aboutappeal to religion, being corrupt practice, and paragraph-16A of theSymbols Order, empowering the Commission to act in the face ofdefiance, constitute powerful weapon in the hands of an independentand impartial Election Commission. Placing the exclusive power to appointwith the Executive, hardly helps.

173. In regard to the Symbols Order, this Court in Shri Sadiq Aliand another v. Election Commission of India, New Delhi and others60,60 (1972) 4 SCC 664

Aupheld the vires of the Symbols Order. This Court, inter alia, and held asfollows:

“40 … The Commission is an authority created by the Constitutionand according to Article 324, the superintendence, direction andcontrol of the electoral rolls for and the conduct of elections toBParliament and to the Legislature of every State and of electionsto the office of President and Vice-President shall be vested inthe Commission. The fact that the power of resolving disputebetween two rival groups for allotment of symbol of politicalparty has been vested in such high authority would raise apresumption, though rebuttable, and provide guarantee, thoughCnot absolute but to considerable extent, that the power wouldnot be misused but would be exercised in fair and reasonablemanner.”

174. It is further found that when the Commission issues directions,it does so on its own behalf and not as delegate of some other Authority.DThis was on the construction of Article 324(1).

175. This Court upheld the power of the Election Commission ofIndia to rescind its Order according recognition to political party, evenwithout elections having been held in all the States in the country [SeeJanata Dal (Samajwadi) v. Election Commission of India61].E

176. In Indian National Congress (I) v. Institute of SocialWelfare and others62, no doubt, this Court took the view that the ElectionCommission has not been conferred with the express power to deregistera political party registered under Section 29A, on the ground that it violatedthe Constitution or any undertaking given to the Election Commission atFthe time of its registration. This Court went on to hold also that whileexercising its power to register political party under Section 29A, theCommission acts quasi-judicially. The Court also set out the threeexceptional cases where the Commission could review its Order forregistering political party. It includes obtaining registration by practicingGfraud or forgery. We may notice that under Paragraph-16A of the SymbolsOrder, the Commission has been empowered to suspend or withdrawthe recognition of party as national or state party, after giving areasonable opportunity. One of the grounds on which it can be so done is

refusal or defiance, apart from failure to observe the provisions of theModel Code of Conduct for Guidance. Therefore, after 1994, enormouspowers have been conferred on the Election Commission to ensurecompliance with the Model Code of Conduct for Guidance of PoliticalParties issued by the Election Commission in 1991 or as amended by itfrom time to time. The power can also be exercised under Paragraph-16A in regard to failure or defiance in the matter of following lawfuldirections and instructions by the Commission.

177. In Subramanian Swamy v. Election Commission of Indiathrough its Secretary63, this Court held that the purpose of making theSymbols Order was to maintain the purity of elections. The Courthighlighted the duty of the Election Commission to hold free, fair andclean elections.

178. Paragraph-18 of the Symbols Order reads as follows:

“18. Power of Commission to issue instructions and directions.The Commission, may issue instructions and directions-

(a) for the clarification of any of the provisions of this Order;

(b) for the removal of any difficulty which may arise in relation tothe implementation of any such provisions; and

(c) in relation to any matter with respect to the reservation andallotment of symbols and recognition of political parties, for whichthis Order makes no provision or makes insufficient provision,and provision is in the opinion of the Commission necessary forthe smooth and orderly conduct of elections.”

179. Dealing with the ambit of paragraph-18, this Court held, inter64alia, in Edapaddi K. Palaniswami v. T.T.V. Dhinakaran and others,as follows:

“24. Indeed, allotment of an election symbol cannot be claimed asa fundamental right as much as contesting election is not, asobserved in Jyoti Basu v. Debi Ghosal [Jyoti Basu v. DebiGhosal, (1982) 1 SCC 691] . It is statutory right. It is also wellsettled that the Election Commission has plenary powers and couldexercise the same to ensure free and fair elections. Clause 18 of

63 (2008) 14 SCC 318

64(2019) 18 SCC 219

Athe Symbols Order predicates the facet of such plenary power tobe exercised by the Election Commission. Clause 18 reads thus :

“18. Power of Commission to issue instructions anddirections.—The Commission, may issue instructions anddirections—

B(a) for the clarification of any of the provisions of this Order;

(b) for the removal of any difficulty which may arise in relation tothe implementation of any such provisions; and

(c) in relation to any matter with respect to the reservation andCallotment of symbols and recognition of political parties, for whichthis Order makes no provision or makes insufficient provision,and provision is in the opinion of the Commission necessary forthe smooth and orderly conduct of elections.”

25. The Election Commission in the past has exercised plenaryDpowers under Para 18 for issuing interim directions regardingallocation of common symbols to the two factions, when the disputeunder the Symbols Order was still pending before it. It was arguedthat the Election Commission cannot do so once it had finallydecided the dispute. There is no difficulty in agreeing with theproposition that once the dispute had been finally decided by ECI,Ethe question of invoking powers under Para 18 by it (ECI) wouldnot arise. However, if the dispute is pending enquiry before ECIor the final decision of ECI is sub judice in the proceedings beforethe constitutional court, providing for an equitable arrangement inthe interests of free and fair elections and to provide equal levelFplaying field to all concerned, would be just and fairarrangement.”

180. The above observations indicate the width of the powersavailable to the Election Commission.

181. In Public Interest Foundation and others v. Union of IndiaGand others65, Constitution Bench was invited but refused to add orprescribe disqualifications for contesting the elections other than whatwas prescribed by the Constitution and the Parliament. In this regard, anappeal made to the existence of plenary power under Article 324 did notpass muster. The attempt was to persuade the Court to direct the Election

[K. M. JOSEPH, J.]

Commission to disallow candidate from contesting on the ground thatcharges have been framed for heinous and/or grievous offences. It wasfound that the Parliament had the exclusive legislative power to lay downthe disqualifications for the membership of the Legislative Body. It isapposite that we, however, notice the following:

“28. An essential component of constitutional democracy is itsability to give and secure for its citizenry representative form ofgovernment, elected freely and fairly, and comprising of politywhose members are men and women of high integrity and morality.This could be said to be the hallmark of any free and fairdemocracy.”

182. This Court, thereafter, quoted from the Goswami Committeeon Electoral Reforms, wherein the Committee bemoaned the role ofmoney and muscle power at elections and rapid criminalisation of politics,greatly encouraging evils of booth capturing, rigging and violence. It isimportant that we notice paragraph-30:

“30. Criminalisation of politics was never an unknown phenomenonin the Indian political system, but its presence was seemingly feltin its strongest form during the 1993 Mumbai bomb blasts whichwas the result of collaboration of diffused network of criminalgangs, police and customs officials and their political patrons. Thetremors of the said attacks shook the entire nation and as resultof the outcry, commission was constituted to study the problemof criminalisation of politics and the nexus among criminals,politicians and bureaucrats in India. The report of the Committee,Vohra Committee Report, submitted by Union Home Secretary,N.N. Vohra, in October 1993, referred to several observationsmade by official agencies, including Central Bureau ofInvestigation, Intelligence Bureau, Research and Analysis Wing,who unanimously expressed their opinion on the criminal networkwhich was virtually running parallel government. The Committeealso took note of the criminal gangs who carried out their activitiesunder the aegis of various political parties and governmentfunctionaries. The Committee further expressed great concernregarding the fact that over the past few years, several criminalshad been elected to local bodies, State Assemblies and Parliament.The Report observed:

A“3.2. … In the bigger cities, the main source of income relates toreal estate — forcibly occupying lands/buildings, procuring suchproperties at cheap rates by forcing out the existing occupants/tenants etc. Over time, the money power thus acquired is usedfor building up contacts with bureaucrats and politicians andexpansion of activities with impunity. The money power is used toBdevelop network of muscle-power which is also used by thepoliticians during elections.”

And again:

“3.3. … The nexus between the criminal gangs, police,bureaucracy and politicians has come out clearly in various partsof the country. The existing criminal justice system, which wasessentially designed to deal with the individual offences/crimes, isunable to deal with the activities of the mafia; the provisions oflaw in regard economic offences are weak…”

D183. We are tempted to quote the following observations by ShriC. Rajagopalachari, made way back in 1922, which has been referred toby the Constitution Bench in Public Interest Foundation (supra):

“… ‘Elections and their corruption, injustice and tyranny of wealth,Eand inefficiency of administration, will make hell of life as soonas freedom is given to us….’””

184. The Court, inPublic Interest Foundation (supra), elaboratelyquoted from the Two Hundred and Forty-Fourth Report of the LawCommission of India on Electoral Disqualifications. This Court alsoFreiterated the role and, thereafter, the powers of the Election Commission.The Court went on to observe that:

“115. …The best available people, as is expected by the democraticsystem, should not have criminal antecedents and the voters havea right to know about their antecedents, assets and other aspects.We are inclined to say so, for in constitutional democracy,criminalisation of politics is an extremely disastrous and lamentablesituation. The citizens in democracy cannot be compelled tostand as silent, deaf and mute spectators to corruption by projectingthemselves as helpless. The voters cannot be allowed to resign totheir fate. The information given by candidate must express

everything that is warranted by the Election Commission as perlaw. Disclosure of antecedents makes the election fair one andthe exercise of the right of voting by the electorate also getssanctified. …”

185. Thereafter, the Constitution Bench went on to hold as follows:

“116. Keeping the aforesaid in view, we think it appropriate toissue the following directions which are in accord with the decisionsof this Court:

116.1. Each contesting candidate shall fill up the form as providedby the Election Commission and the form must contain all theparticulars as required therein.

116.2. It shall state, in bold letters, with regard to the criminalcases pending against the candidate.

116.3. If candidate is contesting an election on the ticket of aparticular party, he/she is required to inform the party about thecriminal cases pending against him/her.

116.4. The political party concerned shall be obligated to put upon its website the aforesaid information pertaining to candidateshaving criminal antecedents.

116.5. The candidate as well as the political party concerned shallissue declaration in the widely circulated newspapers in thelocality about the antecedents of the candidate and also give widepublicity in the electronic media. When we say wide publicity, wemean that the same shall be done at least thrice after filing of thenomination papers.

117. These directions ought to be implemented in true spirit andright earnestness in bid to strengthen the democratic set-up.There may be certain gaps or lacunae in law or legislativeenactment which can definitely be addressed by the legislature ifit is backed by the proper intent, strong resolve and determinedwill of right-thinking minds to ameliorate the situation. It must alsobe borne in mind that the law cannot always be found fault withfor the lack of its stringent implementation by the authoritiesconcerned. Therefore, it is the solemn responsibility of allconcerned to enforce the law as well as the directions laid downby this Court from time to time in order to infuse the culture of

Apurity in politics and in democracy and foster and nurture aninformed citizenry, for ultimately it is the citizenry which decidesthe fate and course of politics in nation and thereby ensures that“we shall be governed no better than we deserve”, and thus,complete information about the criminal antecedents of thecandidates forms the bedrock of wise decision-making andBinformed choice by the citizenry. Be it clearly stated that informedchoice is the cornerstone to have pure and strong democracy.

118. We have issued the aforesaid directions with immenseanguish, for the Election Commission cannot deny candidate tocontest on the symbol of party. time has come that ParliamentCmust make law to ensure that persons facing serious criminalcases do not enter into the political stream. It is one thing to takecover under the presumption of innocence of the accused but it isequally imperative that persons who enter public life and participatein law making should be above any kind of serious criminalDallegation. It is true that false cases are foisted on prospectivecandidates, but the same can be addressed by Parliament throughappropriate legislation. The nation eagerly waits for such legislation,for the society has legitimate expectation to be governed byproper constitutional governance. The voters cry for systematicsustenance of constitutionalism. The country feels agonised whenEmoney and muscle power become the supreme power. Substantialefforts have to be undertaken to cleanse the polluted stream ofpolitics by prohibiting people with criminal antecedents so thatthey do not even conceive of the idea of entering into politics.They should be kept at bay.”

FIt would appear that the grant of relief would have resulted in therewriting of the provision.

Z. INDEPENDENCE; STERLING AND INDISPENSABLEATTRIBUTE

THE CONCEPT OF LEGITIMATE POWER OF RECIPROCITYG

186. What is independence? Independence is value, which isonly one of the elements in the amalgam of virtues that person shouldpossess. The competence of man is not to be conflated with fierceindependence. person may be excellent, i.e., at his chosen vocation.

He may be an excellent Administrator. He may be honest but the qualityof independence transcends the contours of the qualities of professionalexcellence, as also the dictates of honesty. We may, no doubt, clarifythat, ordinarily, honesty would embrace the quality of courage ofconviction, flowing from the perception of what is right and what iswrong. Irrespective of consequences to the individual, an honest personwould, ordinarily, unrelentingly take on the high and mighty andperseverein the righteous path. An Election Commissioner is answerableto the Nation. The people of the country look forward to him so thatdemocracy is always preserved and fostered. We may qualify the aboveobservations by stating that true independence of Body of persons isnot to be confused with sheer unilateralism. This means that the ElectionCommission must act within the Constitutional framework and the laws.It cannot transgress the mandate of either and still claim to beindependent. Riding on the horse of independence, it cannot act in anunfair manner either. Independence must be related, finally, to the questionof ‘what is right and what is wrong’. person, who is weak kneedbefore the powers that be, cannot be appointed as an ElectionCommissioner. person, who is in state of obligation or feels indebtedto the one who appointed him, fails the nation and can have no place inthe conduct of elections, forming the very foundation of the democracy.An independent person cannot be biased. Holding the scales evenly,even in the stormiest of times, not being servile to the powerful, butcoming to the rescue of the weak and the wronged, who are otherwisein the right, would qualify as true independence. Upholding theconstitutional values, which are, in fact, part of the Basic Structure,and which includes, democracy, the Rule of Law, the Right to Equality,secularism and the purity of elections otherwise, would, indeed, proclaimthe presence of independence. Independence must embrace the abilityto be firm, even as against the highest. Not unnaturally, uncompromisingfearlessness will mark an independent person from those who put allthey hold dear before their Karma. It is in this context that we feel-advised to refer to the following discussion inSupreme Court Advocateson-Record Assn. and another v. Union of India66:

“310. little personal research resulted in the revelation of theconcept of the “legitimate power of reciprocity” debated byBertram Raven in his article — “The Bases of Power and the

Power/Interaction Model of Interpersonal Influence” (this

66 (2016) 5 SCC 1

152SUPREME COURT REPORTS

Aarticle appeared in Analyses of Social Issues and Public Policy,Vol. 8, No. 1, 2008, pp. 1-22). In addition to having dealt withvarious psychological reasons which influenced the personality ofan individual, reference was also made to the “legitimate powerof reciprocity”. It was pointed out that the reciprocity normenvisaged that if someone does something beneficial for another,Bthe recipient would feel an obligation to reciprocate (“I helpedyou when you needed it, so you should feel obliged to do this forme.” — Goranson and Berkowitz, 1966; Gouldner, 1960). In theview expressed by the author, the inherent need of power isuniversally available in the subconscious of the individual. On theCsatisfaction and achievement of the desired power, there is similarunconscious desire to reciprocate the favour.”It is important that the appointment must not be overshadowed byeven perception, that ‘yes man’ will decide the fate of democracyand all that it promises. Certainty, the darkest apprehensions of theDfounding fathers as buttressed by the reports and other materials,unerringly point to the imperative need to act.

AA. THE APPOINTMENT OF SHRI ARUN GOEL: ATRIGGER OR MERE ASIDE?

187. An application was filed by the petitioner in W.P. No. 569 ofE2021 to seek interim relief to provide for appointment to fill vacancy ofElection Commissioner which had arisen on 15.05.2022 by Committee.The Bench commenced hearing of these cases on 17.11.2022. The matterstood posted to 22.11.2022.It would appear that on 18.11.2022, thevacancy of Election Commissioner came to be filled up by theFappointment of one Shri Arun Goel. This appointment was attacked byShri Prashant Bhushan, learned Counsel appearing for the petitioner, bycontending that when the petitioner had moved an application, seekinginterim relief relating to appointment, it was not open to the respondent-Union to make the appointment. This Court thereupon called upon therespondent to produce the files relating to the appointment. We perusedGthe note as also the file. It is therein, inter alia, stated that vacancy inthe post of Election Commissioner arose upon the appointment of ShriRajiv Kumar as the Chief Election Commissioner w.e.f. 15.05.2022. Nospecific law has been made under Article 324. convention is putforward, which consisted of appointing senior Members of the CivilHServices, other serving or retired Officers of the rank of Secretary tothe Government of India/Chief Secretary of State Government. Theconvention further comprised of the appointment of the senior-mostElection Commissioner as the Chief Election Commissioner so far. Wefound, undoubtedly, from the perusal of the files that the respondent wasaware of the pendency of Writ Petition (Civil) No. 104 of 2015 apartfrom the other Writ Petitions. The appointment has been made apparentlyon the basis that there was no hinderance to the making of theappointment. Approval was sought on 18.11.2022 for the appointment ofone Election Commissioner. On the very same day, drawing upon thedatabase of IAS Officers, serving and retired, in the position of Secretaryto the Government of India, it was accessed. We found four names,which included at the top of the list, the present appointee. Three othernames were also considered by the Minister of Law and Justice. One ofthe Officers was from Andhra Pradesh and belonged to the 1983 Batch.The third Officer empanelled belonged to the Telangana State and hebelonged to the 1983 Batch and the fourth Officer belonged to the TamilNadu cadre and belonged to the 1985 Batch. The present appointeebelonged to the Punjab Cadre and was of the 1985 Batch. On the sameday, i.e., on 18.11.2022, Note was seen put-up, wherein the LawMinister had suggested the panel of four names for the consideration ofthe Prime Minister and the President. Therein also, the absence of lawand the convention, which we have already referred to, has been noted.We further find that three of the Officers mentioned had superannuatedduring the last two years or so. The appointee, it was noted was tosuperannuate in the month of December, 2022 and had taken voluntaryretirement, was found to be the youngest of the four Members of thepanel. It was recommended to the Prime Minister that considering hisexperience, age, profile and suitability, the current appointee may beconsidered.On the very same day again, the Prime Ministerrecommended the name of the present appointee. We notice furtherthat, on the same day again, an application is seen made by the appointeein regard to voluntary retirement and accepting the same, again, w.e.f.,18.11.2022, and waiving the three months period required for acting onthe request of voluntary retirement, the Officer’s request for voluntaryretirement came to be accepted by the Competent Authority. Not comingas surprise, on the same day, his appointment as Election Commissionerwas also notified. We are little mystified as to how the officer hadapplied for voluntary retirement on 18.11.2022, if he was not in the knowabout the proposal to appoint him. Whether that be,we notice that

A18.11.2022 was Friday and very next day, after the Court had directedthe case to be listed to 22.11.2022, for considering the matter.

188. In regard to this appointment, the salient features may benoticed. The vacancy was subsisting from 15.05.2022. The ConstitutionBench held preliminary hearing on 17.11.2022. It was while so on theBnext day, i.e., 18.11.2022, when an interim application was also pendingconsideration, all the procedures commencing with the proposal,processing of the same at the hands of the Minister for Law, the furtherrecommendations of the concerned Officers, the recommendation ofthe Prime Minister, the acceptance of the application of the appointeeseeking voluntary retirement, waiving the three months period and theCappointment by the President under Article 324(2), which came to benotified, took place in single day. No doubt, there was no interim Order,restraining such appointment but, at the same time, I.A. No. 63145 of2021 in Writ Petition (Civil) No. 569 of 2021, seeking direction to makeappointment to the vacant post by an independent Body, was pendingDconsideration. Shri Prashant Bhushan would seek the invalidation of theappointment itself on the said score.189. Since the Constitution Bench has been constituted to considerthe need for different method of appointment of the Chief ElectionCommissioner and the Election Commissioners, the procedure involvedEin the appointment as has been followed throws up certain pertinentquestions. Appointment is, admittedly, made from panel of Senior CivilServants, both retired and serving. Learned Attorney General wouldcontend that the appointment is made from panel of Officers. Thecurrent appointee was due to retire on 31.12.2022. From the date ofbirth of the other three persons, who formed the panel, we find that oneFof the persons had superannuated, apparently, in the year 2020. AnotherOfficer, whose name figured in the panel had also superannuated in theyear 2020. The only other Officer, who was considered with the appointee,had also superannuated in the year 2020. As on 18.11.2022, if any of thethree were considered and appointed, they would have had tenure ofGless than three years. This is for the reason that, under Section 4 of the1991 Act, an Election Commissioner is entitled to term of six years,subject, however, to the condition that the Officer would have to vacatethe Office upon his reaching the age of 65 years. In fact, even theappointed Officer was due to retire on 31.12.2022, at the age of sixtyyears. He would have term of little over five years, on the basis ofH

the appointment made on 18.11.2022. He would be appointed not as aChief Election Commissioner but as an Election Commissioner. Boththe Chief Election Commissioner and the Election Commissioner, as perSection 4 of the 1991 Act, are to be appointed for term of six years.

