ANOOP BARANWAL VERSUS UNION OF INDIA - Election Commission Case Supreme Court

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.104 OF 2015

ANOOP BARANWAL … PETITIONER

VERSUS

UNION OF INDIA … RESPONDENT

WITH

WRIT PETITION(CIVIL) NO. 1043 OF 2017

WRIT PETITION(CIVIL) NO.569 OF 2021

AND

WRIT PETITION(CIVIL) NO.998 OF 2022

J U D G M E N T

K.M. JOSEPH, J.

INDEX

A. THE CASES: THE FOUR WRIT PETITIONS .........................................................................................3

B. THE SUBMISSIONS OF THE PETITIONERS; SHRI GOPAL SANKARANARAYANAN, LEARNED SENIOR

COUNSEL IN WRIT PETITION (C) NO. 1043 OF 2017 ...............................................................................7

C. SUBMISSIONS ON BEHALF OF SHRI PRASHANT BHUSHAN, LEARNED COUNSEL ON BEHALF OF

PETITIONER IN WRIT PETITION (CIVIL) NO. 104 OF 2015. ....................................................................11

D. SUBMISSIONS BY SHRI JAYA THAKUR, PETITIONER IN WRIT PETITION (CIVIL) NO. 998 OF 2022 16

E. SUBMISSIONS OF SHRI KALEESWARAM RAJ, LEARNED COUNSEL FOR THE INTERVENOR in Writ

Petition (Civil) No. 569 of 2021.............................................................................................................17

F. SUBMISSIONS ON BEHALF OF THE LEARNED ATTORNEY GENERAL FOR THE UNION OF INDIA...18

G. SUBMISSIONS OF SHRI TUSHAR MEHTA, LEARNED SOLICITOR GENERAL OF INDIA ....................25

H. SUBMISSIONS OF SHRI BALBIR SINGH, LEARNED ADDITIONAL SOLICITOR GENERAL ..................27

ANALYSIS...............................................................................................................................................27

I. ‘THE FRAMING OF INDIA’S CONSTITUTION’ BY B. SHIVARAO ......................................................27

J. THE CONSTITUENT ASSEMBLY DEBATES.......................................................................................34

K. THE USE OF CONSTITUENT ASSEMBLY DEBATES..........................................................................49

L. CONCLUSIONS ABOUT HISTORICAL PERSPECTIVES INCLUDING THE LIGHT SHED BY THE

CONSTITUENT ASSEMBLY DEBATES......................................................................................................51

M. ARTICLES IN THE CONSTITUTION, WHICH EMPLOY THE WORDS ‘SUBJECT TO ANY LAW’ TO BE

MADE BY PARLIAMENT AS CONTAINED IN ARTICLE 324 ......................................................................59

N. DEVELOPMENTS AFTER 26 JANUARY 1950; THE CHIEF ELECTION COMMISSIONERS AND THE

ELECTION COMMISSIONERS WHO WERE APPOINTED AND THEIR TERMS ..........................................72

O. A CLOSER LOOK AT S.S. DANOA (SUPRA), THE 1991 ACT AND T.N. SESHAN (SUPRA)..................78

P. THE CLAMOUR FOR REFORMS......................................................................................................93

Q. SEPARATION OF POWERS AND JUDICIAL ACTIVISM...................................................................116

R. IS THE RIGHT TO VOTE A STATUTORY RIGHT OR A CONSTITUTIONAL RIGHT? ..........................135

S. ARTICLE 326 DEMYSTIFIED..........................................................................................................151

T. DEMOCRACY AND THE IMPORTANCE OF ELECTIONS.................................................................180

U. POWERS, FUNCTIONS AND JURISDICTION OF THE ELECTION COMMISSION OF INDIA .............191

V. THE IMPACT OF ARTICLE 329(b) .................................................................................................197

W. PURSUIT OF POWER; A MEANS TO AN END OR AN END IN ITSELF?.......................................203

X. RULE OF LAW; FUNDAMENTAL RIGHTS AND AN INDEPENDENT ELECTION COMMISSION........205

Y. THE SYMBOLS ORDER; THE MODEL CODE OF CONDUCT ...........................................................208

Z. INDEPENDENCE; A STERLING AND INDISPENSABLE ATTRIBUTE.................................................226

THE CONCEPT OF LEGITIMATE POWER OF RECIPROCITY ...................................................................226

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

BB. IS THERE A VACUUM IN ARTICLE 324? SHOULD THE COURT INTERFERE, IF THERE IS ONE? .242

CC. AN ELECTION COMMISSIONER ENTITLED TO SAME PROTECTION AS GIVEN TO CHIEF

ELECTION COMMISSIONER? ...............................................................................................................278

DD. REGARDING INDEPENDENT SECRETERIAT/CHARGING EXPENDITURE ON THE CONSOLIDATED

FUND OF INDIA ...................................................................................................................................285

EE. THE FINAL RELIEF ....................................................................................................................288

A. THE CASES: THE FOUR WRIT PETITIONS

1. In this clutch of writ petitions maintained under

Article 32 of the Constitution, the Court is called

upon to consider the true effect of Article 324 and,

in particular, Article 324(2) of the Constitution. The

said sub-Article reads as follows:

“324(2) The Election Commission shall consist

of the Chief Election Commissioner and such

number of other Election Commissioners, if any,

as the President may from time to time fix and

the appointment of the Chief Election

Commissioner and other Election Commissioners

shall, subject to the provisions of any law

made in that behalf by Parliament, be made by

the President.”

2. A 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 a requirement of having a fullproof and better system of appointment of

members of the Election Commission.

Having heard the learned counsel for the

petitioner and the learned Attorney General for

India we are of the view that the matter may

require a close look and interpretation of the

provisions of Article 324 of the Constitution

of India. The issue has not been debated and

answered by this Court earlier. Article 145

(3) of the Constitution of India would,

therefore, require the Court to refer the

matter to a Constitution Bench. We,

accordingly, refer the question arising in the

present proceedings to a Constitution Bench for

an authoritative pronouncement.

Post the matter before the Hon’ble the Chief

Justice of India on the Administrative Side for

fixing a date of hearing.”

3. We may notice the following prayers in the said

Writ Petition (Civil) No. 104 of 2015:

“

i) issue a writ of mandamus or an appropriate

writ, order or direction, commanding the

Respondent: to make law for ensuring a fair,

just and transparent process of selection by

constituting a neutral and independent

collegium/ selection committee to recommend

the name for the appointment of the member to

the Election Commission under Article 324(2)

of the Constitution of India;

ii) issue a writ of mandamus or an appropriate

writ, order or direction constituting an

interim neutral and independent collegium/

selection committee to recommend the names for

the appointment on the vacant post of the

member to the Election Commission;

iii) issue a writ of mandamus or an

appropriate writ, order or direction

commanding the Respondent to decide the

petition of the petitioner dated 03.12.2014 for

making a law for ensuring a fair, just and

transparent selection process by constituting

an independent and neutral collegiums/

selection committee for recommending the names

for members to the Election Commission;”

4. In Writ Petition (Civil) No. 1043 of 2017, filed

by one Shri Ashwani Kumar Upadhyay, which is also a

Public Interest Litigation, the reliefs sought are as

follows:

“

a) direct the Central Government to take

appropriate steps to provide same and similar

protection to both the Election Commissioners

so that they shall not be removed from their

office except in like manner and on the like

grounds as the Chief Election Commissioner;

b) direct the Central Government to take

appropriate steps to provide independent

secretariat to the Election Commission of India

and declare its expenditure as charged on the

consolidated. fund of India on the lines of the

Lok Sabha / Rajya Sabha secretariat;

c) direct the Central Government to take

appropriate steps to confer rule making

authority on the Election Commission of India

on the lines of the rule making authority

vested in the Supreme Court of India to empower

it to make election related rules and code of

conduct;

d) take such other steps as this Hon'ble Court

may deem fit for strengthening the office of

the Election Commission of India and allow the

cost of petition to petitioner.”

5. In Writ Petition (Civil) No. 569 of 2021, filed by

the Association for Democratic Reforms, the reliefs

sought are as follows:

“i. Issue an appropriate writ, order or

direction declaring the practice of

appointment of Chief Election Commissioner and

Election Commissioner solely by the executive

as being violative of Articles 324(2) and 14

of the Constitution of India.

ii. Direct the Respondent to implement an

independent system for appointment of members

of the Election Commission on the lines of

recommendation of Law Commission in its 255th

report of March 2015; Second Administrative

Reform Commission in its fourth Report of

January 2007; by the Dr. Dinesh Goswami

Committee in its Report of May 1990; and by

the Justice Tarkunde Committee 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 a writ order or directions in the

nature of Mandamus to the Respondents to

implement an independent and transparent

system for appointment of members of the.

election Commission on the lines, recommended

by the Report of the Committee on Electoral

Reforms of May 1990, formulated by the Ministry

of Law and Justice, Government of India, the

Report of Second Administrative Reforms

Commission, Government of India of 2007 and the

Report of Law Commission of India on Electoral

Reforms of March 2015 and;”

7. Having referred to the broad complaint, the reliefs

sought, we may appropriately notice the contentions of

the parties.

B. THE SUBMISSIONS OF THE PETITIONERS; SHRI GOPAL

SANKARANARAYANAN, LEARNED SENIOR COUNSEL IN

WRIT PETITION (C) NO. 1043 OF 2017

8. In Writ Petition No. 1043 of 2017, Shri Gopal

Sankaranarayanan makes the following submissions:

There is a lacuna in the matter of appointment

under Article 324. Of the twelve categories of

unelected Constitutional Authorities, it is only the

Election Commission and the National Commission for

Scheduled Castes, where qualifications and eligibility

are not laid down in the Constitution or the Statute.

The words ‘subject to law made’ falls into two broad

categories. In the matter of appointments, they are

represented by Articles 324, 338, 338A and 338B. The

other category relates to conditions of service.

Representative of this group are Articles 146, 148, 229

and 243K. In the first category, Article 324 assumes

critical importance. Shri Gopal Sankaranarayanan put

forward the test that if a law could be made under

Article 324, providing for a committee to select CECs

and ECs and also for their qualifications, then, there

is a void. If such a law cannot be made, then, there

is no vacuum. Continuing with the argument about the

presence of a vacuum, it is contended that the

underlying rationale for the Court intervening must be

the existence of a fundamental norm or a basic feature

that needs to be secured. In this regard, democracy and

the concomitant imperative to hold free and fair

elections are projected. It is contended that the other

aspect, which must be borne in mind, is to be not

oblivious to the impact of the existence of the vacuum

on the rights of the members of the public, both

directly and indirectly. Like the Judiciary, the

Election Commission must display fearless

independence. In the absence of norms regarding the

appointment, a central norm, viz., institutional

integrity is adversely affected. An independent

appointment mechanism would guarantee eschewing of even

the prospect of bias. Favouritism would be largely

reduced. Right to Vote is a Constitutional Right. With

reference to law prevailing in other South Asian

countries and in the United Kingdom, it is contended

that clear qualification, as also eligibility

conditions, have been put in place. Mandatory tenures

are made available. The removal process, which is

uniform, is rigorous. It is contended that there has

been a sudden change after 2001, in the matter of

appointing Chief Election Commissioners. Successive

Governments have decided to select increasingly older

candidates. This has resulted in casting a shadow on

the much-needed independence, apart from curtailing

their tenure. Inaction on the part of the Election

Commission even in the face of alarming increase of

criminals in public life, must guide this Court. With

reference to the Article, which we have adverted to,

it is pointed out that the Election Commission has

indulged in the alleged misconduct and favouritism. A

vigorous appeal is made to the Court to listen to the

constitutional silence and understand the dire need for

the Court to step-in. In this regard, we are reminded

that this Court has played a very proactive role in

matters relating to elections and electoral reforms.

Interference was noteworthy in matters relating to

affidavits on assets, criminal antecedents, time-bound

election petition trials, special courts for criminal

trials of M.P.s and M.L.A.s, protection from booth

capturing, freebies and NOTA. The executive underreach

justifies judicial oversight and activism,

particularly when more than 72 years have gone by. It

is contended that no mandamus is sought against

Parliament or to implement the Gaikwad Law Commission

Report. The following directions are pressed for until

a law is made. A Committee of five, comprising the

Prime Minister, the leader of the Opposition or of the

single largest party in the Lok Sabha, the Chief

Justice of India, the Speaker of the Lok Sabha and an

eminent jurist selected by the first four to recommend

suitable candidates, is to be appointed for appointment

to the Election Commission. The petitioner would have

the Court declare qualifications, which include

citizenship of India, and that a person should have

completed between 45 years and 61 years. The further

qualifications are that the person should have

impeccable integrity and high moral character. The

individual must have never had affiliation either

directly or indirectly to any political party. It is

also prayed that the person appointed must have been a

Member of the IAS or the IPS or a Judge of the High

Court. In terms of the two provisos in Article 324(5),

the Election Commissioners must be irremovable except

after following the procedure in the first proviso. An

independent Secretariat must be established. The

expenditure of the Election Commission should be

brought on par with those of the Supreme Court, the CAG

and the UPSC. The expenditure must be made non-votable

expenditure charged on the Consolidated Fund of India.

C. SUBMISSIONS ON BEHALF OF SHRI PRASHANT

BHUSHAN, LEARNED COUNSEL ON BEHALF OF

PETITIONER IN WRIT PETITION (CIVIL) NO. 104 OF 2015.

9. An independent Election Commission is necessary

for a functioning democracy as it ensures Rule of Law

and free and fair elections. The existing practice of

appointment is incompatible with Article 324(2) and

manifestly arbitrary. This is because Article 324(2)

mandates that Parliament should make a just, fair and

reasonable law. The provision for making a law was

rested on the hope that in due course of time, the

Government would exhibit initiative to make such a law

and ensure independence and integrity of the Members

of the Election Commission. It is contended that there

is a vacuum. No power under the constitution can be

exercised contrary to Part III of the Constitution, be

it the Executive or the Legislative power. The

Government of India (Transaction of Business) Rules,

1961 are silent regarding the process of selection and

on the eligibility criteria. The convention invoked by

the Union of India of appointments being made from

Members of the Bureaucracy, is criticised as being not

a healthy convention. It is for the reason that it is

bereft of transparency, objectivity and neutrality.

This system is inaccessible to public. The Executive

alone being involved in the appointment, ensures that

the Commission becomes and remains a partisan Body and

a branch of the Executive. The independence of the

Commission 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 and

Another vs. Union of India1, is invoked. With reference

to developments said to have taken place recently,

casting a shadow on the conduct of the Election

Commission, the Report of Justice Madan B. Lokur is

relied upon. Several instances of inaction or omission

are pointed out. This is apart from various Commissions

and Committees which have highlighted the need for a

change. This Court has stepped-in on many occasions.

It is further contended that the democracy is a facet

of the basic structure of the Constitution. The

appointment of Members of the Election Commission is

being done on the whims and fancies of the Executive.

The object of having an independent Election Commission

is defeated. It is further contended that the Election

Commission resolves various disputes between various

political parties including the Ruling Government and

other parties. This means that the Executive cannot be

the sole participator. The practice falls foul of

Article 14. Elaborate reference is made to the

Constituent Assembly Debates. Elaborating on the powers

1 (2016) 5 SCC 1

of the Election Commission, it is pointed out that the

power to register a political party under Section 29A

of the Representative of the People Act, 1951, has come

up for our consideration. The ruling of this Court in

Indian National Congress v. Institute of Social Welfare

and Others,

2 that the Election Commission acts in a

quasi-judicial capacity under Section 29A is relied

upon. The Election Commission is clothed under Rules 6

and 8 of the Election Symbols (Reservation and

Allotment) Order, 1968 to recognise political parties

and allot symbols. Rule 15 of the said Order is pressed

into service to highlight that Election Commission is

empowered to take a decision with reference to

splintered and rival groups arising within already

recognized parties. There is power to withdraw and

suspend recognition for breach of duty to follow the

model code of conduct or the instructions of the

Commission (See Rule 16A of the Symbol Order). It is

blessed with the power to enforce the model code of

conduct. The Election Commission can, in exercise of

powers under Article 324(1), ban a candidate from

2 (2002) 5 SCC 685

campaigning. The Election Commission is also empowered

to remove star campaigners. Reliance is placed on the

various Reports, which we will advert to at a later

stage. Still further, support is sought to be drawn

from the Second Judges case in Supreme Court Advocateson-Record Association and Others vs. Union of India,

and the Judgment of this Court declaring the NJAC

unconstitutional in Supreme Court Advocates-on-Record

Association and Another vs. Union of India4. The learned

Counsel also relies upon the Judgment of this Court in

Prakash Singh and Others vs. Union of India and Others,

relating to reforms in the Police Administration. This

is besides relying on Vineet Narain and Others vs.

Union of India and Another,

6 and the Third Judges Case

in Special Reference No. 1 of 1998, Re

7. It is contended

that the Court may, apart from declaring appointment

by the Executive of Members as unconstitutional, direct

the constitution of a Committee to recommend the names

for appointment on the basis of the Reports, including

3 (1993) 4 SCC 441

4 (2016) 5 SCC 1

5 (2006) 8 SCC 1

6 (1998) 1 SCC 226

7 (1998) 7 SCC 739

the recommendations of the Law Commission of India in

its Two-Hundred and Fifty Fifth Report.

D. SUBMISSIONS BY SHRI JAYA THAKUR, PETITIONER

IN WRIT PETITION (CIVIL) NO. 998 OF 2022

10. Shri Anup G. Choudary, learned Senior Counsel

assisted by Virender K. Sharma, appeared on behalf of

the petitioner. It is pointed out that there is adhocism flowing from the legislative vacuum. Regional

Commissioners have never been appointed since 1951. The

role of the Election Commission is such that in a modern

election process, it can be abused by simply playing

with the election schedule. The instrument of

instructions which were sought even at the time of

passage of amendments to the original Article can be

filled in by judicial intervention. Appointment is

reduced only to Bureaucrats, that too, majorly IAS

Officers. The IAS Officers work in close alliance to

their political masters. Appointment must be from a

more broad-based pool of talent like Judicial Members.

The Secretariat must have sufficient manpower.

E. SUBMISSIONS OF SHRI KALEESWARAM RAJ,

LEARNED COUNSEL FOR THE INTERVENOR in Writ Petition

(Civil) No. 569 of 2021.

11. Shri Kaleeswaram Raj, learned Counsel for the

intervenor in Writ Petition (Civil) No. 569 of 2021

would contend that the vacuum, which is projected must

be conceded as a democratic space which the Founding

Fathers of the Constitution, left open for the future

Parliament to fill-up. It is contended that the

Constituent Assembly not being an elected Body in the

real sense, left many things to Parliament, which could

claim better democratic legitimacy. Relying upon the

Judges’ cases, he would submit that a parallel may be

drawn. It’s a glaring instance of legislative inaction.

Since denial of free and fair elections vitiates

Fundamental Rights of the citizens, judicial

intervention is highly necessary. The Right to Vote is

now a part of the Fundamental Right. It is contended

that, in fact, the Right to Vote is a Constitutional

Right. He invites our attention to instances in other

jurisdictions including from neighbouring countries

like Sri Lanka.

F. SUBMISSIONS ON BEHALF OF THE LEARNED

ATTORNEY GENERAL FOR THE UNION OF INDIA

12. The learned Attorney General, Shri R.

Venkataramani, would address the following

submissions:

Accepting the petitioners’ contention would

involve nothing less than an amendment to the

provisions of Article 324. The case of the petitioners

is based on various Reports including that of the

Central Law Commission. The premise of the petitioners’

complaint is the failure of the extant mechanism and

the reluctance or failure of the Union of India to

redress the complaint. A vacuum, which is not existent,

is suggested as the very foundation of the petitioners

claim. There is no such vacuum. The learned Attorney

General would point out that introduction of the

Collegium or Body of persons to select the Chief

Election Commissioner or the Election Commissioner,

would necessitate the Court, trampling upon the

constitutional process of aid and advise of Ministers,

contemplated under Article 74 of the Constitution of

India. There cannot be merit in the contention that a

tenure of six years must be inexorably guaranteed.

Judicial intervention in these matters would be at the

expense of causing violence to the delicate separation

of powers between the Legislature, the Executive and

the Judiciary. The cases at hand appear to be supported

with reference to an aspirational ideal as against any

vacuum which is disclosed. A debatably better model of

selection of the Commissioner cannot form the

foundation for this Court to make a foray into the

working of constitutional provisions. Article 324(2)

contemplates clear procedure for appointment of a Chief

Election Commissioner and the Election Commissioners.

Till a law is made, providing otherwise, the Founding

Fathers have laid down that the appointment of the

Chief Election Commissioner and other Election

Commissioners shall be by the President. Indisputably,

the Constitution of India follows the Westminster model

of Government. The powers of the President, it is wellsettled, is to be exercised on the advice of the Council

of Ministers. The President is only the formal Head of

the State. The power under Article 324(2) was always

understood to be exercised by the President, acting on

the aid and advise of the Council of Ministers. Article

77 provides for the conduct of the business of the

Government of India. Rules have been laid down

thereunder. The learned Attorney General does not

dispute that under the Rules, as laid down, the

appointment of the Chief Election Commissioner and the

Election Commissioners is a matter which need not

engage the attention of the Council of Ministers. The

Rules instead provide that it is the Prime Minister,

who is empowered to decide upon the person to be

appointed as the Chief Election Commissioner or the

Election Commissioner. In other words, the President

exercises the power under Article 324(2) and he

proceeds to appoint a person as a Chief Election

Commissioner or an Election Commissioner, acting on the

advice of the Prime Minister. The contention is, it is

this system, which has been in place for the last more

than seven decades. There is no room for confusion. A

long array of Chief Election Commissioners and the

Election Commissioners have been appointed by resorting

to the legitimate method contemplated under Article

324(2). It is further contended that there exists no

identifiable wrong or trigger point to warrant any

judicial interference. It is pointed out that elections

have been held and voting rights ensured to millions

of eligible voters. Nearly 68 per cent polling took

place. The Election Commission of India, it is

contended, has entered into various agreements under

the auspices of the United Nations under which the

Election Commission of India shares its expertise and

lends its competent services for the conduct of

elections in various other countries. This is not a

case where the petitioners have been able to

demonstrate that the independence of the Chief Election

Commissioner or the Election Commissioner is under

threat. The Election Commission is regulated in the

discharge of its functions by law in every manner. The

matters relating to the appointment of the Chief

Election Commissioner and the Election Commissioner

have been settled by the decision of this Court in T.N.

Seshan, Chief Election Commissioner of India v. Union

of India and others8. It is pointed out that the

Election Commission (Conditions of Service of Election

8 (1995) 4 SCC 611

Commissioners and Transaction of Business) Act, 1991

(hereinafter referred to as, ‘the 1991 Act) does not

deal with the process of selection and all the details

that may be connected to it. It is commended to the

Court as a matter of fact that the Election

Commissioners have been appointed from the high-ranking

Members of the Civil Services since no Government so

far has thought it fit to provide for any other source

other than the Civil Services for making appointment

and the Parliament has also not intervened. The system

has worked well under Article 324(2). Any aberrations

or illegalities in the matter of appointment or acts

or omissions on the part of the appointees, lend

themselves to the correctional jurisdiction of the

superior courts under its powers of judicial review.

Section 4 of the 1991 Act does contemplate a six-year

tenure for both the Election Commissioners’ and the

Chief Election Commissioner. Based on the observations

made in T.N. Seshan (supra), Government has followed a

sound practice of appointing Officers from the Civil

Services. It is contended that those who are considered

for appointment, must be “ripe” enough ‘for being

inducted into the Election Commission’. The six-year

tenure is an ideal. However, strict adherence to the

same would have introduced considerable problems. This

being the position, the concept of a composite tenure

has been arrived at. In other words, the separate term

of six years, contemplated in Section 4 of the 1991 Act

of six years each, has been understood as been

practically attained with the incumbent being selected

and appointed in such a manner that the person

appointed as an Election Commissioner can look forward

to an approximate tenure of six years, even though not

as Election Commissioner but as an Election

Commissioner and as a Chief Election Commissioner.

There is a database of serving/retired Officers of the

rank of Secretary to the Government of India/Chief

Secretaries. The appointees are selected from the said

database. The Minister of Law and Justice recommends a

panel for the Prime Minister and the President from the

database. Unless this Court considers non-adherence to

Section 4 of the 1991 Act, as constituting a subversion

of the independence of the Election Commission

requiring redress thereof, this Court need not consider

the ‘aspirational propositions’ as a principle to

occupy an ‘imagined vacuum’. The Reports relied upon

by the petitioners are based on systems enshrined in

other jurisdictions. It is significant that the

Constituent Assembly, though conscious of other

mechanisms, deliberately chose to adopt the method

found in Article 324(2). There is no identifiable

wrong. There is no continuing wrong either. The

decisions, laying down principles, empowering this

Court to lay down guidelines, are inapposite. The

decisions were rendered by this Court in a situation

where there clearly existed a vacuum. It is further

pointed out that the Court was invited and persuaded

to interfere, more importantly, when a Fundamental

Right was found to exist or a right vouch-saved under

an International Treaty. In the present batch of cases,

there is no Fundamental Right involved, which can

support any interference by this Court. This is apart

from Article 324(2) laying down a procedure, signalling

the absence of any vacuum. The proof of the nonexistence of the vacuum is sought to be established by

the fact that several Chief Election Commissioners and

Election Commissioners have been appointed according

to need in the past. A perceived advancement in the

method of appointment, based on the Reports, including

the Law Commission of India, would scarcely furnish the

foundation for doing violence to the provisions of the

Constitution. We are reminded by the learned Attorney

General that this Court is being invited to apply

principles involved in the context of ordinary Statutes

to the interpretation of the Constitution 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 power of the Union, it is contended that the

law contemplated under Article 324(2) is the law

contemplated under Article 53(3)(b). In the absence of

such a law, the President has the constitutional power.

The constitutional validity of Article 324 cannot be

considered as it is a part of the original

Constitution. The Constitution provides for a complete

machinery to deal with the appointments to the

Commission. The Vineet Narain Judgment was dealing with

a lack of statutory enactment and not a constitutional

provision. Any potential direction to include any nonExecutive, would involve a violation of the Doctrine

of Separation of Powers. Reliance is placed on the

judgment of this Court in Samsher Singh v. State of

Punjab and Another9. Article 324(2) cannot lead to a

constitutional duty on the part of Parliament to

legislate. Reliance is placed on T.N. Seshan (supra)

to contend that the President is the appointing

Authority and that the Chief Election Commissioner

could not claim to be equated with Supreme Court

Judges. The Doctrine of Separation of Powers is

emphasised. Separation of powers, it is pointed out,

is a reflection of democracy itself. The learned

Solicitor General persuades the Court to exhibit

judicial restraint. A causus omissus may not justify

judicial interference. Matters relating to policy

rightfully must remain immune from the judicial radar.

What is involved in this case is essentially a

political question.

9 (1974) 2 SCC 831

H. SUBMISSIONS OF SHRI BALBIR SINGH, LEARNED

ADDITIONAL SOLICITOR GENERAL

14. Shri Balbir Singh forcefully contended that there

is no vacuum and no trigger. Unlike the position

obtaining in Vishakha, there is no dire need made out.

The efficient working of the Election Commission

unerringly points to independence, informing its

functioning. Several elections have been conducted

under its aegis. The Election Commission of India is

recognised all over the world. A utopian model cannot

be the premise for inserting guidelines, when the

existing provisions are working well. The extent of

neutrality and transparency invoked by the petitioners

cannot be a sound basis for the Court to interfere.

ANALYSIS

I. ‘THE FRAMING OF INDIA’S CONSTITUTION’ BY B.

SHIVARAO

15. It is apposite that we understand the historical

perspective including the debates in the Constituent

Assembly. In the work, the ‘Framing of India’s

Constitution’ by B. Shivarao, we find the following

narrative as regards the topic of Franchise and

Elections.

“Election Commission

In the Government of India Act, 1935, and in

the earlier statues the conduct of elections

was left to the executive – the Central or

Provincial Governments, according as election

to the Central or State Legislature was

concerned. In the discussions in the

Constituent Assembly, there emerged almost

from the beginning a consensus of opinion that

the right to vote should be treated as a

fundamental right of the citizen and that, in

order to enable him to exercise this right

freely, an independent machinery to control

elections should be set up, free from local

pressures and political influences.

There was considerable discussion on these

issues in the Fundamental Rights Sub-Committee

and the Minorities Sub-Committee. K.M.