190. This brought up the question of Section 4, declaring fixedterm of six years from the date of assumption of Office, for ChiefElection Commissioner and an Election Commissioner, being observedin its breach. The learned Attorney General would respond as follows.He pointed out that since the time, when the Election Commission becamea multi-Member team, convention has grown up of making appointmentsof persons, initially as Election Commissioners and the senior-mostElection Commissioner, unless considered unfit, is appointed as the ChiefElection Commissioner. As far as Section 4, declaring that the ChiefElection Commissioner and the Election Commissioner are to be appointedfor term of six years and the appointments falling foul of the saidmandate, the learned Attorney General would point out that the term ofthe Election Commissioner and the term as Chief Election Commissioner,for those who are appointed as the Chief Election Commissioner, isaggregated. In view of the first proviso to Section 4 of the 1991 Act, ashortfall, in terms of the six years stint, may occur. But it is pointed outthat as far as possible, appointments are being made so as to fulfil therequirements of the law. In view of the operation of the proviso, resultingin compulsory and premature vacating of the Office by the incumbenton attaining the age of 65 years, the term may not last for the full sixyears, even on the combination of the two appointments, viz., firstly asElection Commissioner and later as Chief Election Commissioner. Thelearned Attorney General would point out that this Court should not bedetained by the said aspect, when the question, which this Court isconcerned with, is different. As far as the criticism launched, both byShri Prashant Bhushan and Shri Gopal Sankaranarayanan, that the panelwhich was considered, betrayed sheer arbitrariness and reinforced thegrievance and the complaint of the Writ Petitioners that an undeniablecase is made out for this Court to step in and grant relief so that fairprocedure for selection and appointment is laid down, till law is madeby the Parliament, the learned Attorney General would point out thatCivil Servants or IAS Officers are by dint of the experience gathered inthe course of their careers, ideally suited for appointment as ElectionCommissioners and Chief Election Commissioners. They haveexperience in the matter of the conduct of the elections at different

Astages of their career. They operate as observers in States other thantheir cadre States. The Election Commission is not to be conflated withthe Chief Election Commissioner and the Election Commissioners. TheCommission functions as large team. It is in this regard that Officersof the Civil Services are impeccably poised for being considered underArticle 324(2), it is pointed out.B

191. The learned Attorney General would point out that that thepanel of Officers, is born out of the database of serving and retired IASOfficers in the position of Secretaries to the Government of India.

192. When it was pointed out that it remained mystery to theCCourt that incongruous with the unambiguous mandate of Section 4 ofthe 1991 Act, all the panellists were either retired (3 out of four) and theperson finally appointed was himself appointed, when he had less than amonth for his 60[th] birthday, it was submitted that the Court must bear inmind that the panel was drawn up from the database of Officers in therank of Secretaries to the Government of India, both serving and retired,Dand drawn up by the Ministry of Law and Justice. When it was furtherqueried as to why the respondent did not appear to exhibit any anxiety toascertain whether there were Officers, who could be appointed whowould be assured the full term of six years, in keeping with the mandateof law, it was submitted that there is dearth of such Officers.

193. Thereupon, it was the contention of both Shri PrashantBhushan and Shri Gopal Shankaranarayan that this may not be the case.It is pointed out by Shri Prashant Bhushan that there are 160 Officers,who belonged to the 1985 Batch and some of them are younger thanShri Arun Goel.F

194. We have noted that the three Officers in the panel weredescribed and edged out, noting the factum of superannuation. On thesaid basis, it was found that the appointee was the youngest. Thereafteron the basis of his experience, age and suitability, the appointee wasrecommended and finally appointed.

G195. If the drawing up of the panel itself results in fate accompli,then, the whole exercise would be reduced to foregone conclusion asto who would be finally appointed.What we find about the method involvedis, even proceeding on the basis that the Government has the right toconfine the appointee to Civil Servants, that it is in clear breach of thecontemplated mandate that be it as an Election Commissioner or ChiefH

Election Commissioner, the appointee should have period of six years.The philosophy behind giving reasonably long stint to the appointee tothe post of Election Commissioner or the Chief Election Commissioner,is that it would enable the Officer to have enough time to gear himself tothe needs of the Office and to be able to assert his independence. Anassured term would instil in the appointee, the inspiration and the will toput in place any reforms, changes, as also the inspiration to bring out hisbest. short-lived stint may drain the much-needed desire besides thetime to fulfil the sublime objects of the high Office of the ElectionCommissioner or the Chief Election Commissioner. Any tendencytowards placating the powers that be, would wax as also the power andthe will to assert his independence may wane, bearing in mind, the shorttenure. This apparently is the underlying philosophy of the law made byParliament, assuring, term of six years. The term of six years isseparately assured to both the Election Commissioner and the ChiefElection Commissioner. In other words, the object of the law and itscommand would stand defeated and the practice lends strength to thecomplaint of the petitioners. We must make it clear that the observationsare not meant to be an individualised assessment of the appointee, whowe do note, has excellent academic qualifications. But as we have notedacademic excellence which members of the civil service may possesscannot be substitute for values such as independence and freedomfrombias from political affiliation. We draw the following conclusions:

Parliament enshrined term of six years separately for the ChiefElection Commissioner and the Election Commissioner. This is the Rule,it is found in Section 4(1). proviso cannot arrogate itself to the statusof the main provision. The exception cannot become the Rule. Yet, thiswhat the appointments have been reduced to. It undermines theindependence of the Election Commission. The policy of the law isdefeated.

BB. IS THERE VACUUM IN ARTICLE 324? SHOULDTHE COURT INTERFERE, IF THERE IS ONE?

196. When Article 324(2) provides that the appointment of theChief Election Commissioner and the other Election Commissioners shall,subject to the provisions of any law, made in that behalf by Parliament,be made by the President, in view of Article 74, it would, undoubtedly,mean that the President is bound to make appointments in accordancewith the advice of the Council of Ministers. Taking into consideration

AArticle 77 also and, in view of the Rules of Business made, which wehave referred to in paragraph 51 of this Judgment, the appointment, till alaw is made by Parliament, would be made by the President in accordancewith advice of the Prime Minister. It was precisely such an appointment,which was the cause of unanimous concern to the Members of theConstituent Assembly, which we have already adverted to.B197. The petitioners placed considerable reliance on the Judgmentof this Court rendered in Vineet Narain and others v. Union of Indiaand another67. No doubt, it is case where the Court, inter alia, heldas follows:

“49. There are ample powers conferred by Article 32 read withCArticle 142 to make orders which have the effect of law by virtueof Article 141 and there is mandate to all authorities to act in aidof the orders of this Court as provided in Article 144 of theConstitution. In catena of decisions of this Court, this power hasbeen recognised and exercised, if need be, by issuing necessaryDdirections to fill the vacuum till such time the legislature steps in tocover the gap or the executive discharges its role. It is in thedischarge of this duty that the IRC was constituted by theGovernment of India with view to obtain its recommendationsafter an in-depth study of the problem in order to implement themby suitable executive directions till proper legislation is enacted.EThe report of the IRC has been given to the Government of Indiabut because of certain difficulties in the present context, no furtheraction by the executive has been possible. The study having beenmade by Committee considered by the Government of Indiaitself as an expert body, it is safe to act on the recommendationsFof the IRC to formulate the directions of this Court, to the extentthey are of assistance. In the remaining area, on the basis of thestudy of the IRC and its recommendations, suitable directions canbe formulated to fill the entire vacuum. This is the exercise wepropose to perform in the present case since this exercise can nolonger be delayed. It is essential and indeed the constitutionalGobligation of this Court under the aforesaid provisions to issue thenecessary directions in this behalf. We now consider formulationof the needed directions in the performance of this obligation.The directions issued herein for strict compliance are to operate

[K. M. JOSEPH, J.]

till such time as they are replaced by suitable legislation in thisbehalf.”

198. We must, at once, notice, however, that this Court has alsoheld as follows:

“51. In exercise of the powers of this Court under Article 32 readwith Article 142, guidelines and directions have been issued in alarge number of cases and brief reference to few of them issufficient. In Erach Sam Kanga v. Union of India [WP No. 2632of 1978 decided on 20-3-1979] the Constitution Bench laid downcertain guidelines relating to the Emigration Act. In Lakshmi KantPandey v. Union of India [(1984) 2 SCC 244] (In re, ForeignAdoption), guidelines for adoption of minor children by foreignerswere laid down. Similarly in State of W.B. v. Sampat Lal [(1985)1 SCC 317 : 1985 SCC (Cri) 62 : (1985) 2 SCR 256] , K.Veeraswami v. Union of India [(1991) 3 SCC 655 : 1991 SCC(Cri) 734] , Union Carbide Corpn. v. Union of India [(1991) 4SCC 584] , Delhi Judicial Service Assn. v. State ofGujarat [(1991) 4 SCC 406] (Nadiad case), Delhi DevelopmentAuthority v. Skipper Construction Co. (P) Ltd. [(1996) 4 SCC622] and Dinesh Trivedi, M.P. v. Union of India [(1997) 4 SCC306] guidelines were laid down having the effect of law, requiringrigid compliance. In Supreme Court Advocates-on-RecordAssn. v. Union of India [(1993) 4 SCC 441] (IInd Judges case) anine-Judge Bench laid down guidelines and norms for theappointment and transfer of Judges which are being rigidly followedin the matter of appointments of High Court and Supreme CourtJudges and transfer of High Court Judges. More recentlyin Vishaka v. State of Rajasthan [(1997) 6 SCC 241 : 1997 SCC(Cri) 932] elaborate guidelines have been laid down for observancein workplaces relating to sexual harassment of working women.In Vishaka [(1997) 6 SCC 241 : 1997 SCC (Cri) 932] it was said:(SCC pp. 249-50, para 11)

“11. The obligation of this Court under Article 32 of the Constitutionfor the enforcement of these fundamental rights in the absence oflegislation must be viewed along with the role of judiciary envisagedin the Beijing Statement of Principles of the Independence of theJudiciary in the LAWASIA region. These principles were acceptedby the Chief Justices of Asia and the Pacific at Beijing in 1995 (*)

A(As amended at Manila, 28th August, 1997) as thoserepresenting the minimum standards necessary to be observed inorder to maintain the independence and effective functioning ofthe judiciary. The objectives of the judiciary mentioned in the BeijingStatement are:

“Objectives of the Judiciary:

B10. The objectives and functions of the Judiciary include thefollowing:

(a) to ensure that all persons are able to live securely under therule of law;

C(b) to promote, within the proper limits of the judicial function, theobservance and the attainment of human rights; and

(c) to administer the law impartially among persons and betweenpersons and the State.”

Thus, an exercise of this kind by the court is now well-settledDpractice which has taken firm roots in our constitutionaljurisprudence. This exercise is essential to fill the void in the absenceof suitable legislation to cover the field.”

199. It, therefore, becomes necessary for us to undertake journeyback in time to recapture the views taken by this Court, which has beenreferred to in paragraph-51. In Lakshmi Kant Pandey v. Union ofEIndia68, this Court was dealing public interest litigation lodged againstmalpractices in trafficking of children in connection with adoption ofIndian children by foreigners living abroad. The Court noted from thelegislative history that though Bills were introduced, including the Adoptionof Children Bill, 1980, besides the earlier Bill in 1972, it had not attainedFa legislative effect. The Court found that inter-country adoption had tobe supported but great care had to be exercised in the matter of givingchildren in adoption to foreign parents. The Court referred to, inter alia,the draft Declaration by the Commission for Social Development at itstwenty-sixth session, besides the guidelines and draft guidelines, whichwere approved on 04.09.1982. The Court notes, at paragraph-10, theGabsence of law providing for adoption of an Indian child by the foreignparent. Thereafter, it elaborated on the materials available and finallyproceeded to lay down certain principles and norms which were to beobserved in the matter of giving child in adoption to foreign parents.

200. In Union Carbide Corporation and others. v. Union ofIndia and others69, one of the questions, which fell for considerationwas whether the Supreme Court had the power under Article 142 towithdraw to itself, Original Suits pending in the District Court at Bhopaland dispose of the same in accordance with the settlement. Similarly,the Court had to deal with the contention that it had no jurisdiction towithdraw the criminal proceedings. This is what, inter alia, the Courtheld:

“58. This Court had occasion to point out that Article 136 is wordedin the widest terms possible. It vests in the Supreme Court plenaryjurisdiction in the matter of entertaining and hearing of appeals bygranting special leave against any kind of judgment or order madeby Court or Tribunal in any cause or matter and the powers canbe exercised in spite of the limitations under the specific provisionsfor appeal contained in the Constitution or other laws. The powersgiven by Article 136 are, however, in the nature of special orresiduary powers which are exercisable outside the purview ofthe ordinary laws in cases where the needs of justice demandinterference by the Supreme Court. (See Durga ShankarMehta v. Thakur Raghuraj Singh [(1955) 1 SCR 267 : AIR 1954SC 520 : 9 ELR 494] ).

xxxxxx

61. To the extent power of withdrawal and transfer of cases tothe apex Court is, in the opinion of the Court, necessary for thepurpose of effectuating the high purpose of Articles 136 and 142(1),the power under Article 139-A must be held not to exhaust thepower of withdrawal and transfer. Article 139-A, it is relevant tomention here, was introduced as part of the scheme of theConstitution Forty-second Amendment. That amendment proposedto invest the Supreme Court with exclusive jurisdiction to determinethe constitutional validity of central laws by inserting Articles 131-A, 139-A and 144-A. But Articles 131-A and 144-A were omittedby the Forty-third Amendment Act, 1977, leaving Article 139-Aintact. That article enables the litigants to approach the apex Courtfor transfer of proceedings if the conditions envisaged in that articleare satisfied. Article 139-A was not intended, nor does it operate,

Ato whittle down the existing wide powers under Articles 136 and142 of the Constitution.”

201. In Delhi Judicial Service Association, Tis Hazari Court,Delhi v. State of Gujarat and others70, the question arose in thefollowing factual context:

Police Officers assaulted and arrested on flimsy grounds andhandcuffed and tied with rope, Chief Judicial Magistrate. The scopeof the Criminal Contempt Jurisdiction fell for consideration.This Courtwished to provide against the recurrence of such instances. The Courtdirected the State Government to take immediate steps for review andCrevision of the Police Regulations. In the light of the Commissionappointed, the Court held, inter alia, as follows:

“49. Learned counsel, appearing on behalf of the State of Gujaratand the police officers, urged that in the present proceedings thisCourt has no jurisdiction or power to quash the criminal proceedingsDpending against N.L. Patel, CJM. Elaborating his contention,learned counsel submitted that once criminal case is registeredagainst person the law requires that the court should allow thecase to proceed to its normal conclusion and there should be nointerference with the process of trial. He further urged that thisCourt has no power to quash trial pending before the criminalEcourt either under the Code of Criminal Procedure or under theConstitution, therefore, the criminal proceedings pending againstPatel should be permitted to continue. Learned Attorney Generalsubmitted that since this Court has taken cognizance of thecontempt matter arising out of the incident which is the subjectFmatter of trial before the criminal court, this Court has amplepower under Article 142 of the Constitution to pass any ordernecessary to do justice and to prevent abuse of process of thecourt. The learned Attorney General elaborated that there is nolimitation on the power of this Court under Article 142 in quashinga criminal proceeding pending before subordinate court. BeforeGwe proceed to consider the width and amplitude of this Court’spower under Article 142 of the Constitution it is necessary toremind ourselves that though there is no provision like Section482 of the Criminal Procedure Code conferring express poweron this Court to quash or set aside any criminal proceedings pending

before criminal court to prevent abuse of process of the court,but this Court has power to quash any such proceedings in exerciseof its plenary and residuary power under Article 136 of theConstitution, if on the admitted facts no charge is made out againstthe accused or if the proceedings are initiated on concocted facts,or if the proceedings are initiated for oblique purposes. Once thisCourt is satisfied that the criminal proceedings amount to abuseof process of court it would quash such proceedings to ensurejustice. In State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC561 : 1982 SCC (Cri) 283 : (1982) 3 SCR 121] , this Court quashedfirst information report and issued direction prohibiting investigationinto the allegations contained in the FIR as the Court was satisfiedthat on admitted facts no offence was made out against the personsnamed in the FIR. In Madhavrao Jiwajirao Scindia v.Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988SCC (Cri) 234] , criminal proceedings were quashed as this Courtwas satisfied that the case was founded on false facts, and theproceedings for trial had been initiated for oblique purposes.50. Article 142(1) of the Constitution provides that Supreme Courtin exercise of its jurisdiction may pass such decree or make suchorder as is necessary for doing complete justice in any ‘cause’ or‘matter’ pending before it. The expression ‘cause’ or ‘matter’would include any proceeding pending in court and it would coveralmost every kind of proceeding in court including civil or criminal.The inherent power of this Court under Article 142 coupled withthe plenary and residuary powers under Articles 32 and 136embraces power to quash criminal proceedings pending beforeany court to do complete justice in the matter before this Court. Ifthe court is satisfied that the proceedings in criminal case arebeing utilised for oblique purposes or if the same are continued onmanufactured and false evidence or if no case is made out on theadmitted facts, it would be in the ends of justice to set aside orquash the criminal proceedings. It is idle to suggest that in such asituation this Court should be helpless spectator.

51. Mr Nariman urged that Article 142(1) does not contemplateany order contrary to statutory provisions. He placed reliance onthe Court’s observations in Prem Chand Garg v. ExciseCommissioner, U.P., Allahabad [1963 Supp 1 SCR 885, 899 :

ABC

AAIR 1963 SC 996] and A.R. Antulay v. R.S. Nayak [(1988) 2SCC 602 : 1988 SCC (Cri) 372] , where the Court observed thatthough the powers conferred on this Court under Article 142(1)are very wide, but in exercise of that power the Court cannotmake any order plainly inconsistent with the express statutoryprovisions of substantive law. It may be noticed that in Prem ChandBGarg [1963 Supp 1 SCR 885, 899 : AIR 1963 SC 996] and Antulaycase [(1988) 2 SCC 602 : 1988 SCC (Cri) 372] observations withregard to the extent of this Court’s power under Article 142(1)were made in the context of fundamental rights. Thoseobservations have no bearing on the question in issue as there isCno provision in any substantive law restricting this Court’s powerto quash proceedings pending before subordinate court. ThisCourt’s power under Article 142(1) to do “complete justice” isentirely of different level and of different quality. Any prohibitionor restriction contained in ordinary laws cannot act as limitationon the constitutional power of this Court. Once this Court hasDseisin of cause or matter before it, it has power to issue anyorder or direction to do “complete justice” in the matter. Thisconstitutional power of the Apex Court cannot be limited orrestricted by provisions contained in statutory law. In HarbansSingh v. State of U.P. [(1982) 2 SCC 101 : 1982 SCC (Cri) 361 :E(1982) 3 SCR 235, 243] , A.N. Sen, J. in his concurring opinionobserved: (SCC pp. 107-08, para 20)

“Very wide powers have been conferred on this Court for dueand proper administration of justice. Apart from the jurisdictionand powers conferred on this Court under Articles 32 and 136 ofthe Constitution I am of the opinion that this Court retains andmust retain, an inherent power and jurisdiction for dealing withany extraordinary situation in the larger interests of administrationof justice and for preventing manifest injustice being done. Thispower must necessarily be sparingly used only in exceptionalcircumstances for furthering the ends of justice.”

No enactment made by Central or State legislature can limit orrestrict the power of this Court under Article 142 of the Constitution,though while exercising power under Article 142 of the Constitution,the Court must take into consideration the statutory provisionsregulating the matter in dispute. What would be the need of

“complete justice” in cause or matter would depend upon thefacts and circumstances of each case and while exercising thatpower the Court would take into consideration the expressprovisions of substantive statute. Once this Court has takenseisin of case, cause or matter, it has power to pass any order orissue direction as may be necessary to do complete justice in thematter. This has been the consistent view of this Court as wouldappear from the decisions of this Court in State ofU.P. v. Poosu [(1976) 3 SCC 1 : 1976 SCC (Cri) 368 : (1976) 3SCR 1005] ; Ganga Bishan v. Jai Narain [(1986) 1 SCC 75]; Navnit R. Kamani v. R.R. Kamani [(1988) 4 SCC 387] ; B.N.Nagarajan v. State of Mysore [(1966) 3 SCR 682 : AIR 1966SC 1942 : (1967) 1 LLJ 698] ; Special Reference No. 1 of1964 [(1965) 1 SCR 413, 499 : AIR 1965 SC 745] and HarbansSingh v. State of U.P. [(1982) 2 SCC 101 : 1982 SCC (Cri) 361 :(1982) 3 SCR 235, 243] Since the foundation of the criminal trialof N.L. Patel is based on the facts which have already been foundto be false, it would be in the ends of justice and also to do completejustice in the cause to quash the criminal proceedings. Weaccordingly quash the criminal proceedings pending before theChief Judicial Magistrate, Nadiad in Criminal Cases Nos. 1998 of1990 and 1999 of 1990.”

202. It issued various guidelines also for the protection of theMembers of the Subordinate Judiciary. The decision in Supreme CourtAdvocates-on-Record Association and others v. Union of India71related to the appointment of Judges to the Supreme Court and HighCourt and transfer of Judges and Chief Justices.In the majority opinionof Justice J. S. Verma, we may notice the following:

“447. When the Constitution was being drafted, there was generalagreement that the appointments of Judges in the superior judiciaryshould not be left to the absolute discretion of the executive, andthis was the reason for the provision made in the Constitutionimposing the obligation to consult the Chief Justice of India andthe Chief Justice of the High Court. This was done to achieveindependence of the Judges of the superior judiciary even at thetime of their appointment, instead of confining it only to theprovision of security of tenure and other conditions of service

ABCD

Aafter the appointment was made. It was realised that theindependence of the judiciary had to be safeguarded not merelyby providing security of tenure and other conditions of serviceafter the appointment, but also by preventing the influence ofpolitical considerations in making the appointments, if left to theabsolute discretion of the executive as the appointing authority. ItBis this reason which impelled the incorporation of the obligation ofconsultation with the Chief Justice of India and the Chief Justiceof the High Court in Articles 124(2) and 217(1). The ConstituentAssembly Debates disclose this purpose in prescribing for suchconsultation, even though the appointment is ultimately an executiveCact.”

(Emphasis Supplied)

203. We may at once observe as follows:

We have noticed in the context of the Constituent AssemblyDdebates, as also what preceded it in the form of Sub-Committee Reports,that there was general agreement that law must be made by Parliamentand the amended draft Article 289 came to be, accordingly, furtheramended and approved, leading to the insertion of the words ‘subject tothe law to be made by Parliament’ in Article 324(2). In other words, thepurpose for which the provision was made, as also the imperative needEto make such law, has been eloquently articulated in the views of theMembers of the Constituent Assembly. The appointment of Judges ofthe Superior Judiciary under the Government of India Act, whichpreceded the Constitution, was being made in the absolute discretion ofthe Crown. This Court took note of the fact that if left to the absoluteFdiscretion of the Executive, as the appointing Authority, it may lead topolitical considerations in making the appointment. Article 124(2) dealingwith appointments to the Supreme Court and Article 217(1) which dealswith appointments to the High Courts, was to be made based on whatwas described as ‘consultations’ in these Articles. It will be again noticedthat Article 324(2), does not provide for consultation with any one and itGappears to place the power to make appointments, exclusively with theExecutive as the President is bound by the advice of the Prime Minister.However, it is precisely to guard against the abuse by the exclusivepower being vested with the Executive that instead of consultativeprocess being provided, Parliament was to make law. This clearly wasHthe contemplation of the Founding Fathers. This Court proceeded to lay

down norms in the absence of any specific guidelines. We may, in thisregard, notice paragraph-477:

“477. The absence of specific guidelines in the enacted provisionsappears to be deliberate, since the power is vested in highconstitutional functionaries and it was expected of them to developrequisite norms by convention in actual working as envisaged inthe concluding speech of the President of the Constituent Assembly.

The hereinafter mentioned norms emerging from the actualpractice and crystallized into conventions — not exhaustive —are expected to be observed by the functionaries to regulate theexercise of their discretionary power in the matters ofappointments and transfers.”

204. We may also indicate that this Judgment provides situationwhere this Court has laid down norms, even in the constitutional realm.

205. It is further of the greatest moment that this Court noted thatit was realised that independence of the Judiciary had to be protectednot merely after appointment but by the process of appointment. TheChief Election Commissioner can also be removed only in the samefashion as Judge of the Supreme Court. His conditions of servicecannot be varied to his disadvantage. But unlike the Comptroller andAuditor General, who also enjoys protection after appointment, theFounding Fathers clearly intended to also provide for an independentElection Commission regulating by law, the appointment itself. This is inplace of consultation provided for Judges.

206. In Vishaka and others v. State of Rajasthan and others72,a Writ Petition was filed for enforcement of Fundamental Rights ofworking women under Articles 14, 19 and 21. The complaint in the WritPetition was sexual harassment of working women at work places. Analleged brutal gangrape of social worker provided, what may bedescribed as, an immediate trigger. This Court went on to find that anincident of sexual harassment violated the Fundamental Rights of GeneralEquality, under Articles 14 and 15, and Right to Life and Liberty, underArticle 21. The Court drew support from the role of the Judiciary in theBeijing Statement of Principles of the Independence of Judiciary in LawAsia Region. We may set down the objectives, which the Court drewupon, inter alia:

72 (1997) 6 SCC 241

A“Objectives of the Judiciary:10. The objectives and functions of the Judiciary include thefollowing:

(a) to ensure that all persons are able to live securely under therule of law;B(b) to promote, within the proper limits of the judicial function, theobservance and the attainment of human rights; and

(c) to administer the law impartially among persons and betweenpersons and the State.”

207. The Court also drew on an International Convention providingCfor elimination of all forms of discrimination against women. Finally, onthe basis of the Principle that when there is no inconsistency between aConvention and Domestic Law and there is void in the DomesticLaw, and bearing in mind the meaning and content of the FundamentalRights, the Court went on to lay down elaborate guidelines and norms.DThe norms included as to what constituted sexual harassment, inter alia.This Court went on to even provide for disciplinary action to be initiatedand complaint mechanism. The guidelines were, however, made bindingand enforceable in law, until suitable legislation was enacted. The normsenunciated by this Court, which may have been legislative in nature,interestingly, held the field for more than fifteen years, when ParliamentEcame out with law.

208. InSpecial Reference No. 1 of 1998, Re73 (The Third Judgescase), which no doubt, was Judgement rendered in Reference madeunder Article 143(1) of the Constitution, one of the contentions was,whether the expression, both in Articles 217(1) and 222(1), viz.,F(consultation with the Chief Justice of India required consultation withthe plurality of Judges or the sole opinion of the Chief Justice sufficed),this Court went on to answer the question that the sole individual opinionof the Chief Justice would not constitute ‘consultation’. It was also laiddown that the Chief Justice of India must consult four senior-most puisneGJudges before making appointment to the Supreme Court and HighCourts. No doubt, it could be said that the decisions [the Judges cases]could be said to have sprouted from the construction of the words usedin the relevant Articles and, in particular, the word ‘consult’. Also, it istrue that Article 124(2) as it stood then, read as follows:

“124(2). Every Judge of the Supreme Court shall be appointed bythe President by warrant under his hand and seal after consultationwith such of the Judges of the Supreme Court and of High Courtsin the States as the President may deem necessary for the purposeand shall hold office until he attains the age of sixty-five years:

Provided that in the case appointment of Judge other than theChief Justice, the Chief Justice of India shall always be consulted:

Provided further that –

(a) Judge may, by writing under his hand addressed to thePresident, resign his office;

(b) judge may be removed from his office in the manner providedin clause (4).”

(Emphasis supplied)

209. What is of relevance is, however, the elaboration of theprocedure, as regards consultation, and the laying down of norms, whichwere to govern the appointment to the Superior Judiciary. The mandateto consult four may appear to crystalize figure not to be found in theConstitution.

210. In fact, we may observe that the Doctrine of Separation ofPowers has spawned decisions of this Court largely in the context oflitigation where challenges led to actions by the Legislative Organ,allegedly contravening the limits set for it. This is not to say that we areholding that it would be open to the courts to be oblivious to the true roleit is called upon to perform and which flows from the judicial functionthat it discharges. As noticed by this Court, however, there is no magicformula and what it all amounts to is, the need to maintain delicatebalance. While, it is true that, ordinarily, the Court cannot, without anythingmore, usurp what is purely legislative power or function, in the contextof the Constitution, which clothes the citizens with Fundamental Rightsand provides for constitutional goals to be achieved and inertia of theLegislative Department producing clear situation, where there existveritable gaps or vacuum, the Court may not shy away from whatessentially would be part of its judicial function.

211. Writ Petition was filed under Article 32 of the Constitutionassailing the appointment of certain Ministers despite their involvementin serious and heinous crimes. The Constitution Bench of this Court in

AManoj Narula v. Union of India74 went on to refer to the criminalisationof politics as being an anathema for the sanctity of democracy. Ofimmediate interest to this Court, are the following observations:

“Principle of constitutional silence or abeyance

65. The next principle that can be thought of is constitutionalBsilence or silence of the Constitution or constitutional abeyance.The said principle is progressive one and is applied as recognisedadvanced constitutional practice. It has been recognised by theCourt to fill up the gaps in respect of certain areas in the interestof justice and larger public interest. Liberalisation of the conceptCof locus standi for the purpose of development of public interestlitigation to establish the rights of the have-nots or to preventdamages and protect environment is one such feature. Similarly,laying down guidelines as procedural safeguards in the matter ofadoption of Indian children by foreigners in Laxmi KantPandey v. Union of India [(1987) 1 SCC 66 : 1987 SCC (Cri)D33 : AIR 1987 SC 232] or issuance of guidelines pertaining toarrest in D.K. Basu v. State of W.B. [(1997) 1 SCC 416 : 1997SCC (Cri) 92 : AIR 1997 SC 610] or directions issuedin Vishaka v. State of Rajasthan [(1997) 6 SCC 241 : 1997 SCC(Cri) 932] are some of the instances.”

E212. In Bhanumati and others v. State of U.P. through itsPrincipal Secretary and others75, pronouncing State Law providingfor No Confidence Motion as valid, Bench of this Court, inter alia, heldas follows:

“50. The learned author elaborated this concept further by saying,F“Despite the absence of any documentary or material form, theseabeyances are real and are an integral part of any Constitution.What remains unwritten and indeterminate can be just as muchresponsible for the operational character and restraining qualityof Constitution as its more tangible and codified components.”G(P. 82)51. Many issues in our constitutional jurisprudence evolved out ofthis doctrine of silence. The basic structure doctrine vis-à-visArticle 368 of the Constitution emerged out of this concept of

74 (2014) 9 SCC 1H75 (2010) 12 SCC 1

silence in the Constitution. Constitution which professes to bedemocratic and republican in character and which brings about arevolutionary change by the Seventy-third ConstitutionalAmendment by making detailed provision for democraticdecentralisation and self-government on the principle of grass-root democracy cannot be interpreted to exclude the provision ofno-confidence motion in respect of the office of the Chairpersonof the panchayat just because of its silence on that aspect.”

213. In Kalpana Mehta and others v. Union of India andothers76, Constitution Bench of this Court, inter alia, held as follows:

“51. The Constitution being an organic document, its ongoinginterpretation is permissible. The supremacy of the Constitutionisessential to bring social changes in the national polity evolved withthe passage of time. The interpretation of the Constitution is adifficult task. While doing so, the constitutional courts are not onlyrequired to take into consideration their own experience over time,the international treaties and covenants but also keep the doctrineof flexibility in mind.It has been so stated in Union ofIndia v. Naveen Jindal [Union of India v. Naveen Jindal,(2004) 2 SCC 510].

53. Recently, in K.S. Puttaswamy v. Union of India [K.S.Puttaswamy v. Union of India, (2017) 10 SCC 1], one of us (DrD.Y. Chandrachud, J.) has opined that constitutional developmentshave taken place as the words of the Constitution have beeninterpreted to deal with new exigencies requiring an expansivereading of liberties and freedoms to preserve human rights underthe Rule of Law. It has been further observed that the interpretationof the Constitution cannot be frozen by its original understanding,for the Constitution has evolved and must continuously evolve tomeet the aspirations and challenges of the present and the future.The duty of the constitutional courts to interpret the Constitutionopened the path for succeeding generations to meet the challenges.Be it stated, the Court was dealing with privacy as matter offundamental right.”

(Emphasis supplied)

In case of Article 324(2), it was the original understanding itselfthat law be made. This understanding has received reinforcement bysubsequent developments, including objective reports.

214. Equally, we may notice what this Court, in Manoj Narula(supra),held as regards constitutional morality:

“74. The Constitution of India is living instrument with capabilitiesof enormous dynamism. It is Constitution made for progressivesociety. Working of such Constitution depends upon the prevalentatmosphere and conditions. Dr Ambedkar had, throughout thedebate, felt that the Constitution can live and grow on the bedrockCof constitutional morality. Speaking on the same, he said:

“Constitutional morality is not natural sentiment. It has to becultivated. We must realise that our people have yet to learn it.Democracy in India is only top-dressing on an Indian soil,which is essentially undemocratic.” [Constituent AssemblyDebates, 1948, Vol. VII, 38.]”

215. We have set down the legislative history of Article 324, whichincludes reference to what transpired, which, in turn, includes the viewsformed by the members of Sub-Committees, and Members of theConstituent Assembly. They unerringly point to one conclusion. TheEpower of appointment of the Members of the Election Commission, whichwas charged with the highest duties and with nearly infinite powers, andwhat is more, to hold elections, not only to the Central Legislature but toall the State Legislatures, was not to be lodged exclusively with theExecutive. It is, accordingly that the words ‘subject to any law to bemade by Parliament’ were, undoubtedly, incorporated.F216. No law, however, came to be enacted by Parliament. Wehave elaborately referred to the noises and voices eloquently and withouta discordant note being struck, which points to an overpoweringsymphony, which calls for the immediate need to fulfil the intention ofthe Founding Fathers, starting with the Goswami Committee in the yearG1990, more than three decades ago, the Two Hundred and Fifty-FifthCentral Law Commission Report in 2015 and the Reports, both in thePress and other materials.

217. It may be true that Election Commission of India provide itsservices to certain countries. That, however, cannot deflect this Court

from providing forwhat the Founding Fathers contemplated also andadvocated by in various reports.

218. It may be true only Chief Election Commissioners wereappointed for the first four decades of the Republic and, thereafter, sincethe year 1993, the Election Commission has become team, whichconsists of the Chief Election Commissioner and the two ElectionCommissioners. It may be true that in the sense that the President, actingon the advice of the Prime Minister, in accordance with the concernedRules of Business, has been making appointments.

219. However, it is equally clear that Article 324 has uniquebackground. The Founding Fathers clearly contemplated law byParliament and did not intend the executive exclusively calling the shotsin the matter of appointments to the Election Commission. Seven decadeshave passed by. Political dispensations of varying hues, which have heldthe reigns of power have not unnaturally introduced law. law could,not be one to perpetuate what is already permitted namely appointmentat the absolute and sole discretion of the Executive. law, as GopalSankaranarayanan points out, would have to be necessarily different.The absence of such law does create void or vacuum. This is despitea chorus of voices even cutting across the political divide urging divestingof the exclusive power of appointment from the Executive.

220. We have noticed, that while making law is ordinarily apower with the legislative branch and being power, it cannot becompelled by Court, the making of law may be constitutionalimperative. In the context of Article 326, making of law as contemplatedin Article 326, was an unavoidable necessity. Realising that the statutoryframework was necessary to breathe life into Article 326 and whichwas not to be incongruous with this command, Parliament enacted the1950 Act and the 1951 Act. The first General Election followed. Makingof law by Parliament as provided for in Article 146 and Article 229dealing with conditions of service of employees of the Supreme Courtand the High Court respectively, was and is sheer power and enablingprovision. The context and the purpose signals no imperative need. Nointention to indeed peremptorily provide for law as is discernible in thecase of appointment of the members of the Election Commission ofIndia pervades the Articles. The vacuum in the case of Article 324 (2) isthe absence of the law which Parliament was contemplated to enact.

221. Political parties undoubtedly would appear to betray specialinterest in not being forthcoming with the law. The reasons are not far toseek. There is crucially vital link between the independence of theElection Commission and the pursuit of power, its consolidation andperpetuation.

B222. As long as the party that is voted into power is concerned,there is, not unnaturally near insatiable quest to continue in the saddle.A pliable Election Commission, an unfair and biased overseer of thefoundational exercise of adult franchise, which lies at the heart ofdemocracy, who obliges the powers that be, perhaps offers the surestgateway to acquisition and retention of power.C

223. The values that animated the freedom struggle had to bebrought home to new generation through the insertion of the provisionrelating to fundamental duties. Criminalisation of politics, huge surge inthe influence of money power, the role of certain sections of the mediawhere they appear to have forgotten their invaluable role and have turnedDunashamedly partisan, call for the unavoidable and unpostponable fillingup of the vacuum. Even as it is said that justice must not only be donebut seen to be done, the outpouring of demands for an impartial mode ofappointment of the Members require, at the least, the banishing of theimpression, that the Election Commission is appointed by less than fairEmeans.

224. We bear in mind the fact that the demand for putting in placesafeguards to end the pernicious effects of the exclusive power beingvested with the Executive to make appointment to the ElectionCommission, has been the demand of political parties across the board.FOnce power is assumed, however, the fact of the matter is that, despitethe concerns of the Founding Fathers and the availability of power,successive governments have, irrespective of their colour, shied away,from undertaking, what again we find was considered would be done byParliament, by the Founding Fathers.

G225. The electoral scene in the country is not what it was in theyears immediately following the country becoming Republic.Criminalisation of politics, with all its attendant evils, has become anightmarish reality. The faith of the electorate in the very process, whichunderlies democracy itself, stands shaken. The impact of ‘big money’and its power to influence elections, the influence of certain sections ofHmedia, makes it also absolutely imperative that the appointment of the

Election Commission, which has been declared by this Court to be theguardian of the citizenry and its Fundamental Rights, becomes matter,which cannot be postponed further.

226. While this Court is neither invited nor if it is invited, wouldissue Mandamus to the Legislature to make law, as contemplated inArticle 324(2), it may not be the end of the duty of this Court in thecontext of the provision in question. We have already elaborated andfound that core values of the Constitution, including democracy, andRule of Law, are being undermined. It is also intricately interlinked withthe transgression of Articles 14 and 19. Each time, on account of a‘knave’, in the words of Dr. Ambedkar, or again in his words, ‘a personunder the thumb of the Executive’, calls the shots in the matter of holdingthe elections, which constitutes the very heart of democracy, even formaldemocracy, which is indispensable for Body Polity to answer thedescription of the word ‘democracy’, is not realised.

227. In the unique nature of the provision, we are concerned withand the devastating effect of continuing to leave appointments in solehands of the Executive on fundamental values, as also the FundamentalRights, we are of the considered view that the time is ripe for the Courtto lay down norms. In other words, the vacuum exists on the basis thatunlike other appointments, it was intended all throughout that appointmentexclusively by the Executive was to be mere transient or stop gaparrangement and it was to be replaced by law made by the Parliamenttaking away the exclusive power of the Executive. This conclusion isclear and inevitable and the absence of law even after seven decadespoints to the vacuum.228. Article 148 of the Constitution, dealing with appointment ofthe Comptroller and Auditor General of India, provides that it is to bemade by the President. This is to be contrasted with the appointment ofthe Members of the Election Commission in Article 324(2). On acomparison of both the Articles, the difference is stark and would justifythe petitioners contention that in regard to the appointment of the Membersof the Election Commission, having regard to the overwhelmingimportance and the nearly infinite plenary powers, they have in regardto the most important aspect of democracy itself, viz., the holding of freeand fair elections, the Founding Fathers have provided for the uniquemethod of appointment suited to the requirements of the posts in question.The refusal of Parliament, despite what was contemplated by the Founding

AFathers, and what is more, the availability of large number of Reports,all speaking in one voice, reassures us that even acting within the boundsof the authority available to the Judicial Branch, we must lay down norms,which, undoubtedly, must bear life only till Parliament steps in. We havefound, how appointments are being made in our discussion earlier. Ourminds stand fortified that there is an imperative need for the Court toBstep in.229. As regards the exact norm, which should be put in place, webear in mind the following considerations:

We have before us the various Reports, which we have referredCto. We would think that, while what must be laid down, must be fair andreasonable, but it must be what Parliament would or could lay down, if itwere to make law. Under the Rules of Business made under Article77, it is acknowledged that the appointment of the Chief ElectionCommissioner and the Election Commissioners do not engage theCabinet.We take note of the fact that for the appointment to the DirectorDof the Central Bureau of Investigation [which is not constitutional post],Section 4A of Delhi Special Police Establishment Act, 1946, contemplatesthat appointment shall be made by the Central Government on the basisof recommendation of committee consisting of the Prime Minister asthe Chairperson, the Leader of the Opposition recognised in the HouseEof People, as such, or where there is no such Leader of the Opposition,then, the Leader of the Single Largest Opposition Party in the Houseand the Chief Justice of India or Judge of the Supreme Court nominatedby him. Similarly, we find, in regard to the appointment of the Chairpersonand Members of the Lokpal, under the Lokpal and Lokayuktas Act,2013, the Chief Justice is one of the five Members of SelectionFCommittee, in the matter of appointment. We deem it appropriate tonotice Section 4 of the Lokpal and Lokayuktas Act, 2013, which readsas follows:

“4. (1) The Chairperson and Members shall be appointed by thePresident after obtaining the recommendations of SelectionGCommittee consisting of—

(a) the Prime Minister—Chairperson;

(b) the Speaker of the House of the People—Member;

(c) the Leader of Opposition in the House of the People—Member;

(d) the Chief Justice of India or Judge of the Supreme Courtnominated by him—Member;

(e) one eminent jurist, as recommended by the Chairperson andMembers referred to in clauses (a) to (d) above, to be nominatedby the President—Member.