Munshi’s draft articles on fundamental rights

included the following clause:

Every citizen has the right to choose the

Government and the legislators of the Union and

his State on the footing of equality in

accordance with the law of the Union or the

unit, as the case may be, 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 commission set up under Union law.

To give effect to these conclusions, the

following recommendation was drafted for

inclusion in the sub-committee’s report:

(1) Every citizen not below 21 years of age

shall have the right to vote at any election

to the Legislature of the Union and of any unit

thereof, or, where the Legislature is

bicameral, to the lower chamber of the

Legislature, subject to such disqualifications

on the ground of mental incapacity, corrupt

practice or crime as may be imposed, and

subject to such qualifications relating to

residence within the appropriate constituency

as may be required by or under the law.

(2) The law shall provide for free and secret

voting and for periodical elections to the

Legislature.

(3) The superintendence, direction and control

of all elections to the Legislature, whether

of the Union or of a unit, including the

appointment of Election Tribunals, shall be

vested in an Election Commission 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 much power in the Union in the

matter of Election Commissions. It will be 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 elections

to the Legislature of the Union or in relation

to elections to the Legislature of a unit was

to be regulated by Union law. Some members of

the sub-committee felt that it would be an

infringement of the rights of the units if such

over-riding authority was given to Union law

in matters relating to elections to the

Legislatures of the units. Nevertheless the

recommendation as included in the draft was

adopted by the sub-committee by a majority

vote’.

The Minorities Sub-Committee considered these

provisions at its meeting held on April 17, and

accepted these recommendations. The only point

that arose at the meeting of this Sub-Committee

was raised by Syama Prasad Mukerjee, who

thought that the minorities should be

effectively represented in these Election

Commissions. On the other hand Jairamdas

Daulatram did not think it practicable to

provide for separate representation for

minorities. He suggested that the Election

Commissions should be so constituted that they

would function as impartial bodies and inspire

confidence among all parties and communities.

Accepting this suggestion, the Minorities SubCommittee proposed in its report that Election

Commissions should be independent and quasijudicial in character.

The Advisory Committee on Fundamental Rights,

Minorities, and Tribal and Excluded Areas

considered this matter at its meetings of April

20 and 21. There was unanimous acceptance of

the principles formulated by the Fundamental

Rights Sub-Committee. Discussion centred

mainly on the question whether the chapter on

fundamental rights was the proper place for

laying down these matters which pertained to

electoral law. C. Rajagopalachari was of the

view that franchise would not ordinarily be a

part of fundamental rights; and P.R. Thakur

pointed out that the proposal not only made

adult franchise compulsory, but also provided

for direct elections, thereby prejudging the

issue of direct elections; he expressed the

view that the Advisory Committee, dealing as

it did with fundamental rights, could not

appropriate the jurisdiction to decide on this

issue. Ambedkar, on the other hand, was clearly

and emphatically of the opinion that adult

franchise and all provision for its free and

fair exercise should be recognized as in the

nature of fundamental rights. He said:

So far as this committee is concerned, my

point is that we should support the

proposition that the committee is in favour

of adult suffrage. The second thing that we

have guaranteed in this fundamental right

is that the elections shall be free and the

elections shall be by secret voting ... We

have not said that they shall be direct or

they shall be indirect. This is a matter

that may be considered at another stage ...

The third proposition which this

fundamental clause enunciates is that in

order that elections may be free in the

real sense of the world, they shall be taken

out of the hands of the Government of the

day, and that they should be conducted by

an independent body which we may here call

an Election Commission. We have also given

permission in sub-clause (3) of this clause

that each unit may appoint its own

Commission. The only thing is that the law

shall be made by the Union. The reason for

this is that later on there will be a clause

in the Constitution which will impose an

obligation upon the Union Government to

protect the Constitution framed by

themselves for the units. Therefore we

suggested that the Union should have the

power of making a law, although the

administration of that law may be left to

the different units.

There was unanimous support for the principles

enunciated by Ambedkar but Rajagopalachari

argued that it would not be proper to deal with

this issue as a fundamental right. It could not

be taken for granted, he said, that the Union

Legislature would be elected by the direct vote

of all citizens from all India. He therefore

suggested that these matters relating to

franchise should be dealt with when they arose

in connection with the Constitution and not be

prejudged as fundamental rights. Eventually a

compromise solution suggested by Govind

Ballabh Pant was adopted, and it was decided

that these recommendations need not go as part

of the clauses on fundamental rights; but that

in the letter forwarding the report of the

Advisory Committee the Chairman should make it

clear that the committee recommended the

adoption of these proposals.

In accordance with this decision the Advisory

Committee recommended that, instead of being

included in the chapter of fundamental rights,

the provision regarding the setting up of an

independent Election Commission, along with

the other two proposals regarding adult

franchise and free and fair elections to be

held periodically, should find a place in some

other part of the Constitution.

In his memorandum on the principles of a model

Provincial Constitution circulated on May 30,

1947, B.N. Rau, the Constitutional Adviser,

included a provision that the superintendence,

direction and control of elections, including

the appointment of election tribunals, should

be vested in the Governor acting in his

discretion, subject to the approval of the

Council of State. Likewise, in the memorandum

on the Union Constitution, circulated on the

same date, he included a similarly

comprehensive provision that the control of

central elections, including the appointment

of election tribunals, should be vested in the

President acting in his discretion; the

intention of this provision was to make

available 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’s

memorandum but deleted the reference to the

approval of the Council of State. The Union

Constitution Committee deleted all the

suggestions for the exercise of discretionary

powers by the President and also the proposal

for a Council of State. The committee however

took a definite step in the direction of a

centralized authority in the matter of

elections: according to its recommendations,

all powers of supervision, direction and

control in respect of the federal as well as

provincial elections would be vested in a

Commission to be appointed by the President.

The Union Powers Committee expanded this

proposal by the inclusion in the Federal

Legislative List of the subject “All Federal

elections: and Election Commission to

superintend, direct and control all Federal and

Provincial elections”.

The provisions suggested in the model

Provincial Constitution came up 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 of all

elections to the Federal parliament and

Provincial Legislatures (including the

appointment of Election Tribunals for the

decision of doubts and disputes in connection

with elections to Parliament and to Provincial

Legislatures) and of all elections to the

offices of President, Vice-President, Governor

and President. The Drafting Committee altered

this scheme and in its draft the power of

appointing an Election Commission for

supervising elections to the office of Governor

and to the State Legislature was vested in the

Governor. The Drafting Committee expressed the

definite opinion that the Election Commission

for provincial elections should be appointed

by the Governor. This view underwent a radical

change subsequently and on June 15, 1947, when

the article came up for discussion in the

Constituent Assembly, Ambedkar introduced a

new article which made comprehensive provision

for a Central Election Commission to be in

charge of all Central and State elections.”

J. THE CONSTITUENT ASSEMBLY DEBATES

16. Draft Article 289 went on to blossom into Article

324 of the Constitution. Regarding the Draft Article

289 it is apposite that we notice the following

developments and discussions. On 15th June, 1949, the

following discussions are noticed. Amendment No.99 was

moved by Dr. B.R. Ambedkar to the original Article 289.

The original Article 289 read as follows:

“289. The superintendence, directions and

control of elections to be vested 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 Legislature of every State and of

elections to the offices of President and VicePresident held under this Constitution,

including the appointment of election

tribunals for the decision of doubts and

disputes arising out of or in connection with

elections to Parliament and to the Legislatures

of States shall be vested in a Commission

(referred to in his Constitution as the

Election Commission) to be appointed by the

President.

(2) The Election Commission shall consist of

the Chief Election Commissioner and such number

of other Election Commissioners, if any, as the

President may, from time to time appoint, and

when any other Election Commissioner is so

appointed, the Chief Election Commissioner

shall act as the Chairman of the Commission.

(3) Before each general election to the House

of the People and to the Legislative Assembly

of each State and before the first general

election and thereafter before each biennial

election to the Legislative Council of each

State having such Council, the President shall

also appoint after consultation with the

Election Commission such Regional

Commissioners as he may consider necessary to

assist the election Commission in the

performance of the functions conferred on it

by clause (1) of this article.

(4) The conditions of service and tenure of

office of the Election Commissioners and the

Regional Commissioners shall be such as the

President may by rule determine: Provided that

the Chief Election Commissioner shall not be

removed from the office except in like manner

and on the like grounds as a judge of the

Supreme Court and the conditions of the service

of the Chief Election Commissioner shall not

be varied to his disadvantage after his

appointment: Provided further that any other

Election Commissioner or a Regional

Commissioner shall not be removed from office

except on the recommendation of the Chief

Election Commissioner.

(5) The President or the Governor or Ruler of

a State shall, when so requested by the

Election Commission, make available to the

Election Commission or to a Regional

Commissioner such staff as may be necessary for

the discharge of the functions conferred on the

Election Commission by clause (1) of this

article.”

17. The amendment moved contemplated substitution of

the original Article 289 inter alia as follows:

“(2) The Election Commission shall consist of

the Chief Election Commissioner and such number

of other Election Commissioners, if any, as the

President may, from time to time appoint, and

when any other Election Commissioner is so

appointed, the Chief Election Commissioner

shall act as the Chairman of the Commission.

Xxx xxx xxx

(4) The conditions of service and tenure of

office of the Election Commissioners and the

Regional Commissioners shall be such as the

President may by rule determine:

Provided that the Chief Election Commissioner

shall not be removed from the office except in

like manner and on the like grounds as a judge

of the Supreme Court and the conditions of the

service of the Chief Election Commissioner

shall not be varied to his disadvantage after

his appointment:

Provided further that any other Election

Commissioner or a Regional Commissioner shall

not be removed from office except on the

recommendation of the Chief Election

Commissioner.”

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

“The House will remember that in a very early

stage in the proceedings of the Constituent

Assembly, a Committee was appointed to deal

with what are called Fundamental Rights. That

Committee made a report that it should be

recognised that the independence of the

elections and the avoidance of any interference

by the executive in the elections to the

Legislature should be regarded as a fundamental

right and provided for in the chapter dealing

with Fundamental Rights. When the matter came

up before the House, it was the wish of the

House that while there was no objection to

regard this matter as of fundamental

importance, it should be provided for in some

other part of the Constitution and not in the

Chapter dealing with Fundamental Rights. But

the House affirmed without any kind of dissent

that in the interests of purity and freedom of

elections to the legislative bodies, it was of

the utmost importance that they should be freed

from any kind of interference from the

executive of the day. In pursuance of the

decision of the House, the Drafting Committee

removed this question from the category of

Fundamental Rights and put it in a separate

part containing articles 289, 290 and so on.

Therefore, so far as the fundamental question

is concerned that the election machinery should

be outside the control of the executive

Government, there has been no dispute. What

article 289 does is to carry out that part of

the decision of the Constituent Assembly. It

transfers the superintendence, direction and

control of the preparation of the electoral

rolls and of all elections to Parliament and

the Legislatures of States to a body outside

the executive to be called the Election

Commission. That is the provision contained in

sub-clause (1).

Sub-clause (2) says that there shall be a Chief

Election Commissioner and such other Election

Commissioners as the President may, from time

to time appoint. There were two alternatives

before the Drafting Committee, namely, either

to have a permanent body consisting of four or

five members of the Election Commission who

would continue in office throughout without any

break, or to permit the President to have an ad

hoc body appointed at the time when there is

an election on the anvil. The Committee, has

steered a middle course. What the Drafting

Committee proposes by sub-clause (2) is to have

permanently in office one man called the Chief

Election Commissioner, so that the skeleton

machinery would always be available. Election

no doubt will generally take place at the end

of five years; but there is this question,

namely that a bye-election may take place at

any time. The Assembly may be dissolved before

its period of five years has expired.

Consequently, the electoral rolls will have to

be kept up to date all the time so that the

new election may take place without any

difficulty. It was therefore felt that having

regard to these exigencies, it would be

sufficient if there was permanently in session

one officer to be called the Chief Election

Commissioner, while when the elections are

coming up, the President may further add to the

machinery by appointing other members to the

Election Commission.

Now, Sir, the original proposal under article

289 was that there should be one Commission to

deal with the elections to the Central

Legislature, both the Upper and the Lower

House, and that there should be a separate

Election Commission for each province and each

State, to be appointed by the Governor or the

Ruler of the State. Comparing that with the

present article 289, there is undoubtedly, a

radical change. This article proposes to

centralize the election machinery in the hands

of a single Commission to be assisted by

regional Commissioners, not working under the

provincial Government, but working under the

superintendence and control of the central

Election Commission. As I said, this is

undoubtedly a radical change. But, this change

has become necessary because today we find that

in some of the provinces of India, the

population is a mixture…”

(Emphasis supplied)

19. Professor Shibban Lal Saksena gave notice of an

amendment to the amendment to Article 289 which, inter

alia, stated that after the word ‘appoint’ in clause

(2), the words “subject to confirmation by two-third

majority in a joint session of both the Houses of

Parliament” be inserted. He also proposed that in

clause (4), the words “Parliament may by law determine”

be substituted for the words “President may by rule

determine”. There were certain other amendments

proposed by Prof. Saksena. Prof. Saksena further went

on to make the following statement:

“..Of course it shall be completely independent

of the provincial Executives 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 his

recommendations. Now this does not ensure their

independence…”

Xxx xxx xxx

“So what I want is this that even the person

who is appointed originally should be such that

he should be enjoying the confidence of all

parties—his appointment should be confirmed

not only by majority but by two-thirds majority

of both the Houses. If it is only a bare

majority, then the party in power could vote

confidence in him but when I want 2/3rd

majority it means that the other parties must

also concur in the appointment so that in order

that real independence of the Commission may

be guaranteed, in order that everyone even in

opposition may not have anything to say against

the Commission, the appointments of the

Commissioners and the Chief Election

Commissioner must be by the President but the

names proposed by him should be such as command

the confidence of two-thirds majority of both

the Houses of Legislatures.”

xxx xxx xxx

“I want that in future, no Prime Minister

may abuse this right, and for this I want to

provide that there should be two-thirds

majority which should approve the nomination

by the President. Of course there is danger

where one party is in a huge majority. As I

said just now it is quite possible that if our

Prime Minister wants, he can have a man of his

own party, but I am sure he will not do it.

Still if he does appoint a party-man, and the

appointment comes up for confirmation in a

joint session, even a small opposition or even

a few independent members can down the Prime

Minister before the bar of public opinion in

the world. Because we are in a majority we can

have anything passed only theoretically. So the

need for confirmation will invariably ensure a

proper choice.”

(Emphasis Supplied)

20. On 16th June 1949, we notice that Shri H.V. Pataskar

stated as follows:

“As I said, so far as I can see, article 289(2)

is quite enough for the purpose. Even under

article 289(2) we can appoint not merely some

officials of the Government as Election

Commissioners, but people of the position of

High Court Judges; we can make them permanent;

we can make them as Independent as we are

trying to make them in the case of the Central

Commission.”

(Emphasis Supplied)

21. Pandit Hirday Nath Kunzru addressed the following

concerns and suggested as follows:

“Here two things are noticeable: the first is

that it is only the Chief Election Commissioner

that can feel that he can discharge his duties

without the slightest fear of incurring the

displeasure of the executive, and the second

is that the removal of the other Election

Commissioners will depend on the

recommendations of one man only, namely the

Chief Election Commissioner. However

responsible he may be, it seems to me very

undesirable that the removal of his colleagues

who will occupy positions as responsible as

those of judges of the Supreme Court should

depend on the opinion of one man. We are

anxious, Sir, that the preparation of the

electoral rolls and the conduct of elections

should be entrusted to people who are free from

political bias and whose impartially can be

relied upon in all circumstances. But, by

leaving a great deal of power in the hands of

the President we have given room for the

exercise of political influence in the

appointment of the Chief Election Commissioner

and the other Election Commissioners and

officers by the Central Government. The Chief

Election Commissioners will have to be

appointed on the advice of the Prime Minister,

and, if the Prime Minister suggests the

appointment of a party-man the President will

have no option but to accept the Prime

Minister's nominee, however unsuitable he may

be on public grounds. (Interruption). Somebody

asked me suitable why it should be so.”

xxx xxx xxx

“My remedy for the defects that I have pointed

out is that Parliament should be authorised to

make provision for these matters by law. Again,

Sir, this article does not lay down the

qualifications of persons who are chosen as

Chief Election Commissioners or as Election

Commissioners. And, as I have already pointed

out, in the matter of removal, the Election

Commissioners are not on the same footing as

the Chief Election Commissioner.”

(Emphasis Supplied)

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

“Between two elections, normally there would

be a period of five years. We cannot have an

Election Commission sitting all the time during

those five years doing nothing. The Chief

Election Commissioner will continue to be a

whole-time officer performing the duties of his

office and looking after the work from day to

day, but when major elections take place in the

country, either Provincial or Central, 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, but as the House

will find, they are to be appointed from time

to time. Once they are appointed for a

particular period they are not removable at the

will of the President. Therefore, to that

extent their independence is ensured. So there

is no reason to believe that these temporary

Election Commissioners will not have the

necessary measure of independence. Any way the

Chief Election Commissioner an independent

officer, will be the Chairman and being a

permanent officer will have naturally

directing and supervising power over the whole

Commission. Therefore, it is not correct to say

that independence of the Commission is taken

away to any extent.

We must remember one thing, that after all an

election department is not like a judiciary, a

quasi-independent organ of Government. It is

the duty and the function of the Government of

the day to hold the elections. The huge

electorates which we are putting up now, the

voting list which will run into several crores—

all these must necessarily require a large army

of election officers, of clerks, of persons to

control the booths and all the rest of them.

Now all this army cannot be set up as a

machinery independent of Government. 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 a kingdom within a kingdom,

so that the election matters could be left to

an entirely independent organ of the

Government. A machinery, so independent,

cannot be allowed to sit as a kind of SuperGovernment to decide which Government shall

come into power. There will be great political

danger if the Election Tribunal becomes such a

political power in the country. Not only it

should preserve its independence, but it must

retain impartiality. Therefore, the Election

Commission must remain to a large extent an

ally of the Government; not only that, but it

must, a considerable extent, be subsidiary to

Government except in regard to the discharge

of the functions allotted to it by law.

“Therefore, the Parliament as well as the State

Legislatures are free to make all provisions

with regard to election, subject, of course, 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 Center or the Provinces as the

case may be. What is now intended is that they

should not be subjected to the day-to-day

influence of the Government nor should they be

completely independent of Government, and

therefore a sort of compromise has been made

between the two positions; but I agree with my

honourable Friend, Pandit Kunzru that for the

sake of clarity, at any rate, to allay any

doubts clause (2) requires a little amendment.

At the beginning of clause (2) the following

words may be added; “subject to the provisions

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 confess that there is a great deal of

force in what my Friend Professor Saksena said

that there is no use making the tenure of the

Election Commissioner a fixed and secure tenure

if there is no provision in the Constitution

to prevent either a fool or a knave or a person

who is likely to be under the thumb of the

Executive. My provision—I must admit-—does not

contain anything to provide against nomination

of an unfit person to the post of the Chief

Election Commissioner or the other Election

Commissioners. I do want to confess that this

is a very important question and it has given

me a great deal of headache and I have no doubt

about it that it is going to give this House a

great deal of headache. In the U.S.A. they have

solved this question by the provision contained

in article 2 Section (2) of their Constitution

whereby certain appointments which are

specified in Section (2) of article 2 cannot

be made by the President without the

concurrence of the Senate; so that so far as

the power of appointment is concerned, although

it is vested in the President it is subject to

a check by the Senate so that the Senate may,

at the time when any particular name is

proposed, make enquiries and satisfy itself

that the person proposed is a proper person.

But it must also be realised that that is a

very dilatory process, a very difficult

process. Parliament may not be meeting at the

time when the appointment is made and the

appointment must be made at once without

waiting. Secondly, the American practice is

likely and in fact does introduce political

considerations in the making of appointments.

Consequently, while I think that the provisions

contained in the American Constitution is a

very salutary check upon the extravagance of

the President in making his appointments, it

is likely to create administrative

difficulties and I am therefore hesitating

whether I should at a later stage recommend the

adoption of the American provisions in our

Constitution. The Drafting Committee had paid

considerable attention to this question

because as I said it is going, to be one of

our greatest headaches and as a via media it

was thought that if this Assembly would give

or enact what is called an Instrument of

Instructions to the President and provide

therein some machinery which it would be

obligatory on the President to consult before

making any appointment, I think the

difficulties which are felt as resulting from

the American Constitution may be obviated and

the advantage which is contained therein may

be secured. At this stage it is impossible for

me to see or anticipate what attitude this

House will take when the particular draft

Instructions come before the House. If the

House rejects the proposal of the Drafting

Committee that there should be an Instrument

of Instructions to the President which might

include, among other things, a provision with

regard to the making of appointments, this

problem would then be solved by that method.

But, as I said, it is quite difficult for me

to anticipate what may happen. Therefore in

order to meet the 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. 99. 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 as follows:

“The appointment of the Chief 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.”

(Emphasis Supplied)

25. We notice that the amendment which was proposed by

Professor Shibban Lal Saksena which we have noticed

came to be negatived and the amendment which was

proposed by Dr. B.R. Ambedkar was adopted. Thus,

Article 289 as amended was added to the Constitution.

It is this Article which appears in the Constitution

as Article 324.

26. At this stage, we may only notice the following

comment, however, in the work by B Shiva Rao: -

“By leaving a great deal of power in hands of

the President, it gave room for the exercise

of political influence by the Central

Government in the appointment of the Chief

Election Commissioner and the other Election

Commissioners. His remedy was that Parliament

should be authorized to make provision for

these matters by law. K.M. Munshi, while

supporting Ambedkar’s proposal suggested in

order to meet Kunzru’s criticism an amendment

requiring that the appointment of the Chief

Election Commissioner and the other Election

Commissioners would be subject to law made by

Parliament; and that the power of the President

to make rules regulating their conditions of

service would likewise be subject to any law

made by Parliament. With these modifications

the article was adopted: at the revision stage

it was numbered as article 324.”

27. The Constituent Assembly of India can proximately

be traced to the deliberations of the cabinet mission.

The broad features were as follows. The members of the

constituent assembly were to be elected not on the

basis of adult suffrage. At the time, i.e., in 1946,

India was still under British rule. British India

broadly consisted of the Governors provinces and the

Chief Commissioner’s provinces. There were also a large

number of princely states. An interim government, no

doubt, based on elections, was put in place. There were

also at the same time, provincial legislative bodies.

The members of the Constituent Assembly came to be

elected by the members of the provincial assemblies and

they were not directly elected by the people of the

country as such. Shri Kaleeswaram Raj is, therefore,

correct that the Constituent Assembly was not directly

elected by the people. There were changes which were

necessitated by the partition. Suffice it to note that

there were 238 members representing the Governors and

others provinces. This is besides 89 sent by the

princely states. The first meeting of the Assembly was

held on 9th December, 1946. One Shri B.N. Rau was

appointed as the constitutional advisor. He made a

draft constitution. A drafting committee, drawn from

the members of the constituent assembly in turn with

the help of the Secretariat as well, brought out two

drafts further, which in turn, were published. Public

discussion ensued. Thereafter, the draft articles were

discussed in the constituent assembly. There were

further amendments. It is to be noticed also that the

humongous task necessarily led to the creation of

several committees. The most prominent of them can be

perceived as the drafting committee, the advisory

committee and various sub-committees which included the

sub-committee on fundamental rights.

K.THE USE OF CONSTITUENT ASSEMBLY DEBATES

28. In regard to the use of Constituent Assembly

debates, the law has not stood still. At any rate,

whatever may be the controversy, as regards its

employment to discern, the purport of a provision there

can be no taboo involved in its use to understand the

history of a provision under the Constitution and the

various steps leading up to and accompanying its

enactment. In this regard, we may refer to the

following view expressed in His Holiness Kesavananda

Bharati Sripadagalvaru v. State of Kerala and Another10:

“1598. If the debates in the Constituent

Assembly can be looked into to understand the

legislative history of a provision of the

Constitution including its derivation, that

is, the various steps leading up to and

attending its enactment, to ascertain the

intention of the makers of the Constitution,

it is difficult to see why the debates are

inadmissible to throw light on the purpose and

general intent of the provision. After all,

legislative history only tends to reveal the

legislative purpose in enacting the provision

and thereby sheds light upon legislative

intent. It would be drawing an invisible

distinction if resort to debates is permitted

simply to show the legislative history and the

same is not allowed to show the legislative

intent …”

(Emphasis supplied)

29. In fact, in a recent Judgment by Justice Ashok

Bhushan, which is partly concurring and partly

dissenting, reported in Dr. Jaishri Laxmanrao Patil v.

10 (1973) 4 SCC 225

Chief Minister and others11, has approved, after

referring to the decisions of this Court on the point,

‘the use of Constituent Assembly debates’.

L. CONCLUSIONS ABOUT HISTORICAL PERSPECTIVES

INCLUDING THE LIGHT SHED BY THE CONSTITUENT

ASSEMBLY DEBATES

30. The members of the Constituent Assembly were

undoubtedly concerned over the need to ensure

independence of the Election Commission. Under the

Government of India Act, 1935, the earlier law, it was

the Executive which was conferred the power to conduct

the election. Initially, there was a consensus of

opinion, in fact, that the right to vote was to be made

a fundamental right. In fact, in the draft Article by

Shri K.M. Munshi, he contemplated providing for right

to choose for every citizen and a free secret and

periodic election. The Fundamental Rights SubCommittee also approved that there must be universal

adult franchise guaranteed by the Constitution. The

election was to be free, secret and periodic. Most

importantly, the Fundamental Rights Sub-Committee in

11 (2021) 8 SCC 1

the meeting held on 29.03.1947 contemplated that an

independent Commission must be set up under Union law.

A recommendation providing for an Election Commission

being appointed in all cases with the law of the Union

was made. Further, it becomes clear from a perusal of

the work ‘Framing of India’s Constitution’ by B. Shiva

Rao that some disputes arose relating to so much power

being conferred on the Union in the matter of

elections. The dispute essentially related to clothing

the Commission with power to conduct elections in

regard to the State Legislatures, besides the Union

Legislature. The Minority Sub-Committee also made a

report that the Election Commission should be

independent and quasi-judicial in character. The

Advisory Committee on Fundamental Rights, Minority,

Tribal and Excluded Area also accepted the principles

formulated by the Fundamental Rights Sub-Committee.

However, the view was expressed by Shri C.

Rajagopalachari that the right to vote should not be a

part of fundamental right. Dr. Ambedkar, however,

specifically opined that in order that election may be

free in the real sense of the word, they shall be taken

out of the hands of the government of the day, and be

conducted by the independent body called the Election

Commission. Shri C. Rajagopalachari, however,

persevered with the theme that the matter relating to

franchise may not find itself among the provisions

providing for Fundamental Rights. Shri Govind Vallabh

Pant suggested a compromise and the Advisory Committee

thereby recommended that instead of being included in

the Chapter on Fundamental Rights, the provisions

relating to franchise and to an independent Election

Commission should be located in another part of the

Constitution. In his work, the Framing of India’s

Constitution, by B. Shivarao has not minced words by

commenting that by leaving a great deal of power in the

hands of the President, it gave room for exercising

political influence in the appointment of the Election

Commissioner and other election commissioners. The

remedy, it was found, which was contemplated was, that

the Parliament would make a law to regulate the matter.

As we have noticed, there was severe criticism,

particularly by Shri Kunzuru and Professor Shiben Lal

Saxena, and it was thereupon, that Shri K.M. Munshi

while supporting Ambedkar’s amendment to the original

article, recommended that the appointment be subject

to the law made by the Parliament. It is on this

fundamental basis that the amendment which was proposed

by Dr. Ambedkar to the original article was adopted.