(2) No appointment of Chairperson or Member shall be invalidmerely by reason of any vacancy in the Selection Committee.

(3) The Selection Committee shall for the purposes of selectingthe Chairperson and Members of the Lokpal and for preparing apanel of persons to be considered for appointment as such,constitute Search Committee consisting of at least seven personsof standing and having special knowledge and expertise in thematters relating to anti-corruption policy, public administration,vigilance, policy making, finance including insurance and banking,law and management or in any other matter which, in the opinionof the Selection Committee, may be useful in making the selectionof the Chairperson and Members of the Lokpal:Provided that not less than fifty per cent. of the members of theSearch Committee shall be from amongst the persons belongingto the Scheduled Castes, the Scheduled Tribes, Other BackwardClasses, Minorities and women:

Provided further that the Selection Committee may also considerany person other than the persons recommended by the SearchCommittee.

(4) The Selection Committee shall regulate its own procedure in atransparent manner for selecting the Chairperson and Membersof the Lokpal.

(5) The term of the Search Committee referred to in sub-section(3), the fees and allowances payable to its members and the mannerof selection of panel of names shall be such as may be prescribed.”

We bear in mind the Report of the Goswami Committee and, whatis more, the Law Commission Report (Two Hundred and Fifty-Fifth) and lay down as follows.

230. The appointment of the Chief Election Commissioner andthe Election Commissioners, shall be made by the President on the advice

Aof Committee consisting of the Prime Minister,the Leader of theOpposition of the Lok Sabha,and in case no leader of Opposition isavailable, the leader of the largest opposition Party in the Lok Sabha interms of numerical strength, and the Chief Justice of India.

231. We make it clear that this will be subject to any law to beBmade by Parliament.

CC. AN ELECTION COMMISSIONER ENTITLED TOSAME PROTECTION AS GIVEN TO CHIEF ELECTIONCOMMISSIONER?

232. One of the contentions raised by the petitioners is this CourtCmust provide for the same protection to the Election Commissioners asis available to the Chief Election Commissioners. Even the Report of theElection Commission itself would appear to endorse the said view andcomplaint. We expatiate. It is the contention of the petitioners that whenthe Constitution was framed, the Founding Fathers contemplated thatDappointment of Election Commissioners was to be need based and not afull-time affair. Contrary to the said view, however, multi-Memberteam, is what the Election Commission of India has become, in fact,since 1993. It is here to stay. The distinction between the Chief ElectionCommissioner and the Election Commissioners have been whittled downconsiderably by the amendments brought to the 1991 Act. However,Ewhen it comes to the constitutional protection, it is pointed out that thesecond proviso to Article 324(5) only enacts the protection that theElection Commissioner or Regional Commissioner shall not be removedfrom Office except on the recommendation of the Chief ElectionCommissioner. An attempt has, in fact, been made to persuade this CourtFto hold that, being in the nature of further proviso, as the words of thesecond proviso begin as ‘provided further’, it is only further protectionto the Election Commissioner or Regional Commissioner. Thus, it ispointed out, the Court must adopt the following interpretation. An ElectionCommissioner or Regional Commissioner can be removed only in thelike manner and on like grounds as Judge of the Supreme Court ofGIndia. further safeguard is, however, provided to the ElectionCommissioner, viz., that he can be removed from Office only on therecommendation of the Chief Election Commissioner. To appreciate theargument, we recapture Article 324(5). It reads as follows:

“324(5) Subject to the provisions of any law made by Parliament,Hthe conditions of service and tenure of office of the Election

Commissioners and the Regional Commissioners shall be such asthe President may by rule determine;

Provided that the Chief Election Commissioner shall not beremoved from his office except in like manner and on the likegrounds as Judge of the Supreme Court and the conditions ofservice of the Chief Election Commissioner shall not be varied tohis disadvantage after his appointment:

Provided further that any other Election Commissioner or aRegional Commissioner shall not be removed from office excepton the recommendation of the Chief Election Commissioner.”

233. We decode the said provision as follows:

The conditions of service and tenure of the Election Commissionersand the Regional Commissioners was to be such as made by the Ruleprovided. This, however, was subject to any law made by Parliament.Parliament has quickly on the heels of the Goswami Committee, steppedin with the 1991 Act. We have already noted the terms of the Act assubsequently amended. It contemplates salary to be paid, not only to theElection Commissioner but also to the Chief Election Commissioners,which is to be equal to the salary of the Judge of the Supreme Court ofIndia. The term as we have already noticed, both of the Chief ElectionCommissioner and the Election Commissioner, was to be six years, subjectto the proviso, which we have noticed. It also provides for other aspectsrelating to conditions of service. While unanimity of views among themembers is statutorily contemplated in Section 10(1) as desirable goal,the inevitable differences of opinion was contemplated and Section 10(3)has declared that in such an eventuality, it is the opinion of the majorityof the Members, which would prevail. We have already noticed how inT.N. Seshan(supra), this has been found to not militate against the ChiefElection Commissioner being given the power to act as the Chairman ofthe Commission. It may be true that there is equality otherwise, whichexists between the Chief Election Commissioner and the ElectionCommissioners in various matters dealt with under the Act. However,we must bear in mind, in law, Article 324 is inoperable without the ChiefElection Commissioner [See T.N. Seshan (supra)]. In law, there maynot be an insuperable obstacle for Parliament to decide to do away withthe post of Election Commissioner. In fact, it happened, as can be seenin the Judgment in Dhanoa (supra) wherein it was found that thetermination of service of the Election Commissioners following the

Aabolition of the posts did not constitute removal of the ElectionCommissioner within the meaning of the second proviso to Article 324(5).More importantly, even on plain reading of Article 324(5), we are ofthe view that in regard to the prayer that the Election Commissionermust be accorded the same protection as is given to the Chief ElectionCommissioner, the argument appears to be untenable. This prayer wasBrejected, in fact, in T.N. Seshan(supra). It is clear as day light that thefirst proviso protects the Chief Election Commissioner alone from removalby providing for protection as is accorded to Judge of the SupremeCourt of India. It is still further more important to notice that the firstproviso interdicts varying of the conditions of service of the Chief ElectionCCommissioner to his disadvantage after the appointment. It is, thereafter,that the second proviso appears. The second proviso exclusively dealswith any other Election Commissioner, inter alia. The word ‘any otherElection Commissioner’ has been provided to distinguish him from theChief Election Commissioner.Therefore, for the Election Commissionersother than the Chief Election Commissioner, the protection which is clearlyDenvisaged, as against his removal is only that it can be effected only withthe recommendation of the Chief Election Commissioner. We are of theview that in the context of the provision, the words ‘provided further’cannot be perceived as an additional protection to the ElectionCommissioner. It is intended only to be standalone provision, specificallyEmeant to deal with the categories of persons mentioned therein. In fact,the acceptance of the argument of the petitioners would involve yetanother consequence, which to our minds, would appear to project ananomalous result. To put it mildly, if the Election Commissioner isaccorded the protection available under the first proviso to the ChiefElection Commissioner, the result will be as follows. He would be entitledFto not only claim immunity from removal except on being impeached likea Judge of the Supreme Court but he would be conferred with furtherprotection even after the impeachment or before the impeachment starts,that the Chief Election Commissioner must also recommend the removal.We would think that no more need be said and we reject the contention.However, we only would observe that in the light of the fact that ElectionGCommissioners have become part of the Election Commission, perhapson the basis of the volume of work that justifies such an appointmentand also the need to have multi-Member team otherwise, it is forParliament acting in the constituent capacity to consider whether it wouldbe advisable to extend the protection to the Election Commissioners soHas to safeguard and ensure the independence of the Election

Commissioners as well. This goes also as regards variation of serviceconditions after appointment.

DD. REGARDING INDEPENDENT SECRETERIAT/CHARGING EXPENDITURE ON THE CONSOLIDATEDFUND OF INDIA

234. One of the contentions and, therefore, relief sought is, thatthere must be an independent Secretariat to the Election Commission ofIndia and the its expenditure must be charged on the Consolidated Fundof India on the lines of the Lok Sabha/Rajya Sabha Secretariat.

235. In this regard, the second respondent (the ElectionCommission of India) has filed counter affidavit in Writ Petition (C)No. 1043 of 2017, in which Writ Petition, the contention and the prayerhave been incorporated. In the Counter Affidavit of the ElectionCommission itself, the stand of the Election Commission can be stated ina nutshell as follows:

It has sent proposal that the expenditure of the Commissionshould be charged on the Consolidated Fund of India. It refers to theElection Commission Charging of Expenses on the Consolidated Fundof India Bill, 1994, which provided for the various items of expenditureto be charged upon the Consolidated Fund of India. It reiterated its proposalfor an independent Secretariat as also charging of the expenditure onthe Consolidated Fund of India by letter dated 13.04.2012, as also inDecember, 2016. It has also laid store by the recommendation of theLaw Commission, which inter alia, recommended the insertion of Article324(2A), which contemplated the Election Commission being providedwith an independent and permanent secretarial staff.

236. There cannot be any doubt that the Election Commission ofIndia is to perform the arduous and unenviable task of remaining alooffrom all forms of subjugation by and interference from the Executive.One of the ways, in which, the Executive can bring an otherwiseindependent Body to its knees, is by starving it off or cutting off therequisite financial wherewithal and resources required for its efficientand independent functioning. It would not be unnatural if faced with theprospect of it not being supplied enough funds and facilities, vulnerableCommission may cave in to the pressure from the Executive and, thus, itwould result in an insidious but veritable conquest of an otherwise defiantand independent Commission. This is apart from the fact that cutting offthe much-needed funds and resources will detract from its efficientfunctioning.

A237. No doubt, the stand of the Union of India would appear to bethat these are all matters of policy and no interference is needed orwarranted.

238. We must bear in mind that to elevate it to constitutionalprovision and protection thereunder, maybe matter, which must engageBthe attention of the Constituent Body. This is again matter which canalso be provided by way of law by Parliament. We have no doubt thatthere is considerable merit in the complaint of the petitioner, whichapparently, is endorsed by the Election Commission of India itself. Wecannot be oblivious to the need for articulation of details in regard to theCexpenditure, which is matter of policy, which we refrain from doing.We would only make an appeal on the basis that there is an urgent needto provide for permanent Secretariat and also to provide that theexpenditure be charged on the Consolidated Fund of India and it is forthe Union of India to seriously consider bringing in the much-neededchanges.D

EE. THE FINAL RELIEF

239. The Writ Petitions are partly allowed and they are disposedof as follows:

I.We declare that as far as appointment to the posts of ChiefEElection Commissioner and the Election Commissioners areconcerned, the same shall be done by the President of Indiaon the basis of the advice tendered by Committeeconsisting of the Prime Minister of India, the Leader of theOpposition in the Lok Sabha and, in case, there is no suchLeader, the Leader of the largest Party in the Opposition inFthe Lok Sabha having the largest numerical strength, andthe Chief Justice of India. This norm will continue to holdgood till law is made by the Parliament.

II.As regards the relief relating to putting in place permanentSecretariat for the Election Commission of India andGcharging its expenditure to the Consolidated Fund of Indiais concerned, the Court makes fervent appeal that theUnion of India/Parliament may consider bringing in thenecessary changes so that the Election Commission of Indiabecomes truly independent.

RASTOGI, J.

1. I have had the advantage of going through the judgment pennedby my brother K.M. Joseph, J. I entirely agree with the conclusionswhich my erudite Brother has drawn, based on the remarkable processof reasoning with my additional conclusion. I wish to add few lines andexpress my views not because the judgment requires any furtherBelaboration but looking for the question of law that emerge of considerableimportance.

2. For the purpose of analysis, the judgment has been divided intofollowing sections:

I.Reference

II.Election Commission of India

III.Why an independent Election Commission isnecessary

A.Working Democratic Constitution

B.Right to vote

C.Free and fair elections

IV.Constitutional and statutory framework: TheConstitutional Vacuum

V.The Judgment in TN Seshan

VI.Reports of various Commissions on Manner ofAppointment of Chief Election Commissioner andElection Commissioners

VII. Comparative framework - Foundational parameters

VIII. Process of selection of other constitutional/statutorybodies

IX.Constitutional silence and vacuum- power of the CourtGtolay down guidelines

X.Independence of Election Commissioners

XI.Directions

AI.Reference

3. This case arises out of batch of writ petitions, with the initialpetition filed as public interest litigation by Anoop Baranwal in January2015. The petitioner raised the issue of the constitutional validity of thepractice of the Union of India to appoint the members of the ElectionBCommission. It was argued in the petition that fair, just, and transparentmethod to select the members of the Election Commission is missing.The petition also referred to several reports, which we will discuss indue course, to highlight the issue of bringing reforms in the selection ofmembers of the Election Commission. It was further highlighted thatsince the appointment of the members of the Election Commission wasCsolely on the advice of the parliamentary executive of the Union, whichleads to arbitrariness and is in violation of Article 14 of the Constitution.The petition has also suggested that the process of selection of membersof the Election Commission (Chief Election Commissioner/ElectionCommissioner) should be transparent and with greater scrutiny,Daccountability and stability as it is for the other constitutional and legalauthorities including Judges of the Supreme Court and High Courts, ChiefInformation Commissioner, Chairpersons and Members of the HumanRights Commission, Chief Vigilance Commissioner, Director of CentralBureau of Investigation, Lokpal, Members of the Press Council of India.The writ petition made prayer for issuing of mandamus to the UnionEGovernment to make law for ensuring transparent process of selectionby constituting neutral and independent committee to recommend thenames of Chief Election Commissioner/Election Commissioners. Videorder dated 23 October, 2018, two Judge Bench of this Courtemphasized on the importance of the matter, and referred the matterunder Article 145(3) of the Constitution to the Constitutional Bench. TheForder is reproduced as follows:

“The matter relates to what the petitioner perceives to be arequirement of having full-proof and better system of appointmentof members of the Election Commission.

GHaving heard the learned counsel for the petitioner and the learnedAttorney General for India we are of the view that the mattermay require close look and interpretation of the provisions ofArticle 324 of the Constitution of India. The issue has not beendebated and answered by this Court earlier. Article 145 (3) of theConstitution of India would, therefore, require the Court to referHthe matter to Constitution Bench. We, accordingly, refer the

question arising in the present proceedings to Constitution Benchfor an authoritative pronouncement. Post the matter before theHon’ble the Chief Justice of India on the Administrative Side forfixing date of hearing.”

4. couple of similar writ petitions were tagged with the abovepetition. On 29 September 2022, this Constitution Bench started thehearing of the case. The Bench sat for several days hearing the argumentsof the petitioner side and of the Union government and ElectionCommission of India on the respondents’ side.

5. The Union Government has opposed this group of petitions onthe premise that the Court must respect the principle of separation ofpower between different organs of the State and should refrain frominterfering in the selection process of the Election Commission underArticle 324. It was argued by the Union that Article 324 of the Constitutionconferred the power to appoint Election Commissioners solely upon theParliament. He made reference to the Election Commission (Conditionsof Service of Election Commissioners and Transaction of Business) Act,1991 (hereinafter being referred to as the “Act 1991”) to emphasize hispoint that the Parliament being cautious of its responsibility protectedthe condition of service of the Chief Election Commissioner/ElectionCommissioners.

6. The learned Attorney General Mr. R. Venkataramani suggestedthat the absence of any law does not mean that constitutional vacuumexists, calling for the interference of the Court. It was also argued bythe learned Attorney General that the appointment of the members ofthe Election Commission by the President has not damaged the processof free and fair elections.

7. The learned Solicitor General Mr. Tushar Mehta argued that ifthere are lacunas in the process of selection/appointment of ElectionCommission, then it is for the Parliament and not the Court to look intothe issues. The learned counsel further argued that the appointment ofthe Election Commissioners is to be made by the President, therefore itis not open to the judiciary to interfere with the power of the executive.Mr. Mehta further argued that there is something called “independenceof the executive” which must not be interfered with. It was also arguedby the counsel for the Election Commission that since the right to vote isa statutory right and not fundamental right, so it does not call anyinterference for violation of fundamental rights.

A8. It was raised by the petitioners that the issue of appointment ofElection Commission is linked not just with the right to vote but with theconception of free and fair elections. Reference was also made to theselection processes in other jurisdictions to emphasize on the point that alarger set of parameters or factors play an important role in appointmentof Commissioners. Points were also debated regarding the term of theBChief Election Commissioner/Election Commissioners, and the processof removal of Election Commissioners. The petitioners further arguedthat there must be constitutional safeguards in the term and tenure ofthe Election Commissioners, so that they can function independently.9. This case not only raises certain fundamental questions aboutCthe interpretation of Article 324 of the Constitution but also forces us tolook at the larger perspective about how the process of selection ofElection Commission is linked with the working of democracy, theright to vote, idea of free and fair elections, and the importance of aneutral and accountable body to monitor elections. This Court ought to

make discussion on these interconnected debatable issues raised forDour consideration. All these points are indeed sacrosanct for democracyand for maintaining the independence of the Election Commission.

II. Election Commission of India

10. Article 324 (1) provides that the power of superintendence,direction, and control of the preparation of the electoral rolls for, and theEconduct of, elections to Parliament and to the Legislature of every Stateand of elections to the offices of President and Vice-President held underthe Constitution is vested in the Election Commission.

11. As to the composition of the Election Commission, Article324(2) provides that the Election Commission shall consist of the ChiefFElection Commissioner and such number of other ElectionCommissioners, if any, as the President may from time to time fix, andthe appointment of the Chief Election Commissioner and other ElectionCommissioners, subject to the provisions of any law made in that behalfby the Parliament, be made by the President.

G12. By an order dated 1st October 1993, the President has fixedthe number of Election Commissioners as two, until further orders. Thecurrent composition of the Election Commission is that of Chief ElectionCommissioner and two Election Commissioners.

13. Article 324(3) provides that the Chief Election Commissionershall act as the Chairman of the Election Commission.H

14. As regards the service conditions, Article 324(5) provides thatsubject to the provisions of any law made by Parliament, the conditionsof service and tenure of office of the Election Commissioners and theRegional Commissioners shall be determined by the rules made by thePresident. In exercise of its power under Article 324(5), the Parliamenthas enacted the Act 1991.

15. The provisos to Article 324(5) provide the mechanism forremoval of Chief Election Commissioner, Election Commissioners, andRegional Commissioner. The first proviso to Article 324(5) provides thatthe Chief Election Commissioner shall not be removed from his officeexcept in like manner and on the like grounds as Judge of the SupremeCourt and the conditions of service of the Chief Election Commissionershall not be varied to his disadvantage after his appointment. Furthermore,any other Election Commissioner or Regional Commissioner, accordingto the second proviso to Article 324(5), shall not be removed from officeexcept on the recommendation of the Chief Election Commissioner.

16. The facility of support staffs of the Election Commission hasbeen covered under Article 324(6), which provides that the President, orthe Governor of State, shall, when so requested by the ElectionCommission, make available to the Election Commission or to RegionalCommissioner such staff as may be necessary for the discharge of thefunctions conferred on the Election Commission.

17. The question that emerges for consideration is whatinterpretation needs to be afforded to the above-discussed provisions, sothat the independence of the Election Commission is ensured. Beforedealing with that, we shall deal with the necessity of the independencewhich is imperative of the Election Commission.

III. Why an independent Election Commission is Necessary

A. “Working Democratic Constitution”[1]

18. The basic perception of democracy is that it is governmentby the people, of the people, and for the people. “People” is the centralaxis on which the concept of democracy revolves. The establishment ofdemocracy has been linked with the idea of welfare of the people. DrBR Ambedkar had once noted that democracy means “a form and amethod of government whereby revolutionary changes in the economic

1 Borrowed from the title of the classic book - Granville Austin, Working DemocraticConstitution: History of the Indian Experience, Oxford University Press.

Aand social life of the people are brought about without bloodshed.”[2]Democracy is thus linked with the realization of the aspirations of thepeople.

19. According to the celebrated philosopher John Dewey,“Democracy is not simply and solely form of government, but socialBand personal ideal”, in other words, it is not only property of politicalinstitutions but of wide range of social relationships.[3] Democracy isthus about collective decision-making. The principles of democracy havebeen held as part of the basic structure of the Constitution.[4]

20. The Indian Constitution establishes constitutional democracy.The Preamble to the Constitution clearly lays down the vision and createsCan outline of the structure of democracy that India envisaged to be, rightat the moment of independence. The Preamble to the Indian Constitutionbegins with the phrase “We, the People of India”. This clearly indicatesthat the foundations of the future of the Indian Constitution and democracybegin with the people of India at the core. The phrase also means thatDthe people of India would be in deciding position to choose thegovernments they want. The phrase also highlights that the structures ofgovernance which were being created by the Constitution were supposedto act towards the welfare of the people. The Preamble provides thatthe people of India have resolved to constitute India into “SOVEREIGNSOCIALIST SECULAR DEMOCRATIC REPUBLIC”. Each term inEthis phrase defined the collective vision of not only the founders of theIndian Constitution but also the collective destiny of the people of India.These words also denote the kind of democratic structures that we weregoing to create. The word “DEMOCRATIC” in the Preamble isinterlinked with the words preceding and succeeding it, that isF“SOVEREIGN”, “SOCIALIST”, “SECULAR”, “REPUBLIC”. ThePreamble also provides that the people of India are securing for its citizens“JUSTICE social, economic and political”. The word “JUSTICE”manifests the vision of undoing hundreds of years of injustice that wasprevalent on Indian soil. Justice was to be based on three components:

social, economic, and political.G

21. Democracy was established in India to fulfill the goals whichhave been significantly encapsulated in the terms of the Preamble. The

2 Babasaheb Ambedkar: Writings and Speeches, Vol. 17 Part III, page 475

3 -https://plato.stanford.edu/entries/deweypolitical/

4 His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Another,H(1973) 4 SCC 225

institutions which were set up were given role and duty to fulfill thetask as enshrined in the Preamble and the Constitution. While the threemain pillars of the State rest on the legislature, executive, and judiciaryhave their designated roles, the Constitution framers were also visionaryin the sense that they envisaged the creation of other institutions, whichwould be independent in nature and would facilitate the working of thethree pillars by either demanding accountability or by taking on roleswhich would maintain the faith of the people in the three pillars ofdemocracy. The Election Commission of India is one such institutionthat has been created through the text of the Constitution. It isconstitutionally an independent body. The role of the Election Commissionof India is to ensure that the democratic process in India does not cometo standstill. The task conferred on the Election Commission isenormous. It has to ensure that periodical elections keep on happening.

22. India has chosen system of direct elections. This means thatelections are supposed to happen at regular intervals where the peopleof India directly participate by exercising their right to vote. TheConstitution also provides for elections where the representatives of thepeople are chosen by an indirect method. These include the elections forthe post of President and Vice-President and the members of StateLegislative Councils. The task to maintain the sanctity of the elections issupposed to be carried out by the Election Commission in fair, transparentand impartial manner, and without any bias or favour. The ElectionCommission has been given wide range of powers towards“superintendence, direction, and control” over the conduct of allelections to Parliament and the Legislature of every State and of electionsto the offices of President and Vice-President held under thisConstitution. The three words “superintendence”, “direction”, and“control” have not been defined in the Constitution but were used in asense to give the widest responsibility to the Election Commission. Inthat sense, the Election Commission becomes one of the most importantas well as central institutions for preserving and promoting the democraticprocess and the structures of democracy on Indian soil. The role of theElection Commission takes much more relevance given the fact thathow the Indian society and polity used to traditionally behave. As chiefarchitect of the constitution, Dr. B.R. Ambedkar once said “Democracyin India is only top-dressing on an Indian soil, which is essentiallyundemocratic.”[5]

5 Constituent Assembly Debates, 4 November 1948, http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C04111948.html

A23. The Election Commission performs its role to ensure that everyperson in the society is able to participate in the process of elections toselect the government. Therefore, the Election Commission in its workingneeds to demonstrate the highest degree of transparency andaccountability. The decisions taken by the Election Commission need togenerate the trust of the people so that the sanctity of the democraticBprocess is maintained. If the Election Commission starts showing anyarbitrary decision-making, then the resulting situation would not just createdoubt on the members of the Election Commission of being biased butwould create fear in the minds of the common citizens that the democraticprocess is being compromised. Therefore, the Election Commission needsCto be independent and fully insulated from any external or internaldisrupting environment. The working of the Commission has to generateconfidence in the minds of the people. In country like India, wheremillions of people still struggle to fulfill their basic needs, it is their rightto vote which gives them hope that they would elect government thatwould help them in crossing the boundaries of deprivation. If this powerDis compromised or taken away even by one slight bad decision or biasesof the members of the Election Commission, it would undoubtedly attackthe very basic structure of Indian democracy. The Indian democracyhas succeeded because of the people’s faith and participation in theelectoral process as well as the everyday work of the institution. As aEconstitutional court of the world’s largest democracy, we cannot allowthe dilution of people’s faith in democratic institutions. The country gainedand adopted democracy after decades of struggle and sacrifices, andthe gains received by us cannot be given away because the institutionsstill continue to operate in an opaque manner.

F24. nine-judge bench of this Court in the case of K.S.Puttaswamy and Another v. Union of India and Others[6 ]held:

“Opacity enures to the benefit of those who monopolize scarceeconomic resources. On the other hand, conditions where civiland political freedoms flourish ensure that governmental policiesGare subjected to critique and assessment. It is this scrutiny whichsub-serves the purpose of ensuring that socio-economic benefitsactually permeate to the underprivileged for whom they are meant.Conditions of freedom and vibrant assertion of civil and politicalrights promote constant review of the justness of socio-economic

H6 (2017) 10 SCC 1

programmes and of their effectiveness in addressing deprivationand want. Scrutiny of public affairs is founded upon the existenceof freedom.”

25. Indian democracy will work only when the institutions whichhave the responsibility to preserve democracy work. Each institution inour Constitution has its demarcated role, which can only be fulfilled ifthe people who are running these institutions are responsible. The peoplewho run these institutions need to be accountable to the people, andtherefore the process of selecting them has to ensure the independenceof the institution.

26. Democracy is not an abstract phenomenon. It has been giveneffect by range of processes. The perception and trust in institutionsare important parameters on which the working of democracy is assessed.The success of democracy, thus, depends on the working of institutionsthat support the pillars of the structure of democracy.

27. Accountability of institutions provides legitimacy not only tothe institutions themselves, but also to the very idea of democracy. Thatis to say, if the institutions are working in fair and transparent manner,then the citizens would be assured that democracy is working. In thatsense, democracy is means to check on officeholders and administratorsand to call them to account. Therefore, the norms and rules governingthese institutions cannot be arbitrary or lack transparency.

28. To strengthen the democratic processes, the institution of theElection Commission needs to be independent and demonstratetransparency and accountability. This reason is enough in itself to callthis Court to examine the institutional structure of the Election Commissionof India.

B. Right to Vote

29. The working of democracy depends on whether the peoplecan decide the fate of the elected form of government. It depends onthe choices which people make in different ways. This choice of peoplecannot be compromised, as their mandate in elections changes thedestinies of government. India is democratic because the people governthemselves. It is republic because the government’s power is derivedfrom its people. Through the electoral process and voting, citizensparticipate in democracy. By voting, citizens take part in the public affairsof the country. Thus, citizens by voting enjoy their right to choose the

Acomposition of their government. It is their choice, and their ability toparticipate. nine-judge bench in the case of K.S. Puttaswamy (Supra)held:

“... it must be realised that it is the right to question, the right toscrutinize and the right to dissent which enables an informedcitizenry to scrutinize the actions of government. Those who areBgoverned are entitled to question those who govern, about thedischarge of their constitutional duties including in the provision ofsocio-economic welfare benefits. The power to scrutinize and toreason enables the citizens of democratic polity to make informeddecisions on basic issues which govern their rights.”

C30. The right to vote is now widely recognized as fundamentalhuman right.[7] However, this was not always the case. The history of theadult franchise tells us that it was limited to the privileged in society.[8] Ittook several decades of struggles by marginalized communities to gainthe right to vote. The right to vote is so intrinsic to the practice ofdemocracy.D

31. It has been argued by the counsel for the Election Commissionof India, that the right to vote is merely statutory right, and since nofundamental right is violated, it does not call the attention of this Court.This Court does not agree with the view argued by the ElectionCommission. Furthermore, it becomes necessary to look at the ConstituentEAssembly Debates to examine the scope of the right to vote.32. The demand for the adult franchise was consistently raisedby several Indian leaders. In their drafts prepared for the considerationof the Constituent Assembly, Dr. BR Ambedkar[9] and KT Shah[10] hadproposed the incorporation of the right to vote in the fundamental rightsportion. This proposal was initially endorsed in the initial draft report ofFthe Fundamental Rights Sub-Committee, which was part of theAdvisory Committee of the Constituent Assembly.[11] The draft provisionalso included sub-clause on an independent Election Commission.Reproduced as follows:

7 https://www.ohchr.org/en/electionsG8BR Ambedkar, “Evidence before the Southborough Committee”, in BabasahebAmbedkar: Writings and Speeches, published by Government of India, Vol. 1, pages243-278

9 BR Ambedkar, “States & Minorities”, in Babasaheb Ambedkar: Writings and Speeches,published by Government of India, Vol. 1., pages 381-541

10 B. Shiva Rao, The Framing of India’s Constitution, Select Documents, Vol. 2, at Page54 (hereinafter “Shiva Rao”)H11 Shiva Rao, at pages 137 & 139 (dated 03.04.1947)

1.“Every citizen not below 21 years of age shall have theright to vote at any election to the Legislature of the Unionand any unit thereof, or, where the Legislature is bicameral,to the lower chamber of the Legislature, subject to suchdisqualifications on the ground of mental incapacity, corruptpractice or crime as may be imposed, and subject to suchqualifications relating to residence within the appropriateconstituency, as may be required by or under the law.

2.The law shall provide for free and secret voting and forperiodical elections to the Legislature.

3.The superintendence, direction and control of all electionsto the Legislature whether of the Union or the unit, includingthe appointment of Election Tribunals shall be vested in anElection Commission for the Union or the unit, as the casemay be, appointed in all cases, in accordance with the lawof the Union.”

33. This shows that the Framers envisaged that the right to votemust be accompanied by provision establishing the ElectionCommission. Constitutional Adviser B.N. Rau’s note on the draft provisionexplains the inclusion of the right to vote as fundamental right: “Clause12. This secures that the right to vote is not refused to any citizenwho satisfies certain conditions. The idea of an Election Commissionto supervise, direct and control all elections is new.”[12]

34. KT Shah however objected to the idea of centralized ElectionCommission. He argued that, “if adopted, would be serious infringementof the rights of Provincial Autonomy; and as such, I think it ought to beeither dropped or reworded, so as not to prejudice the rights of theProvincial Legislature to legislate on such subjects.”[13] The clause onright to vote and the creation of the Election Commission as part of thefundamental rights was then accepted by majority vote by theFundamental Rights Sub-Committee.[14] The clause was then forwardedto the Advisory Committee in the “Report of the Sub-Committee onFundamental Rights” dated April 16, 1947.[15]

12 Shiva Rao, page 14813 ibid, page 15514 Ibid, page 164

15 Ibid, p. 173. Furthermore, the ground for contrary views was only that the right wasbeing extended the States/units. See “Minutes Of Dissent To The Report” dated April17-20, 1947 by KM Panikkar, page 187

A35. The draft prepared by the Fundamental Rights Sub-Committeewas examined by the Minorities Sub-Committee to see if any rightsproposed needed to be “amplified or amended” to protect minority rights.[16]In the Minutes of the Meeting of the Minorities Sub-Committee datedApril 17, 1947, there were two suggestions on the fundamental right tovote and Election Commission. S.P.Mukherjeeproposed, “MinoritiesBshould be adequately represented on the Election Commissionsproposed for the Union and the units”.[17]Jairamdas Daulatramsuggested that “such bodies should be made neutral so that they mayinspire confidence among all parties and communities. Separaterepresentation for the minorities may not be workable.”[18] It was alsoCdecided by the Minorities Sub-Committee on April 18, 1947 “to mentionin [their] report that the Election Commission should be an independentquasi-judicial body.”[19]

36. After the clause on the right to vote passed by the FundamentalRights Sub-Committee and the Minorities Sub-Committee reached forDconsideration before the Advisory Committee, there was serious debateon whether to keep the clause in the fundamental rights chapter or not.Dr. Ambedkar argued for retaining it as fundamental right.[20] He stated:

“… so far as this committee is concerned my point is that weshould support the proposition that the committee is in favour ofEadult suffrage. The second thing we have guaranteed in thisfundamental right is that the elections shall be free and the electionsshall be by secret voting. It shall be by periodical elections... Thethird proposition which this fundamental clause enunciates is thatin order that elections may be free in the real sense of the word,they shall be taken out of the hands of the Government of the day,Fand that they should be conducted by an independent body whichwe may here call an Election Commission.”[21]

37. But this view was disagreed with by several members of theAdvisory Committee. They had an apprehension that such clause maybe objected to in the Constituent Assembly by the representatives of theG16 ibid, page 19917 ibid, page 20118 ibid, page 20119 ibid, page 20520 ibid, page 24721 ibid, page 249-250H

Princely States.[22] C. Rajagopalachari expressed that the future methodof elections was not clear, and hence it was not right to keep detailedclause on the franchise in the fundamental rights. He said:

“My only point is whether it is proper to deal with this as afundamental right or whether we should leave it, or greater partof it, for the consideration of the whole Assembly. I submit wecannot take it for granted that the Union Legislature shall be electedby the direct vote from all citizens from all India. It may be aFederation Constitution. It may be indirectly elected. TheGovernment of the Union may be formed indirectly, so that wecannot assume that every adult or any one whatever the descriptionmay be, shall have direct vote to the Legislature. We cannot laydown proposition here without going into those details. We cannottherefore deal with the subject at all now. Whether there is goingto be direct election or indirect election, that must be settled first.”[23](sic)

38. Dr. Ambedkar tried to resolve the opposition to this clause byarguing that:

“My reply is that this document or report will go before theConstituent Assembly. There will be representatives of the States;there will be representatives of the Muslim League. We shall hearfrom them what objection they have to adult suffrage. If the wholeConstituent Assembly is convinced that while it may be advisableto have adult suffrage for British India, for reasons of some specialcharacter, the Indian States cannot have adult suffrage, and theremust be some sort of restricted suffrage, it will be still open tothe Constituent Assembly to modify our proposals.”[24]

39. Govind Ballabh Pant explained the reason why there was aconcern regarding inclusion of the right to vote in the fundamental rightschapter. He said:

“The only apprehension is that some people belonging to the Statesmay prick the bubble and say that their rights have been interferedwith and so on. They may not be represented. We will have whatwe desire.”[25]

22 Statement of Sardar Patel, p. 249

23 ibid, page 250

24 ibid, page 250

DEF

A40. In response to Pant, the following reply was given by DrAmbedkar:

“While we are anxious that the Indian States should come in, weshall certainly stick to certain principles and not yield simply togather the whole lot of them in our Constitution.”[26]

41. As an alternative, Govind Ballabh Pant suggested that “thisvery clause is sent to the Constituent Assembly, not as part of thesefundamental rights, but included in the letter of the Chairman to theeffect that we recommend to the Constituent Assembly the followingprinciples in regard to the framing of the Constitution.”[27] While Dr.CAmbedkar insisted on his view, the majority of members of the AdvisoryCommittee including Sardar Patel adopted Pant’s suggestion.[28]

42. Accordingly, in the “Minutes of the Meetings of the AdvisoryCommittee” dated April 21, 1947, it was noted: “Clause 13 to be deletedfrom the fundamental rights, but it should be recommended by theDChairman in his report to the Constituent Assembly on behalf of thecommittee, that it be made part of the Union Constitution.”[29] In hisletter addressed to the President of the Constituent Assembly, SardarPatel presented the interim report of the Advisory Committee, whilealso noting that: “While agreeing in principle with this clause, werecommend that instead of being included in the list of fundamental rights,Eit should find place in some other part of the Constitution.”[30]

43. What emerges from this discussion is that there was an initialagreement among the members of the fundamental rights sub-committeeand the minority rights sub-committee that there needs to be clause inthe fundamental rights chapter which should provide for the right toFvote; and the task to conduct free and fair elections, there shall be anindependent body called the Election Commission.However, the clausewas not retained by the Advisory Committee as fundamental rightbecause it was apprehended that the princely states might not agree tothe Union Constitution if that clauseis retained, as India was going throughGa historical period of unification where negotiations were being madewith the princely states to become part of united India. Despite this,

26 ibid, page 25127 ibid, page 25128 ibid, page 251-5229 ibid, page 28830 ibid, page 296H

the Founders retained the right to vote as constitutional right byrecommending that it should find place in the text of the constitution.

44. On 16 June 1949, Dr. B.R. Ambedkar moved the followingclause, providing for the adult franchise:

“289-B: Elections to the House of the People and to theLegislative Assemblies of states to be on the basis of adultsuffrage: The elections to the House of the People and to theLegislative Assembly of every State shall be on the basis of adultsuffrage; that is to say, every citizen, who is not less than twenty-one years of age on such date as may be fixed in this behalf by orunder any law made by the appropriate Legislature and is nototherwise disqualified under this Constitution or any law made bythe appropriate Legislature on the ground of nonresidence,unsoundness of mind, crime or corrupt or illegal practice, shall beentitled to be registered as voter at any such election.”[31]

45. The clause was adopted, which later became Article 326 ofthe Constitution.

46. By virtue of Article 326, the right to vote became constitutionalright granted to citizens. The said right was given effect by Section 62 ofRepresentation of the People (ROP) Act, 1951. Section 62(1) of ROPAct provides: “No person who is not, and except as expressly providedby this Act, every person who is, for the time being entered in the electoralroll of any constituency shall be entitled to vote in that constituency.”The legal position is that the relevant provision of the ROP Act is derivedfrom the text of the Constitution, which in this case, is Article 326.47. However, the judgments of this Court adopted restrictedview of the right to vote for number of decades. In N.P. Ponnuswamiv. Returning Officer, Namakkal Constituency and Others[32](hereinafter “N.P. Ponnuswami”), bench of six judges of this Courtwas dealing with the question whether the High Court under Article 226can have jurisdiction to interfere with the order of the Returning Officerby reason of the provisions of Article 329(b) of the Constitution. Whilethe Court was examining the contours of Article 329(b), it also made the

31 CONSTITUENT ASSEMBLY OF INDIA DEBATES (PROCEEDINGS)- VOLUMEVIII Thursday, the 16th June 1949, Available at:http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C16061949.html32 1952 SCR 218

Afollowing observation: “The right to vote or stand as candidate forelection is not civil right but is creature of statute or special law andmust be subject to the limitations imposed by it.”

48. different view was adopted by Constitution Bench of thisCourt in the case of Mohindhr Singh Gill and Another v. ChiefBElection Commissioner, New Delhi and Others.[33 ](hereinafter“Mohindhr Singh Gill”). The Bench was called on to interpret Articles324 and 329(b) of the Constitution. It noted:

“The most valuable right in democratic polity is the ‘little man’s’little pencil-marking, accenting and dissenting, called his vote....CLikewise, the little man’s right, in representative system ofGovernment to rise to Prime Ministership or Presidentship by useof the right to be candidate cannot be wished away by calling it ofno civil moment. If civics mean anything to self-governing citizenry,if participatory democracy is not to be scuttled by law.... Thestraightaway conclusion is that every Indian has right to electDand be elected and this is constitutional as distinguished from acommon law right and is entitled to cognizance by Courts, subjectto statutory Regulations.”