31. Professor Saxena was emphatic that the draft

amended Article 289, which contemplated appointment

being made by the President, without anything more,

would necessarily mean that the Prime Minister would

end up appointing the Commission. He warned that it

would not ensure their independence. He was clear that

in future, no Prime Minister should abuse the right to

appoint. Shri H.V. Pataskar felt Article 289(2)

sufficed. The thought which comforted the Member was

not merely some official of the Government could be

appointed as Election Commissioners but people in the

position of High Court Judges. Pandit Hirday Nath

Kunzru clearly articulated the anxiety and the need for

the preparation of the electoral roll and the conduct

of the elections, being entrusted to people, who were

free from political bias and whose impartiality could

be relied upon ‘in all circumstances’. The plight of

the President, who has to act on the advice of the

Prime Minister, was highlighted. It was the learned

Member, who suggested the remedy for the defect, that

is that the Parliament should be authorised to make

provisions for these matters, by law. This was also the

view of the Sub-Committee on Fundamental Rights. Shri

K. M. Munshi, took the view that the Election

Commission must remain to a large extent an ally of the

Government. The pursuit of independence of the Election

Commission, he felt, should not result in there arising

‘a kingdom within a kingdom’. It was not to be a quasiindependent organ of the Government. This is on the

basis that the 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 a great deal

of merit in the fear that guaranteeing a fixed and

secured tenure, was of no use, if there was no provision

in the Constitution, which would stand in the way of

either an incompetent or unfair official, becoming and

running the Election Commission. In particular, Dr.

Ambedkar foresaw the danger of the Election

Commissioners, being persons who were likely to be

under the control of the Executive. The provision, as

proposed to be amended by Dr. Ambedkar, it was admitted

by Dr. Ambedkar himself, did not provide against an

‘unfit’ person being appointed to the Election

Commission. Thereafter, he predicted that the question

will emerge as one of the greatest headaches. He found

solace in the prospect of an instrument of instructions

being issued to the President, which would guide the

President in the matter of appointment to the Election.

Noticing the uncertainty about the prospect, however,

it was and to allay the apprehensions voiced by both

Professor Saxena and Pandit Kunzru, that Article

324(2), as it presently obtains, came to be proposed

by way of the amendment to the amendment of the original

Article. In other words, before the words ‘be made by

the President’, the words ‘subject to provisions of any

law made in this behalf by Parliament’. came to be

inserted.

32. We understand the historical perspective, and the

deliberations of the Fundamental Rights Sub-Committee,

the Drafting Committee and the other Sub-Committees

and, finally, of the Constituent Assembly itself, to

be as follows:

A golden thread runs through these proceedings.

All the Members were of the clear view that

election must be conducted by an independent

Commission. It was a radical departure from the regime

prevailing under the Government of India Act, 1935. The

Members very well understood that providing for

appointment of Members of the Election Commission by

the President would mean that the President would be

bound to appoint the Election Commissioner solely on

the advice of the Executive, which, in a sense, was

understood as on the advice of the Prime Minister. The

model of appointment prevailing in the United States

was deliberated and not approved. Though, Shri K. M.

Munshi was not in favour of giving complete

independence to the Election Commission and felt that

it should be an ally of the Government, it clearly did

not represent the views of the predominant majority of

the Members. Right to Vote was, to begin with,

considered so sacrosanct that it was originally

contemplated as a Fundamental Right. However, finally,

as we have already noticed, it was found more

appropriate that it should be contained in a separate

part of the Constitution, which is the position

obtaining under the Constitution. It is equally clear

that the Members of the Committees, including the

Constituent Assembly, wanted the appointment to the

Election Commission not to be made by the Executive.

The uncertain prospect of an instrument of

instructions, finally led the Assembly to adopt the

amendment suggested by Dr. Ambedkar, which, as we have

noticed, was initially the suggestion made by Pandit

Kunzru, and what is more, even seconded by Shri K. M.

Munshi. In short, what the Founding Fathers clearly

contemplated and intended was, that Parliament would

step-in and provide norms, which would govern the

appointment to such a uniquely important post as the

post of Chief Election Commissioner and the Election

Commissioners. In this regard, we notice the final

words of Dr. Ambedkar in regard to the debate

surrounding Article 324, was that he felt sorry that

he did not have time to circulate the amendments.

33. It is important that we understand that when the

Founding Fathers, therefore, inserted the words

‘subject to the provisions of any law to be made by

Parliament’, it was intended that Parliament would make

a law. While we would not go, so far as to hold that

Parliament was under a compellable duty, which this

Court can enforce by a Mandamus, to make a law, all

that we are finding is that the Constituent Assembly

clearly intended that Parliament must make a law within

the meaning of Article 324(2). Such an understanding

of Article 324(2) may be contrasted with similar

provisions in the Constitution, which also contemplated

enabling the making of law by Parliament. This brings

us to the question relating to an evaluation of similar

provisions in the Constitution.

M. ARTICLES IN THE CONSTITUTION, WHICH EMPLOY

THE WORDS ‘SUBJECT TO ANY LAW’ TO BE MADE BY

PARLIAMENT AS CONTAINED IN ARTICLE 324

34. One of the contentions of the respondent-Union is

that this Court must bear in mind the snowballing

effect of the interpretation canvassed by the

petitioners being accepted on other situations governed

by other Articles.

35. Articles in the Constitution, which employ the

words ‘subject to any law’ to be made by Parliament as

contained in Article 324.

36. Article 98 provides that each House of Parliament

shall have a 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 House of People or Chairman of the

Council of States, to make Rules, till Parliament makes

law. Apart from the dissimilarity, it is to be noticed

that, even in the matter governed by Article 98, if not

law, Rules are to govern.

37. Article 137 declares that, subject to the

provisions of any law made by Parliament or Rules made

under Article 145, Supreme Court shall 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 a law made by Parliament

would have little effect. The purport of Article 137

has absolutely no comparison with Article 324(2).

Article 142(2) uses the same expression, viz., ‘subject

to the provisions of any law made by Parliament’ and

it provides that the Supreme Court is to have power for

ordering the attendance of any person, the discovery

or protection of any document or the investigation or

punishment for any contempt. Patently, the absence of

any law under Article 142 cannot produce 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 of any law made by Parliament’, Supreme

Court can make Rules for regulating the practice and

procedure of the Court. It is self-evident that it

bears no resemblance to the context, purpose and

background of Article 324(2).

39. Article 146 of the Constitution of India reads as

follows:

“146. Officers and servants and the expenses

of the Supreme Court

(1) Appointments of officers and servants of

the Supreme Court shall be made by the Chief

Justice of India or such other Judge or officer

of the Court as he may direct: Provided that

the President may by rule require that in such

cases as may be specified in the rule, no

person not already attached to the Court shall

be appointed to any office connected with the

Court, save after consultation with the Union

Public Service Commission

(2) Subject to the provisions of any law made

by Parliament, the conditions of service of

officers and servants of the Supreme Court

shall be such as may be prescribed by rules

made by the Chief Justice of India or by some

other Judge or officer of the Court authorised

by the Chief Justice of India to make rules

for the 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, including all salaries, allowances and

pensions payable to or in respect of the

offices and servants of the Court, shall be

charged upon the Consolidated 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 a matter which deals

with the conditions of service of Officers and Servants

of Supreme Court. In regard to the said employees, the

Founding Fathers have provided for Rule-making power

with the Chief Justice of India. We are clear in our

minds that apart from the fact, the rule-making power

is lodged with the Chief Justice of India, there cannot

be any valid comparison between the employees of the

Supreme Court and the members of the Election

Commission. There is no safeguard provided against the

removal as is contemplated for the Chief Election

Commissioner and Election Commissioners. Article 148

deals with appointment of the Comptroller and Auditor

General of India. It reads as follows:

“148. Comptroller and Auditor General of India

(1) There shall be a Comptroller and Auditor

General of India who shall be appointed by the

President by warrant under his hand and seal

and shall only be removed from office in like

manner and on the like grounds as a Judge of

the Supreme Court

(2) Every person appointed to be the

Comptroller and Auditor General of India shall,

before he enters upon his office, make and

subscribe before the President, or some person

appointed in that behalf by him, an oath or

affirmation according to the form set out for

the purpose in the Third Schedule

(3) The salary and other conditions of service

of the Comptroller and Auditor General shall

be such as may be determined by Parliament by

law and, until they are so determined, shall

be as specified in the Second Schedule:

Provided that neither the salary of a

Comptroller and Auditor General nor his rights

in respect of leave of absence, pension or age

of retirement shall be varied to his

disadvantage after his appointment

(4) The Comptroller and Auditor General shall

not be eligible for further office either under

the Government of India or under the Government

of any State after he has ceased to hold his

office

(5) Subject to the provisions of this

Constitution and of any law made by Parliament,

the conditions of service of persons serving

in the Indian Audit and Accounts Department and

the administrative powers of the Comptroller

and Auditor General shall be such as may be

prescribed by rules made by the President after

consultation with the Comptroller and Auditor

General

(6) The Administrative expenses of the office

of the Comptroller and Auditor General,

including all salaries, allowances and

pensions payable to or in respect of pensions

serving in that office, shall be charged upon

the Consolidated Fund of India.”

41. As far as the appointment of the Comptroller and

Auditor General is concerned, it is governed by Article

148(1) and the Founding Fathers have provided beyond

the pale of any doubt that the appointment of the

Comptroller and Auditor General, vital and

indispensable as he is for the affairs of the nation,

his appointment is to be made by the President. The

safeguard, however, considered suitable to ensure his

independence has been declared by providing that the

CAG can be removed only in like manner and on like

grounds as a Judge of the Supreme Court. In stark

contrast, Article 324(2) has, while it has provided for

the appointment of the Chief Election Commissioner and

the Election Commissioners by the President, it has

been made subject to a law to be made 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 for the safeguard in the first proviso to

Article 324(5) that the Chief Election Commissioner

shall not be removed except in like manner and like

grounds as a Judge of Supreme Court of India. Still

further, there is a third distinguishing feature

between the Chief Election Commissioner and the CAG

again located in the first proviso to Article 324(5).

It is declared that the conditions of service of the

Chief Election Commissioner shall not be varied to his

disadvantage after his appointment. The Chief Election

Commissioner and Election Commissioners stand on a far

higher pedestal in the constitutional scheme of things

having regard to the relationship between their powers,

functions and duties and the upholding of the

democratic way of life of the nation, the upkeep of

Rule of Law and the very immutable infusion of life

into the grand guarantee of equality under Article 14.

42. Article 187 provides for a Secretariat for the

State Legislature. Except for the difference in the

Legislative Body being the State Legislature and the

Governor taking the place of the President, it mirrors

Article 98 of the Constitution.

43. Article 229 deals with Officers, servants and

expenses of High Court. There cannot be any valid

comparison between the Chief Election Commissioner and

the Election Commissioners contemplated under Article

324(2) and the Officers and servants of the High Court.

The very fact that Officers covered by Article 229(2)

are not extended any protection against removal, itself

not merely furnishes a significant starting point but

may itself be conclusive of the dissimilarity between

the persons associated with the Central Election

Commission and the employees covered by Article 229(2).

44. Article 229(2) deals with the Officers, expense

and servants of the High Court. Since Article 229 is

pari materia with Article 146(2), we would find merit

in the same rationale, which we have furnished for not

comparing the employees with the persons governed by

Article 324(2).

45. Article 243(k) is part of Part IX of the

Constitution, which was inserted by the Constitution

(Seventy Third) Amendment Act, 1992. Part IX deals with

the panchayats. Article 243(k) reads as follows:

“243K. Elections to the Panchayats The

superintendence, direction and control of the

preparation of electoral rolls for, and the

conduct of, all elections to the Panchayats

shall be vested in a State Election Commission

consisting of a State Election Commissioner to

be appointed by the Governor.

(2) Subject to the provisions of any law made

by the Legislature of a State the conditions

of service and tenure of office of the State

Election Commissioner shall be such as the

Governor may by rule determine: Provided that

the State Election Commissioner shall not be

removed from his office except in like manner

and on the like ground as a Judge of a High

Court and the conditions of service of the

State Election Commissioner shall not be varied

to his disadvantage after his appointment.

(3) The Governor of a State shall, when so

requested by the State Election Commission,

make available to the State Election Commission

such staff as may be necessary for the

discharge of the functions conferred on the

State Election Commission by clause (1).

(4) Subject to the provisions of this

Constitution, the Legislature of a State may,

by law, make provision with respect to all

matters relating to, or in connection with,

elections to the Panchayats.”

46. Article 243(k)(1) contemplates the appointment of

the State Election Commissioner to be made by the

Governor. Article 243(k)(2) contemplates that the

conditions of service and the tenure of the State

Election Commissioner is to be such as maybe made by

the Governor by Rule and this is, however, made subject

to the provisions of any law made by the Legislature

of a State. It is, no doubt, again true that the

Parliament, while inserting Article 243K, has partly

insulated the State Election Commissioner by providing

that he shall not be removed from Office except in like

manner and on like ground as a Judge of the High Court.

Similarly, in the proviso to Article 243K(2), the

conditions of service of the State Election

Commissioner cannot be varied to his disadvantage after

his appointment. It must be noticed that Parliament was

aware of the mandate of Article 324(2) when it inserted

Article 243. Parliament has carefully chosen not to

provide for the making of any law as regards the

appointment of the State Election Commissioner. In

fact, this may leave no choice for a Court to step-in

and provide for the matter of appointment as regards

the State Election Commissioner. However, we need not

explore the matter further having regard to the stark

contrast between 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 a law to be

made by the Legislature of the State, we would think

that in keeping with the position and the subject

matter of Article 243K(2), it may not be apposite to

project Article 243K(2) as a premise to reject the

request of the petitioners to place the interpretation

on Article 324(2), if it is otherwise justified.

47. Article 338(2) provides that subject to the

provisions of any law made by Parliament, the National

Commission for Scheduled Caste was to consist of a

Chairman, Vice-Chairman and three other Members and the

conditions of service and tenure of Office, were to be

such as the President, may by Rule, determine. An

identical provision is contained in Article 338A(2) as

regards National Commission for Scheduled Tribes. Not

unnaturally, in Article 338B(2), similar provisions are

contained in regard 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 of the Commission shall be

appointed by the President by warrant under his

hand and seal.”

Identical provisions have been made vide Article

338A and Article 338B.

48. We would notice that pertinently, Articles 338,

338A and 338B contemplates a law to regulate the

conditions of service and tenure of the Members of the

National Commission for Scheduled Castes, Scheduled

Tribes and Backward Classes. Article 324(5)

contemplates a law being made to regulate the

conditions of service and the tenure of Office of the

Election Commissioners. Most pertinently, Parliament

has enacted the 1991 Act, as contemplated in Article

324(5). It is, when it comes to providing for the

appointment of the Election Commissioners, which was

clearly in the contemplation of the Founding Fathers

that no law has been made. The old regime continues.

In regard to the Members of the National Commissions,

covered by Articles 338, 338A and 338B, the

Constitution is clear that the appointment is to be

made by President.

49. Article 367(3) deals with the meaning of a foreign

State for the purpose of the Constitution and after

declaring it to be ‘any State’ other than India, makes

it, subject to a proviso, which declares that subject

to the provisions of any law made by Parliament, the

President may, by order, declare any State not to be a

foreign State for such purposes, as may be specified

in the Order. The matter is governed fully by the

Constitution (Declaration as to Foreign States) Order,

1950. Apart from the apparent absence of any imperative

need for a law, the matter is governed by an Order,

which is issued under the Constitution, which itself

would be of a statutory nature and also issued under

an enabling provision of the Constitution itself.

No further discussion is needed to conclude that

Article 324(2) is unique in its setting and purpose.

N.DEVELOPMENTS AFTER 26 JANUARY 1950; THE CHIEF

ELECTION COMMISSIONERS AND THE ELECTION

COMMISSIONERS WHO WERE APPOINTED AND THEIR

TERMS

50. In the year 1951, Shri Sukumar Sen was appointed

as the first Chief Election Commissioner of India. He

was a Civil Servant and a former Chief Secretary of the

State of West-Bengal. His term was to last for eight

years and two hundred and seventy-three days. Shri

Kalyan Sundaram, the second Chief Election

Commissioner, again a Civil Servant, the first Law

Secretary and who also chaired the Indian Law

Commission for the period from 1968 to 1971, was

appointed as Chief Election Commissioner on 20.12.1958

and his term terminated on 30.09.1967. It is noteworthy

that his term also lasted eight years and two hundred

and eighty-four days.

51. The Government of India (Transaction of Business)

Rules, 1961 have been referred to by the parties.

Insofar as it is relevant, we may notice them. Under

Rule 8, the cases to be submitted to the Prime Minister

and President, are described as all cases of the nature

specified in the Third Schedule. In the Third Schedule,

Serial No.22 describes appointment, resignation and

removal of the Chief Election Commissioner and other

Election Commissioners in Column 1 under the heading

‘nature of cases’. Article 324 is referred to, under

the Column ‘authority to whom the matter is submitted,

it is indicated ‘the Prime Minister and the President’.

52. Shri S.P. Sen Verma was the third Chief Election

Commissioner and he was appointed on 01.10.1967 and he

continued till 30.09.1972 (his term lasted for five

years). Shri Nagendra Singh, a Civil Servant and a

Member of the Constituent Assembly and who, later on,

became the Judge of the International Court of Justice,

had a short tenure as the fourth Chief Election

Commissioner from 01.10.1972 to 06.02.1973 (his term

lasted for one hundred and twenty-eight days). The

fifth Chief Election Commissioner was Shri T.

Swaminathan, who was also a Civil Servant, having

become a Cabinet Secretary as well and his stint as

Chief Election Commissioner was from 07.02.1973 to

17.06.1977 (his term lasted for four years and ten

days). Shri S.L. Shakdher was appointed as the Sixth

Chief Election Commissioner. He was also a Civil

Servant and Secretary General of the Lok Sabha. His

term commenced on 18.06.1977 and expired on 17.06.1982

(his term lasted for four years and three hundred and

sixty-four days). Shri R. K. Trivedi, the Seventh Chief

Election Commissioner, was also a Civil Servant, and

he had a term of three years and one hundred and ninetysix days. Shri R.V.S. Perishastri was the Eighth Chief

Election Commissioner. He was the Secretary to

Government and his term lasted from 01.01.1986 till

25.11.1990. It was for the first time that Election

Commissioners, two in number, viz., Shri V. S. Seigell

and Shri S. S. Dhanoa came to be appointed as Election

Commissioners on 16.10.1989. However, as we shall see

in greater detail, the Notification dated 16.10.1989

came to be rescinded on 01.01.1990. The same came to

be challenged by Shri S.S. Dhanao and it culminated in

the Judgment of this Court reported in S.S. Dhanoa v.

Union of India and Others12. A Committee known as the

Goswami Committee, made certain recommendations. On its

heels, Parliament passed an Act titled ‘The Chief

Election Commissioner and other Commissioners

12 (1991) 3 SCC 567

(Conditions of Service) Act, 1991 (hereinafter referred

to as, ‘the 1991 Act’). It is noteworthy that this is

the law made by Parliament and relatable to Article

324(5), which contemplated a law made by Parliament

regulating conditions of service of the Chief Election

Commissioner and the Election Commissioners. Smt. V.S.

Ramadevi, who had the shortest tenure as the ninth

Chief Election Commissioner was 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 a term of six years commencing from

12.12.1990 till 11.12.1996. The 1991 Act came to be

amended, initially, by an Ordinance, and later, by a

law made by Parliament, the Ordinance being published

on 01.10.1993. Shri M.S. Gill and Shri G.V.G.

Krishnamurthy were appointed as Election

Commissioners, w.e.f., 01.10.1993. The amendment and

the appointments came to be challenged by Shri T. N.

Seshan, the Chief Election Commissioner and others and

the challenge was repelled by a Constitution Bench of

this Court and the Judgment is reported in T.N. Seshan,

(supra). We would observe that what was essentially

contemplated by founding Fathers was an Election

Commission, which was to consist of a permanent figure,

viz., the Chief Election Commissioner and such Election

Commissioners, as may be necessary. For nearly forty

years after the adoption of the Constitution of India,

there were only Chief Election Commissioners. After the

Judgment in T.N. Seshan (supra), it will be noticed

that thereafter, the Election Commission of India

became a team consisting of the Chief Election

Commissioner and the two Election Commissioners. With

the term of Shri T. N. Seshan coming to an end

11.12.1996, the trend began of appointing the Election

Commissioners as Chief Election Commissioners. Thus,

Shri M.S. Gill became the Chief Election Commissioner.

Shri M.S. Gill was also a Civil Servant. He served as

Chief Election Commissioner for a period of four years

and sixty-nine days, i.e., from 12.12.1996 till

13.06.2001. Shri G.V.G. Krishnamurthy continued till

30.09.1999 (nearly six years) as Election Commissioner.

Shri James Michael Lyngdoh became an Election

Commissioner in the year 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 the Election

Commissioners and the Chief Election Commissioners and

the length of the tenure, which is as follows:

Sl.

No.

Name of

Commissioner

Tenure as

CEC

Length of

Tenure

1. T.S.

Krishnamurthy,

Jan 2000 –

07.02.200

08.02.2004

15.05.2005

5 yrs 3

mts 16

days

2. B. B. Tandon,

13.06.200

1 –

15.05.200

16.05.2005

29.06.2006

5 yrs 17

days

3. N.Gopalaswamy,

08.02.200

29.06.200

30.06.2006

20.04.2009

5 yrs 2

mts 13

days

4. Navin

B.Chawla, EC

16.05.200

20.04.200

21.04.2009

-29-

07.2010

5 yrs 2

mts 14

days

5. Shri S.Y.

Quraishi, EC

30.06.200

29.07.201

30.07.2010

10.06.2012

5 yrs 11

mts 12

days

6. Shri V.S.

Sampath, EC

21.04.200

10.06.201

11.06.2012

15.01.2015

5 yrs 8

mts 26

days

7. H.S. Brahma, EC 24.08.201

16.01.2015

18.04.2015

4 yrs 7

mts 26

days

15.01.201

8. Nasim Zaidi, EC 07.01.2012-

18.04.2015

19.04.2015-

05.07.2017

4 yrs 10

mts 29

days

9. Achal Kumar

Joti, EC

07.05.201

08.07.201

06.07.2017

22.01.2018

2 years 8

mts 16

days

10. O.P. Rawat, EC 14.08.201

22.01.201

23.01.2018

01.12.2018

3 yrs 3

mts 18

days

11. Sunil Arora, EC 31.08.201

7-01-

12.2018

02.12.2018

12.04.2021

3 yrs 7

mts 13

days

12. Ashok Lavasa,

23.01.201

31.08.202

(N/A

because of

voluntary

resignatio

2 yrs 7

mts 9

days

13. Sushil

Chandra, EC

15.02.201

12.04.202

13.04.2021

14.05.2022

3 yers 3

mts

14. Rajiv Kumar, EC 01.09.202

18.02.202

15.05.2022

14.05.2022

4 yrs 8

mts 14

days

(expected

)

15. Anup Chandra

Pandey, EC

08.06.202

14.02.202

2 yrs 8

mts 7

days

(expected

)

O. A CLOSER LOOK AT S.S. DANOA (SUPRA), THE 1991

ACT AND T.N. SESHAN (SUPRA)

53. It was on 07.10.1989 that the President, in

exercise of his powers under Clause 2 of Article 324

of the Constitution, fixed the number of Election

Commissioners as two. This was to continue until

further orders. Later on, on 16.10.1989, two persons

of which, one was Shri S.S. Dhanoa, were appointed as

the Election Commissioners. It was for the first time

after Independence that Election Commissioners were

appointed, thereby making the Election Commission of

India a multi-Member Commission. In other words, till

16.10.1989, the Chief Election Commissioner

constituted the Election Commission of India. The

multi-Member Commission was, however, a short-lived

affair. In less than three months’ time, on 01.01.1990,

exercising power under Article 324(2), the President

notified, with immediate effect, the rescinding of the

Notification dated 07.10.1989, by which Notification,

the two posts of Election Commissioner had been

created. Another Notification rescinding the

Notification dated 16.10.1989, by which the two

Election Commissioners were appointed, came to be

issued. The latter Notifications came to be challenged

by Shri S.S. Dhanoa before this Court. A Bench of two

learned Judges dismissed the Writ Petition. This Court

took the view, inter alia, that the framers of the

Constitution did not want to give same status to the

Election Commissioners as was conferred on the Chief

Election Commissioner. In the course of this Judgment

in S.S. Dhanoa v. Union of India and others13, this

Court, inter alia, observed as follows:

“17. … There is no doubt that there is an

important distinction between the Council of

Ministers and the Election Commission in that

whereas the Prime Minister or the Chief

Minister is appointed by the President or the

Governor and the other Ministers are appointed

by the President or the Governor on the advice

of the Prime Minister or the Chief Minister,

the appointment of both the Chief Election

Commissioner and the other Election

Commissioners as the law stands today, is made

by the President under Article 324(2) of the

Constitution. It has, however, to be noted that

the provisions of the said article have left

the matter of appointment of the Chief Election

Commissioner and the other Election

Commissioners to be regulated by a law to be

made by the Parliament, and the President

exercises the power of appointing them today

because of the absence of such law which has

yet to be made. …”

(Emphasis supplied)

54. We may notice paragraph 18, dealing with the manner

in which a multi-Member Commission must act.

13 (1991) 3 SCC 567

Thereafter, the Court went on to find that there was

really no need to have appointed the Election

Commissioners and, still further made the following

observations:

“26. There is no doubt that two heads are

better than one, and particularly when an

institution like the Election Commission is

entrusted with vital functions, and is armed

with exclusive uncontrolled powers to execute

them, it is both necessary and desirable that

the powers are not exercised by one individual,

however, all-wise he may be. It ill conforms

the tenets of the democratic rule. It is true

that the independence of an institution depends

upon the persons who man it and not on their

number. A single individual may sometimes prove

capable of withstanding all the pulls and

pressures, which many may not. However, when

vast powers are exercised by an institution

which is accountable to none, it is politic to

entrust its affairs to more hands than one. It

helps to assure judiciousness and want of

arbitrariness. The fact, however, remains that

where more individuals than one, man an

institution, their roles have to be clearly

defined, if the functioning of the institution

is not to come to a naught.”

(Emphasis supplied)

55. The Court found that it was not a case of removal

of the Election Commissioners within the meaning of the

second proviso to Article 324(5).

56. This led to certain changes in the 1991 Act. The

changes were introduced through an Ordinance published

in the Gazette of India on 01.10.1993. It, inter alia,

provided for a new Chapter III, which contemplates that

as far as possible, all business shall be transacted

unanimously (Section 10(2) of the 1991 Act). Section

10(3) provides that subject to Section 10(2), in case

of difference of opinion, the matter is to be decided

according to the opinion of the majority. This, it must

be noticed, was introduced in the context of the

observations in S.S. Dhanoa (supra). By the Ordinance

dated 01.10.1993, other far-reaching changes were

introduced, which, inter alia, provided for bringing

the Election Commissioners substantially on par with

the Chief Election Commissioner. The Chief Election

Commissioner, it must be noticed, under the 1991 Act,

was to be paid a salary equal to the Judge of the

Supreme Court. The Election Commissioner was to be paid

the salary equal to the Judge of the High Court. After

the amendment, they stand equated. The 1991 Act also

provided that the Chief Election Commissioner would be

entitled to continue in Office till the age of 65 years

whereas the Election Commissioner was to continue in

Office till he attains the age of 62 years. The age of

superannuation of the Chief Election Commissioner and

the Election Commissioner was brought on par by the

Ordinance insofar as both were entitled to continue for

a period of six years subject to their liability to

vacate Office should they attain the age of 65 years

before the expiry of six years from the date on which

they assumed Office. However, under the first proviso

to Article 324(5), the Chief Election Commissioner can

be removed from his Office only in the manner and on

the like grounds as the Judge of the Supreme Court of

India. The first proviso also prohibits the conditions

of service of the Chief Election Commissioner being

varied to his disadvantage after his appointment. In

the matter of the removal of the Election Commissioner

or a Regional Commissioner the second proviso to

Article 324(5) provides the safeguard for the Election

Commissioner or a Regional Commissioner that they

cannot be removed except on the recommendation of the

Chief Election Commissioner. On 01.10.1993, again, in

exercise of the powers under Article 324(2), the

President fixed until further orders, the number of

Election Commissioners other than the Chief Election

Commissioner at 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

Petitions being filed calling in question the Ordinance

including at the instance of Shri T.N. Seshan, who, it

must be noticed, was appointed earlier on 12.12.1990

as the Chief Election Commissioner. He challenged the

Ordinance on various grounds. Matters engaged the

attention of the Constitution Bench and its decision

is reported in T.N. Seshan, Chief Election Commissioner

of India v. Union of India and others14. The

Constitution Bench, we may notice, made the following

observations:

“10. The Preamble of our Constitution

proclaims that we are a Democratic Republic.

Democracy being the basic feature of our

constitutional set-up, there can be no two

opinions that free and fair elections to our

legislative bodies alone would guarantee the

growth of a healthy democracy in the country.