49. However, subsequent decision of two-judge bench in JyotiBasu and Others v. Debi Ghosal and Others[34 ](hereinafter “JyotiEBasu”) relied upon the position taken by N.P. Ponnuswami (Supra).The two-judge bench was dealing with the specific question who maybe joined as party to an election petition, but went to observe:

“A right to elect, fundamental though it is to democracy, is,anomalously enough, neither fundamental right nor CommonFLaw Right. It is pure and simple, statutory right. So is the rightto be elected. So is the right to dispute an election. Outside ofstatute, there is no right to elect, no right to be elected and no rightto dispute and election. Statutory creations they are, andtherefore,subject tostatutory limitation.”

G50. While the above three decisions made statements of the rightto vote, the issue of interpretation of Article 326, dealing with adultfranchise, had not arisen in these cases. Therefore, the statements madecannot be treated as an authority on the subject.

33 (1978) 1 SCC 405H34 (1982) 1 SCC691

51. In the case of Union of India v. Association for DemocraticReforms and Another[35] (hereinafter “ADR”), this Court wasconsidering whether there is right of the voter to know about thecandidates contesting election. Holding in affirmative, it was held:

“In democracy, periodical electionsare conducted for havingefficient governance for the country and for the benefit of citizens- voters. In democratic form of government, voters are of utmostimportance. They have right to elect or re- elect on the basis ofthe antecedents and past performance of the candidate.The voterhas the choice of deciding whether holding of educationalqualification or holding of property is relevant for electing or re-electing person to be his representative...”

(emphasis added)

52. Amendments were made to ROP Act after ADR judgment.Whether the amendments followed the mandate laid down in ADR werescrutinized by three-judge bench case of People’s Union for CivilLiberties (PUCL) and Another v. Union of India and Another[36](hereinafter “PUCL 2003”). This Courtre-examined the issue ofwhether voter has any fundamental right to know the antecedents/assets of candidate contesting the election under Article 19(1)(a). Anargument was made before this Court that voter does not have such aright, as there is no fundamental right to vote from which the right toknow the antecedents of candidate arises. While the three judges(M.B.Shah, Venkatarama Reddi, D.M. Dharmadhikari, JJ.) unanimously agreedthat the voters have right under Article 19(1)(a) to know the antecedentsof candidate, there was difference on whether the scope of the rightto vote.

53. Referring to N.P. Ponnuswamiand Jyoti Basu judgments,Justice MB Shah held that “there cannot be any dispute that the right tovote or stand as candidate for election and decision with regard toviolation of election law is not civil right but is creature of statute orspecial law and would be subject to the limitations envisaged therein.”He held that, “Merely because citizen is voter or has right to electhis representative as per the [ROP] Act, his fundamental rights couldnot be abridged, controlled or restricted by statutory provisions except

35 (2002) 5 SCC 29436 (2003) 4 SCC 399

Aas permissible under the Constitution.” He stated that whether the rightto vote is statutory right or not does not have any implication on theright to know antecedents, which is part of fundamental right underArticle 19(1)(a). He however also held that democracy based on adultfranchise is part of the basic structure of the Constitution, and that theright of adults to take part in the election process either as voter or aBcandidate could only be restricted by valid law which does not offendconstitutional provisions.

54. Justice Venkatarama Reddi emphasized on the right to vote,and held:

C“The right to vote for the candidate of one’s choice is of the essenceof democratic polity. This right is recognized by our Constitutionand it is given effect to in specific form by the Representation ofthe People Act. The Constituent Assembly debates reveal thatthe idea to treat the voting right as fundamental right was dropped;nevertheless, it was decided to provide for it elsewhere in theDConstitution. This move found its expression in Article 326…”55. He disagreed with the views expressed in N.P.Ponnuswamiand Jyoti Basu, and held:

“the right to vote, if not fundamental right, is certainly aEconstitutional right. The right originates from the Constitution andin accordance with the constitutional mandate contained in Article326, the right has been shaped by the statute, namely, R.P. Act.That, in my understanding, is the correct legal position as regardsthe nature of the right to vote in elections to the House of peopleand Legislative Assemblies. It is not very accurate to describe itFas statutory right, pure and simple.”

56. Justice Venkatarama Reddi then distinguished the constitutionalright to vote with the act of giving vote/freedom of voting. He held:

“a distinction has to be drawn between the conferment of theright to vote on fulfillment of requisite criteria and the culminationGof that right in the final act of expressing choice towards particularcandidate by means of ballot. Though the initial right cannot beplaced on the pedestal of fundamental right, but, at the stagewhen the voter goes to the polling booth and casts his vote, hisfreedom to express arises. The casting of vote in favour of one or

the other candidate tantamounts to expression of his opinion andpreference and that final stage in the exercise of voting right marksthe accomplishment of freedom of expression of the voter. Thatis where Article 19(1)(a) is attracted. Freedom of voting as distinctfrom right to vote is thus species of freedom of expression andtherefore carries with it the auxiliary and complementary rightssuch as right to secure information about the candidate which areconducive to the freedom. None of the decisions of this Courtwherein the proposition that the right to vote is pure and simplestatutory right was declared and reiterated, considered the questionwhether the citizen’s freedom of expression is or is not involvedwhen citizen entitled to vote casts his vote in favour of one orthe other candidate…”

In his conclusions, he noted:

“The right to vote at the elections to the House of people orLegislative Assembly is constitutional right but not merely astatutory right; freedom of voting as distinct from right to vote is afacet of the fundamental right enshrined in Article 19(1)(a). Thecasting of vote in favour of one or the other candidate marks theaccomplishment of freedom of expression of the voter.”

57. Justice DM Dharmadhikari expressed his agreement with theview taken by Justice Venkatarama Reddi, thus making it majoritydecision holding that the right to vote is constitutional right. Even JusticeShah had held that the right of adults to take part in the election processas voter could only be restricted by valid law which does not offendconstitutional provisions.

58. An argument based on the majority view in PUCL 2003 wasput forth before Constitution Bench of this Court in Kuldip Nayarand Others v. Union of India and Others[37](hereinafter “KuldipNayar”). It was argued that right to vote is constitutional right besidesthat it is also facet of fundamental right under Article 19(1)(a) of theConstitution. The Constitution bench rejected the argument. It was held:

“The argument of the petitioners is that the majority view in thecase of People’s Union for Civil Liberties, therefore, was that aright to vote is constitutional right besides that it is also facetof fundamental right under Article 19(1)(a) of the Constitution.

37 (2006) 7 SCC 1

AWe do not agree with the above submission. It is clear that finedistinction was drawn between the right to vote and the freedomof voting as species of freedom of expression, while reiteratingthe view in Jyoti Basu v. Debi Ghosal (supra) that right to elect,fundamental though it is to democracy, is neither fundamentalright nor common law right, but pure and simple, statutoryBright.

Even otherwise, there is no basis to contend that the right to voteand elect representatives of the State in the Council of States is aConstitutional right. Article 80(4) merely deals with the mannerof election of the representatives in the Council of States as anCaspect of the composition of the Council of States. There is nothingin the Constitutional provisions declaring the right to vote in suchelection as an absolute right under the Constitution.”

59. The Constitution Bench in Kuldip Nayar seems to have missedthe point that Justice Venkatarama Reddi’s opinion in PUCL 2003 thatDthe right to vote is constitutional right was explicitly concurred by JusticeDharmadhikari. Therefore, Kuldip Nayar’s view that PUCL 2003considered the right to vote/elect as statutory right does not seem toportray the correct picture.

60. In Desiya Murpokku Dravida Kazhagam and Another v.EElection Commission of India,[38 ] three-judge bench was consideringa challenge to the constitutional validity of the amendment of the ElectionSymbols (Reservation and Allotment) Order, 1968, which mandated thatin order to be recognized as State party in the State, political partywould have to secure not less than 6% of the total valid votes polled inthe State and should also have returned at least 2 members to theFLegislative Assembly of the State. The counsel for the ElectionCommission of India in the case had argued that since the right to votewas statutory right, it could not be questioned by way of writ petition.The majority by 2:1 upheld the amendment. However, JusticeChelameswar wrote dissenting opinion. The dissenting judge alsoGaddressed the counsel for the Election Commission of India that theright to vote is merely statutory right. He held:

“The right to elect flows from the language of Articles 81 and 170r/w Articles 325 and 326. Article 326 mandates that the election to the

Lok Sabha and legislative Assemblies shall be on the basis of AdultSuffrage, i.e., every citizen, who is of 18 years of age and is not otherwisedisqualified either under the Constitution or Law on the ground specifiedin the Article Shall Be entitled to be registered as voter. Article 325mandates that there shall be one general electoral roll for every territorialconstituency. It further declares that no person shall be ineligible forinclusion in such electoral roll on the grounds only of religion, race, caste,sex, etc. Articles 81 and 170 mandate that the members of the LokSabha and Legislative Assembly are required to be Chosen by DirectElection from the territorial constituencies in the States. The States aremandated to be divided into territorial constituencies under Articles 81(2)(b) and 170(2)17. The cumulative effect of all the above mentionedprovisions is that the Lok Sabha and the Legislative Assemblies are toconsist of members, who are to be elected by all the citizens, who are of18 years of age and are not otherwise disqualified, by valid law, to bevoters. Thus, Constitutional right is created in all citizens, who are 18years of age to choose (participate in the electoral process) the membersof the Lok Sabha or the Legislative Assemblies. Such right can berestricted by the appropriate Legislature only on four grounds specifiedunder Article 326.”

61. Justice Chelameswar also clarified that the question whetherthe right to vote or contest at any election to the Legislative Bodiescreated by the Constitution did not arise in the case of N.P. Ponnuswami,which is cited as an authority on the right to vote. He noted:

“With due respect to their Lordships, I am of the opinion that boththe statements (extracted above) are overbroad statements madewithout complete analysis of the scheme of the Constitutionregarding the process of election to the Legislative Bodies adoptedin subsequent decisions as complete statement of law. classicalexample of the half truth of one generation becoming the wholetruth of the next generation.”

62. The majority decision in this case did not record anydisagreement regarding the conclusion that the right to participate in theelectoral process, either as voter or as candidate, is constitutionalright.

63. In 2013, the correctness of ADR and PUCL 2003 was doubtedbefore three judge-bench of this Court in People’s Union for Civil

ALiberties and Another v. Union of India and Another[39](PUCL2013). In this case, the validity of certain rules of the Conduct of ElectionRules, 1961 to the extent that these provisions violate the secrecy ofvoting which is fundamental to the free and fair elections. It was putforward that the Constitution bench judgment in Kuldip Nayar createda doubt on ADR and PUCL 2003. The three-judge bench in PUCLB2013 held that “Kuldip Nayar does not overrule the other two decisionsrather it only reaffirms what has already been said by the two aforesaiddecisions”. However, the three-judge bench went on to note that:

“… there is no contradiction as to the fact that right to vote isneither fundamental right nor Constitutional right but pureCand simple statutory right. The same has been settled in catenaof cases and it is clearly not an issue in dispute in the presentcase.”

64. While the scope of the right to vote was not before PUCL2013, but it went on to observe that the right to vote is only statutoryDright. But, the three-judge bench in PUCL 2013 followed ADR andPUCL 2003 to reiterate that “[t]he casting of the vote is facet of theright of expression of an individual and the said right is providedunder Article 19(1)(a) of the Constitution of India”, and therefore, primafacie case existed for the exercise of jurisdiction of this Court underEArticle 32. The bench concluded that:

“No doubt, the right to vote is statutory right but it is equally vitalto recollect that this statutory right is the essence of democracy.Without this, democracy will fail to thrive. Therefore, even if theright to vote is statutory, the significance attached with the right isFmassive. Thus, it is necessary to keep in mind these facets whiledeciding the issue at hand.”

65. clarity on the status of the right to vote was given in thejudgment in Raj Bala v. State of Haryana and Others.[40] JusticeChelameswar and Justice Sapre gave separate concurring opinions. AfterGanalysing the previous decisions of this Court, Justice Chelameswar cameto the conclusion that “every citizen has constitutional right to electand to be elected to either Parliament or the State legislatures.” JusticeSapre reiterated the view taken in PUCL 2003 that the “right to vote”is constitutional right but not merely statutory right.

39 (2013) 10 SCC 1H40 (2016) 1 SCC 463

66. What emerges from this detailed discussion is that there hasbeen conflicting view on the status of the right to vote. This gives anopportunity for us to authoritatively hold that the right to vote is not justa statutory right. In our view, we must look beyond that. Our decision toanalyse the contours of the right to vote is facilitated by the reasoningprovided by the nine-judge bench in K.S. Puttaswamy. In that case, aplea was made that since privacy was not included as fundamentalright in the original Constitution, it cannot be declared fundamentalright. The bench rejected this argument, and held:“it cannot be concluded that the Constituent Assembly hadexpressly resolved to reject the notion of the right to privacy as anintegral element of the liberty and freedoms guaranteed by thefundamental rights... The interpretation of the Constitution cannotbe frozen by its original understanding. The Constitution hasevolved and must continuously evolve to meet the aspirations andchallenges of the present and the future.”

67. In the instant case, the provision on adult franchise is in Article326 of the Constitution. An analysis of Constituent Assembly Debatesshows that it was initially considered as fundamental right in theproceedings of the Advisory Committee. The only reason why it wasshifted from fundamental rights status to another constitutional provisionwas that the founders did not want to offend the Princely States, withwhom they were negotiating to be part of united India. Otherwise,they had stressed the importance of the right to vote and universal adultfranchise. Seventy-five years after Independence, we have theopportunity to realize their absolute vision by recognizing what they couldnot due to socio-political circumstances of their time. When theConstitution came into force, what were known as Princely Statesbecame part of India, and accepted direct elections as method ofchoosing the government. These areas have now been included indifferent states. Therefore, there has been no objection to the right tovote.

68. The right to take part in the conduct of public affairs as avoter is the core of the democratic form of government, which is basicfeature of the Constitution. The right to vote is an expression of thechoice of the citizen, which is fundamental right under Article 19(1)(a).The right to vote is part of citizen’s life as it is their indispensable toolto shape their own destinies by choosing the government they want. In

Athat sense, it is reflection of Article 21. In history, the right to vote wasdenied to women and those were socially oppressed. Our Constitutiontook visionary step by extending franchise to everyone.[41] In that way,the right to vote enshrines the protection guaranteed under Article 15and 17. Therefore, the right to vote is not limited only to Article 326, butflows through Article 15, 17, 19, 21. Article 326 has to be read alongBwith these provisions. We therefore declare the right to vote in directelections as fundamental right, subject to limitations laid down in Article326. This Court has precedents to support its reasoning. In UnnikrishnanJ.P. and Others v. State of Andhra Pradesh and Others,[42 ] thisCourt read Article 45 and 46 along with Article 21 to hold that the rightCto education is fundamental right for children between the age groupof 6-14.

69. Now that we have held that the right to vote is not merely aconstitutional right, but component of Part III of the Constitution aswell, it raises the level of scrutiny on the working of the ElectionDCommission of India, which is responsible for conducting free and fairelections. As it is question of constitutional as well as fundamentalrights, this Court needs to ensure that the working of the ElectionCommission under Article 324 facilitates the protection of people’s votingrights.

EC. Free and Fair Elections

70. Democracy works when the citizens are given chance todecide the fate of the ruling government by casting their vote in periodicalelections. The faith of the citizens in the democratic processes is ensuredby conducting free and fair elections through an independent and neutralFagency.

71. Free and fair elections have been enshrined as precedentfor the working of democracy in global conventions and rights-basedframeworks. The Universal Declaration of Human Rights 1948recognizes that:G“1. Everyone has the right to take part in the government of hiscountry, directly or through freely chosen representatives.

2. Everyone has the right of equal access to public service in hiscountry.

41 https://journals.library.brandeis.edu/index.php/caste/article/view/282/63H42 (1993)1 SCR594

3. The will of the people shall be the basis of the authority ofgovernment; this will shall be expressed in periodic and genuineelections which shall be by universal and equal suffrage and shallbe held by secret vote or by equivalent free voting procedures.”[43]

72. Article 25 of the International Covenant on Civil and PoliticalRights provides:

“Every citizen shall have the right and the opportunity, withoutany of the distinctions mentioned in article 2 and withoutunreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or throughfreely chosen representatives;

(b) To vote and to be elected at genuine periodic elections whichshall be by universal and equal suffrage and shall be held by secretballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public servicein his country.”

73. India is committed to these international frameworks. ThisCourt has previously read India’s obligation to international frameworksto recognise new areas of constitutional discourse, which are explicitlynot covered by the provisions of the Constitution or where there is aconstitutional vacuum.[44] But free and fair elections have been recognisedas an essential feature of the democratic apparatus by the judgments ofthis Court as well.

74. In Indira Nehru Gandhi Smt v. Shri Raj Narain andAnother,[45 ]Justice HR Khanna held in his opinion:

“All the seven Judges [in Kesavananda Bharti case] whoconstituted the majority were also agreed that democratic set-upwas part of the basic structure of the Constitution. Democracypostulates that there should be periodical election, so that peoplemay be in position either to re-elect the old representatives or, ifthey so choose, to change the representatives and elect in theirplace other representative. Democracy further contemplates thatthe elections should be free and fair, so that the voters may be in

43 Article 21, Universal Declaration of Human Rights

44 Vishakha v. State of Rajasthan, AIR 1997 SC 3011

45 AIR 1975 SC 2299

Aa position to vote for candidates of their choice. Democracy canindeed function only upon the faith that elections are free and fairand not rigged and manipulated, that they are effective instrumentsof ascertaining popular will both in reality and form and are notmere rituals calculated to generate illusion of deference to massopinion. Free and fail elections require that the candidates andBtheir agents should not resort to unfair means or malpractices asmay impinge upon the process of free and fair elections.”

75. For conducting free and fair elections, an independent body inthe form of Election Commission is must. In Mohindhr Singh Gill, aConstitution Bench was called to interpret Article 324 and Article 329(b)Cof the Constitution. emphasized on the connection between electionsand the role of the Election Commission. Justice Krishna Iyer (speakingfor Chief Justice Beg, Justice Bhagwati, and himself) stated:

“Democracy is government by the people. It is continualparticipative operation, not cataclysmic, periodic exercise. TheDlittle man, in his multitude, marking his vote at the poll does asocial audit of his Parliament plus political choice of this proxy.Although the full flower of participative Government rarelyblossoms, the minimum credential of popular Government is appealto the people after every term for renewal of confidence. SoEwe have adult franchise and general elections as constitutionalcompulsions. “The right of election is the very essence of theconstitution” (Junius). It needs little argument to hold that the heartof the Parliamentary system is free and fair elections periodicallyheld, based on adult franchise, although social and economicdemocracy may demand much more.”F

76. It was emphasized by Justice Krishna Iyer:

“The Election Commission is an institution of central importanceand enjoys far-reaching powers and the greater the power to affectothers’ right or liabilities the more necessary the need to hear.”

G77. Justice PK Goswami in his concurring opinion (for himself &PN Singhal) held:

“Elections supply the visa viva to democracy. It was, therefore,deliberately and advisedly thought to be of paramount importancethat the high and independent office of the Election CommissionHshould be created under the Constitution to be in complete charge

of the entire electoral process commencing with the issue of thenotification, by the President to the final declaration of the result.”

78. Justice Goswami further emphasized on the need ofindependence of the Election Commission in the following words:

“The Election Commission is high-powered and independentbody which is irremovable from office except in accordance withthe provisions of the Constitution relating” to the removal of Judgesof the Supreme Court and is intended by the framers of theConstitution, to be kept completely free from any pulls andpressures that may be brought through political influence in ademocracy run on party system.”

79. The importance of periodical elections was also emphasizedin the Constitution Bench decision in Manoj Narula v. Union of India,[46]which held:

“In the beginning, we have emphasized on the concept ofdemocracy which is the corner stone of the Constitution. Thereare certain features absence of which can erode the fundamentalvalues of democracy. One of them is holding of free and fairelection by adult franchise in periodical manner… for it is theheart and soul of the parliamentary system.”

80. Thus, the role of the Election Commission is integral toconducting free and fair elections towards the working of democracy. Itis the duty and constitutional obligation of this Court to protect and nurturethe independence of the Election Commission.

IV. Constitutional and statutory framework: TheConstitutional Vacuum

81. Article 324 of the Constitution provides that superintendence,direction and control of elections shall be vested in an ElectionCommission. Clause 1 of Article 324 provides:

“The superintendence, direction and control of the preparation ofthe electoral rolls for, and the conduct of, all elections to Parliamentand to the Legislature of every State and of elections to the officesof President and Vice-President held under this Constitution shallbe vested in Commission (referred to in this Constitution as theElection Commission).”