In order to ensure the purity of the election

process it was thought by our Constitutionmakers that the responsibility to hold free and

fair elections in the country should be

entrusted to an independent body which would

be insulated from political and/or executive

14 (1995) 4 SCC 611

interference. It is inherent in a democratic

set-up that the agency which is entrusted the

task of holding elections to the legislatures

should be fully insulated so that it can

function as an independent agency free from

external pressures from the party in power or

executive of the day. This objective is

achieved by the setting up of an Election

Commission, a permanent body, under Article

324(1) of the Constitution. The

superintendence, direction and control of the

entire election process in the country has been

vested under the said clause in a commission

called the Election Commission. Clause (2) of

the said article then provides for the

constitution of the Election Commission by

providing that it shall consist of the CEC and

such number of ECs, if any, as the President

may from time to time fix. It is thus obvious

from the plain language of this clause that the

Election Commission is composed of the CEC and,

when they have been appointed, the ECs. The

office of the CEC is envisaged to be a

permanent fixture but that cannot be said of

the ECs as is made manifest from the use of

the words “if any”. Dr Ambedkar while

explaining the purport of this clause during

the debate in the Constituent Assembly said:

“Sub-clause (2) says that there shall be a

Chief Election Commissioner and such other

Election Commissioners as the President may,

from time to time appoint. There were two

alternatives before the Drafting Committee,

namely, either to have a permanent body

consisting of four or five members of the

Election Commission who would continue in

office throughout without any break, or to

permit the President to have an ad hoc body

appointed at the time when there is an election

on the anvil. The Committee has steered a

middle course. What the Drafting Committee

proposes by sub-clause (2) is to have

permanently in office one man called the Chief

Election Commissioner, so that the skeleton

machinery would always be available.”

It is crystal clear from the plain language of

the said clause (2) that our Constitutionmakers realised the need to set up an

independent body or commission which would be

permanently in session with at least one

officer, namely, the CEC, and left it to the

President to further add to the Commission such

number of ECs as he may consider appropriate

from time to time. Clause (3) of the said

article makes it clear that when the Election

Commission is a multi-member body the CEC shall

act as its Chairman. What will be his role as

a Chairman has not been specifically spelt out

by the said article and we will deal with this

question hereafter. Clause (4) of the said

article further provides for the appointment

of RCs to assist the Election Commission in the

performance of its functions set out in clause

(1). This, in brief, is the scheme of Article

324 insofar as the constitution of the Election

Commission is concerned.”

57. This Court went on to disagree with certain parts

of the Judgment in S.S. Dhanoa (supra). The Court,

inter alia, held that the Election Commission of India

can be a single-Member Body or a multi-Member Body. It

was further held as follows:

“16. While it is true that under the scheme of

Article 324 the conditions of service and

tenure of office of all the functionaries of

the Election Commission have to be determined

by the President unless determined by law made

by Parliament, it is only in the case of the

CEC that the first proviso to clause (5) lays

down that they cannot be varied to the

disadvantage of the CEC after his appointment.

Such a protection is not extended to the ECs.

But it must be remembered that by virtue of

the Ordinance the CEC and the ECs are placed

on a par in the matter of salary, etc. Does

the absence of such provision for ECs make the

CEC superior to the ECs? The second ground

relates to removability. In the case of the CEC

he can be removed from office in like manner

and on the like ground as a Judge of the Supreme

Court whereas the ECs can be removed on the

recommendation of the CEC. That, however, is

not an indicia for conferring a higher status

on the CEC. To so hold is to overlook the scheme

of Article 324 of the Constitution. It must be

remembered that the CEC is intended to be a

permanent incumbent and, therefore, in order

to preserve and safeguard his independence, he

had to be treated differently. That is because

there cannot be an Election Commission without

a CEC. That is not the case with other ECs.

They are not intended to be permanent

incumbents. Clause (2) of Article 324 itself

suggests that the number of ECs can vary from

time to time. In the very nature of things,

therefore, they could not be conferred the type

of irremovability that is bestowed on the CEC.

If that were to be done, the entire scheme of

Article 324 would have to undergo a change. In

the scheme of things, therefore, the power to

remove in certain cases had to be retained.

Having insulated the CEC from external

political or executive pressures, confidence

was reposed in this independent functionary to

safeguard the independence of his ECs and even

RCs by enjoining that they cannot be removed

except on the recommendation of the CEC. This

is evident from the following statement found

in the speech of Shri K.M. Munshi in the

Constituent Assembly when he supported the

amended draft submitted by Dr Ambedkar:

“We cannot have an Election Commission sitting

all the time during those five years doing

nothing. The Chief Election Commissioner will

continue to be a whole-time officer performing

the duties of his office and looking after the

work from day to day but when major elections

take place in the country, either Provincial

or Central, 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, to that extent their independence

is ensured. So there is no reason to believe

that these temporary Election Commissioners

will not have the necessary measure of

independence.”

Since the other ECs were not intended to be

permanent appointees they could not be granted

the irremovability protection of the CEC, a

permanent incumbent, and, therefore, they were

placed under the protective umbrella of an

independent CEC. This aspect of the matter

escaped the attention of the learned Judges who

decided Dhanoa case [(1991) 3 SCC 567] . We are

also of the view that the comparison with the

functioning of the executive under Articles 74

and 163 of the Constitution in paragraph 17 of

the judgment, with respect, cannot be said to

be apposite.”

(Emphasis supplied)

58. Dealing with the argument that as the Chief

Election Commissioner is designated as the Chairman,

it put him on a higher pedestal, this Court, inter

alia, held as follows:

“19. … The function of the Chairman would,

therefore, be to preside over meetings,

preserve order, conduct the business of the

day, ensure that precise decisions are taken

and correctly recorded and do all that is

necessary for smooth transaction of business.

The nature and duties of this office may vary

depending on the nature of business to be

transacted but by and large these would be the

functions of a Chairman. He must so conduct

himself at the meetings chaired by him that he

is able to win the confidence of his colleagues

on the Commission and carry them with him. This

a Chairman may find difficult to achieve if he

thinks that others who are members of the

Commission are his subordinates. The functions

of the Election Commission are essentially

administrative but there are certain

adjudicative and legislative functions as

well. The Election Commission has to lay down

certain policies, decide on certain

administrative matters of importance as

distinguished from routine matters of

administration and also adjudicate certain

disputes, e.g., disputes relating to allotment

of symbols. Therefore, besides administrative

functions it may be called upon to perform

quasi-judicial duties and undertake

subordinate legislation-making functions as

well. See Mohinder Singh 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, which brings out the rationale for treating

the Chief Election Commissioner differently from the

Elections Commissioners:

“21. We have pointed out the distinguishing

features from Article 324 between the position

of the CEC and the ECs. It is essentially on

account of their tenure in the Election

Commission that certain differences exist. We

have explained why in the case of ECs the

removability clause had to be different. The

variation in the salary, etc., cannot be a

determinative factor otherwise that would

oscillate having regard to the fact that the

executive or the legislature has to fix the

conditions of service under clause (5) of

Article 324. The only distinguishing feature

that survives for consideration is that in the

case of the CEC his conditions of service

cannot be varied to his disadvantage after his

appointment whereas there is no such safeguard

in the case of ECs. That is presumably because

the posts are temporary in character. But even

if it is not so, that feature alone cannot lead

us to the conclusion that the final word in

all matters lies with the CEC. Such a view

would render the position of the ECs to that

of mere advisers which does not emerge from the

scheme of Article 324.”

(Emphasis supplied)

60. It is clear that the founding fathers intended that

the elections in the country must be under the

superintendence, direction and control of an

independent Body. The Body is the Election Commission

of India. Under Article 324, the Chief Election

Commissioner is an unalterable feature or figure. A

Commission can consist of only the Chief Election

Commissioner. A multi-Member Commission was also

contemplated by the founding fathers. However, the post

of Election Commissioner was to be need based. For

nearly four decades, there was no Election

Commissioner. As we have noticed, it is on 16.10.1989

that the first two Election Commissioners were

appointed. In regard to the appointment of the Chief

Election Commissioner and other Election

Commissioners, the Constitution does not provide for

any criteria. It does not fix any qualifications. It

does not prescribe any disqualifications in the matter

of appointment as either Chief Election Commissioner

or Election Commissioner.

61. The appointees have been bureaucrats drawn from

the Civil Services. Article 324(5) deals with the

conditions of service and tenure of Office of the

Election Commissioners and the Regional Commissioners.

Till Parliament made any law with regard to the same,

the founding fathers clothed the President with power

to lay down the conditions of service and tenure of

Office by Rule. It is to lay down the conditions of

service and tenure of Office that Parliament has

enacted the 1991 Act. The first proviso to sub-Article

324(5) acts as a guarantee against the removal of the

Chief Election Commissioner except on like grounds and

a similar manner a Judge of the Supreme Court can be

removed. The conditions of service of the Chief

Election Commissioner shall not be varied to his

disadvantage after his appointment. This means that

Parliament cannot, nor can the Government by Rule,

either remove the Chief Election Commissioner, except

by impeaching him in the manner provided for the

removal of a Judge of Supreme Court nor can Parliament

make law nor Government a Rule to vary the conditions

of service of the Chief Election Commissioner to his

disadvantage, after he is appointed. The first proviso

to Article 324(5) operates as a singular insulation to

protect the Chief Election Commissioner from either

being arbitrarily removed or his conditions of service

being varied to his disadvantage. But as contemplated

by the founding fathers, protection against arbitrary

removal or protection against varying of conditions of

the appointment were 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 the

executive.

P. THE CLAMOUR FOR REFORMS

62. In the year 1990, the Government of India

constituted a Committee under the Chairmanship of the

then Law Minister, Shri Dinesh Goswami and it is

hereinafter referred to as the ‘Goswami Committee’. It

made several recommendations relating to electoral

reforms. The Committee, inter alia, recommended as

follows:

“CHAPTER II

Electoral Machinery

1. Set up of multi-member Commission

1. The Election Commission should be a multimember body with three members.

2. The Chief Election Commissioner should be

appointed by the President in consultation with

the Chief Justice of India and the Leader of

the Opposition (and in case no Leader of

Opposition is available, the consultation

should be with the Leader to the largest

opposition group in the Lok Sabha).

3. The consultation process should have a

statutory backing.

4. The appointment of other two Election

Commissioners should be made in consultation

with Chief Justice of India, the Leader of the

Opposition (in case no Leader of Opposition is

available, the consultation should be with the

Leader to the largest opposition group in the

Lok Sabha) and the Chief Election Commissioner.

5. The appointment of Regional Commissioners

for different zones is not favoured. Such

appointments should be made only as and when

necessary and not on a permanent footing.

2. Steps for securing independence of the

Commission

6. The protection of salary and other allied

matters relating to the Chief Election

Commissioner and the Election Commissioners

should be provided for in the Constitution

itself on the analogy of the provisions in

respect of the Chief Justice and Judges of the

Supreme Court. Pending such measures being

taken, a parliamentary 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

Election Commissioners should be made

ineligible not only for any appointment under

the Government but also to any office including

the office of Governor appointment to which is

made by the President.

9. The tenure of the Chief Election

Commissioner and other Election Commissioners

should be for a term of five years or sixtyfive years of age, whichever is later and they

should in no case continue in office beyond

sixty-five years and for more than ten years

in all.”

63. In the year 1991, Parliament enacted the Election

Commission (Conditions of Service of Election

Commissioners and Transaction of Business) Act, 1991.

Section 3 provides, as it stands, that there shall be

paid to the Chief Election Commissioner and other

Election Commissioners a salary, which is equal to the

salary of the Judge of the Supreme Court. Section 4

deals with the term of Office and reads as follows:

“4. Term of office. —The Chief Election

Commissioner or an Election Commissioner shall

hold office for a term of six years from the

date on which he assumes his office:

Provided that where the Chief Election

Commissioner or an Election Commissioner

attains the age of sixty-five years before the

expiry of the said term of six years, he shall

vacate his office on the date on which he

attains the said age:

Provided further that the Chief Election

Commissioner or an Election Commissioner may,

at any time, by writing under his hand

addressed to the President, resign his office.

Explanation.—For the purpose of this section,

the term of six years in respect of the

Chief Election Commissioner or an Election

Commissioner holding office immediately before

the commencement of this Act, shall be

computed from the date on which he had

assumed office.”

64. Section 5 deals with the leave available to both

the Chief Election Commissioner or an Election

Commissioner. The power to grant relief or refuse leave

to them vests with the President. Section 6 deals with

their right to pension. Section 7 deals with the right

to subscribe to the general provident fund. Section 8

provides for other conditions of service:

“8. Other conditions of service.—Save as

otherwise provided in this Act, the conditions

of service relating to travelling allowance,

provision of rent-free residence and exemption

from payment of income-tax on the value of such

rent-free residence, conveyance facilities,

sumptuary allowance, medical facilities and

such other conditions of service as are, for

the time being, applicable to a Judge of the

Supreme Court under Chapter IV of the Supreme

Court Judges (Conditions of Service) Act, 1958

(41 of 1958) and the rules made thereunder,

shall, so far as may be, apply to the Chief

Election Commissioner and other Election

Commissioners.”

65. Under Section 9, the business of the Election

Commissioner is to be transacted in accordance with the

1991 Act. Section 10 provides for disposal of business

by Election Commission, it reads as follows:

“10. Disposal of business by Election

Commission. — (1) The Election Commission may,

by unanimous decision, regulate the procedure

for transaction of its business as also

allocation of its business amongst the Chief

Election Commissioner and other Election

Commissioners.

(2) Save as provided in sub-section (1), all

business of the Election Commission shall, as

far as possible, be transacted unanimously.

(3) Subject to the provisions of sub-section

(2), if the Chief Election Commissioner and

other Election Commissioners differ in opinion

on any matter, such matter shall be decided

according to the opinion of the majority.”

66. In the year 1993, the Government of India

constituted, what is known as the ‘Vohra Committee’.

It made certain recommendations in regard to the CBI

and the IB. Five years thereafter, in 1998, Government

of India appointed a Committee under the Chairmanship

of Shri Indrajit Gupta Committee on State funding of

elections. The Committee submitted its Report in

December, 1998. The conclusion and summary of the

recommendations are found in Chapter 9 and they include

various recommendations relating to funding of

political parties.

67. In the year 2002, a National Commission for

reviewing the work of the Constitution, under the

Chairmanship of the Former Chief Justice of India, M.N.

Venkatachaliah, made 58 recommendations involving

amendments to the Constitution, 86 recommendations

relating to legislative measures and the rest involved

Executive action. In relation to electoral processes

and political parties, various recommendations were

made by the Commission. One of the recommendations,

which is of relevance to the cases before us is as

follows:

“The Chief Election Commissioner and the other

Election Commissioners should be appointed on

the recommendation of a Body consisting of the

Prime Minister, Leader of the Opposition in the

Lok Sabha, the Leader of the Opposition in the

Rajya Sabha, the Speaker of the Lok Sabha and

the Deputy Chairman of the Rajya Sabha. It was

further recommended that similar procedure

should be adopted in the case of appointment

of the State Election Commissioners.”

68. In the year 2004, the Election Commission of India,

on 02.08.2004 made certain proposal on electoral

reforms to the Government of India. The proposals

included affidavits to be filed by candidates on

criminal antecedents, their assets, etc. The aspect

about criminalisation of politics is noted as an issue

being raised by the Commission from 1998 onwards. The

Commission was of the opinion that keeping a person

accused of a serious criminal charge and where the

Court had framed charges, out of the electoral arena,

would be a reasonable restriction in greater public

interest. Among the various reforms it proposed, we

notice the following:

“12. COMPOSITION OF ELECTION COMMISSION AND

CONSTITUTIONAL PROTECTION OF ALL MEMBERS OF THE

COMMISSION AND INDEPENDENT SECRETARIAT FOR THE

COMMISSION

Election Commission of India is an independent

constitutional body created by the

Constitution of India vide Article 324. Clause

(I) of Article 324 has vested the

superintendence, direction and control of the

preparation of electoral rolls for, and the

conduct of, all elections to Parliament and to

the Legislature of every State and of elections

to the offices of President and Vice-President

of India in the Election Commission.

Under Clause (2) of Article 324, the Election

Commission shall consist of the Chief Election

Commissioner and such number of other Election

Commissioners, if any, as the President may

from to time fix and the appointment of the

Chief Election Commissioner and Election

Commissioners shall, subject to the provisions

of any law made in that behalf by Parliament,

be made by the President.

The President has, by Order dated 1.10.1993

under Clause (2) of Article 324, fixed the

number of Election Commissioners as two until

further orders.

Although the Constitution permits the

President to fix the number of Election

Commissioners at any number without any limit,

it is felt that in the interest of smooth and

effective functioning of the Election

Commission, the number of Election

Commissioners should not be unduly large and

should remain as two as presently fixed, in

addition to the Chief Election Commissioner.

The three-member body is very effective in

dealing with the complex situations that arise

in the course of superintending, directing and

100

controlling the electoral process, and allows

for quick responses to developments in the

field that arise from time to time and require

immediate solution. Increasing the size of this

body beyond the existing three-member body

would, in the considered opinion of the

Commission, hamper the expeditious manner in

which it has necessarily to act for conducting

the elections peacefully and in a free and fair

manner.

In order to ensure the independence of the

Election Commission and to keep it insulated

from external pulls and pressures, Clause (5)

of Article 324 of the Constitution, inter alia,

provides that the Chief Election Commissioner

shall not be removed from his office except in

like manner and on like grounds as a Judge of

the Supreme Court. However, that Clause (5) of

Article 324 does not provide similar protection

to the Election Commissioners and it merely

says that they cannot be removed from office

except on the recommendation of the Chief

Election Commissioner. The provision, in the

opinion of the Election Commission, is

inadequate and requires an amendment to provide

the very same protection and safeguard in the

matter of removability of Election

Commissioners from office as is available to

the Chief Election Commissioner.

The independence of the Election Commission

upon which the Constitution makers laid so much

stress in the Constitution would be further

strengthened if the Secretariat of the Election

Commission consisting of officers and staff at

various levels is also insulated from the

interference of the Executive in the matter of

their appointments, promotions, etc., and all

such functions are exclusively vested in the

Election Commission on the lines of the

Secretariats of the Lok Sabha, and Rajya Sabha,

Registries of the Supreme Court and High

Courts, etc. Independent Secretariat is vital

101

to the functioning of the Election Commission

as an independent constitutional authority. In

fact, the provision of independent Secretariat

to the Election Commission has already been

accepted in principle by the Goswami Committee

on Electoral Reforms and the Government had,

in the Constitution (Seventieth Amendment)

Bill, 1990, made a provision also to that

effect. That Bill was, however, withdrawn in

1993 as the Government proposed to bring in a

more comprehensive Bill.”

(Emphasis supplied)

69. As regards expenses of Election Commission, we find

the following complaint and solution:

“13. EXPENSES OF ELECTION COMMISSION TO BE

TREATED AS CHARGED

The Commission had sent a proposal that the

expenditure of the Commission should be charged

on the Consolidated Fund of India. The

Government had moved in the 10th Lok Sabha “The

Election Commission (Charging of Expenses on

the Consolidated Fund of India) Bill, 1994”

with the objective of providing for the

salaries, allowances and pension payable to the

Chief Election Commissioner and other Election

Commissioners and the administrative expenses

including salaries, allowances and pension of

the staff of the Election Commission to be

expenditure charged upon the Consolidated Fund

of India. Similar provisions already exist in

respect of the Supreme Court, Comptroller &

Auditor General and the Union Public Service

Commission, which are, like the Election

Commission, independent constitutional bodies.

To secure its independent functioning the

Commission is of the opinion that the Bill,

102

which lapsed with the dissolution of the 10th

Lok Sabha in 1996, needs reconsideration.”

70. The next milestone to be noticed is the Second

Administrative Reforms Commission Report made in

January, 2007. The Commission consisted of Shri

Veerappa Moily, the then Law Minister, as its

Chairperson and five other Members. We find the

following in the summary of its recommendations, inter

alia. It recommended that the Collegium headed by the

Prime Minister, with the Speaker of the Lok Sabha, the

leader of the Opposition in the Lok Sabha, the Law

Minister and the Deputy Chairman of the Rajya Sabha,

as Members, should make recommendations for

consideration of the President for appointment of the

Chief Election Commissioner and the Election

Commissioners. In the year 2010, the Ministry of Law

and Justice, Government of India, had constituted a

Committee on Electoral Reforms. The Report, it made,

in the year 2010 indicates the background which led to

the constitution of the Committee. Reference is made

to various earlier Reports as also the efforts being

made by the Election Commission. It made various

103

recommendations relating to electoral reforms. Under

the head ‘measures for Election Commission’, an update

on the Election Commission’s recommendations, includes

the following:

“

Sl.

No.

Proposal of the

Election Commission

Status/Remarks.

12 Composition of

Election Commission

and Constitutional

Protection of all

Members of the

Commission and

Independent

Secretariat for the

Commission.

It was decided to

include it as a

proposal for

regional and

national

consultation.

13. Expenses of Election

Commission to be

Treated as Charged.

The proposal to

make the expenses

of the Election

Commission of India

‘charged’ was

considered by the

Dinesh Goswami

Committee but was

not favoured. In

1994, the

Government,

however, introduced

the Election

Commission

(Charging of

Expenses on the

Consolidated Fund

of India) Bill,

1994 in Lok Sabha

on 16.12.94 which

lapsed on the

dissolution of the

104

Tenth Lok Sabha.

The DepartmentRelated

Parliamentary

Standing Committee

on Home Affairs in

its 24th Report on

the said Bill

presented to Raja

Sabha on 28.11.1995

and was of the

considered view

that there is no

need of passing the

proposed Bill and

recommends that the

Bill be dropped.

The Election

Commission of India

again made a

similar proposal in

1997 which was

placed before

political parties

in the all party

meeting held on

22.5.1998 but no

view was taken.

Again, the Election

Commission of India

made the same

proposal in May,

2003 and on the

direction of the

then Hon’ble Prime

Minister the same

was placed before

the political

parties in the all

party meeting held

on 29.1.2003. The

debate on the

105

proposal remained

inconclusive.

71. In regard to appointment of Chief Election

Commissioner and other Election Commissioners, we

notice the following remarks:

“

(4) Appointment of

Chief Election

Commissioner (CEC)

and other Election

Commissioners (EC)

and consequential

matters:-

One of the Chief

Election

Commissioners has

requested the

Government to have

a collegium

consisting of the

Prime Minister and

Leader of

Opposition etc. who

is empowered to

make

recommendations for

appointments of the

CEC and ECs.

Further, it has

also been suggested

that there should

be complete ban for

ten years after

retirement from the

post of CEC to any

political party.

(Emphasis supplied)”

72. In the year 2015, Law Commission of India, in its

Two Hundred and Fifty Fifth Report dated 12.03.2015,

dealing with the electoral reforms in India, made

various recommendations in regard to strengthening the

106

Office of the Election Commission of India. After

referring to Article 324(2), the fact of the

appointments being discussed in the Constituent

Assembly, Article 324(2) leaving it to the Parliament

to legislate, the recommendation of the Goswami

Committee in 1990, we find the following discussion:

“6.10.4 This was followed by the introduction

of the Constitution (Seventieth Amendment)

Bill 1990, which was introduced in the Rajya

Sabha on 30th May 1990 providing that the CEC

would be appointed by the President after

consultation with the Chairman of the Rajya

Sabha, the Speaker of the Lok Sabha, and the

Leader of the Opposition (or the leader of the

largest party) in the Lok Sabha. The CEC was

further made a part of the consultative process

in the appointment of the Election

Commissioners. However, on 13th June 1994, the

Government moved a motion to withdraw the Bill,

which was finally withdrawn with the leave of

the Rajya Sabha on the same day.

6.10.5 Consequently, in the absence of any

Parliamentary law governing the appointment

issue, the Election Commissioners are

appointed by the government of the day, without

pursuing any consultation process. This

practice has been described as requiring the

Law Ministry to get the file approved by the

Prime Minister, who then recommends a name to

the President. Thus, there is no concept of

collegium and no involvement of the opposition.

6.10.6 The Commissioners are appointed for a

six year period, or up to the age of 65 years,

whichever is earlier. Further, there are no

prescribed qualifications for their

appointment, although convention dictates that

107

only senior (serving or retired) civil

servants, of the rank of the Cabinet Secretary

or Secretary to the Government of India or an

equivalent rank, will be appointed. The Supreme

Court in Bhagwati Prashad Dixit Ghorewala v

Rajiv Gandhi rejected the contention that the

CEC should possess qualifications similar to

that of a Supreme Court judge, despite being

placed on par with them in terms of the removal

process.”

73. We find that under the caption ‘Comparative

Practices’, the Report contains the following

discussion:

“(ii) Comparative practices

6.11.1 An examination of comparative practices

is instructive. In South Africa, the

Independent Electoral Commission comprises of

five members, including one judge. They are

appointed by the President on the

recommendations of the National Assembly,

following nominations by a National Assembly

inter-party committee, which receives a list

of at least eight candidates. This list of (at

least) eight nominees is recommended by the

Selection Committee, which has four members

being, the President of the Constitutional

Court; a representative of the Human Rights

Commission and the Commission on Gender

Equality each; and the Public Prosecutor.

6.11.2 In Ghana too, the seven member Election

Commission is appointed by the President on the

advice of the Council of State, with the

Chairman and two Deputy Chairmen having

permanent tenure.

108

6.11.3 In Canada, the Chief Electoral Officer

of “Elections Canada” is appointed by a House

of Commons resolution for a non-renewable tenyear term, and to protect their independence

from the government, he/she reports directly

to Parliament. In the United States, the six

Federal Election Commissioners are appointed

by the President with the advise and consent

of the Senate. The Commissioners can be members

of a political party, although not more than

three Commissioners can be members of the same

party.

6.11.4 In all these cases thus, it is clear

that the appointment of the Election

Commissioners or the electoral officers is a

consultative process involving the Executive/

Legislature/other independent bodies.”

74. Thereafter, under the caption ‘the

Recommendation’, we find the following:

“(iii) Recommendations

6.12.1 Given the importance of maintaining the

neutrality of the ECI and to shield the CEC

and Election Commissioners from executive

interference, it is imperative that the

appointment of Election Commissioners becomes

a consultative process.

6.12.2 To this end, the Commission adapts the

Goswami Committee’s proposal with certain

modifications. First, the appointment of all

the Election Commissioners (including the CEC)

should be made by the President in consultation

with a three-member collegium or selection

committee, consisting of the Prime Minister,

the Leader of the Opposition of the Lok Sabha

(or the leader of the largest opposition party

109

in the Lok Sabha in terms of numerical

strength) and the Chief Justice of India. The

Commission considers the inclusion of the Prime

Minister is important as a representative of

the current government.

6.12.3 Second, the elevation of an Election

Commissioner should be on the basis of

seniority, unless the three member

collegium/committee, for reasons to be

recorded in writing, finds such Commissioner

unfit.

6.12.4 Such amendments are in consonance with

the appointment process in Lokpal and

Lokayuktas Act, 2013, the Right to Information

Act, 2005 and the Central Vigilance Commission

Act, 2003.

6.12.5 Pursuant to Article 324(2), an amendment

can be brought to the existing Election

Commission (Conditions of Service of Election

Commissioners and Transaction of Business)

Act, 1991 to amend the title and insert a new

Chapter 1A on the appointment of Election

Commissioners and the CEC as follows:

• Act and Short Title: The Act should be

renamed the “Election Commission (Appointment

and Conditions of Service of Election

Commissioners and Transaction of Business)

Act, 1991”.

• The short title should state, “An Act to

determine the appointment and conditions of

service of the Chief Election Commissioner and

other Election Commissioners and to provide for

the procedure for transaction of business by

the Election Commission and for matters

connected therewith or incidental thereto.”

• Chapter I-A – Appointment of Chief Election

Commissioner and Election Commissioners.

110

2A. Appointment of Chief Election Commissioner

and Election Commissioners – (1) The Election

Commissioners, including the Chief Election

Commissioners, shall be appointed by the

President by warrant under his hand and seal

after obtaining the recommendations of a

Committee consisting of:

(a) the Prime Minister of India – Chairperson

(b) the Leader of the Opposition in the House

of the People – Member

c) the Chief Justice of India – Member

Provided that after the Chief Election

Commissioner ceases to hold office, the seniormost Election Commissioner shall be appointed

as the Chief Election Commissioner, unless the

Committee mentioned in sub-section (1) above,

for reasons to be recorded in writing, finds

such Election Commissioner to be unfit.

Explanation: For the purposes of this subsection, “the Leader of the Opposition in the

House of the People” shall, when no such Leader

has been so recognised, include the Leader of

the single largest group in opposition of the

Government in the House of the People.”

75. In regard to the aspect about the permanent and

independent Secretariat of the Election Commission of

India, it was noticed that to give effect to the Goswami

Committee recommendation, the Constitution Seventieth

Amendment Bill, 1990 was introduced on 30.05.1990 and

that it was subsequently withdrawn in 1993 in view of

the changed composition of the Election Commission of

India, on it becoming a multi-Member Body pursuant to

111

the 1991 Act and on the ground that the Bill needed

some amendments. The Bill, however, the Law Commission

noticed, was never introduced. Thereafter, the Law

Commission referred to the recommendations of the

Election Commission itself for seeking appointment of

an independent Secretariat. The Law Commission,

accordingly, recommended insertion of Article 324(2A),

inter alia, providing for a separate, independent and

permanent secretarial staff for the Election

Commission. In regard to the need for equating the two

Election Commissioners with the Chief Election

Commissioner and noting that Election Commissioners

were clearly superior to the Regional Commissioners,

the Law Commission recommended changes in Article

324(5) as well. The amended Article 324, as proposed

by the Law Commission of India, in its Report, reads

as follows:

“324. Superintendence, direction and control

of elections to be vested 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 Legislature

of every State and of elections to the offices

of President and Vice-President held under this

Constitution shall be vested in a Commission

112

(referred to in this Constitution as the

Election Commission)

(2) The Election Commission shall consist of

the Chief Election Commissioner and such number

of other Election Commissioners, if any, as the

President may from time to time fix and the

appointment of the Chief Election Commissioner

and other Election Commissioners shall,

subject to the provisions of any law made in

that behalf by Parliament, be made by the

President.

(2A) (1): The Election Commission shall have a

separate independent and permanent secretarial

staff.

(2) The Election Commission may, by rules

prescribed by it, regulate the recruitment, and

the conditions of service of persons appointed,

to its permanent secretarial staff.

(3) When any other Election Commissioner is so

appointed the Chief Election Commissioner

shall act as the Chairman of the Election

Commission.

(4) Before each general election to the House

of the People and to the Legislative Assembly

of each State, and before the first general

election and thereafter before each biennial

election to the Legislative Council of each

State having such Council, the President may

also appoint after consultation with the

Election Commission such Regional

Commissioners as he may consider necessary to

assist the Election Commission in the

performance of the functions conferred on the

Commission by clause (1).

(5): Subject to the provisions of any law made

by Parliament, the conditions of service and

tenure of office of the Regional Commissioners

113

shall be such as the President may by rule

determine;

Provided that the Chief Election Commissioner

and any other Election Commissioner shall not

be removed from his office except in like

manner and on the like grounds as a Judge of

the Supreme Court and the conditions of service

of the Chief Election Commissioner and any

other Election Commissioner shall not be varied

to his disadvantage after his appointment:

Provided further that a Regional Commissioner

shall not be removed from office except on the

recommendation of the Chief Election

Commissioner.

(6) The President, or the Governor of a State,

shall, when so requested by the Election

Commission, make available to the Election

Commission or to a Regional Commissioner such

staff as may be necessary for the discharge of

the functions conferred on the Election

Commission by clause (1).”

76. There is a newspaper Report of The Hindu dated

04.06.2012, which appears to project the demand of Shri

L.K. Advani, that a Collegium be put in place for

appointment to the Constitutional Body and taking the

stand that the present system of appointment did not

inspire confidence among the people. There is also a

reference to the Report of the Citizens Commission of

Elections. It appears to be prepared by the former

Judge of this Court Shri Madan B. Lokur and Shri Wajahat

114

Habibullah, a former Chief Information Commissioner.

In the said Report, we find the Article ‘Are Elections

in India Free and Fair’ by Shri M.G. Devasahayan. Under

the head ‘ECI – functioning an autonomy’, we find the

following criticism:

“

▪ ECI has plenipotentiary powers drawn from

Article 324 of the Constitution of India to

conduct free and fair election.

▪ In addition, Supreme Court has ruled: “when

Parliament or any State Legislature made valid

law relating to, or in connection to elections,

the Commission, shall act in conformity with,

not in violation of such provisions, but where

such law is silent, Article 324 is a reservoir

of power to act for the avowed purpose of

pushing forward a free and fair election with

expedition…”.

▪ But ECI is just not using such powers,

because ECs are the appointees of the

Government of the day and not through an

independent process of collegium. The case of

one dissenting EC, who was side-lined and then

eased out has caused irretrievable damage to

ECI’s independence and integrity!

▪ This compromises the autonomy of the ECI

and creates doubts about the neutrality of the

CEC and the ECs, and consequently, the

neutrality of the Commission itself. This poses

serious danger to the fairness and integrity

of not only the elections, but democracy

itself…”

(Emphasis supplied)

77. In the year 2016, we find the following proposed

electoral reforms essentially related to Article

115

324(5), being proposals made by the Election Commission

itself.

“Clause (5) of Article 324 of the Constitution

provides that the Chief Election Commissioner

shall not be removed from his office except in

the same manner and on the same grounds as a

Judge of the Supreme Court. The Chief Election

Commissioner and the two Election

Commissioners enjoy the same decision making

powers which is suggestive of the fact that

their powers are at par with each other.

However, Clause (5) of Article 324 of the

Constitution does not provide similar

protection to the Election Commissioners and

it merely says that they cannot be removed from

office except on the recommendation of the

Chief Election Commissioner.

The reason for giving protection to a Chief

Election Commissioner as enjoyed by a Supreme

Court Judge in matters of removability from

office was in order to ensure the independence

of Commission from external pulls and pressure.

However, the rationale behind not affording

similar protection to other Election

Commissioners is not explicable. The element

of 'independence' sought to be achieved under

the Constitution is not exclusively for an

individual alone but for the whole institution.

Thus, the independence of the Commission can

only be strengthened if the Election

Commissioners are also provided with the same

protection as that of the Chief Election

Commissioner.

Proposed amendment

The present constitutional guarantee is

inadequate and requires an amendment to provide

the same protection and safeguard in the matter

of removability of Election Commissioners as

is available to the Chief Election

Commissioner.”

116

Q.SEPARATION OF POWERS AND JUDICIAL ACTIVISM

78. In I. C. Golak Nath and Others v. State of Punjab

and Another,

15 Justice Subba Rao held speaking for this

Court:

“It (the Constitution) demarcates their

jurisdiction minutely and expects them to

exercise their respective powers without

overstepping their limits. They should

function within the spheres allotted to them.

No authority created under the Constitution is

supreme; the Constitution is supreme and all

the authorities function under the supreme law

of the land.”

79. What is this jurisdiction which is demarcated?

Justice R.S.Pathak speaking for the Bench in Bandhua

Mukti Morcha v. Union of India and Others16 held:

“It is a common place that while the

Legislature enacts the law the Executive

implements it and the Court interpret it and,

in doing so, adjudicates on the validity of

executive action and, under our Constitution,

even judges the validity of the legislation

itself.”

The question would arise as to whether the

powers/functions are cast in stone or whether the

15 AIR 1967 SC 1643

16(1984) 3 SCC 161

117

aforesaid powers/functions can legitimately be

exercised/discharged by the other organs. We may in

this regard again advert to what this Court held in the

aforesaid case (supra):

“And yet it is well recognized that in a

certain sphere the Legislature is possessed of

judicial power, the executive possesses a

measure of both legislative and judicial

functions, and the court, in its duty of

interpreting the law, accomplishes in its

perfect action in a marginal degree of

legislative exercise. Nonetheless a fine and

delicate balance is envisaged under our

Constitution between these primary

institutions of the State.”

80. The High Courts and this Court make Rules under

the power granted to them. No doubt, they will be acting

as delegates of the Legislature but the exercise of

power in such cases would be legislative in nature.

When an Ordinance is made under Article 123 by the

Executive, that is, the Union of India, it is a case

of the Executive exercising legislative power. When

Parliament adjudges a man guilty of contempt of itself

and punishes him, the proceedings are informed by the

attribute of judicial power.

118

81. It cannot be disputed that there is no strict

demarcation or separation of powers in India unlike the

position obtaining in the United States of America and

Australia. (See In Re. Delhi Laws Act, 191217). The

doctrine of separation of powers, no doubt, has been

eloquently expounded by Montesquieu in his work “The

Spirit of Laws” and the basis on which it rests is the

imperative need to avoid concentration of power in one

or two organs. Undoubtedly, an observance of doctrine

of separation of powers has been traced to the

principle of equality (See Madras Bar Association v.

Union of India18. Justice Y.V. Chandrachud, as His

Lordship then was, speaking in Indira Nehru Gandhi v.

Raj Narain & Ors.

19 held inter alia as follows:

“But the principle of separation of powers is

not a magic formula for keeping the three

organs of the State within the strict confines

of their functions.”

82. Separation of powers as understood as prevailing

in India constitutes a part of the basic structure of

17 AIR 1951 SC 332

18 2021 SCC OnLine SC 463

19 (1975) Suppl. SCC 1

119

the Constitution of India (See His Holiness Kesavananda

Bharati Sripadagalvaru v. State of Kerala and Another20)

and I.R. Coelho (Dead) by LRs v. State of T.N.

83. In Indian Aluminium Co. and others v. State of

Kerala and others22, this Court, while dealing with the

alleged encroachment by the Legislature of the

boundaries set by the Doctrine of Separation of Powers

laid down, inter alia, as follows:

“(1) The adjudication of the rights of the

parties is the essential judicial function.

Legislature has to lay down the norms of

conduct or rules which will govern the parties

and the transactions and require the court to

give effect to them;

(2) The Constitution delineated delicate

balance in the exercise of the sovereign power

by the legislature, executive and judiciary;

(3) In a democracy governed by the rule of law,

the legislature exercises the power under

Articles 245 and 246 and other companion

articles read with the entries in the

respective lists in the Seventh Schedule to

make the law which includes power to amend the

law.

(4) Courts in their concern and endeavour to

preserve judicial power equally must be guarded

to maintain the delicate balance devised by the

20 (1973) 4 SCC 225

21 (2007) 2 SCC 1

22 (1996) 7 SCC 637

120

Constitution between the three sovereign

functionaries. In order that the rule of law

permeates to fulfil constitutional objectives

of establishing an egalitarian social order,

the respective sovereign functionaries need

free play in their joints so 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 a delegate of the Legislature, do the

superior courts make law or is it entirely tabooed? In

other words, when the court decides a lis, is the

function of the court merely to apply law to the facts

as found or do courts also make law? The theory that

the courts cannot or do not make laws is a myth which

has been exploded a long while ago. We may only in

this regard refer to what Justice S.B. Sinha opined on

behalf of this Court in the decision reported in State

of U.P. v. Jeet S. Bisht23:

“77. Separation of powers is a favourite topic

for some of us. Each organ of the State in

terms of the constitutional scheme performs one

or the other functions which have been assigned

to the other organ. Although drafting of

legislation and its implementation by and large

23 (2007) 6 SCC 586

121

are functions of the legislature and the

executive respectively, it is too late in the

day to say that the constitutional court's role

in that behalf is non-existent. The judge-made

law is now well recognised throughout the

world. If one is to put the doctrine of

separation of power to such a rigidity, it

would not have been possible for any superior

court of any country, whether developed or

developing, to create new rights through

interpretative process.

78. Separation of powers in one sense is a

limit on active jurisdiction of each organ.

But it has another deeper and more relevant

purpose: to act as check and balance over the

activities of other organs. Thereby the active

jurisdiction of the organ is not challenged;

nevertheless there are methods of prodding to

communicate the institution of its excesses and

shortfall in duty. Constitutional mandate sets

the dynamics of this communication between the

organs of polity. Therefore, it is suggested

to not understand separation of powers as

operating in vacuum. Separation of powers

doctrine has been reinvented in modern times.

83. If we notice the evolution of separation

of powers doctrine, traditionally the checks

and balances dimension was only associated

with governmental excesses and violations. But

in today's world of positive rights and

justifiable social and economic entitlements ,

hybrid administrative bodies, private

functionaries discharging public functions, we

have to perform the oversight function with

more urgency and enlarge the field of checks

and balances to include governmental inaction.

122

Otherwise we envisage the country getting

transformed into a state of repose. Social

engineering as well as institutional

engineering therefore forms part of this

obligation.”

(Emphasis supplied)

85. Separation of powers is part of the basic structure

of the Constitution of India. Equally, judicial review

has been recognised as forming a part of the basic

structure. Judicial review of legislation is expressly

provided in Article 13 of the Constitution. A court

when it declares a law made by the legislature as

unconstitutional, if it be that, it is within its

bounds, cannot be accused of transgressing the

principle of separation of powers. Declaring even a law

made by the Parliament as unconstitutional forms a part

of its powers. In view of the enunciation of the

doctrine of basic structure in India unlike perhaps in

most countries, even an amendment to the Constitution

can be declared unconstitutional by the court. Such

exercise cannot expose the court to the charge that it

is not observing the limits set by the Constitution.

86. While it may be true that the Constitution is

supreme and all disputes must finally attain repose

123

under the aegis of the Constitution, in one sense the

final arbiter of what is the law must be the court.

While it may be true that by removing the text forming

the premise for a judicial verdict, the lawgiver may

revisit the judgment, it is not open to the legislature

to don the robes of a Judge and arrogate to itself the

judicial function. The theory of separation of powers

in an ultimate analysis is meant to prevent tyranny of

power flowing from the assumption of excess power in

one source. Its value lies in a delicate but skilful

and at the same time legitimate balance being struck

by the organs of the State in the exercise of their

respective powers. This means that the essential powers

which are well understood in law cannot be deliberately

encroached upon by any organ of the State.

87. Creative judicial activism has been a subject of

both controversy reaching brickbats as also bouquets

to the courts. Under the Constitution which clothes

both citizens and persons with fundamental rights

besides tasking the State with the achieving of goals

declared in the Directive Principles, judicial activism

as opposed to a mere passive role may be the much-

124

needed choice. Judicial activism, however, must have a

sound juridical underpinning and cannot degenerate into

a mere exercise of subjectivism.

88. The learned Solicitor General is right therefore

that judicial restraint may be a virtue in the elevated

region of constitutional law. Being the grundnorm, it

is indeed a rarefied field where the court must tread

wearily (See Divisional Manager, Aravali Golf Club and

Another v. Chander Hass and Another24). This Court

indeed has admonished against the court itself running

the Government. In Asif Hameed v. State of J & K,

25 no

doubt this court refers to the following observations

of Frankfurter, J. in para 18:

“All power is, in Madison's phrase, “of an

encroaching nature”. Judicial power is not

immune against this human weakness. It also

must be on guard against encroaching beyond its

proper bounds, and not the less so since the

only restraint upon it is self-restraint....

Rigorous observance of the difference between

limits of power and wise exercise of power —

between questions of authority and questions

of prudence — requires the most alert

appreciation of this decisive but subtle

relationship of two concepts that too easily

24 (2008) 1 SCC 683

25 (1989) Suppl.2 SCC 364

125

coalesce. No less does it require a disciplined

will to adhere to the difference. It is not

easy to stand aloof and allow want of wisdom

to prevail to disregard one's own strongly held

view of what is wise in the conduct of affairs.

But it is not the business of this Court to

pronounce policy. It must observe a fastidious

regard for limitations on its own power, and

this precludes the court's giving effect to its

own notions of what is wise or politic. That

self-restraint is of the essence in the

observance of the judicial oath, for the

Constitution has not authorized the judges to

sit in judgment on the wisdom of what Congress

and the executive branch do.”

89. In the work “Judicial Activism” in India by SP

Sathe, the learned author in the chapter ‘Legitimacy

of Judicial Activism’ observes: -

“Legitimacy of Judicial Activism

The realist school of jurisprudence exploded

the myth that the judges merely declared the

pre-existing law or interpreted it and asserted

that the judges made the law. It stated that

the law was what the courts said it was. This

is known as legal scepticism and was really a

reaction to Austin’s definition of law as a

command of the political sovereign. According

to analytical jurisprudence a court merely

found the law or merely interpreted the law.

The American realist school or jurisprudence

asserted that the judges made 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 in the sense of

the realist jurisprudence, but actually has

started ‘legislating’ exactly in the way in

which a legislature legislates. Judicial law-

126

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’. When the

Court held that a commercial speech

(advertisement) was entitled to the protection

of freedom of speech and expression, it was

judicial law-making in the realist sense.

Similarly, the basic structure doctrine or the

parameters for reviewing the President’s

action under article 356 or the wider meanings

of the words ‘life’, ‘liberty’, and ‘procedure

established by law’ in article 21 of the

Constitution by the Supreme Court are instances

of judicial law-making in the realist sense.

When, however, the Court lays down guidelines

for inter-country adoption, against sexual

harassment of working women at the workplace,

or for abolition of child labour, it is not

judicial law-making in the realist sense these

are instances of judicial excessivism that fly

in the face of the doctrine of separation of

powers. The doctrine of separation of powers

envisages that the legislature should make law,

the executive should execute it, and the

judiciary should settle disputes in accordance

with the existing law. In reality such

watertight separation exists nowhere and is

impracticable. Broadly it means that one organ

of the State should not perform a 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 of law’,

‘equal protection of law’, or ‘freedom of

speech and expression’ is a legitimate judicial

function, the making of an entirely new law,

which the Supreme Court has been doing through

directions in the above-mentioned cases, is not

a legitimate judicial function. True, the Court

has not supplanted but has merely supplemented

the legislature through such directions. It has

said in each case that it legislated through

127

directions only because no law existed to deal

with situations such as inter-country adoption

or sexual harassment of working women and that

its direction could be replaced by legislation

of the legislature.”

90. In the work, “The Nature of the Judicial Process”

by Benjamin N. Cardozo, in the lecture, “The Method of

Sociology - The Judge as a Legislator.” Justice

Cardozo observes under the following subject: -

“THE JUDGE AS A LEGISLATOR

…No doubt the limits for the judge are

narrower. He legislates only between gaps. He

fills the open spaces in the law. How far he

may go without travelling beyond the walls of

the interstices cannot be staked out for him

upon a chart. He must learn it for himself as

he gains the sense of fitness and proportion

that comes with years of habitude in the

practice of an art. Even within the gaps,

restrictions not easy to define, but felt,

however impalpable they may be, by every judge

and lawyer, hedge and circumscribe his 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 of adherence 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, they say, until adopted by the courts.

Even statues are not law because the courts

must fix their meaning. That is the view of

128

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 morality are the sources

of the Law.” So, Jethro Brown in a paper on

“Law and Evolution,” tells us that a statue,

till construed, is not real law. It is only

“ostensible” law, Real law, he says, is not

found anywhere except in the judgment of a

court…

..They have the right to legislate within gaps,

but often there are no gaps. We shall have a

false view of the landscape if we look at the

waste spaces only, and refuse to see the acres

already sown and fruitful..

..The judge, even when he is free, is still

not wholly free. He is not to innovate at

pleasure. He is not a knight-errant, roaming

at will in pursuit of his own ideal of beauty

or of goodness. He is to draw his inspiration

from consecrated principles. He is not to yield

to spasmodic sentiment, to vague and

unregulated benevolence. He is to exercise a

discretion informed by tradition, methodized

by analogy, disciplined by system, and

subordinated to “the primordial necessity of

order in the social life.” Wide enough in all

conscience is the field of discretion that

remains.”

(Emphasis Supplied)

91. Close to the aspect of separation of powers, is

controversial subject of judicial activism. In the work

“Judicial Activism, Authority, Principles and Policy

129

in The Judicial Method” by Hon’ble Justice Michael

Kirby, we find of particular interest, the following:

“The acute needs of the developing countries

of the Commonwealth have sometimes produced an

approach to constitutional interpretation that

is unashamedly described as “activist”,

including by judges themselves. Thus in India,

at least in most legal circles, the phrase

“judicial activism” is not viewed as one of

condemnation. So urgent and numerous are the

needs of that society that anything else would

be regarded by many – including many judges and

lawyers – as an abdication of the final court’s

essential constitutional role.

One instance may be cited from Indian

experience: the expansion of the traditional

notion of standing to sue in public interest

litigation. The Indian Supreme Court has upheld

the right of prisoners, the poor and other

vulnerable groups to enlist its constitutional

jurisdiction by simply sending a letter to the

Court. This might not seem appropriate in a

developed country. Yet it appears perfectly

adapted to the nation to which the Indian

Constitution speaks. Lord Chief Justice Woolf

recently confessed to having been astounded at

first by the proactive approach of the Indian

Supreme Court in this and other aspects.

However, he went on:

“…I soon realised that if that Court was to

perform its essential role in Indian society,

it had no option but to adopt the course it

did and I congratulate it for the courage it

has shown.””

(Emphasis Supplied)

92. Unlike demands of a formal democracy, the hallmark

of a substantive democracy and if we may say so, a

130

liberal democracy must be borne in mind. Democracy is

inextricably intertwined with power to the people. The

ballot, is more potent than the most powerful gun.

Democracy facilitates a peaceful revolution at the

hands of the common man if elections are held in a free

and fair manner. Elections can be conflated with a nonviolent coup capable of unseating the most seemingly

powerful governing parties, if they do not perform to

fulfil the aspirations of the governed. Democracy is

meaningful only if the sublime goals enshrined in the

preamble to the Constitution receive the undivided

attention of the rulers, namely, social, political and

economic justice. The concepts of liberty, equality and

fraternity must not be strange bedfellows to the ruling

class. Secularism, a basic feature of the Constitution

must inform all actions of the State, and therefore,

cannot be spurned but must be observed in letter and

spirit. Democracy can be achieved only when the

governing dispensation sincerely endeavours to observe

the fundamental rights in letter and spirit. Democracy

also, needless to say, would become fragile and may

collapse, if only lip service is paid to the rule of

131

law. We cannot be oblivious to the fact that the

founding fathers have contemplated that not only must

India aspire for a democratic form of government and

life but it is their unambiguous aim that India must

be a Democratic Republic. The conventional definition

of a ‘Republic’ is that it is a Body Polity, in which,

the Head of State is elected. However, the republican

character of our democracy also means that the majority

abides by the Constitution ensuring rights granted

under it and also pursues goals enshrined in it. A

brute majority generated by a democratic process must

conform to constitutional safeguards and the demands

of constitutional morality. A Democratic Republic

contemplates that majoritarian forces which may be

compatible with a democracy, must be counter balanced

by protection accorded to those not in the majority.

When we speak about the minority, the expression is not

to be conflated with or limited to linguistic or

religious minorities. These are aspects which again

underly the need for an independent election

commission.

132

93. It may be true that the resort to courts is not a

remedy for all ills in a society (see Common Cause v.

Union of India and Others26) We are equally cognizant

that the courts must not try to run a Government nor

behave like emperors. We also take notice of the

following words of this Court in Divisional Manager,

Aravali Golf Club and Another v. Chander Hass and

Another,

where the merit of exercising judicial

restraint has been emphasized.

“33. Judicial restraint is consistent with and

complementary to the balance of power among the

three independent branches of the State. It

accomplishes this in two ways. First, judicial

restraint not only recognises the equality of

the other two branches with the judiciary, it

also fosters that equality by minimising interbranch interference by the judiciary. In this

analysis, judicial restraint may also be called

judicial respect, that is, respect by the

judiciary for the other coequal branches. In

contrast, judicial activism's unpredictable

results make the judiciary a moving target and

thus decreases the ability to maintain equality

with the co-branches. Restraint stabilises the

judiciary so that it may better function in a

system of inter-branch equality.”

26 (1996) 1 SCC 753

27 (2008) 1 SCC 683

133

“34. Second, judicial restraint tends to

protect the independence of the judiciary. When

courts encroach into the legislative or

administrative fields almost inevitably

voters, legislators and other elected

officials will conclude that the activities of

judges should be closely monitored. If judges

act like legislators or administrators it

follows that judges should be elected like

legislators or selected and trained like

administrators. This would be

counterproductive. The touchstone of an

independent judiciary has been its removal from

the political or administrative process. Even

if this removal has sometimes been less than

complete, it is an ideal worthy of support and

one that has had valuable effects.”

“38. The moral of this story is that if the

judiciary does not exercise restraint and

overstretches its limits there is bound to be

a reaction from politicians and others. The

politicians will then step in and curtail the

powers, or even the independence, of the

judiciary (in fact the mere threat may do, as

the above example demonstrates). The judiciary

should, therefore, confine itself to its proper

sphere, realising that in a democracy many

matters and controversies are best resolved in

non-judicial setting.”

However, we may also listen to the following words.

“39. We hasten to add that it is not our

opinion that judges should never be “activist”.

Sometimes judicial activism is a useful adjunct

to democracy such as in the School Segregation

and Human Rights decisions of the US Supreme

134

Court vide Brown v. Board of Education [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 the decisions of our own

Supreme Court which expanded the scope of

Articles 14 and 21 of the Constitution. This,

however, should be resorted to only in

exceptional circumstances when the situation

forcefully demands it in the interest of the

nation or the poorer and weaker sections of

society but always keeping in mind that

ordinarily the task of legislation or

administrative decisions is for the

legislature and the executive and not the

judiciary.”

(Emphasis Supplied)

94. A Constitution Bench Judgment reported in State of

T.N. v. State of Kerala and another28 summarised its

conclusions on the constitutional principles relating

to separation of powers as follows:

“126.1. Even without express provision of the

separation of powers, the doctrine of

separation of powers is an entrenched principle

in the Constitution of India. The doctrine of

separation of powers informs the Indian

constitutional structure and it is an essential

constituent of rule of law. In other words, the

doctrine of separation of power though not

expressly engrafted in the Constitution, its

sweep, operation and visibility are apparent

28 (2014) 12 SCC 696

135

from the scheme of Indian Constitution.

Constitution has made demarcation, without

drawing formal lines between the three organs—

legislature, executive and judiciary. In that

sense, even in the absence of express provision

for separation of powers, the separation of

powers between the legislature, executive and

judiciary is not different from the

Constitutions of the countries which contain

express provision for separation of powers.

126.2. Independence of courts from the

executive and legislature is fundamental to the

rule of law and one of the basic tenets of

Indian Constitution. Separation of judicial

power is a significant constitutional

principle under the Constitution of India.

126.3. Separation of powers between three

organs—the legislature, executive and

judiciary—is also nothing but a consequence of

principles of equality enshrined in Article 14

of the Constitution of India. Accordingly,

breach of separation of judicial power may

amount to negation of equality under Article

14. Stated thus, a legislation can be

invalidated on the basis of breach of the

separation of powers since such breach is

negation of equality under Article 14 of the

Constitution.”

R. IS THE RIGHT TO VOTE A STATUTORY RIGHT OR A

CONSTITUTIONAL RIGHT?

95. The right to vote is not a civil right. A Bench

of six learned Judges in N.P. Ponnuswami v.

136

Returning_Officer, Namakkal,

29 in the context of

Article 329(b) held that the right to vote was a

creature of a statute or a special law and must be

subject to limitations imposed by it. The matter arose

from a challenge to the rejection of the nomination

maintained in a writ petition and the question which

substantially arose was the impact of Article 329(b).

No doubt, the court examined Part XV of the

Constitution and about Articles 325 and 326, the Court

held as follows:

“The other two Articles in Part XV i.e. Article

325 and 326 deal with two matters of principle

to which the Constitution framers have attached

much importance. They are (1) Prohibition

against dis crimination in the preparation of,

or eligibility for inclusion in, the electoral

rolls, on grounds of religion, race, caste, sex

or any of them; and (2) adult sufferage.”

The Court really was not concerned with the

question as to whether Article 326 provided for a

Constitutional right to vote.

96. In Jyoti Basu and Others. Debi Ghosal and Others30,

the Court was dealing with a challenge to the High

29 AIR 1952 SC 64

30 1982 (1) SCC 691

137

court rejecting an application in an Election Petition

to strike out the names of certain parties from the

array of parties. The Court inter alia held that

Article 326 provides 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 the right to dispute an

election and the scheme of the constitutional

and statutory provisions in relation to these

rights have been explained by the Court in N.P.

Ponnuswami v. Returning Officer, Namakkal

Constituency [(1952) 1 SCC 94 : AIR 1952 SC 64

: 1952 SCR 218 : 1952 SCJ 100] and Jagan

Nath v. Jaswant Singh [AIR 1954 SC 210 : 1954

SCR 892 : 1954 SCJ 257] . We proceed to state

what we have gleaned from what has been said,

so much as necessary for this case.