46 (2014) 9 SCC1

A82. The composition of the Election Commission is provided underClause (2) of Article 324. It provides:

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

83. Article 324(3) states that the Chief Election Commissionershall act as the Chairman of the Election Commission.

84. Clause (5) of Article 324 deals with conditions of service andtenure of office of the Election Commissioner. It provides that:

“Subject to the provisions of any law made by Parliament, theconditions of service and tenure of office of the ElectionCommissioners and the Regional Commissioners shall be such asDthe President may by rule determine: Provided that the ChiefElection Commissioner shall not be removed from his office exceptin like manner and on the like grounds as Judge of the SupremeCourt and the conditions of service of the Chief ElectionCommissioner shall not be varied to his disadvantage after hisEappointment: Provided further that any other ElectionCommissioner or Regional Commissioner shall not be removedfrom office except on the recommendationof theChiefElectionCommissioner.”

85. What comes out of this provision is that the Office of theFChief Election Commissioner stands on higher constitutional pedestal,as he is given equivalence to Judge of the Supreme Court in matters ofremoval. The other thing which comes out is that “the conditions ofservice of the Chief Election Commissioner shall not be varied to hisdisadvantage after his appointment.” That is to say, the independencecannot be indirectly diluted by creating unwarranted conditions of service.GLastly, wide discretion has been vested with the Chief ElectionCommissioner to seek removal of any other Election Commissioner or aRegional Commissioner.

86. It has been argued before us that there exists constitutionalvacuum in the method of selection of the Chief Election CommissionerHand other Election Commissioners, and nothing has been provided under

Article 324. It has been argued that as the Executive (through President)is making these appointments, it reduces the independence of the ElectionCommission. Furthermore, it was pointed out that the term and tenure ofthe Election Commissioners also need to be streamlined in order to ensureabsolute independence of the Election Commission and to prevent anyarbitrary or biased decision to be taken by the Chief ElectionCommissioner.

87. It has been argued by the learned Attorney General that theconditions of service and tenure of the Chief Election Commissionerand Election Commissioners is already governed by the Act, 1991.

88. The Act provides “the conditions of service of the ChiefElection Commissioner and other Election Commissioners to provide forthe procedure and for transaction of business by the Election Commissionand for matters] connected therewith or incidental thereto”. The Actdeals with salary (Section 3), tenure/term of office (Section 4), leave(Section 5), pension (Section 6), and other conditions of service (Section8).

89. The term of office provided under Section 4 for the ChiefElection Commissioner or an Election Commissioner is “of six yearsfrom the date on which he assumes his office”, subject to the provisothat “where the Chief Election Commissioner or an Election Commissionerattains the age of sixty-five years before the expiry of the said term ofsix years, he shall vacate his office on the date on which he attains thesaid age”. Section 4 thus does not provide mandatory 6 years of term.

90. An analysis of the provisions of the Act also indicates thatthere is nothing provided in terms of the selection process of the ChiefElection Commissioner or the Election Commissioners. Thus, whatemerges from this discussion is that both Article 324 and the Act, 1991are silent on the selection process of the Chief Election Commissionerand the Election Commissioners. There also appears to be lacunae inensuring independence as the Actindirectly provides discretion to theExecutive to appoint someone close to retirement at the age of 65 as theChief Election Commissioner or the Election Commissioner, and thuswill not be able to take the full term of 6 years.

91. We need to look at the Constituent Assembly Debates toexamine the level of independence which was expected from the ElectionCommission. Moving the draft Article on the Election Commission before

Athe Constituent Assembly on 15 June 1949, Dr BR Ambedkar explainedthe vision behind the provision was independence from the executive inconducting elections. Dr Ambedkar said:

“... the House affirmed without any kind of dissent that in theinterests of purity and freedom of elections to the legislative bodies,Bit was of the utmost importance that they should be freed fromany kind of interference from the executive of the day… Therefore,so far as the fundamental question is concerned that the electionmachinery should be outside the control of the executiveGovernment, there has been no dispute. What Article 289 does isto carry out that part of the decision of the Constituent Assembly.CIt transfers the superintendence, direction and control of thepreparation of the electoral rolls and of all elections to Parliamentand the Legislatures of States to body outside the executive tobe called the Election Commission. That is the provision containedin sub-clause (1).”[47]

D92. The reason behind having permanent office of Chief ElectionCommissioner was explained by Dr Ambedkar as follows:

“-What the Drafting Committee proposes by subclause (2) is tohave permanently in office one man called the Chief ElectionCommissioner, so that the skeleton machinery would always beEavailable.Elections no doubt will generally take place at the endof five years; but there is this question, namely that bye-electionmay take place at any time. The Assembly may be dissolved beforeits period of five years has expired. Consequently, the electoralrolls will have to be kept up to date all the time so that the newelection may take place without any difficulty. It was thereforeFfelt that having regard to these exigencies, it would be sufficient ifthere was permanently in session one officer to be called theChief Election Commissioner, while when the elections are comingup, the President may further add to the machinery by appointingother members to the Election Commission.”G93. The above statement suggests that the office of the ChiefElection Commissioner requires kind of permanency, which may befulfilled by having someone with stable full term as the Chief ElectionCommission.47 Constituent Assembly Debates, 15 June 1949,Hhttp://164.100.47.194/loksabha/writereaddata/cadebatefiles/C15061949.html

94. Regarding the conditions of service, Dr Ambedkar said:

“So far as clause (4) is concerned, we have left the matter to thePresident to determine the conditions of service and the tenure ofoffice of the members of the Election Commission, subject to oneor two conditions, that the Chief Election Commissioner shall notbe liable to be removed except in the same manner as Judge ofthe Supreme Court. If the object of this House is that all mattersrelating to Elections should be outside the control of the ExecutiveGovernment of the day, it is absolutely necessary that the newmachinery which we are setting up, namely, the ElectionCommission should be irremovable by the executive by merefiat. We have therefore given the Chief Election Commissionerthe same status so far as removability is concerned as we havegiven to the Judges of the Supreme Court. We, of course, do notpropose to give the same status to the other members of theCommission. We have left the matter to the President as to thecircumstances under which he would deem fit to remove anyother member of the Election Commission; subject to one conditionthat-the Chief Election Commissioner must recommend that theremoval is just and proper.”

95. However, Shibban Lal Saxena pointed out that the draftprovision may favour the Executive in the appointment of the ChiefElection Commissioner and the Election Commissioners, and thereforeappealed for change in the provision. He argued:

“If the President is to appoint this Commission, naturally it meansthat the Prime Minister appoints this Commission. He will appointthe other Election Commissioners on his recommendations. Now,this does not ensure their independence. Of course once he isappointed, he shall not be removable except by 2/3rd majority ofboth Houses. That is certainly something which can instillindependence in him, but it is quite possible that some party inpower who wants to win the next election may appoint staunchparty-man as the Chief Election Commissioner. He is removableonly by 2/3rd majority of both Houses on grave charges, whichmeans he is almost irremovable. So what I want is this that eventhe person who is appointed originally should be such that he shouldbe enjoying the confidence of all parties his appointment shouldbe confirmed not only by majority but by two-thirds majority of

both the Houses…Of course, there is danger when one party isin huge majority. Still, if he does appoint party-man, and theappointment comes up for confirmation in joint session, even asmall opposition or even few independent members can downthe Prime Minister before the bar of public opinion in the world.”

B96. On 16 June 1949, Hirday Nath Kunzru echoed similarsentiment, and also highlighted the issues regarding the removal of theElection Commissioners. He said:

“Here two things are noticeable: the first is that it is only the ChiefElection Commissioner that can feel that he can discharge hisduties without the slightest fear of incurring the displeasure of theexecutive, and the second is that the removal of the other ElectionCommissioners will depend on the recommendations of one manonly, namely the Chief Election Commissioner. Howeverresponsible he may be it seems to me very undesirable that theremoval of his colleagues who will occupy positions as.responsibleas those of judges of the Supreme Court should depend on theopinion of one man. We are anxious, Sir, that the preparation ofthe electoral rolls and the conduct of elections should be entrustedto people who are free from political bias and whose impartialitycan be relied upon in all circumstances. But, by leaving greatdeal of power in the hands of the President we have given room

for the exercise of political influence in the appointment of theChief Election Commissioner and the other ElectionCommissioners and officers by the Central Government. The ChiefElection Commissioner will have to be appointed on the advice ofthe Prime Minister, and, if the Prime Minister suggests theappointment of party-man, the President will have no option butto accept the Prime Minister’s nominee, however unsuitable hemay be on public grounds.”

97. He warned thus:

“If the electoral machinery is defective or is not efficient or isworked by people whose integrity cannot be depended upon,democracy will be poisoned at the source; nay, people, instead oflearning from elections how they should exercise their vote, howby judicious use of their vote they can bring about changes inthe Constitution and reforms in the administration, will learn onlyhow parties based on intrigues can be formed and what unfairmethods they can adopt to secure what they want.”

98. Dr Ambedkar agreed with the points made by Saksena andKunzru, and said:

“...with regard to the question of appointment I must confess thatthere is great deal of force in what my Friend Professor Saksenasaid that there is no use making the tenure of the ElectionCommissioner fixed and secure tenure if there is no provision inthe Constitution to prevent either fool or knave or personwho is likely to be under the thumb of the Executive. Myprovision—I must admit—does not contain anything to provideagainst nomination of an unfit person to the post of the ChiefElection Commissioner or the other Election Commissioners…”

99. The solution which Dr Ambedkar gave was that the ConstituentAssembly should adopt as “Instrument of Instructions to the President”,which may consist of the guidelines according to which the Presidenthas to make the appointments. He said:

“The Drafting Committee had paid considerable attention to thisquestion because as I said it is going, to be one of our greatestheadaches and as viamedia it was thought that if this Assemblywould give or enact what is called an Instrument of Instructionsto the President and provide therein some machinery which itwould be obligatory on the President to consult before makingany appointment, I think the difficulties which are felt as resulting…may be obviated and the advantage which is contained thereinmay be secured.”100. He, however, added that since he was unsure whether theAssembly would adopt his suggestion of Instrument of Instructions, hesuggested an amendment to the effect that “The appointment of theChief Election Commissioner and other Election Commissioners shall,subject to the Provisions of any law made in this behalf by Parliament,be made by the President.” This is incorporated currently in Article324(2). The idea behind this amendment was that the “law made in thisbehalf by Parliament” would address the concerns and fear raised bymembers of the Constituent Assembly that the Executive should nothave the exclusive say in the appointment of the Chief ElectionCommissioner and the Election Commissioners. However, we find thatthe Act, 1991 does not cover any aspect highlighted in the ConstituentAssembly. It is for this reason that this Court needs to lay down certainbroader parameters to fill the constitutional/legislative gap.

216SUPREME COURT REPORTS

AV. The Judgment in TN Seshan

101. It would be relevant to quote the following excerpt from theConstitution-bench judgment of this Court in T.N. Seshan, Chief ElectionCommissioner of India v. Union of India and Others[48]:

“10. The Preamble of our Constitution proclaims that we are aBDemocratic Republic. Democracy being the basic feature of ourconstitutional set-up, there can be no two opinions that free andfair elections to our legislative bodies alone would guarantee thegrowth of healthy democracy in the country. In order to ensurethe purity of the election process it was thought by our Constitution-Cmakers that the responsibility to hold free and fair elections in thecountry should be entrusted to an independent body which wouldbe insulated from political and/or executive interference. It isinherent in democratic set-up that the agency which is entrustedthe task of holding elections to the legislatures should be fullyinsulated so that it can function as an independent agency freeDfrom external pressures from the party in power or executive ofthe day.”

102. In that case, petition challenged the validity of “The ChiefElection Commissioner and other Election Commissioners (Condition ofService) Amendment Ordinance, 1993” (hereinafter called ‘theEOrdinance’) to amend the Act, 1991. While upholding the amendment,the court discussed the role of the election commission being multimember body and the relation between CEC and other ECs. Someimportant points highlighted were as follows:

“The ECs and the RCs have been assured independence ofFfunctioning by providing that they cannot be removed except onthe recommendation of the CEC. Of course, the recommendationfor removal must be based on intelligible, and cogent considerationswhich would have relation to efficient functioning of the ElectionCommission. That is so because this privilege has been conferredon the CEC to ensure that the ECs as well as the RCs are not atGthe mercy of political or executive bosses of the day…. If,therefore, the power were to be exercisable by the CEC as perhis whim and caprice, the CEC himself would become aninstrument of oppression and would destroy the independence of

48 (1995) 4 SCC 611

the ECs and the RCs if they are required to function under thethreat of the CEC recommending their removal. It is, therefore,needless to emphasise that the CEC must exercise this poweronly when there exist valid reasons which are conducive to efficientfunctioning of the Election Commission.”

Held further:

“15. We have already highlighted the salient features regardingthe composition of the Election Commission. We have pointedout the provisions regarding the tenure, conditions of service,salary, allowances, removability, etc., of the CEC, the ECs andthe RCs. The CEC and the ECs alone constitute the ElectionCommission whereas the RCs are appointed merely to assistthe Commission…”

Furthermore:

“17. Under clause (3) of Article 324, in the case of multi-member Election Commission, the CEC “shall act” as theChairman of the Commission. As we have pointed out earlier,Article 324 envisages permanent body to be headed by apermanent incumbent, namely, the CEC. The fact that the CECis permanent incumbent cannot confer on him higher statusthan the ECs for the simple reason that the latter are notintended to be permanent appointees. Since the ElectionCommission would have staff of its own dealing with mattersconcerning the superintendence, direction and control of thepreparation of electoral rolls, etc., that staff would have tofunction under the direction and guidance of the CEC and henceit was in the fitness of things for the Constitution-makers toprovide that where the Election Commission is multi-memberbody, the CEC shall act as its Chairman. That would also ensure”continuity and smooth functioning of the Commission.

Also, held:

“21. We have pointed out the distinguishing features fromArticle 324 between the position of the CEC and the ECs. It isessentially on account of their tenure in the Election Commissionthat certain differences exist. We have explained why in thecase of ECs the removability clause had to be different. Thevariation in the salary, etc., cannot be determinative factor

Aotherwise that would oscillate having regard to the fact thatthe executive or the legislature has to fix the conditions ofservice under clause (5) of Article 324. The only distinguishingfeature that survives for consideration is that in the case of theCEC his conditions of service cannot be varied to hisdisadvantage after his appointment whereas there is no suchBsafeguard in the case of ECs. That is presumably because theposts are temporary in character. But even if it is not so, thatfeature alone cannot lead us to the conclusion that the finalword in all matters lies with the CEC. Such view would renderthe position of the ECs to that of mere advisers which does notCemerge from the scheme of Article 324.”

(emphasis added)

103. The judgment in T.N. Seshan did not directly consider theissues which are before this Bench. Furthermore, the observations madein T.N. Seshan indicate that the Election Commissioners were not mereDadvisors, but have crucial constitutional role.

VI.Reports of Various Commissions on Manner ofAppointment of Chief Election Commissioner and ElectionCommissioners:

A. Dinesh Goswami Commission, 1990[49]

E“Appointment of CEC

1. The appointment of the Chief Election Commissioner shouldbe made by the President in consultation with the Chief Justiceof India and the Leader of the Opposition (and in case noLeader of the opposition is available, the consultation shouldFbe with the leader of the largest opposition group in the LokSabha).

2. The consultation process should have statutory backing.

3. The appointment of the other two Election Commissionersshould be made in consultation with the Chief Justice of India,GLeader of the Opposition (in case the Leader of the oppositionis not available, the consultation should be with the leader of

49 Dinesh Goswami Commission (1990), Chapter II, Electoral Machinery, pg. 9, 10,Available at:

https://adrindia.org/sites/default/files/Dinesh%20Goswami%20Report%20on%20Electoral%20Reforms.pdfH

the largest opposition group in the Lok Sabha) and the ChiefElection Commissioner.”

B. National Commission to Review the Working ofConstitution-Report (2002)[50]

“(62) The Chief Election Commissioner and the other ElectionCommissioners should be appointed on the recommendation of abody consisting of the Prime Minister, Leader of the Opposition inthe Lok Sabha, Leader of the Opposition in the Rajya Sabha, theSpeaker of the Lok Sabha and the Deputy Chairman of the RajyaSabha. Similar procedure should be adopted in the case ofappointment of State Election Commissioners. [Para 4.22]”

C. Election Commission of India Proposed Reforms(2004)[51]

“The independence of the Election Commission upon which theConstitution makers laid so much stress in the Constitution wouldbe further strengthened if the Secretariat of the ElectionCommission consisting of officers and staff at various levels isalso insulated from the interference of the Executive in the matterof their appointments, promotions, etc., and all such functions areexclusively vested in the Election Commission on the lines of theSecretariats of the Lok Sabha, and Rajya Sabha, Registries of theSupreme Court and High Courts, etc. The Independent Secretariatis vital to the functioning of the Election Commission as anindependent constitutional authority. In fact, the provision of anindependent Secretariat to the Election Commission has alreadybeen accepted in principle by the Goswami Committee on ElectoralReforms and the Government had, in the Constitution (SeventiethAmendment) Bill, 1990, made provision also to that effect. ThatBill was, however, withdrawn in 1993 as the Government proposedto bring in more comprehensive Bill.”

50 National Commission to Review the Working of Constitution-Report (2002) Para4.22, pg. 14 , Available at:

https://www.thehinducentre.com/multimedia/archive/03091/ncrwc_3091109a.pdf51 Election Commission of India Proposed Reforms (2004), 12. COMPOSITION OFELECTION COMMISSION AND CONSTITUTIONAL PROTECTION OF ALLMEMBERS OF THE COMMISSION AND INDEPENDENT SECRETARIAT FORTHE COMMISSION, Pg. 14, 15, available at:

t t p s : / / p r s i n i . o r / i l s / i l l s _ t s / i l l s _ p r l i m n t / 2 0 0 8 /bill200_20081202200_Election_Commission_Proposed_Electoral_Reforms.pdf

DEF

AD. Report of Second Administrative Reform Commission(2009)[52]

“In recent times, for statutory bodies such as the National HumanRights Commission (NHRC) and the Central VigilanceCommission (CVC) , appointment of Chairperson and Membersare made on the recommendations of broad based Committee.Given the far reaching importance and critical role of the ElectionCommission in the working of our democracy, it would certainlybe appropriate if similar collegium is constituted for selection ofthe Chief Election Commissioner and the Election Commissioners.”

CE. Background Paper on Electoral Reform, Ministry ofLaw & Justice (2010)[53]

“Recommendation

Clause (5) of Article 324 of the Constitution, inter alia, providesthat the Chief Election Commissioner shall not be removed fromDhis office except in like manner and on like grounds as Judge ofthe Supreme Court. However, Clause (5) of Article 324 does notprovide similar protection to the Election Commissioners and itonly says that they cannot be removed from office except on therecommendation of the Chief Election Commissioner. Theprovision, in the opinion of the Election Commission, is inadequateEand requires an amendment to provide the very same protectionand safeguard in the matter of removability of ElectionCommissioners from office as is provided to the Chief ElectionCommissioner. The Election Commission recommends thatconstitutional protection be extended to all members of the ElectionCommission.F

The Election Commission also recommends that the Secretariatof the Election Commission, consisting of officers and staff atvarious levels is also insulated from the interference of theExecutive in the matter of their appointments, promotions, etc.,and all such functions are exclusively vested in the ElectionGCommission on the lines of the Secretariats of the Lok Sabha,

52 Report of Second Administrative Reform Commission (2009), Pg. 79, Available at:https://darpg.gov.in/en/arc-reports

53 Background Paper on Electoral Reform, Ministry of Law & Justice (2010), 6.3Measures for Election Commission, pg. 19, Available at:https://lawmin.gov.in/sites/default/files/bgp_0.docH

and Rajya Sabha, Registries of the Supreme Court and High Courtsetc.

The third recommendation of the Election Commission is that itsbudget be treated as “Charged” on the Consolidated Fund ofIndia.”

F. Law Commission of India Report, 2015 (255[th] Report)[54]

104. Taking note of the important role played by the ElectionCommission of India i.e., the task of conducting elections throughout thecountry, the Law Commission in its 255[th] Report emphasized that theCommission should be completely insulated from political pressure orexecutive interference to maintain the purity of elections, inherent in ademocratic process, and recommended:

“Appointment of Chief Election Commissioner and ElectionCommissioners – (1) The Election Commissioners, including theChief Election Commissioners, shall be appointed by the Presidentby warrant under his hand and seal after obtaining therecommendations of Committee consisting of: (a) the PrimeMinister of India – Chairperson (b) the Leader of the Oppositionin the House of the People – Member (c) the Chief Justice ofIndia – Member

Provided that after the Chief Election Commissioner ceases tohold office, the senior-most Election Commissioner shall beappointed as the Chief Election Commissioner, unless theCommittee mentioned in sub-section (1) above, for reasons to berecorded in writing, finds such Election Commissioner to be unfit.

Explanation: For the purposes of this sub-section, “the Leader ofthe Opposition in the House of the People” shall, when no suchLeader has been so recognised, include the Leader of the singlelargest group in opposition of the Government in the House of thePeople.”

105. The Law Commission also recommended the formation ofan independent and permanent Secretariat staff for Election Commissionand suggested that:

54 255th LAW COMMISSION OF INDIA REPORT, 2015, Chapter VI-STRENGTHENING THE OFFICE OF THE ELECTION COMMISSION OF INDIA,Available at:

https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081635.pdf

“The Election Commission shall have separate independent andpermanent secretarial staff. The Election Commission may, byrules prescribed by it, regulate the recruitment, and the conditionsof service of persons appointed, to its permanent secretarial staff.”

106. These reports clearly indicate the need for reforms in theworking of the Election Commission, in particular in the process ofBselection and removal of the members of the Election Commission.

-VII. Comparative framework Foundational parameters

107. An examination of practice for appointment of the head ofelection-conducting bodies across the world shows some trends thatinclude amongst others, the inclusion of members of the opposition. InCmost jurisdictions, such appointments are consultative process, involvingmembers/ nominees of both the ruling party and the opposition party.The presence of opposition in various critical decision-making processesof governance is sine qua non for healthy democracy. It not onlyprovides system of accountability of the ruling party but also ensures amuch-crucial deliberative process. This, in turn, plays pivotal role inDpreserving the true essence of democracy by raising the concerns of thepeople of the country. In addition, some jurisdictions also haveConstitutional functionaries such as Speakers of the house of Parliament/Legislature, and Judges of the Highest Court in the country in multi-member Committee. Relevant details of electoral bodies of someEcountries are as follows:

55 Constitution of Islamic Republic of Pakistan, available at :

https://drive.google.com/file/d/1TMpGdvhpYXMh07ZQoS_SDxwQoH_C8itF/Hview?usp=sharing

56 Constitution of the People’s Republic of Bangladesh, Available at:https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/33095/73768/F-2125404014/BGD33095%20Eng2.pdf

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224SUPREME COURT REPORTSABCDEFG

[2023] 9 S.C.R.

57 Commonwealth Electoral Act,1918 available at: https://www.legislation.gov.au/Details/C2022C0007458--- Canada Election Act, available at: https://lawslois.justice.gc.ca/eng/acts/E2.01/pageH2.html#docCont

ABCDEFG59 Constitution of Sri Lanka-https://drive.google.com/file/d/1W5j3D_8CUiYjox8t8eUSlg7SFifjmebK/view?usp=sharing

226SUPREME COURT REPORTS[2023] 9 S.C.R.ABCDEFG60 FEDERAL ELECTION CAMPAIGN ACT OF 1971, available at:--https://www.govinfo.gov/content/pkg/COMPS985/pdf/COMPS985.pdf61 Constitution of Nepal, Available at:https://lawcommission.gov.np/en/wp-content/uploads/2021/01/Constitution-of-HNepal.pdf

62 Electoral Commission Act 51 of 1996, available at:https://www.gov.za/sites/default/files/gcis_document/201409/act51of1996.pdf

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228SUPREME COURT REPORTS[2023] 9 S.C.R.ABCDEFGH

VIII. Process of Selection of other Constitutional/StatutoryBodies

108. Various state institutions supporting constitutional democracyhave an independent mechanism for the appointment of its heads andmembers. The same is carried out with an object to keep them insulatedfrom any external influence that allows them to remain neutral to carryon the assigned functions. Table showing the position of various authoritiesis as follows:

63https://www.electoralcommission.org.uk/who-we-are-and-what-we-do/about-us/commissioners/our-commissioners

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230SUPREME COURT REPORTS[2023] 9 S.C.R.ABCDEFG

[AJAY RASTOGI, J.]

ABCDEFGH

232SUPREME COURT REPORTS[2023] 9 S.C.R.ABCDEFGH

ABCDEFGH

234SUPREME COURT REPORTSABCDEFGH

[2023] 9 S.C.R.

ABCDEFGH

236SUPREME COURT REPORTSABCDEFGH

[2023] 9 S.C.R.

IX. Constitutional Silence and Vacuum: Power of the Courtto lay guidelines

109. This Court has plenary power under Article 142 to issuedirections to do “complete justice”. An analysis of the judgments of thisCourt shows that the Court has created jurisprudence, where it hasexercised its power under Article 142 to fill legislative gaps.[64] Referencecan also be made to the speech given by Dr B.R. Ambedkar in theConstituent Assembly on 4 November 1948, where he noted that theDrafting Committee had tried to include detailed processes to avoid themisuse of power. Dr Ambedkar was emphasizing on constitutionaldesign which would prevent arbitrariness by laying down legal proceduresto regulate power.[65]

110. This Court has laid down guidelines in order to fill the legislativegap on number of occasions. In Lakshmi Kant Pandey v Union ofIndia,[66 ]in the absence of statutory enactment for the adoption of Indianchildren by foreign parents, their Court laid down safeguards to preventmalpractice by social organizations and private adoption agencies.Directions were provided in Kumari Madhuri Patil and Another vAddl. Commissioner, Tribal Development and Others[67]for issuanceand early scrutiny of social status certificates (showing that personbelongs to SC/ST community) for admission in educational institutionsor for employment. This Court laid down guidelines for autonomy ofCBI and other special investigating agencies in the case of Vineet Narainand Others v Union of India and Another.[68 ]In the case of Vishakaand Others v State of Rajasthan and Others,[69 ]this Court laid downguidelines to ensure prevention of sexual harassment of women atworkplace. Another judgment in this regard is Vishwa Jagriti MissionThrough President v Central Govt. Through Cabinet Secretaryand Others,[70 ]where two-judge bench of this Court laid downguidelines for educational institutes to prevent the menace of ragging.

64 Krishnan RH and Bhaskar A, “Article 142 of the Indian Constitution: On the ThinLine between Judicial Activism and Restraint” in Salman Khurshid and others (eds),Judicial Review: Process, Powers, and Problems (Essays in Honour of Upendra Baxi)(Cambridge University Press 2020)

65 https://www.hindustantimes.com/opinion/ambedkars-constitutionalism-speaks-to-contemporary-times-101637851829964.html66 AIR 1984 SC 46967 (1994) 6 SCC 241

68 (1998) 1 SCC 226

69AIR 1997 SC 3011

70 (2001) 6 SCC 577

A111. This Court in the case of Prakash Singh and Others vUnion of India and Others,[71 ]after studying various committee reportson police reforms, laid down certain directions in the nature of policereforms to be operative until the new Police Act is to be framed. It isnecessary to quote the following excerpt from the judgment:

“It is not possible or proper to leave this matter only with anBexpression of this hope and to await developments further. It isessential to lay down guidelines to be operative till the newlegislation is enacted by the State Governments. Article 32 readwith Article 142 of the Constitution empowers this Court to issuesuch directions, as may be necessary for doing complete justiceCin any cause or matter. All authorities are mandated by Article144 to act in aid of the orders passed by this Court….In thedischarge of our constitutional duties and obligations having regardto the aforenoted position, we issue the following directions to theCentral Government, State Governments and Union Territoriesfor compliancetill framing of the appropriate legislations.”D112. This Court has also laid down guidelines to streamline andfacilitate the institutional apparatus and procedural system. In the caseof Laxmi v Union of India and Others,[72 ]this Court intervened toprevent cases of acid violence, and laid down guidelines on sale of acidand the treatment of victims of acid attack. three-judge bench decisionin Shakti Vahini v Union of India and Others[73 ]issued guidelines toEcheck unlawful interference by Khap panchayat in interfaith and intercaste marriages. The Court held:

“To meet the challenges of the agonising effect of honour crime,we think that there has to be preventive, remedial and punitivemeasures and, accordingly, we state the broad contours and theFmodalities with liberty to the executive and the police administrationof the concerned States to add further measures to evolve robustmechanism for the stated purposes.”

113. The series of case laws authoritatively demonstrate thecommitment of this Court to intervene to preserve and promote the “Ruleof Law”, by supplementing the legislative gaps till the Legislature stepsGin. This has been done in exercise of the plenary power of this Courtunder Article 142 of the Constitution.

71 (2006) 8 SCC 172 (2014) 4 SCC 42773 (2018) 7 SCC 192H

114. Our decision is therefore to lay down parameters or guidelinesfor the selection process for the appointment of the Chief ElectionCommissioner and the Election Commissioner. This decision is supportedby the two-judge judgment in State of Punjab v. Salil Sabhlok andOthers.[74 ]In this case, it was pointed out that no parameters or guidelineshave been laid down in Article 316 of the Constitution for selecting theChairperson of the Public Service Commission and no law has beenenacted on the subject with reference to Schedule VII List II Entry 41of the Constitution. In his concurring opinion, Justice Madan Lokur, forthe bench, relied on Mohindhr Singh Gill case to reiterate that:

“... wide discretion is fraught with tyrannical potential even inhigh personages. Therefore, the jurisprudence of prudencedemands fairly high degree of circumspection in the selectionand appointment to constitutional position having important andsignificant ramifications.”

115. Justice Lokur also analysed the previous judgments of thisCourt on judicial review of the selection process, and noted:

“115. In Centre for PIL [Centre for PIL v. Union of India, (2011)4 SCC 1 : (2011) 1 SCC (L&S) 609] this Court struck down theappointment of the Central Vigilance Commissioner whilereaffirming the distinction between merit review pertaining to theeligibility or suitability of selected candidate and judicial reviewpertaining to the recommendation-making process.…Acknowledging this, this Court looked at the appointment of theCentral Vigilance Commissioner not as merit review of theintegrity of the selected person, but as judicial review of therecommendation-making process relating to the integrity of theinstitution. It was made clear that while the personal integrity ofthe candidate cannot be discounted, institutional integrity is theprimary consideration to be kept in mind while recommending acandidate. It was observed that while this Court cannot sit in appealover the opinion of HPC, it can certainly see whether relevantmaterial and vital aspects having nexus with the objects of theAct are taken into account when recommendation is made.This Court emphasised the overarching need to act for the goodof the institution and in the public interest. Reference in this contextwas made to N. Kannadasan [N. Kannadasan v. Ajoy Khose,(2009) 7 SCC 1 : (2009) 3 SCC (Civ) 1] .” (emphasis added)

A116. It was also held that the selection process of constitutionalpost cannot be equated with the selection process of bureaucraticfunctionary. If the Executive is left with the exclusive discretion to selectthe candidate, it may destroy the fabric of the constitutional institution.This Court held:

B“A constitutional position such as that of the Chairperson of aPublic Service Commission cannot be equated with purelyadministrative position—it would be rather facetious to do so.While the Chief Secretary and the Director General of Police areat the top of the ladder, yet they are essentially administrativefunctionaries. Their duties and responsibilities, however onerous,Ccannot be judged against the duties and responsibilities of animportant constitutional authority or constitutional trustee, whosevery appointment is not only expected to inspire confidence in theaspirational Indian but also project the credibility of the institutionto which he or she belongs. I am, therefore, unable to accept theview that the suitability of an appointee to the post of ChairpersonDof Public Service Commission should be evaluated on the sameyardstick as the appointment of senior administrativefunctionary… The Chairperson takes the oath of allegiance toIndia and to the Constitution of India—not an oath of allegianceto the Chief Minister. An appointment to that position cannot betaken lightly or on considerations other than the public interest.EConsequently, it is not possible to accept the contention that theChief Minister or the State Government is entitled to act only onthe perceived suitability of the appointee, over everything else,while advising the Governor to appoint the Chairperson of thePublic Service Commission. If such view is accepted, it willdestroy the very fabric of the Public Service Commission.” (paraF119 and 125)

117. It was concluded that the Court can frame guidelines till theLegislature steps in. To quote:

“136. In the light of the various decisions of this Court adverted toabove, the administrative and constitutional imperative can be metGonly if the Government frames guidelines or parameters for theappointment of the Chairperson and Members of the Punjab PublicService Commission. That it has failed to do so does not precludethis Court or any superior court from giving direction to theState Government to conduct the necessary exercise within aspecified period. Only because it is left to the State Legislature toH

consider the desirability or otherwise of specifying the qualificationsor experience for the appointment of person to the position ofChairperson or Member of the Punjab Public Service Commission,does not imply that this Court cannot direct the executive to frameguidelines and set the parameters.This Court can certainly issueappropriate directions in this regard, and in the light of theexperience gained over the last several decades coupled with theviews expressed by the Law Commission, the SecondAdministrative Reform Commission and the views expressed bythis Court from time to time, it is imperative for good governanceand better administration to issue directions to the executive toframe appropriate guidelines and parameters based on theindicators mentioned by this Court. These guidelines can and shouldbe binding on the State of Punjab till the State Legislature exercisesits power.”(emphasis added)118. That Article 324(2) refers to the appointment of the ChiefElection Commissioner and other Election Commissioners which shall,subject to the provisions of any law made in that behalf by Parliament,be made by the President. It contemplates that the Parliament makes alaw laying down the procedure of selection for appointment of the ChiefElection Commissioner and other Election Commissioners, but such lawhas not been made by the Parliament, even after 73 years since theadoption of the Constitution. In order to fill the legislative vacuum, i.e.the absence of any law made by the Parliament for the appointment ofmembers of the Election Commission and in the light of the viewsexpressed in various reports of the Law Commission, ElectionCommission, etc., this Court is of the considered view that the instantcase thus aptly calls for the exercise of the power of this Court underArticle 142 to lay down guidelines to govern the process of selection andremoval of Chief Election Commissioner and Election Commissioners,till the Legislature steps in.

X. Independence of Election Commissioners

119. In order to allow independence in the functioning of theElection Commission as Constitutional body, the office of Chief ElectionCommissioners as well as the Election Commissioners have to beinsulated from the executive interference. This is envisaged under theproviso to Article 324(5) which reads:

“Provided that the Chief Election Commissioner shall not beremoved from his office except in like manner and on the likegrounds as Judge of the Supreme Court and the conditions of

Aservice of the Chief Election Commissioner shall not be varied tohis disadvantage after his appointment:

Provided further that any other Election Commissioner or aRegional Commissioner shall not be removed from office excepton the recommendation of the Chief Election Commissioner.”

B120. There are two procedural safeguards available regardingthe removal of the CEC: (i) shall not be removed from his office exceptin like manner and on the like grounds as Judge of the Supreme Court;(ii) the conditions of service of the Chief Election Commissioner shallnot be varied to his disadvantage after his appointment. However, secondproviso to Article 324(5) postulates that the removal of the ElectionCCommissioners could be made only on the recommendation of the ChiefElection Commissioner. The protection available to the Chief ElectionCommissioners is not available to other Election Commissioners. Variousreports have recommended that the protection against removal availableto the Chief Election Commissioner should be made available to theother Election Commissioners to ensure the independence of the ElectionDCommission.

121. note titled “Proposed Electoral Reforms” (2004)[75]prepared and published by the Election Commission of Indiaitselfrecommended that:

“In order to ensure the independence of the Election CommissionEand to keep it insulated from external pulls and pressures, Clause(5) of Article 324 of the Constitution, inter alia, provides that theChief Election Commissioner shall not be removed from his officeexcept in like manner and on like grounds as Judge of theSupreme Court. However, that Clause (5) of Article 324 does notprovide similar protection to the Election Commissioners and itFmerely says that they cannot be removed from office except onthe recommendation of the Chief Election Commissioner. Theprovision, in the opinion of the Election Commission, is inadequateand requires an amendment to provide the very same protectionand safeguard in the matter of removability of ElectionG75 Election Commission of India Proposed Reforms (2004), Pg. 14, 15, available at:h t t p s : / / p r s i n i . o r / i l s / i l l s _ t s / i l l s _ p r l i m n t / 2 0 0 8 /bill200_20081202200_Election_Commission_Proposed_Electoral_Reforms.pdf76 Background Paper on Electoral Reform, Ministry of Law & Justice (2010), 6.3Measures for Election Commission, pg. 19, Available at: https://lawmin.gov.in/sites/default/files/bgp_0.docH

Commissioners from office as is available to the Chief ElectionCommissioner.” (emphasis added)

122. The above recommendation was reiterated in theBackground Paper on Electoral Reform (2010)[76 ]prepared by theUnion Ministry of Law and Justice, in co-sponsorship of ElectionCommission of India states:

“Recommendation

Clause (5) of Article 324 of the Constitution, inter alia, providesthat the Chief Election Commissioner shall not be removed fromhis office except in like manner and on like grounds as Judge ofthe Supreme Court. However, Clause (5) of Article 324 does notprovide similar protection to the Election Commissioners and itonly says that they cannot be removed from office except on therecommendation of the Chief Election Commissioner. Theprovision, in the opinion of the Election Commission, is inadequateand requires an amendment to provide the very same protectionand safeguard in the matter of removability of ElectionCommissioners from office as is provided to the Chief ElectionCommissioner. The Election Commission recommends thatconstitutional protection be extended to all members of the ElectionCommission.

The Election Commission also recommends that the Secretariatof the Election Commission, consisting of officers and staff atvarious levels is also insulated from the interference of theExecutive in the matter of their appointments, promotions, etc.,and all such functions are exclusively vested in the ElectionCommission on the lines of the Secretariats of the Lok Sabha,and Rajya Sabha, Registries of the Supreme Court and High Courtsetc.

The third recommendation of the Election Commission is that itsbudget be treated as “Charged” on the Consolidated Fund ofIndia.”

(emphasis added)

123. The office of the Election Commission is an independentconstitutional body which has been vested with the powers ofsuperintendence, direction and control of the preparation of electoralrolls and the conduct of all parliamentary and State Legislatures’ electionsand that of the office of President and Vice-President in terms of Article324(1) of the Constitution. In terms of Article 324(2), the office of Election

ACommission comprises of Chief Election Commissioner and “suchnumber of other Election Commissioners, if any, as the Presidentmay from time to time fix”and by an Order dated 01 October, 1993, thePresident has fixed the number of Election Commissioners to two untilfurther orders. Since 1993, it is multi-member Commission with equalparticipation in transacting the business of the Election Commission asBprovided under Chapter III of the Act, 1991 to ensure the smooth andeffective functioning of the Election Commission.

124. Article 324(5) of the Constitution is intended to ensure theindependence of the Election Commission free from all external politicalinterference and, thus, expressly provides that the removal of the ChiefCElection Commission from office shall be in like manner as on the groundsas of Judge of the Supreme Court. Nevertheless, similar procedurehas not been provided for other Election Commissioners under secondproviso to Article 324(5) of the Constitution. The other conditions of theservice of Chief Election Commissioner/other Election Commissionershave been protected by the Legislature by the Act 1991.D125. In the facts and circumstances, keeping in view theimportance of maintaining the neutrality and independence of the officeof the Election Commission to hold free and fair election which is sinequa non for upholding the democracy as enshrined in our Constitution,itbecomes imperative to shield the appointment of Election Commissionersand to be insulated from the executive interference. It is the need of theEhour and advisable, in my view, to extend the protection available to theChief Election Commissioner under the first proviso to Article 324(5) toother Election Commissioners as well until any law is being framed bythe Parliament.

XI. DirectionsF126. Until the Parliament makes law in consonance with Article324(2) of the Constitution, the following guidelines shall be in effect:

(1)We declare that the appointment of the Chief ElectionCommissioner and the Election Commissioners shall bemade on the recommendations made by three-memberGCommittee comprising of the Prime Minister, Leader of theOpposition of the Lok Sabha and in case no Leader ofOpposition is available, the Leader of the largest oppositionparty in the Lok Sabha in terms of numerical strength andthe Chief Justice of India.

(2)It is desirable that the grounds of removal of the ElectionHCommissioners shall be the same as that of the Chief

Election Commissioner that is on the like grounds as Judgeof the Supreme Court subject to the “recommendation ofthe Chief Election Commissioner”as provided under thesecond proviso to Article 324(5) of the Constitution of India.

(3)The conditions of service of the Election Commissionersshall not be varied to his disadvantage after appointment.

Bibhuti Bhushan Bose(Assisted by : Shubhansh Thakur andShubhanshu Das, LCRAs)

Writ petitions partly allowed.