8. A right to elect, fundamental though it is

to democracy, is, anomalously enough, neither

a fundamental right nor a common law right. It

is pure and simple, a statutory right. So is

the right to 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 to dispute an election.”

(Emphasis supplied)

138

97. Mohan Lal Tripathi vs. District Magistrate,

Raibraally and others31 was a case wherein the appellant

who was elected directly under Section 43 of the U.P.

Municipalities Act was removed by a no-confidence

motion. It was his contention that his removal was

undemocratic as it was sought to be done by a smaller

and different body than the one that elected him. It

is in these facts that the court inter alia held as

follows:

“..But electing representatives to govern is

neither a ‘fundamental right’ nor a ‘common

right’ but a special right created by the

statutes or a ‘political right’ or ‘privilege’

and not a ‘natural[‘, absolute’ or ‘vested

right’.

This Court was not dealing with the impact of

Article 326. It followed the judgement in N.P.

Ponnuswamy (supra).

98. In Rama Kant Pandey v. Union of India32, a Bench of

three learned judges was dealing with a petition

challenging the validity of the Representation of the

People (Amendment Ordinance) Act, 1992 on the ground

31 (1992) 4 SCC 80

32 (1993) 2 SCC 438

139

of violation of Articles 14, 19 and 21. Section 52

providing for countermanding of polls was amended. It

was in the context of the said challenge, the Court

noted that the right to vote or to stand as a candidate

for election was neither a fundamental nor civil right.

It purported to follow the views which originated in

Ponnuswamy case (supra).

99. In Anukul Chandra Pradhan, Advocate Supreme Court

v. Union of India and others33, a Bench of three learned

Judges, while dealing with a challenge to Section 62(5)

of the 1951 Act, on the ground that 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 exclude persons with criminal

background of the kind specified therein, from

the election scene as candidates and voters.

The object is to prevent criminalisation of

politics and maintain probity in elections. Any

provision enacted with a view to promote this

object must be welcomed and upheld as

subserving the constitutional purpose. The

elbow room available to the legislature in

classification depends on the context and the

object for enactment of the provision. The

existing conditions in which the law has to be

33 (1997) 6 SCC 1

140

applied cannot be ignored in adjudging its

validity because it is relatable to the object

sought to be achieved by the legislation.

Criminalisation of politics is the bane of

society and negation of democracy. It is

subversive of free and fair elections which is

a basic feature of the Constitution. Thus, a

provision made in the election law to promote

the object of free and fair elections and

facilitate maintenance of law and order which

are the essence of democracy must, therefore,

be so viewed. More elbow room to the

legislature for classification has to be

available to achieve the professed object.”

100. The Court also found other reasons to justify the

provision. It was noted that permitting every person

in prison to vote, would lead to a resource 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 to limitations imposed by the Statute.

The specific question, as to whether it constituted a

Constitutional Right under Article 326, as such, was

not presented for adjudication.

101. In Shyamdeo Pd. Singh v. Nawal Kishore Yadav34, a

Bench of three learned judges while dealing with a case

34 (2000) 8 SCC 46

141

arising out of an election petition had this to say

about Article 326:

“9. Article 326 of the Constitution is founded

on the doctrine of adult suffrage. It provides

that every person who is a citizen of India

and who is not less than 18 years of age on

such date as may be fixed in that behalf by or

under any law made by the appropriate

legislature and is not otherwise disqualified

under the Constitution or any law made by the

appropriate legislature on the ground of nonresidence, unsoundness of mind, crime or

corrupt or illegal practice, shall be entitled

to be registered as a voter at any such

election. This Article clearly contemplates

law being enacted by an appropriate legislature

providing for qualifications and

disqualifications subject to which a citizen

of India not less than 18 years of age shall

be entitled to be registered as a voter and

exercise his right to franchise. Article 327

provides for law being made by Parliament

subject to the provisions of the Constitution

with respect to all matters relating to or in

connection with elections to either House of

Parliament or to the House or either House of

the Legislature of a State which law may

include provisions for the preparation of

electoral rolls, the delimitation of

constituencies and all other matters necessary

for securing the due constitution of such House

or Houses.

102. The Court, inter alia, after referring to Section

62 of the 1951 Act, held as follows:

”… A person who is not entered in the electoral

roll of any constituency is not entitled to

vote in that constituency though he may be

142

qualified under the Constitution and the law

to exercise the right to franchise. To be

entitled to cast a ballot the person should be

entered in the electoral roll…”

It was further held:

“15. A perusal of the abovesaid provisions

leads to certain irresistible inferences.

Article 326 of the Constitution having

recognised the doctrine of adult suffrage has

laid down constitutional parameters

determinative of the qualifications and

disqualifications relating to registration as

a voter at any election. The two Articles,

i.e., Article 326 and Article 327 contemplate

such qualifications and disqualifications

being provided for, amongst other things, by

the appropriate legislature. The fountain

source of the 1950 Act and the 1951 Act

enacting provisions on such subject are the

said two Articles of the Constitution. The

provisions of Section 16 of the 1950 Act and

Section 62 of the 1951 Act read in

juxtaposition go to show that while Section 16

of the 1950 Act provides 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 right is

to be determined by reference to the electoral

roll of the constituency prepared under the

1950 Act. The eligibility for registration of

those enrolled having been tested by reference

to Section 16 or Section 27 of the Act, as the

case may be, and the electoral roll having been

prepared, under the 1950 Act if a person is or

becomes subject to any of the disqualifications

provided in clauses (a), (b) and (c) of subsection (1) of Section 16, two consequences may

follow. His name may forthwith be struck off

the electoral roll, in which the name is

143

included, under sub-section (2) of Section 16

of the 1950 Act. Even if the name is not so

struck off yet the person is disqualified from

exercising right to vote at the election by

virtue of sub-section (2) of Section 62 of the

1951 Act. The qualifications prescribed for

enrolment in the electoral roll as provided by

clause (b) of sub-section (5) of Section 27 of

the 1950 Act are: (i) ordinary residence in a

teachers' constituency, (ii) being engaged in

the relevant educational institution for a

total period of at least three years within the

six years immediately before the qualifying

date. The inquiry into availability of these

eligibility qualifications, under the Scheme

of the 1950 Act is to be made at the time of

preparation of the electoral roll or while

entering or striking out a name in or from the

electoral roll. Section 62 of the 1951 Act does

not provide that a person who is not qualified

to be enrolled as an elector in the electoral

roll shall not be entitled to vote at the

election. To put it briefly a disqualification

under Section 16 of the 1950 Act has a

relevance for and a bearing on the right to

vote under Section 62 of the 1951 Act but being

not qualified for enrolment in the electoral

roll under Section 27 of the 1950 Act has no

relevance for or bearing on the right to vote

at an election under Section 62 of the 1951

Act. That is the distinction between a

“disqualification” and “not being qualified”.

It is, however, relevant to notice that the case

arose from a challenge to the result of an election

held to a legislative council and Section 27

referred to dealt with legislative councils and not

legislative assemblies.

144

103. In Union of India v. Assn. for Democratic Reforms35,

the High Court gave certain directions to the Election

Commission on the basis that the right of the voter to

make the right choice depended upon the availability

of information about the past of the candidates and it

must be disclosed to the voters. This Court found that

for the health of democracy and fair elections and for

ensuring the purity of elections and having regard to

the width of the jurisdiction of the Election

Commission under Article 324 (1) of the Constitution,

the directions given by the High court was justified.

This Court however issued certain directions which

modified the directions of the High Court. It is in the

context of these facts, the Court, inter alia, held as

follows:

“46 (7). Under our Constitution, Article

19(1)(a) provides for freedom of speech and

expression. Voter's speech or expression in

case of election would include casting of

votes, that is to say, voter speaks out or

expresses by casting vote. For this purpose,

information about the candidate to be selected

is a must. Voter's (little man — citizen's)

right to know antecedents including criminal

past of his candidate contesting election for

35 (2002) 5 SCC 294

145

MP or MLA is much more fundamental and basic

for survival of democracy. The little man may

think over before making his choice of 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 that notwithstanding any judgment, no

candidate was liable to disclose or furnish any such

information in respect of his election which is not

required to be disclosed or furnished under the

Representation of the People Act, 1951 or the rules

made thereunder. In People’s Union for civil Liberties

(PUCL) and Another vs. Union of India and Another36

Justice M.B. Shah while dealing with the nature of the

right to vote, inter alia held that “the right of the

voter to know the bio data of the candidate was the

foundation of democracy”. It was concluded by the

learned judge that Section 33B of the amended Act was

illegal and invalid. Justice P. Venkatarama Reddi in

the same case went on hold as follows:

“With great reverence to the eminent Judges, I

would like to clarify that the right to vote,

if not a fundamental right, is certainly a

36 (2003) 4 SCC 399

146

constitutional right. The right originates

from the Constitution and in accordance with

the constitutional mandate contained in

Article 326, the right has been shaped by the

statute, namely the RP Act. That, in my

understanding, is the correct legal position

as regards the nature of the right to vote in

elections to the House of the People and

Legislative Assemblies. It is not very accurate

to describe it as a statutory right, pure and

simple. Even with this clarification, the

argument of the learned Solicitor-General that

the right to vote not being a fundamental

right, the information which at best

facilitates meaningful exercise of that right

cannot be read as an integral part of any

fundamental right, remains to be squarely met.

Here, a distinction has to be drawn between the

conferment of the right to vote on fulfilment

of requisite criteria and the culmination of

that right in the final act of expressing

choice towards a particular candidate by means

of ballot. Though the initial right cannot be

placed on the pedestal of a fundamental right,

but, at the stage when the voter goes to the

polling booth and casts his vote, his freedom

to express arises. The casting of vote in

favour of one or the other candidate

tantamounts to expression of his opinion and

preference and that final stage in the exercise

of voting right marks the accomplishment of

freedom of expression of the voter. That is

where Article 19(1)(a) is attracted. Freedom

of voting as distinct from right to vote is

thus a species of freedom of expression and

therefore carries with it the auxiliary and

complementary rights such as right to secure

information about the candidate which are

conducive to the freedom. None of the decisions

of this Court wherein the proposition that the

right to vote is a pure and simple statutory

right was declared and reiterated, considered

the question whether the citizen's freedom of

expression is or is not involved when a citizen

147

entitled to vote casts his vote in favour of

one or the other candidate.”

(Emphasis supplied)

Justice D.M. Dharmadhikari also agreed with the

following conclusion No.2 at para 123 which contains

the judgment of Justice P. Venkatarama Reddi:

“(2) The right to vote at the elections to the

House of the People or Legislatives Assembly

is a constitutional right but not merely a

statutory right; freedom of voting as distinct

from right to vote is a facet of the

fundamental right enshrined in Article

19(1)(a). the casting of vote in favour of

one or the other candidate marks the

accomplishment of freedom of expression of the

voter.”

105. In Kuldip Nayar and Others v. Union of India and

Others37, the question which actually fell for

consideration was the validity of a certain amendment

which came into force on 28.08.2003. By the Amendment,

the requirement of domicile in the State concerned for

being elected to the Council of States was deleted.

The Constitution Bench in the course of its judgment

referred to PUCL (supra) and the court observed as

follows:

37 (2006) 7 SCC 1

148

“361. The argument of the petitioners is that

the majority view in People's Union for Civil

Liberties [(2003) 4 SCC 399] , therefore, was

that a right to vote is a constitutional right

besides that it is also a 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 a fine distinction was drawn

between the right to vote and the freedom of

voting as a species of freedom of expression,

while reiterating the view in Jyoti

Basu v. Debi Ghosal [(1982) 1 SCC 691] that a

right to elect, fundamental though it is to

democracy, is neither a fundamental right nor

a common law right, but pure and simple, a

statutory right.

363. Even otherwise, there is no basis to

contend that the right to vote and elect

representatives of the State in the Council of

States is a constitutional right. Article 80(4)

merely deals with the manner of election of the

representatives in the Council of States as an

aspect of the composition of the Council of

States. There is nothing in the constitutional

provisions declaring the right to vote in such

election as an absolute right under the

Constitution.”

106. It will be noticed that the Council of States is

not the same as the House of the People within the

meaning of Article 326. We cannot overlook the

following observations:

149

“448. It shows that the right to vote in “free

and fair elections” is always in terms of an

electoral system prescribed by national

legislation. The right to vote derives its

colour from the right to “free and fair

elections”; that the right to vote is empty

without the right to “free and fair elections”.

It is the concept of “free and fair elections”

in terms of an electoral system which provides

content and meaning to the “right to vote”. In

other words, “right to vote” is not (sic) an

ingredient of the free and fair elections. It

is essential but not the necessary ingredient.”

107. In K. Krishna Murthy v. Union of India38, a

Constitution Bench was dealing with the constitutional

validity of certain aspects of the reservation policy

in regard to the composition of elected local selfgovernment institutions. The Bench relied upon M.M.

Tripathi case (supra) and observed as follows:

“..It is a well-settled principle in Indian

Law, that the right to vote and contest

elections does not have the status of

fundamental rights. Instead, they are in the

nature of legal rights which can be controlled

though legislative means…”

108. The request of the petitioner therein to reconsider

the precedent wherein the right of political

38 (2010) 7 SCC 202

150

participation was categorised as statutory right was

turned down. No doubt, this case was not dealing with

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], a Bench of three

learned Judges recognised the right of the person to

express his disapproval of the candidates who stood for

election by pressing a button which would indicate

‘none of the above’ (NOTA). In the course of this

judgment dealing with the first PUCL judgment (supra),

the Court held as follows:

“After a careful perusal of the verdicts of

this Court in Kuldip Nayar [(2006) 7 SCC

1], Assn. for Democratic Reforms [(2002) 5 SCC

294] and People's Union for Civil

Liberties [(2003) 4 SCC 399] , we are of the

considered view that Kuldip Nayar [(2006) 7

SCC 1] does not overrule the other two

decisions rather it only reaffirms what has

already been said by the aforesaid two

decisions. The said paragraphs recognise that

right to vote is a statutory right and also

in People's Union for Civil Liberties [(2003)

4 SCC 399] it was held that “a fine distinction

was drawn between the right to vote and the

freedom of voting as a species of freedom of

expression”. Therefore, it cannot be said

39 (2013) 10 SCC 1

151

that Kuldip Nayar [(2006) 7 SCC 1] has observed

anything to the contrary. In view of the whole

debate of whether these two decisions were

overruled or discarded because of the opening

line in para 362 of Kuldip Nayar [(2006) 7 SCC

1] i.e. “We do not agree with the above

submissions” we are of the opinion that this

line must be read as a whole and not in

isolation. The contention of the petitioners

in Kuldip Nayar [(2006) 7 SCC 1] was that

majority view in People's Union for Civil

Liberties [(2003) 4 SCC 399] held that right

to vote is a constitutional right besides that

it is also a facet of the fundamental right

under Article 19(1)(a) of the Constitution. It

is this contention on which the Constitution

Bench did not agree too in the opening line in

para 362 and thereafter went on to clarify that

in fact in People's Union for Civil

Liberties [(2003) 4 SCC 399], a fine

distinction was drawn between the right to vote

and the freedom of voting as a species of

freedom of expression. Thus, there is no

contradiction as to the fact that right to vote

is neither a fundamental right nor a

constitutional right but a pure and simple

statutory right. The same has been settled in

a catena of cases and it is clearly not an

issue in dispute in the present case. With the

above observation, we hold that there is no

doubt or confusion persisting in the

Constitution Bench judgment of this Court

in Kuldip Nayar [(2006) 7 SCC 1] and the

decisions in Assn. for Democratic

Reforms [(2002) 5 SCC 294] and People's Union

for Civil Liberties [(2003) 4 SCC 399] do not

stand impliedly overruled.”

(Emphasis supplied)

S. ARTICLE 326 DEMYSTIFIED

110. Article 326 reads as follows:

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“326. Elections to the House of the People and

to the Legislative Assemblies of States to be

on the basis of adult suffrage.—The elections

to the House of the People and to the

Legislative Assembly of every State shall be

on the basis of adult suffrage; that is to say,

every person who is a citizen of India and who

is not less than 2 [eighteen years] of age on

such date as may be fixed in that behalf by or

under any law made by the appropriate

Legislature and is not otherwise disqualified

under this Constitution or any law made by the

appropriate Legislature on the ground of nonresidence, unsoundness of mind, crime or

corrupt or illegal practice, shall be entitled

to be registered as a voter at any such

election.”

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

“327. Power of Parliament to make provision

with respect to elections to Legislatures.—

Subject to the provisions of this Constitution,

Parliament may from time to time by law make

provision with respect to all matters relating

to, or in connection with, elections to either

House of Parliament or to the House or either

House of the Legislature of a State including

the preparation of electoral rolls, the

delimitation of constituencies and all other

matters necessary for securing the due

constitution of such House or Houses.”

“328. Power of Legislature of a State to make

provision with respect to elections to such

Legislature.—Subject to the provisions of this

Constitution and in so far as provision in that

behalf is not made by Parliament, the

Legislature of a State may from time to time

by law make provision with respect to all

matters relating to, or in connection with, the

elections to the House or either House of the

Legislature of the State including the

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preparation of electoral rolls and all other

matters necessary for securing the due

constitution of such House or Houses.”

112. We may proceed to decode Article 326. In the first

part, the Constitution provides that election to the

House of the People and to the Legislative Assembly of

every State, shall be on the basis of adult suffrage.

This is followed by the words, which is intended to

expound what ‘adult suffrage’ means. The Founding

Fathers have, in unmistakable terms, declared that

elections to the two Legislative Bodies in question,

shall be thrown open to participation to every person,

who is:

a)A citizen of India;

b)Is not less than eighteen years of age. The

condition must be fulfilled as regards the

qualification with reference to ‘such date’;

II. ‘Such date’ is to be as specified in or under a

law made by the appropriate Legislature. The

appropriate Legislature would mean, Parliament

in the case of elections to the House of People

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and the Legislative Assembly of the concerned

State, in the case of the Legislative Assembly;

III. The person, who is a citizen and not less than

eighteen years as on the date as indicated in

the law, as aforesaid, Article 326 continues to

declare must not be disqualified under the

Constitution or any law made by the appropriate

Legislature.

IV. The appropriate Legislature can make a law

providing for a disqualification, however, only

as provided in Article 326 itself. In other

words, Article 326 has limited the power of the

Legislature concerned in the matter of

stipulating disqualifications. What are those

disqualifications, which can be stipulated by a

law?

V. The disqualifications, which can be provided by

a law are as follows:

a.Non-residence;

b.Unsoundness of mind;

c.Crime;

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d.Corrupt practice;

e.Illegal practice;

VI. Moving forward, and proceeding on the basis that

a person is a citizen and is not less than

eighteen years on the relevant date and is not

disqualified in terms of what we have indicated

just herein before, viz., under any of the

grounds indicated as ‘a’ to ‘e’, then Article

326 declares that such person shall be entitled

to be registered as a voter at any such election.

The words ‘any such election’ would mean

elections either to the House of the People or

the House of the Legislative Assembly. We again

reiterate that all conditions being present, as

we have referred to with reference to Article

326, the person becomes entitled to be registered

as a voter.

113. Accordingly, it is that Parliament enacted in

1950, The Representation of Peoples Act, 1950

(hereinafter referred to as ‘the 1950 Act’). Part III

provides for electoral rolls for Assembly

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Constituencies. Section 14(b), as substituted w.e.f.

01.03.1956, defines ‘qualifying date’:

“”Qualifying date”, in relation to the

preparation or revision of every electoral roll

under this Part, means the 1st day of January

of the year in which it is so prepared or

revised:”

114. We are omitting reference to the proviso as it

related only to the year 1989. Section 15 of the 1950

Act declares that for every constituency, there must

be an electoral roll prepared under the said Act under

the supervision, direction and control of the Election.

Section 16 provides as follows:

“16. Disqualifications for registration in an

electoral roll.—(1) A person shall be

disqualified for registration in an electoral

roll if he—

(a) is not a citizen of India; or

(b) is of unsound mind and stands so declared

by a competent court; or

voting under the provisions of any law relating

to corrupt practices and other offences in

connection with elections.

(2) The name of any person who becomes so

disqualified after registration shall

forthwith be struck off the electoral roll in

which it is included:

Provided that the name of any person struck off

the electoral roll of a constituency by reason

of a disqualification under clause (c) of sub-

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section (1) shall forthwith be re-instated in

that roll if such disqualification 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

Act reads as follows:

“19. Conditions of registration. — Subject

to the foregoing provisions 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 a constituency,

shall be entitled to be registered in the

electoral roll for that constituency.”

116. It will be clear, therefore, that the requirement

of minimum age of eighteen years, as provided in

Article 326, is to be determined with reference to such

date, as may be fixed by or under any law, is to be

understood as the qualifying date and it is to be

understood as the 1st day of January of the year, in

which the electoral roll is prepared or revised.

117. Section 20 deals with the meaning of ‘ordinarily

resident’. It provides for various circumstances in

which a person shall not be deemed to be ordinarily

resident as also circumstances in which he is deemed

158

to be ordinarily resident. Article 326 read with the

provisions in the 1950 Act, which we have indicated,

together provide the disqualifications for a person to

be not included in an electoral roll. Before the

deletion of the words ‘and illegal’ in Section 16(c),

it provided for corrupt and illegal practices, 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

Article 326, Section 16(c) declares that a person may

be disqualified for registration in the electoral roll

on the basis of other offences in connection with

elections. This means that a person would be

disqualified for registration in the electoral roll,

if he is disqualified under any law relating to corrupt

practices or any other offence in connection with

elections.

118. In 1951, Parliament enacted The Representation of

the People Act, 1951 (hereinafter referred to as, ‘the

1951 Act’).

159

119. Thereunder, the word ‘election’ has been defined

in Section 2(d) to mean ‘an election to fill a seat or

seats in either House of Parliament or in the House or

either House of the Legislature of a State. Section

2(e) defines the word ‘elector’ to mean ‘in relation

to a constituency means a person whose name is entered

in the electoral roll of that constituency for the time

being in force and who is not subject to any of the

disqualifications mentioned in section 16 of the

Representation of the People Act, 1950 (43 of 1950)’.

Under Part 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 membership of Parliament and

State Legislatures. Section 8, falling in Chapter III,

deals with disqualification upon conviction for certain

offences. Various offences are enumerated with the

conditions attached therein. Section 8A deals with

disqualification for membership, for both Parliament

and State Legislatures, on the ground of corrupt

practices. Section 11A, as it stands, reads:

160

“11A. Disqualification arising out of

conviction and corrupt practices.— (1) If any

person, after the commencement of this Act,—

is convicted of an offence punishable under

section 171E or section 171F of the Indian

Penal Code (45 of 1860), or under section 125

or section 135 or clause (a) of sub-section (2)

of section 136 of this Act,

he shall, for a period of six years from the

date of the conviction or from the date on

which the order takes effect, be is qualified

for voting at any election.

(2) Any person disqualified by a decision of

the President under sub-section (1) of section

8A for any period shall be disqualified for the

same period for voting at any election.

(3) The decision of the President on a petition

submitted by any person under sub-section (2)

of section 8A in respect of any

disqualification for being chosen as, and for

being, a member of either House of Parliament

or of the Legislative Assembly or Legislative

Council of a State shall, so far as may be,

apply in respect of the disqualification for

voting at any election incurred by him under

clause (b) of sub-section (1) of section 11A

of this Act as it stood immediately before the

commencement of the Election Laws (Amendment)

Act, 1975 (40 of 1975), as if such decision

were a decision in respect of the said

disqualification for voting also.”

120. It is to be noted that Section 11A falls in

Chapter IV, which deals with disqualifications for

voting. Chapter IXA of the Indian Penal Code, 45 of

161

1860 deals with offences relating to elections. Undue

influence at elections, personation at elections and

bribery, are made punishable offences and are offences

relating to elections.

121. In the 1951 Act, Chapter IV deals with ‘The poll’.

Section 62 deals with the Right to Vote. It reads as

follows:

“62. Right to vote.—

(1) No person who is not, and except as

expressly provided by this Act, every person

who is, for the time being entered in the

electoral roll of any constituency shall be

entitled to vote in that constituency.

(2) No person shall vote at an election in any

constituency if he is subject to any of the

disqualifications referred to in section 16 of

the Representation of the People Act, 1950 (43

of 1950).

(3) No person shall vote at a general election

in more than one constituency of the same

class, and if a person votes in more than one

such constituency, his votes in all such

constituencies shall be void.

(4) No person shall at any election vote in the

same constituency more than once,

notwithstanding that his name may have been

registered in the electoral roll for the

constituency more than once, and if he does so

vote, all his votes in that constituency shall

be void.

162

(5) No person shall vote at any election if he

is confined in a prison, whether under a

sentence of imprisonment or transportation or

otherwise, or is in the lawful custody of the

police:

Provided that nothing in this sub-section shall

apply to a person subjected to preventive

detention under any law for the time being in

force.

(6) Nothing contained in sub-sections (3) and

(4) shall apply to a person who has been

authorised to vote as proxy for an elector

under this Act in so far as he votes as a proxy

for such elector.”

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

A person, who is not entered in the electoral roll

of a 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

of any constituency, is declared entitled to vote in

the constituency. Section 62(2) then proceeds to

declare that no person shall vote at an election in any

constituency, if he is subject to any of the

disqualifications referred to in Section 16 of the 1950

Act. In our view, the meaning of the Section 62(1) read

with Section 62(2) is the following:

163

To cast the vote, a person 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 the

election, when he casts the vote, he has incurred any

of the disqualifications referred to in Section 16 of

the 1950 Act, then his Right to Vote will stand

eclipsed.

123. Section 62(3) forbids a person, who may find his

name in the electoral roll of more than one

constituency of the same class, from casting his vote

in more than one constituency. In such an eventuality,

notwithstanding the fact that his name is so included,

if he votes in more than one constituency, his ballot

will be void in regard to all the constituencies in

which he casts his vote.

124. Equally, under Section 62(4), if his name is

included more than once in the electoral roll of the

same constituency and should he cast his vote more than

once, all the votes in regard to the said constituency

are declared void.

164

125. Section 62(5) enacts a prohibition against the

person casting his vote, if he is confined to a prison.

This would mean that while a person’s name may be

included in an electoral roll, which would entitle him,

ordinarily, to cast his vote, however, Section 62(5)

deprives him of his right to cast his vote, when he is

so confined. We have noticed that the validity of this

provision has been upheld in Anukul (supra). Also, we

find the same view taken in Chief Election Commissioner

and Others v. Jan Chaukidar (Peoples Watch) and

Others40, wherein this Court has upheld the validity of

Section 62(5). A person may be so confined, if he is

under a sentence of imprisonment or transportation or

otherwise 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 a person is a citizen and is above eighteen

years of age and 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

40 (2013) 7 SCC 507

165

electoral roll. 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 Section

62(1), undoubtedly, on a person, whose name is entered

in the electoral roll. We have already noticed the

interplay of Section 62(1) and Section 62(2). Equally,

we may notice that even if a person is included in the

electoral roll, if he is in confinement in a prison,

it would not entitle him or rather it would disentitle

him to cast his vote. In other words, while ordinarily,

the Right to Vote inevitably follows from the inclusion

of a person in the electoral roll, the Right to Vote

may be denied in terms of the law as we have noticed.

The mere inclusion of a person’s name more than once

in an electoral roll in a constituency, it has been

declared, also would not entitle him to vote more than

once [See Section 62(4)]. Equally, inclusion of a

person’s name in the electoral roll of more than one

constituency, would not entitle a person to cast his

vote, in terms of such inclusion in more than one

constituency [See Section 62(3)]. No doubt, we do

notice that this Court has issued notice in a case,

166

which involves a challenge to Section 62(5) of the 1951

Act.

126. Section 16(1)(b) of the 1950 Act, provides for

disqualification for a person of unsound mind to be

registered in an electoral roll. There is a condition,

which is that, he must be so declared by a competent

court. Unsoundness of mind is also to be found in

Article 326 as a disqualification. Section 16(1)(c) of

the 1950 Act, it is to be noticed, disqualifies a person

for registration in an electoral roll, if he is for the

time being disqualified from voting under any law

relating to corrupt practices and other offences in

connection with elections. If such a person is included

in such electoral roll, his name is to be struck off

from the electoral roll [See Section 16(2)]. Section

11A of the 1951 Act provides for disqualifications from

voting. We have already noticed its contents.

127. In Desiya Murpokku Dravida Kazhagam (DMDK) and

another v. Election Commission of India41, dealing with

the validity of the Symbols Order 1968, providing for

41 (2012) 7 SCC 340

167

recognition and allotment based on the criteria

mentioned therein, Justice Chelameswar authored a

dissent. In the course of his dissent, the learned

Judge, after adverting to Articles 81 and 170, which

respectively provided for the composition of the Lok

Sabha and the Legislative Assemblies, and, more

particularly, that the Members of the said Legislative

Bodies, would be chosen by direct elections and after

adverting to Articles 325 and 326, held as follows:

“98. The cumulative effect of all the

abovementioned provisions is that the Lok Sabha

and the Legislative Assemblies are to consist

of members, who are to be elected by all the

citizens, who are of 18 years of age and are

not otherwise disqualified, by a valid law, to

be voters. Thus, a constitutional right is

created in all citizens, who are 18 years of

age to choose (participate in the electoral

process) the members of the Lok Sabha or the

Legislative Assemblies. Such a right can be

restricted by the appropriate legislature only

on four grounds specified under Article 326.”

128. In this regard, we may also notice the Judgment of

this Court in Rajbala and others v. State of Haryana

and others42. Therein a Bench of two learned Judges was

42 (2016) 2 SCC 445

168

dealing with the constitutionality of the Haryana

Panchayati Raj (Amendment) Act, 2015, under which,

certain categories of person were rendered incapable

of contesting elections. One such category was persons

who did not possess specified educational

qualifications. Justice Chelameswar speaking for the

Bench, held as follows:

“31. The right to vote of every citizen at an

election either to the Lok Sabha or to the

Legislative Assembly is recognised under

Articles 325 and 326 subject to limitations

(qualifications and disqualifications)

prescribed by or under the Constitution. On the

other hand, the right to vote at an election

either to the Rajya Sabha or to the Legislative

Council of a State is confined only to Members

of the electoral colleges specified under

Articles 80(4) and (5) and Articles 171(3)(a),

(b), (c) and (d) [ “171. (3) Of the total

number of members of the Legislative Council

of a State—(a) as nearly as may be, one-third

shall be elected by electorates consisting of

members of municipalities, district boards and

such other local authorities in the State as

Parliament may by law specify;(b) as nearly as

may be, one-twelfth shall be elected by

electorates consisting of persons residing in

the State who have been for at least three

years graduates of any university in the

territory of India or have been for at least

three years in possession of qualifications

prescribed by or under any law made by

Parliament as equivalent to that of a graduate

of any such university;(c) as nearly as may be,

one-twelfth shall be elected by electorates

consisting of persons who have been for at

169

least three years engaged in teaching in such

educational institutions within the State, not

lower in standard than that of a 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 of

the Legislative Assembly of the State from

amongst persons who are not members of the

Assembly;(e) the remainder shall be nominated

by the Governor in accordance with the

provisions of clause (5).”] respectively. In

the case of election to the Rajya Sabha, the

electoral college is confined to elected

members of Legislative Assemblies of various

States and representatives of Union

Territories [ “80. (4) The representatives of

each State in the Council of States shall be

elected by the elected members of the

Legislative Assembly of the State in accordance

with the system of proportional representation

by means of the single transferable vote.”].

In the case of the Legislative Council, the

electoral college is divided into four parts

consisting of: (i) members of various local

bodies specified under Article 171(3)(a); (ii)

certain qualified graduates specified under

Article 171(3)(b); (iii) persons engaged in the

occupation of teaching in certain qualified

institutions described under Article

171(3)(c); and (iv) Members of the Legislative

Assembly of the State concerned.

Interestingly, persons to be elected by the

electors falling under any of the

abovementioned categories need not belong to

that category, in other words, need not be a

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 of Constitution-makers or of

their advisers, whose views are cited in the

judgment under appeal, it is not possible to

say, on a perusal of Article 171 of the

Constitution, that the Second Chambers set up

in nine States in India were meant to

170

incorporate the principle of what is known as

‘functional’ or ‘vocational’ representation

which has been advocated by Guild-Socialist and

Syndicalist Schools of Political Thought. Some

of the observations quoted above, in the

judgment under appeal itself, militate with the

conclusions reached there. All that we can

infer from our constitutional provisions is

that additional representation or weightage

was given to persons possessing special types

of knowledge and experience by enabling them

to elect their special representatives also for

Legislative Councils. The concept of such

representation does not carry with it, as a

necessary consequence, the further notion that

the representative must also possess the very

qualifications of those he represents.”]”

129. Thereafter the Court also held as follows:

“38. We, therefore, proceed on the basis that,

subject to restrictions mentioned above, every

citizen has a constitutional right to elect and

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 Legislative Assembly can only be

subjected to restrictions specified in Article

326. It must be remembered that under Article

326, the authority to restrict the right to

vote, can be exercised by the appropriate

Legislature.”

131. What are the incidents of a legal right? In Salmond

on Jurisprudence, we find the following discussion

about the characteristics of a legal right:

171

“(1) It is vested in a person who may be

distinguished as the owner of the right, the

subject of it, the person entitled, the person

of inherence.

(2) It avails against a person, upon whom lies

the correlative duty. He may be distinguished

as the person bound, or as the subject of the

duty, or as the person of incidence.

(3) It obliges the person bound to an act or

omission in favour of the person entitled. This

may be termed the content of the right.

(4) The act or omission relates to some thing

(in the widest sense of that word), which may

be termed the object or subject-matter of the

right.

(5) Every legal right has a title, that is to

say, certain facts or events by reason of which

the right has become vested in its owner.”

132. Article 168 of the Constitution reads as follows:

“168. Constitution of Legislatures in States

(1) For every State there shall be a

Legislature which shall consist of the

Governor, and

(a) in the States of Bihar, Madhya Pradesh,

Maharashtra, Karnataka and Uttar Pradesh, two

houses:

(b) in other States, one House

(2) Where there are two Houses of the

Legislature of a State, one shall be known as

the Legislative Council and the other as the

Legislative Assembly, and where there is only

one House, it shall be known as the Legislative

Assembly.”

172

133. A perusal of Article 168(2) would lead us to the

following inevitable conclusion:

Wherever there are two Houses in a Legislature of

a State, one is designated as Legislative Assembly and

the other is called a Legislative Council. In States,

where there is only one House, it will be called the

Legislative Assembly. So, it is that Article 170 deals

with the composition of Legislative Assemblies whereas

Article 171 deals with the composition of Legislative

Councils. We may bear in mind that Section 27 of the

1950 Act [referred to in Shyamdeo Pd. Singh (supra)]

actually deals with the preparation of electoral roll

for the Legislative Council and not the Legislative

Assembly. We make this observation only to remind

ourselves that there is a distinction between the

Legislature of a State and Legislative Assembly.

Article 168 deals with the constitution of the

Legislatures of the States. Apart from the Governor, a

Legislative Assembly, when there is only one House,

would be the other constituent part of the Legislature

of the State. Therefore, Article 326 deals with the

173

House of the People, and the Legislative Assembly. It

does not deal with Legislative Councils. As far as

Article 327 is concerned, it deals with power of

Parliament to make law with respect to all matters or

relating to election in connection to either House of

Parliament. Equally, Parliament can make law in regard

to either House of the Legislature of a State,

including the preparation of electoral roll. However,

there is a caveat. Article 327 begins with the words

‘subject to the provisions of this Constitution’. This

would mean that Article 327 is subject to Article 326.

Therefore, since Article 326 provides for the specific

heads of disqualification in regard to election to the

House of the People and to the Legislative Assembly,

the power to make law under Article 327 may not be

available, overcoming the limitation as regards the

grounds of disqualification enumerated in Article 326.

This limitation is found even in Article 328, which

deals with the powers of the State Legislature.

134. Undoubtedly, the Founding Fathers contemplated

conferring the right to participate in elections to the

House of People and the Legislative Assemblies on all

174

citizens, who were of a certain age. The right was,

however, subject to the condition that they were not

to be disqualified. The disqualifications, again, were,

however, limited to what was contained in Article 326.

The disqualifications, no doubt, were to be expressly

provided by a law to be made by the appropriate

Legislature. The disqualification 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 connection with elections, within

the meaning of Section 16(c) of the 1950 Act, the matter

is to be regulated by the law.

135. Having noticed all the relevant provisions and

bearing in mind the characteristics of a legal right,

we find as follows:

Since every legal right, which would include a

Constitutional Right, [as the Constitution is also law

though the grundnorm and not law for the purpose of

Article 13,] must have a title, we must ascertain

whether a citizen of India, who is not less than

eighteen years, as, on the ‘qualifying date’, as found

175

by us, has a right. Since, the title to a legal right

means, “the facts or events, by reason of which, the

rights become vested in its owner”, who is the person

of inherence, we will explore, whether Article 326

contains the facts and reasons and whether it also

contains the content of a Right. In keeping with the

mandate of Article 326, Parliament has made the 1950

Act and the 1951 Act. It is thereafter that the first

general elections were held in the country. It may be

true that the 1950 Act and the 1951 Act have been

amended from time to time. At any given point of time,

placing Article 326 side-by-side with the law made by

Parliament or the law made by the State Legislature,

we would find that, if a person is a citizen of India

and not below eighteen years of age, and if he does not

incur the disqualifications, which cannot be more than

what is provided in Article 326, but the content of

which, may be provided by the law made by the competent

Legislature and the citizen not less than eighteen

years does not have the disqualifications, he becomes

entitled to be entered in the electoral roll. Such

person, as is indicated in Article 326, indeed, has a

176

right, which can be said to be a Constitutional Right,

which may be right subject to the restriction. Section

62(1) of the 1951 Act, as we have noticed, gives also

the Right to Vote to such a person. Any other

interpretation would whittle down the grand object of

conferring adult suffrage on citizens.

136. The mere fact that for the creation of a Right,

one needs to lean on certain facts, which may consist

of a law, which, in turn, is in the main respects

dictated to by the constitutional provision, may not

detract from the existence of a Right. Article 19

confers fundamental freedoms, which are understood as

Fundamental Rights. The Fundamental Rights can be

regulated by law made under Article 19(2) to Article

19(6). Could it 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 Rights under

Article 19, it could be said that the Right exists and

it is only made subject to a law, which may be made.

However, could it be said that whenever a law is made

by Parliament, acting even within the boundaries of

Article 326, by amending or adding to the

177

disqualifications, even if it be limited by the

disqualifications declared in Article 326, that such a

law could be described as falling foul of the

Constitution, as contained in Article 326?

137. Take for instance, a new corrupt practice is added

by law. Would 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 be the

position if the Legislature had not provided for any

corrupt practice or a crime as a disqualification. Then

there would be no such disqualification. However, the

appropriate Legislature is also limited in the matter

of the disqualifications by Article 326. In that sense,

it could be said that Article 326 provides a

constitutional right, subject to restrictions which the

law provides for, which must finally be traced to its

shores. Section 62(1) of the 1950 Act provides the

fulfilment of the goal of adult suffrage guaranteed in

Article 326. Article 326(3) and Article 326(4) are only

meant to provide against the misuse of the right.

Section 62(2) is clearly reconcilable with Article 326.

Section 62(5) again appears to be a restriction.

178

138. In regard to Article 326, we may observe, when

the Founding Fathers clearly created a right on the

citizen, who was an adult, (the age was originally 21

years and it was lowered to 18 years), to have his name

entered in the electoral roll unless he has incurred

disqualifications, which, in turn, were limited to

those mentioned in Article 326, they were to be

provided by law. It is clear that a law necessarily had

to be made. The law was, indeed, made as we have noted

by the 1950 and 1951 Acts, providing for the true

contours of the disqualification limited to what was

provided in Article 326. Imagine a situation, if

Parliament had not passed 1950 and 1951 Acts, it would

have led to a situation where the foundational

democratic process of holding elections to the House

of the People and the Legislative Assemblies would have

been rendered impossible. A law had to be made and it

was made. Not making the law would have led to a

constitutional breakdown. We make these remarks to

remind ourselves that treating the Constitution as the

grundnorm, providing the very edifice of the State and

the Legal System, the making of the law by the

179

Legislative Body, which is a power entrusted to the

Legislative Branch, may come with a duty. A conferment

of legislative power, as is done under Article 245 read

with Article 246 of the Constitution, is not to be

confused with the making of the law under Article 326.

The conferment of a legislative power under Article 245

read with Article 246 is the essential legislative

powers in terms of the separation of power envisaged

broadly under the Constitution.

139. We have noticed that we cannot and we need not

finally pronounce on this aspect, in view of the fact

that a Constitution Bench of this Court, which we have

noticed in Kuldip Nayar (supra) has proceeded 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 a basic feature of the Constitution and

approved of the view apparently that the Right to Elect

is fundamental to democracy [See Jyoti Basu (supra)].

141. Even if it is treated as a statutory right, which,

at any rate, cannot be divorced or separated from the

mandate of Article 326, the right is of the greatest

180

importance and forms the foundation for a free and fair

election, which, in turn, constitutes the right of the

people to elect their representatives. We would for the

purpose of the lis in question rest content to proceed

on the said basis.

T. DEMOCRACY AND THE IMPORTANCE OF ELECTIONS

142. Dr. B.R. Ambedkar made the following pertinent

observations regarding democracy in the course of his

speech in the Constituent Assembly on 25.11.1949:

“What we must do is not to be content with mere

political democracy. We must make our political

democracy a social democracy as well. Political

democracy cannot last unless there lies at the

base of it a social democracy. What does social

democracy mean? It means a 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 as separate items in a trinity. They

form a union of trinity in the sense that to

divorce one from the other is to defeat the

very purpose of democracy. Liberty cannot be

divorced from equality, equality cannot be

divorced from liberty. Nor can liberty and

equality be divorced from fraternity. Without

equality, liberty would produce the supremacy

of the few over the many. Equality without

liberty would kill individual initiative.

Without fraternity, liberty and equality could

not become a natural course of things. It would

require a constable to enforce them. We must

begin by acknowledging the fact that there is

181

complete absence of two things in Indian

society. One of these is equality. On the

social plane, we have in India a society based

on the principle of graded inequality, which

means elevation for some and degradation for

others. On the economic plane, we have a

society in which there are some who have

immense wealth as against many who live in

abject poverty.

On January 26, 1950, we are going to enter into

a life of contradictions. In politics we will

have equality and in social and economic life

we will have inequality. In politics we will

be recognizing the principle of one man, one

vote and one vote, one value. In our social

and economic life we shall, by reason of our

social and economic structure, continue to deny

the principle of one man, one value. How long

shall we continue to live this life of

contradictions? How long shall we continue to

deny equality in our social and economic life?

If we continue to deny it for long, we will do

so only by putting our political democracy in

peril. We must remove this contradiction at the

earliest possible moment or else those who

suffer from inequality will blow up the

structure of political democracy which we have

so laboriously built up.”

143. In Indira Nehru Gandhi Smt. v. Raj Narain and

another 143, this Court adverted to the importance of

elections in a democracy as follows:

“198. … Democracy postulates that there should

be periodical elections, so that people may be

in a position either to re-elect the old

representatives or, if they so choose, to

43 1975 Supp SCC 1

182

change the representatives and elect in their

place other representatives. Democracy further

contemplates that the elections should be free

and fair, so that the voters may be in a

position to vote for candidates of their

choice. Democracy can indeed function only upon

the faith that elections are free and fair and

not rigged and manipulated, that they are

effective instruments of ascertaining popular

will both in reality and form and are not mere

rituals calculated to generate illusion of

defence to mass opinion. Free and fair

elections require that the candidates and their

agents should not resort to unfair means or

malpractices as may impinge upon the process

of free and fair elections. Even in the absence

of unfair means and malpractices, some times

the result of an election is materially

affected because of the improper rejection of

ballot papers. …”

144. Aharon Barak, President of Supreme Court of Israel

in his book ‘The Judge in a Democracy’ articulates

concepts about democracy succinctly. He says the

following while answering the difficult question as to

what is democracy:

“What is democracy? According to my approach,

democracy is a rich and complex normative

concept. It rests on two bases. The first is

the sovereignty of the people. This sovereignty

is exercised in free elections, held on a

regular basis, in which the people choose their

representatives, who in turn represent their

views. This aspect of democracy is manifested

in majority rule and in the centrality of the

183

legislative body through which the people’s

representatives act.

This is a formal aspect of democracy. It is of

central importance, since without if the regime

is not democratic.

The 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, the rule of law, judicial

independence, human rights, and basic

principles that reflect yet other values (such

as morality and justice), social objectives

(such as the public peace and security), and

appropriate ways of behavior (reasonableness,

good faith). This aspect of democracy is the

rule of democratic values. This is a

substantive aspect of democracy. It too is of

central importance. Without it, a regime is not

democratic.

Both aspects, the formal and the substantive,

are necessary for democracy. They are “nuclear

characteristics.” I discussed them in one case,

holding that “these characteristics are based

... upon the recognition of the sovereignty of

the people manifested in free and egalitarian

elections; recognition of the nucleus of human

rights, among them dignity and equality, the

existence of separation of powers, the rule of

law, and an independent judiciary.”

(Emphasis Supplied)

145. He dilates on the qualities that inform a

substantive democracy as follows: -

“Democracy is not satisfied merely by abiding

by proper elections and legislative supremacy.

Democracy has its own internal morality based

184

on the dignity and equality of all human

beings. Thus, in addition to formal

requirements (elections and the rule of the

majority), there are also substantive

requirements. These are reflected in the

supremacy of such underlying democratic values

and principles as separation of powers, the

rule of law, and independence of the judiciary.

They are based on such fundamental values as

tolerance, good faith, justice,

reasonableness, and public order. Above all,

democracy cannot exist without the protection

of individual human rights – rights so

essential that they must be insulated from the

power of the majority.

Democracy is not just the law of rules and

legislative supremacy; it is a

multidimensional concept. It requires

recognition of both the power of the majority

and the limitations on that power.”

(Emphasis Supplied)

146. On the topic of Change and Stability and

elaborating on ‘The Dilemma of Change’, the learned

Judge writes: -

“The Dilemma of Change

The need for change presents the judge with a

difficult dilemma, because change sometimes

harms security, certainty, and stability. The

judge must balance the need for change with the

need for stability. Professor Roscoe Pound

expressed this well more than eighty years ago:

“Hence all thinking about law has struggled to

reconcile the conflicting demands of the need

of stability and of the need of change. Law

must be stable and yet it cannot stand still.”

185

Stability without change is degeneration.

Change without stability is anarchy. The role

of a judge is to help bridge the gap between

the needs of society and the law without

allowing the legal system to degenerate or

collapse into anarchy. The judge must ensure

stability with change, and change with

stability. Like the eagle in the sky, which

maintains its stability only when it is moving,

so too is the law stable only when it is moving.

Achieving this goal is very 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 a question of the 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,

this Court had to deal with the question whether the

person who was not a Member of the Assembly and who

failed to get himself elected during the period of six

consecutive months, after appointment as Minister,

could be reappointed as Minister without being elected

after the expiry of the period of six consecutive

months. The decision involved the interpretation of

44 (2001) 7 SCC 126

186

Article 164, and in particular, Article 164 (4) of the

Constitution of India. Article 164 reads as follows.

“164. Other provisions as to Ministers. — (1)

The Chief Minister shall be appointed by the

Governor and the other Ministers shall be

appointed by the Governor on the advice of the

Chief Minister, and the Ministers shall hold

office during the pleasure of the Governor:

Provided that in the States of Bihar, Madhya

Pradesh and Orissa, there shall be a Minister

in charge of tribal welfare who may in addition

be in charge of the welfare of the Scheduled

Castes and Backward Classes or any other work.

(2) The Council of Ministers shall be

collectively responsible to the Legislative

Assembly of the State.

(3) Before a Minister enters upon his office,

the Governor shall administer to him the oaths

of office and of secrecy according to the forms

set out for the purpose in the Third Schedule.

(4) A Minister who for any period of six

consecutive months is not a member of the

Legislature of the State shall at the

expiration of that period cease to be a

Minister.

(5) The salaries and allowances of Ministers

shall be such as the Legislature of the State

may from time to time by law determine and,

until the Legislature of the State so

determines, shall be as specified in the Second

Schedule.”

187

A Bench of three Learned Judges of this Court

disapproving of the resort to repeated appointments

without the Minister getting elected held as follows:

“21. Parliamentary democracy generally

envisages (i) representation of the people,

(ii) responsible government, and

(iii) accountability of the Council of

Ministers to the Legislature. The essence of

this is to draw a direct line of authority from

the people through the Legislature to the

executive. The character and content of

parliamentary democracy in the ultimate

analysis depends upon the quality of persons

who man the Legislature as representatives of

the people. It is said that “elections are the

barometer of democracy and the contestants the

lifeline of the parliamentary system and its

set-up”.”

“33. Constitutional provisions are required to

be understood and interpreted with an objectoriented approach. A Constitution must not be

construed in a narrow and pedantic sense. The

words used may be general in terms but, their

full import and true meaning, has to be

appreciated considering the true context in

which the same are used and the purpose which

they seek to achieve. Debates in the

Constituent Assembly referred to in an earlier

part of this judgment clearly indicate that a

non-member's inclusion in the Cabinet was

considered to be a “privilege” that

extends only for six months, during which

period the member must get elected, otherwise

he would cease to be a Minister. It is a settled

position that debates in the Constituent

Assembly may be relied upon as an aid to

interpret a constitutional provision because

it is the function of the court to find out

the intention of the framers of the

Constitution. We must remember that a

188

Constitution is not just a document in solemn

form, but a living framework for the Government

of the people exhibiting a sufficient degree

of cohesion and its successful working depends

upon the democratic spirit underlying it being

respected in letter and in spirit. The debates

clearly indicate the “privilege” to extend

“only” for six months.””

(Emphasis supplied)

148. In B.R. Kapur v. State of T.N. and Another,

interpreting Article 164 again a Constitution Bench

which also relied upon Constituent Assembly Debates

held that a non-legislator could become a Chief

Minister or Minister under Article 164 only if he had

the qualification for membership of the legislative

body and was also not disqualified within the meaning

of Article 191. Of relevance to the cases before us are

the following observations of Justice G.B. Pattanaik

which are as follows: -

“In a democracy, constitutional law reflects

the value that people attach to orderly human

relations, to individual freedom under the law

and to institutions such as Parliament,

political parties, free elections and a free

press.

xxxx xxxx xxxx

45 (2001) 7 SCC 231

189

The said Constitution occupies the primary

place. Notwithstanding the fact, we have a

written constitution, in course of time, a wide

variety of rules and practices have evolved

which adjust operation of the Constitution to

changing conditions.

xxxx xxxx xxxx

Many important rules of constitutional

behaviour, which are observed by the Prime

Minister and Ministers, members of the

Legislature, Judges and civil servants are

contained neither in Acts nor in judicial

decisions. But such rules have been

nomenclatured by the constitution-writers to

be the rule of “the positive morality of the

constitution” and sometimes the authors

provide the name to be “the unwritten maxims

of the constitution” — rules of constitutional

behaviour, which are considered to be binding

by and upon those who operate the Constitution

but which are not enforced by the law courts

nor by the presiding officers in the House of

Parliament.”

(Emphasis supplied)

149. In B.P. Singhal v. Union of India and Another46,

dealing with Article 156(1) which declares that a

Governor shall hold office during the pleasure of the

President. This Court held after declaring that the

Governor is not an agent of the ruling party at the

Centre, as follows: -

46 (2010) 6 SCC 331

190

“71. When a Governor holds office during the

pleasure of the Government and the power to

remove at the pleasure of the President is not

circumscribed by any conditions or

restrictions, it follows that the power is

exercisable at any time, without assigning any

cause. However, there is a distinction between

the need for a cause for the removal, and the

need to disclose the cause for removal. While

the President need not disclose or inform the

cause for his removal to the Governor, it is

imperative that a cause must exist.”

As regards the Limitations/ Restrictions on the

exercise of removal of Governor, this Court observed as

follows: -

“(iv) Limitations/Restrictions upon the power

under Article 156(1) of the Constitution of

India

48. We may now examine whether there are any

express or implied limitations or restrictions

on the power of removal of Governors under

Article 156(1). We do so keeping in mind the

following words of Holmes, J.:

“… the provisions of the Constitution are not

mathematical formulas having their essence in

their form; they are organic, living

institutions… The significance is vital, nor

formal; it is to be gathered not simply by

taking the words and a dictionary, but by

considering their origin and the line of their

growth” (see Gompers v. United States [58 L Ed

1115 : 233 US 604 (1913)] , L Ed p. 1120).”

(Emphasis supplied)

191

U. POWERS, FUNCTIONS AND JURISDICTION OF THE

ELECTION COMMISSION OF INDIA

150. Article 324 is a plenary provision clothing the

Election Commission with the entire responsibility to

hold the National and State elections and carries with

it the necessary powers to discharge its functions.

However, the Commission cannot act against a law framed

by Parliament or the State Legislature. The power of

the Commission is also subject to norms of fairness and

it cannot act arbitrarily. The action cannot be mala

fide. Article 324 governs in matters not covered by

legislation. Being a high functionary who is expected

to function fairly and 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 an election on the basis of the opinion that

there existed disturbed conditions in the State or some

area of the State thus making of holding free and fair

elections not possible. The court followed the views

47 (1978) 1 SCC 405)

192

in the Mohinder Singh Gill case (supra) that democracy

depends on the man as much as on the Constitution [See

Digvijay Mote v. Union of India and Others48]. The

Election Commission is endowed with the power to

recognise political parties and to decide disputes

arising among them. It can also adjudicate

controversies between splinter groups within a

political party. The Commission has been found to have

the power to issue the symbols order. This right has

been traced to Article 324 [(See All Party Hill 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 ensuring free and fair elections, this Court

declared that in case of conflict of opinion between

the Election Commission and the Government, as to the

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

48 (1993) 4 SCC 175

49 (1977) 4 SCC 161

50 (1985) 4 SCC 628

193

observed that a mutually acceptable coordinating

machinery may be put in place (see Election Commission

of India v. State of T.N and Others51).

153. While dealing with the power of the Election

Commission to requisition such staff “for election

duty” and disagreeing with the Commission that it could

requisition the service of the employees of the State

Bank of India, this Court declared that the election

commission did not have untrammelled power. The power

must be traced to the Constitution or a law (see

Election Commission of India v. State Bank of India

Staff Association Local Head Office Unit, Patna and

Others52).

154. The Election Commission has power to issue

directions for the conduct of elections requiring the

political parties to submit the details of the

expenditure incurred or authorised by them for the

purpose of the election of their respective candidates.

This power was traced to the words “conduct of

51 (1995) Suppl. 3 SCC 379

52 (1995) suppl.2 SCC 13

194

elections” [See Common Cause (A Registered Society) v.

Union of India and Others53].

155. All powers though not specifically provided but

necessary for effectively holding the elections are

available to the Election Commission. [See Election

Commission of India v. Ashok Kumar and Others54].

156. Article 324 is a reservoir of power to be used for

holding free and fair elections. The Commission as a

creature of the Constitution may exercise it in an

infinite variety of situations. In a democracy, the

electoral process plays a strategic role. The

commission can fill up the vacuum by issuing directions

until there is a law made. This was laid down in the

context of directions aimed at securing information

about the candidates [See Union of India v. Association

for Democratic Reforms and Others55].

157. Following a spate of violence in the State of

Gujarat and upon the dissolution of the Assembly, the

Commission took the view that it may not be possible

53 (1996) 2 SCC 752

54 (2000) 8 SCC 216

55 (2002) 5 SCC 294

195

to hold the election though Article 174(1) mandated

that there shall not be more than six months in between

the last session of the assembly and the first meeting

of the next session. After finding that Article 174 did

not apply to a dissolved assembly as was indeed the

case, 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, it is the end of democracy. [See

(2000) 8 SCC 237]. The said judgment was rendered while

answering a reference made to this Court under Article

143 of the Constitution.

158. The Election Commission has the power to lay down

a certain benchmark to be achieved by a party in State

politics before it could be recognised as a political

party [See Desiya Murpokku Dravida Kazhagam (DMDK) v.

Election Commission of India and Others56]. Justice J.

Chelameswar wrote a dissenting opinion.

56 (2012) 7 SCC 340

196

159. While dealing with the aspect of jurisdiction of

the Election Commission under Section 10A of the 1951

Act to ascertain whether there has been a failure to

lodge true, correct and genuine accounts of bona fide

election expenditure and that it did not exceed the

maximum limit, the Election Commission has been found

to have overarching powers and it has been described

as a ‘guardian of democracy’. In this regard, we notice

the following words of this Court in Ashok Shankarrao

Chavan v. Madhavrao Kinhalkar57 :

“67. In this context, we also keep in mind the

Preamble to the Constitution which in liberal

words states that the People of India having

solemnly resolved to constitute India into a

Sovereign Socialist Secular Democratic

Republic and to secure to all citizens justice,

liberty, equality and fraternity. In such a

large democratic country such as ours, if

purity in elections is not maintained, and for

that purpose when the Constitution makers in

their wisdom thought it fit to create an

authority, namely, the Election Commission and

invested with it the power of superintendence,

control and also to issue directions, it must

be stated that such power invested with the

said constitutional authority should not be a

mere empty formality but an effective and

stable one, in whom the citizens of this

country can repose in and look upon to ensure

that such unscrupulous elements and their

attempts to enter into political

57 (2014) 7 SCC 99

197

administration of this vast country are

scuttled. In that respect, since the ruling of

this vast country is always in the hands of

the elected representatives of the people, the

enormous powers of the Election Commission as

the guardian of democracy should be recognised.

It is unfortunate that those who are really

interested in the welfare of society and who

are incapable of indulging in any such corrupt

practices are virtually side-lined and are

treated as totally ineligible for contesting

the elections.”

(Emphasis supplied)

160. Under Article 103(2) and Article 192(2), the

President and the Governor are to act on the opinion

of the Election Commission as regards the question of

disqualification of the Member of Parliament and of the

Legislature of a State, respectively. This is the

advisory jurisdiction of the Election Commission. It

exercises vast administrative powers. Further, the

Election Commission discharges quasi-judicial

functions also.

V. THE IMPACT OF ARTICLE 329(b)

161. Article 329 (b) declares as follows:

“(b) no election to either House of Parliament

or to the House or either House of the

Legislature of a State shall be called in

question except by an election petition

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presented to such authority and in such manner

as may be provided for by or under any law made

by the appropriate Legislature.”

162. Regarding the impact of Article 329(b), a Bench of

three learned judges after an exhaustive review of the

earlier case law has set down the following summary of

conclusions in the case of Election Commission of India

v. Ashok Kumar58:

“31. The founding fathers of the Constitution

have consciously employed use of the words “no

election shall be called in question” in the

body of Section 329(b) and these words provide

the determinative test for attracting

applicability of Article 329(b). If the

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 our conclusions by partly restating what

the two Constitution Benches have already said

and then adding by clarifying what follows

therefrom in view of the analysis made by us

hereinabove:

(1) If an election, (the term election being

widely interpreted so as to include all steps

and entire proceedings commencing from the

date of notification of election till the

date of declaration of result) is to be

called in question and which questioning may

58 (2000) 8 SCC 216

199

have the effect of interrupting, obstructing

or protracting the election proceedings in

any manner, the invoking of judicial remedy

has to be postponed till after the completing

of proceedings in elections.

(2) Any decision sought and rendered will not

amount to “calling in question an election”

if it subserves the progress of the election

and facilitates the completion of the

election. Anything done towards completing or

in furtherance of the election proceedings

cannot be described as questioning the

election.

(3) Subject to the above, the action taken

or orders issued by Election Commission are

open to judicial review on the well-settled

parameters which enable judicial review of

decisions of statutory bodies such as on a

case of mala fide or arbitrary exercise of

power being made out or the statutory body

being shown to have acted in breach of law.

(4) Without interrupting, obstructing or

delaying the progress of the election

proceedings, judicial intervention is

available if assistance of the court has been

sought for merely to correct or smoothen the

progress of the election proceedings, to

remove the obstacles therein, or to preserve

a vital piece of evidence if the same would

be lost or destroyed or rendered

irretrievable by the time the results are

declared and stage is set for invoking the

jurisdiction of the court.

(5) The court must be very circumspect and

act with caution while entertaining any

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election dispute though not hit by the bar

of Article 329(b) but brought to it during

the pendency of election proceedings. The

court must guard against any attempt at

retarding, interrupting, protracting or

stalling of the election proceedings. Care

has to be taken to see that there is no

attempt to utilise the court's indulgence by

filing a petition outwardly innocuous but

essentially a subterfuge or pretext for

achieving an ulterior or hidden end. Needless

to say that in the very nature of the things

the court would act with reluctance and shall

not act, except on a clear and strong case

for its intervention having been made out by

raising the pleas with particulars and

precision and supporting the same by

necessary material.

33. These conclusions, however, should not be

construed as a summary of our judgment. These

have to be read along with the earlier part of

our judgment wherein the conclusions have been

elaborately stated with reasons.”

163. We would, therefore, find that the Election

Commission of India has been charged with the duty and

blessed with extraordinary powers to hold elections to

both Parliament and state legislatures from time to

time. This is an enormous task. The power it possesses

under Article 324 is plenary. It is only subject to any

law which may be made by Parliament or by the State

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Legislature. Undoubtedly, the Election Commission is

duty bound to act in a fair and legal manner. It must

observe the provisions of the Constitution and abide

by the directions of the Court. The same being done,

it can draw upon a nearly infinite reservoir of power.

Once the poll is notified, [which again is a call to

be taken by the Election Commission itself, and indeed

capable of being misused and the subject of

considerable controversy, if bias or subservience to

the powers that be, is betrayed], it assumes unusual

powers. Its writ lies across Governments over the

length and breadth of the country. Officers of the

Government who come under its charge become subject to

the superintendence of the Commission. The fate of the

political parties and its candidates, and therefore,

of democracy itself to a great measure is allowed to

rest in the hands of the Election Commission. While

there may be officers who assist the Commission,

vitally important decisions have to be taken by those

at the helm of the affairs. It is the Chief Election

Commissioner and the Election Commissioners at whose

table the buck must stop. It is in this scenario, we

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bear in mind that when a decision is taken in the

process of the holding of the poll, that subject to

proceedings which are initiated in courts which conduce

to the effective holding of the poll, any proceeding

which seeks to bring the election process under a

shadow is tabooed. The significance of this aspect is

that it adds to the enormity of the powers and

responsibilities of the Election Commission. Awaiting

the outcome of the poll to question the election before

the tribunal may result in many illegal, unfair and

mala fide decisions by the Election Commission passing

muster for the day. Once the election results are out,

the matter is largely reduced to a fait accompli. In

fact, many a time an omission or a delay in taking a

decision can itself be fatal to the holding of a free

and fair poll. The relief vouchsafed in an election

petition may not by itself provide a just solution to

the conduct of election in an illegal, mala fide or

unfair manner. These observations have a direct

connection with the question with which we are

concerned with, namely, the need to take the

appointment of the members of the Election commission

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out of the exclusive hands of the executive, namely,

the party which not unnaturally has an interest in

perpetuating itself in power.

W. PURSUIT OF POWER; A MEANS TO AN END OR AN END

IN ITSELF?

164. The basic and underlying principle central to

democracy is power to the people through the ballot.

Abrahim Lincoln declared democracy to be Government of

the people, by the people and for the people. A

political party or a group or a coalition assumes

reigns of governance. The purpose of achieving power

is to run the Government. No doubt, the Government must

be run in accordance with the dictate of the

Constitution and the laws. Political parties not

unnaturally come out with manifestos containing a

charter of promises they intend to keep. Without

attaining power, men organised as political parties

cannot achieve their goals. Power becomes, therefore,

a means to an end. The goal can only be to govern so

that the lofty aims enshrined in the directive

principles are achieved while observing the fundamental

rights as also the mandate of all the laws. What is

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contemplated is a lawful Government. So far so good.

What, however, is disturbing and forms as we understand

the substratum of the complaints of the petitioner is

the pollution of the stream or the sullying of the

electoral process which precedes the gaining of power.

Can ends justify the means? There can be no doubt that

the strength of a democracy and its credibility, and

therefore, its enduring nature must depend upon the

means employed to gain power being as fair as the

conduct of the Government after the assumption of power

by it. The assumption of power itself through the

electoral process in the democracy cannot and should

not be perceived as an end. The end at any rate cannot

justify the means. The means to gain power in a

democracy must remain wholly pure and abide by the

Constitution and the laws. An unrelenting abuse of the

electoral process over a period of time is the surest

way to the grave of the democracy. Democracy can

succeed only in so far as all stakeholders

uncompromisingly work at it and the most important

aspect of democracy is the very process, the electoral

process, the purity of which alone will truly reflect

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the will of the people so that the fruits of democracy

are truly reaped. The essential hallmark of a genuine

democracy is the transformation of the ‘Ruled’ into a

citizenry clothed with rights which in the case of the

Indian Constitution also consist of Fundamental Rights,

which are also being freely exercised and the

concomitant and radical change of the ruler from an

‘Emperor’ to a public servant. With the accumulation

of wealth and emergence of near monopolies or duopolies

and the rise of certain sections in the Media, the

propensity for the electoral process to be afflicted

with the vice of wholly unfair means being overlooked

by those who are the guardians of the rights of the

citizenry as declared by this Court would spell

disastrous consequences.

X. RULE OF LAW; FUNDAMENTAL RIGHTS AND AN

INDEPENDENT ELECTION COMMISSION

165. The cardinal importance of a fiercely independent,

honest, competent and fair Election Commission must be

tested on the anvil of the rule of law as also the

grand mandate of equality. We expatiate. Rule of law

is the very bedrock of a democratic form of governance.

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It simply means that men and their affairs are governed

by pre-announced norms. It averts a democratic

Government brought to power by the strength of the

ballot betraying their trust and lapsing into a

Government of caprice, nepotism and finally despotism.

It is the promise of avoidance of these vices which

persuades men to embrace the democratic form of

Government. An Election Commission which does not

ensure free and fair poll as per the rules of the game,

guarantees the breakdown of the foundation of the rule

of law. Equally, the sterling qualities which we have

described which must be possessed by an Election

Commission is indispensable for an unquestionable

adherence to the guarantee of equality in Article 14.

In the wide spectrum of powers, if the Election

Commission exercises them unfairly or illegally as much

as he refuses to exercise power when such exercise

becomes a duty it has a telling and chilling effect on

the fortunes of the political parties. Inequality in

the matter of treatment of political parties who are

otherwise similarly circumstanced unquestionably

breaches the mandate of Article 14. Political parties

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must be viewed as organisations representing the hopes

and aspirations of its constituents, who are citizens.

The electorate are ordinarily, supporters or adherents

of one or the other political parties. We may note that

the recognition of NOTA, by this Court enabling a voter

to express his distrust for all the candidates

exposes the disenchantment with the electoral process

which hardly augurs well for a democracy. Therefore,

any action or omission by the Election Commission in

holding the poll which treats political parties with

an uneven hand, and what is more, in an unfair or

arbitrary manner would be anathema to the mandate of

Article 14, and therefore, cause its breach. There is

an aspect of a citizen’s right to vote being imbued

with the fundamental freedom under Article 19(1)(a).

The right of the citizen to seek and receive

information about the candidates who should be chosen

by him as his representative has been recognised as a

fundamental right [See Public Interest Foundation

(supra)]. The Election Commissioners including the

Chief Election Commissioner blessed with nearly

infinite powers and who are to abide by the fundamental

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rights must be chosen not by the Executive exclusively

and particularly without any objective yardstick.

Y. THE SYMBOLS ORDER; THE MODEL CODE OF CONDUCT

166. Apart from the 1950 and 1951 Acts, the Code of

Election Rules, 1961 came to be made. In the year 1968,

The Election Symbols (Reservation and Allotment) Order,

1968 [hereinafter referred to as, ‘the Symbols Order’]

came to be made by Notification dated 31.08.1968, in

exercise of powers conferred under Article 324 of the

Constitution read with Section 29A of the 1951 Act and

Rules 5 and 10 of the Conduct of Elections Rules. The

Symbols Order deals with allotment and classification

of symbols. Political parties are broadly divided into

recognised political parties or unrecognised political

parties. A recognised party may be a national party or

a state party. Conditions for recognition of a party

as national party and state party are separately laid

down. Paragraph-15 of the Symbols Order reads as

follows:

“15. Power of Commission in relation to

splinter groups or rival sections of a

recognised political party–

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When the Commission is satisfied on information

in its possession that there are rival sections

or groups of a recognised political party each

of whom claims to be that party, the Commission

may, after taking into account all the

available facts and circumstances of the case

and hearing such representatives of the

sections or groups and other persons as desire

to be heard, decide that one such rival section

or group or none of such rival sections or

groups is that recognised political party and

the decision of the Commission shall be binding

on all such rival sections or groups.”

167. Paragraph-16 deals with power of the Commission in

case of amalgamation of two political parties.

168. In the very same year, that is 1968, a Model Code

of Conduct also came to be issued. As of date, a large

body of norms, forming part of the Model Code of

Conduct, have been put in place. The Model Code of

Conduct for Guidance of Political Parties and

Candidates provides, inter alia, as follows:

“1. No party or candidate shall include in any

activity which may aggravate existing

differences or create mutual hatred or cause

tension between different castes and

communities, religious or linguistic.

xxx xxx xxx

3. There shall be no appeal to caste or

communal feelings for securing votes. Mosques,

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Churches, Temples or other places of worship

shall not be used as forum for election

propaganda.

4. All parties and candidates shall avoid

scrupulously all activities which are “corrupt

practices” and offences under the election law,

such as bribing of voters, intimidation of

voters, impersonation of voters, canvassing

within 100 meters of polling stations, holding

public meetings during the period of 48 hours

ending with the hour fixed for the close of

the poll, and the transport and conveyance of

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 following as part of the

Model Code of Conduct. Part VII of the Model Code of

Conduct, inter alia, reads as follows:

“VII. Party in Power

The party in power whether at the Centre or in

the State or States concerned, shall ensure

that no cause is given for any complaint that

it has used its official position for the

purposes of its election campaign and in

particular –

XXXX XXXX XXXX

1. (b) Government transport including official

air-crafts, vehicles, machinery and personnel

shall not be used for furtherance of the

interest of the party in power;

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XXXX XXXX XXXX

3. Rest houses, dak bungalows or other

Government accommodation shall not be

monopolized by the party in power or its

candidates and such accommodation shall be

allowed to be used by other parties and

candidates in a fair manner but no party or

candidate shall use or be allowed to use such

accommodation (including premises appertaining

thereto) as a campaign office or for holding

any public meeting for the purposes of election

propaganda;

4. Issue of advertisement at the cost of public

exchequer in the newspapers and other media and

the misuse of official mass media during the

election period for partisan coverage of

political news and publicity regarding

achievements with a view to furthering the

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 are announced by

the Commission; and”

There are other aspects relating to Election

Manifestos. There is a clear need for a fearless and

independent Election Commission of India to give full

effect to these salutary principles.

170. Paragraph-16A of the Symbols Order inserted by

Notification dated 18.02.1994, reads as follows:

“16A. Power of Commission to suspend or

withdraw recognition of a recognised political

party for its failure to observe Model Code of

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Conduct or follow lawful directions and

instructions of the CommissionNotwithstanding anything in this Order, if the

Commission is satisfied on information in its

possession that a political party, recognised

either as a National party or as a State party

under the provisions of this Order, has failed

or has refused or is refusing or has shown or

is showing defiance by its conduct or otherwise

(a) to observe the provisions of the ‘Model

Code of Conduct for Guidance of Political

Parties and Candidates’ as issued by the

Commission in January, 1991 or as amended by

it from time to time, or (b) to follow or carry

out the lawful directions and instructions of

the Commission given from time to time with a

view to furthering the conduct of free, fair

and peaceful elections or safeguarding the

interests of the general public and the

electorate in particular, the Commission may,

after taking into account all the available

facts and circumstances of the case and after

giving the party reasonable opportunity of

showing cause in relation to the action

proposed to be taken against it, either

suspend, subject to such terms as the

Commission may deem appropriate, or 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 Legal

Representatives and others59, a Bench of seven learned

Judges of this Court had to interpret the word ‘his’

in Section 123 of the Representation of the People Act.

59 (2017) 2 SCC 629

213

By a 4:3 majority, this Court held that the word ‘his’

in Section 123(3) of the Representation of the People

Act, 1951, for the purpose of maintaining the purity

of the electoral process, must be given a broad and

purposive interpretation so that any appeal made to an

elector by a candidate or his agent or by any other

person with the consent of the candidate or his

election agent, to vote or refrain from voting, inter

alia, on the grounds of religion and caste, would

constitute a corrupt practice. Dr. T.S. Thakur, C.J.,

wrote a concurring Judgment and we find it apposite to

notice the following passage from his Judgment on the

importance of India being a secular country and about

according any particular religion, special privileges,

being a violation of the basic principles of democracy:

“35. At the outset, we may mention that while

considering the mischief sought to be

suppressed by clauses (2), (3) and (3-A) of

Section 123 of the Act, this Court observed in

Ziyauddin Burhanuddin Bukhari v. Brijmohan

Ramdass Mehra [Ziyauddin Burhanuddin Bukhari

v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17,

decided by a Bench of three learned Judges.]

that the historical, political and

constitutional background of our democratic

set-up needed adverting to. In this context,

it was said that our Constitution-makers

intended a secular democratic republic where

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differences should not be permitted to be

exploited. …

62. … Dr Radhakrishnan, the noted

statesman/philosopher had to say about India

being a secular State in the following passage:

“When India is said to be a secular State, it

does not mean that we reject reality of an

unseen spirit or the relevance of religion to

life or that we exalt irreligion. It does not

mean that secularism itself becomes a positive

religion or that the State assumes divine

prerogatives. Though faith in the Supreme is

the basic principle of the Indian tradition,

the Indian State will not identify itself with

or be controlled by any particular religion.

We hold that no one religion should be given

preferential status, or unique distinction,

that no one religion should be accorded special

privileges in national life or international

relations for that would be a violation of the

basic principles of democracy and contrary to

the best interests of religion and

Government. This view of religious

impartiality, of comprehension and

forbearance, has a prophetic role to play

within the national and international life. No

group of citizens shall arrogate to itself

rights and privileges, which it denies to

others. No person should suffer any form of

disability or discrimination because of his

religion but all like should be free to share

to the fullest degree in the common life. This

is the basic principle involved in the

separation of church and State.”

(Emphasis supplied)”

172. The Model Code of Conduct, the views of this Court

about appeal to religion, being a corrupt practice, and

215

paragraph-16A of the Symbols Order, empowering the

Commission to act in the face of defiance, constitute

a powerful weapon in the hands of an independent and

impartial Election Commission. Placing the exclusive

power to appoint with the Executive, hardly helps.

173. In regard to the Symbols Order, this Court in Shri

Sadiq Ali and another v. Election Commission of India,

New Delhi and others60, upheld the vires of the Symbols

Order. This Court, inter alia, and held as follows:

“40 … The Commission is an authority created

by the Constitution and according to Article

324, the superintendence, direction and

control of the electoral rolls for and the

conduct of elections to Parliament and to the

Legislature of every State and of elections to

the office of President and Vice-President

shall be vested in the Commission. The fact

that the power of resolving a dispute between

two rival groups for allotment of symbol of a

political party has been vested in such a high

authority would raise a presumption, though

rebuttable, and provide a guarantee, though not

absolute but to a considerable extent, that the

power would not be misused but would be

exercised in a fair and reasonable manner.”

174. It is further found that when the Commission issues

directions, it does so on its own behalf and not as a

60 (1972) 4 SCC 664

216

delegate of some other Authority. This was on the

construction of Article 324(1).

175. This Court upheld the power of the Election

Commission of India to rescind its Order according

recognition to a political party, even without

elections having been held in all the States in the

country [See Janata Dal (Samajwadi) v. Election

Commission of India61].

176. In Indian National Congress (I) v. Institute of

Social Welfare and others62, no doubt, this Court took

the view that the Election Commission has not been

conferred with the express power to deregister a

political party registered under Section 29A, on the

ground that it violated the Constitution or any

undertaking given to the Election Commission at the

time of its registration. This Court went on to hold

also that while exercising its power to register a

political party under Section 29A, the Commission acts

quasi-judicially. The Court also set out the three

exceptional cases where the Commission could review its

61 (1996 (1) SCC 235

62 (2002) 5 SCC 685

217

Order for registering a political party. It includes

obtaining registration by practicing fraud or forgery.

We may notice that under Paragraph-16A of the Symbols

Order, the Commission has been empowered to suspend or

withdraw the recognition of a party as a national or a

state party, after giving a reasonable opportunity. One

of the grounds on which it can be so done is refusal

or defiance, apart from failure to observe the

provisions of the Model Code of Conduct for Guidance.

Therefore, after 1994, enormous powers have been

conferred on the Election Commission to ensure

compliance with the Model Code of Conduct for Guidance

of Political Parties issued by the Election Commission

in 1991 or as amended by it from time to time. The

power can also be exercised under Paragraph-16A in

regard to failure or defiance in the matter of

following lawful directions and instructions by the

Commission.

177. In Subramanian Swamy v. Election Commission of

India through its Secretary63, this Court held that the

63 (2008) 14 SCC 318

218

purpose of making the Symbols Order was to maintain the

purity of elections. The Court highlighted the duty of

the Election Commission to hold free, fair and clean

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 to the implementation of any

such provisions; and

the reservation and allotment of symbols and

recognition of political parties, for which

this Order makes no provision or makes

insufficient provision, and provision is in the

opinion of the Commission necessary for the

smooth and orderly conduct of elections.”

179. Dealing with the ambit of paragraph-18, this Court

held, inter alia, in Edapaddi K. Palaniswami v. T.T.V.

Dhinakaran and others64, as follows:

“24. Indeed, allotment of an election symbol

cannot be claimed as a fundamental right as

much as contesting election is not, as observed

64 (2019) 18 SCC 219

219

in Jyoti Basu v. Debi Ghosal [Jyoti

Basu v. Debi Ghosal, (1982) 1 SCC 691] . It is

a statutory right. It is also well settled that

the Election Commission has plenary powers and

could exercise the same to ensure free and fair

elections. Clause 18 of the Symbols Order

predicates the facet of such plenary power to

be exercised by the Election Commission. Clause

18 reads thus :

“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 to the implementation of any

such provisions; and

the reservation and allotment of symbols and

recognition of political parties, for which

this Order makes no provision or makes

insufficient provision, and provision is in the

opinion of the Commission necessary for the

smooth and orderly conduct of elections.”

25. The Election Commission in the past has

exercised plenary powers under Para 18 for

issuing interim directions regarding

allocation of common symbols to the two

factions, when the dispute under the Symbols

Order was still pending before it. It was

argued that the Election Commission cannot do

so once it had finally decided the dispute.

There is no difficulty in agreeing with the

proposition that once the dispute had been

finally decided by ECI, the question of

220

invoking powers under Para 18 by it (ECI) would

not arise. However, if the dispute is pending

enquiry before ECI or the final decision of ECI

is sub judice in the proceedings before the

constitutional court, providing for an

equitable arrangement in the interests of free

and fair elections and to provide equal level

playing field to all concerned, would be a just

and fair arrangement.”

180. The above observations indicate the width of the

powers available to the Election Commission.

181. In Public Interest Foundation and others v. Union

of India and others65, a Constitution Bench was invited

but refused to add or prescribe disqualifications for

contesting the elections other than what was prescribed

by the Constitution and the Parliament. In this regard,

an appeal made to the existence of plenary power under

Article 324 did not pass muster. The attempt was to

persuade the Court to direct the Election Commission

to disallow a candidate from contesting on the ground

that charges have been framed for heinous and/or

grievous offences. It was found that the Parliament had

the exclusive legislative power to lay down the

65 (2019) 3 SCC 224

221

disqualifications for the membership of the Legislative

Body. It is apposite that we, however, notice the

following:

“28. An essential component of a

constitutional democracy is its ability to give

and secure for its citizenry a representative

form of government, elected freely and fairly,

and comprising of a polity whose members are

men and women of high integrity and morality.

This could be said to be the hallmark of any

free and fair democracy.”

182. This Court, thereafter, quoted from the Goswami

Committee on Electoral Reforms, wherein the Committee

bemoaned the role of money and muscle power at

elections and rapid criminalisation of politics,

greatly encouraging evils of booth capturing, rigging

and violence. It is important that we notice paragraph30:

“30. Criminalisation of politics was never an

unknown phenomenon in the Indian political

system, but its presence was seemingly felt in

its strongest form during the 1993 Mumbai bomb

blasts which was the result of a collaboration

of a diffused network of criminal gangs, police

and customs officials and their political

patrons. The tremors of the said attacks shook

the entire nation and as a result of the

outcry, a commission was constituted to study

the problem of criminalisation of politics and

the nexus among criminals, politicians and

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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 observations made by

official agencies, including Central Bureau of

Investigation, Intelligence Bureau, Research

and Analysis Wing, who unanimously expressed

their opinion on the criminal network which was

virtually running a parallel government. The

Committee also took note of the criminal gangs

who carried out their activities under the

aegis of various political parties and

government functionaries. The Committee

further expressed great concern regarding the

fact that over the past few years, several

criminals had been elected to local bodies,

State Assemblies and Parliament. The Report

observed:

“3.2. … In the bigger cities, the main source

of income relates to real estate — forcibly

occupying lands/buildings, procuring such

properties at cheap rates by forcing out the

existing occupants/tenants etc. Over time, the

money power thus acquired is used for building

up contacts with bureaucrats and politicians

and expansion of activities with impunity. The

money power is used to develop a network of

muscle-power which is also used by the

politicians during elections.”

And again:

“3.3. … The nexus between the criminal gangs,

police, bureaucracy and politicians has come

out clearly in various parts of the country.

The existing criminal justice system, which was

essentially designed to deal with the

individual offences/crimes, is unable to deal

with the activities of the mafia; the

provisions of law in regard economic offences

are weak…”

223

183. We are tempted to quote the following observations

by Shri C. Rajagopalachari, made way back in 1922,

which has been referred to by the Constitution Bench

in Public Interest Foundation (supra):

“40. …

“… ‘Elections and their corruption, injustice

and tyranny of wealth, and inefficiency of

administration, will make a hell of life as

soon as freedom is given to us….’””

184. The Court, in Public Interest Foundation (supra),

elaborately quoted from the Two Hundred and FortyFourth Report of the Law Commission of India on

Electoral Disqualifications. This Court also

reiterated 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 democratic system, should not

have criminal antecedents and the voters have

a right to know about their antecedents, assets

and other aspects. We are inclined to say so,

for in a constitutional democracy,

criminalisation of politics is an extremely

disastrous and lamentable situation. The

citizens in a democracy cannot be compelled to

stand as silent, deaf and mute spectators to

corruption by projecting themselves as

helpless. The voters cannot be allowed to

resign to their fate. The information given by

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a candidate must express everything that is

warranted by the Election Commission as per

law. Disclosure of antecedents makes the

election a fair one and the exercise of the

right of voting by the electorate also gets

sanctified. …”

185. Thereafter, the Constitution Bench went on to hold

as follows:

“116. Keeping the aforesaid in view, we think

it appropriate to issue the following

directions which are in accord with the

decisions of this Court:

116.1. Each contesting candidate shall fill up

the form as provided by the Election Commission

and the form must contain all the particulars

as required therein.

116.2. It shall state, in bold letters, with

regard to the criminal cases pending against

the candidate.

116.3. If a candidate is contesting an election

on the ticket of a particular party, he/she is

required to inform the party about the criminal

cases pending against him/her.

116.4. The political party concerned shall be

obligated to put up on its website the

aforesaid information pertaining to candidates

having criminal antecedents.

116.5. The candidate as well as the political

party concerned shall issue a declaration in

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the widely circulated newspapers in the

locality about the antecedents of the candidate

and also give wide publicity in the electronic

media. When we say wide publicity, we mean that

the same shall be done at least thrice after

filing of the nomination papers.

117. These directions ought to be implemented

in true spirit and right earnestness in a bid

to strengthen the democratic set-up. There may

be certain gaps or lacunae in a law or

legislative enactment which can definitely be

addressed by the legislature if it is backed

by the proper intent, strong resolve and

determined will of right-thinking minds to

ameliorate the situation. It must also be borne

in mind that the law cannot always be found

fault with for the lack of its stringent

implementation by the authorities concerned.

Therefore, it is the solemn responsibility of

all concerned to enforce the law as well as

the directions laid down by this Court from

time to time in order to infuse the culture of

purity in politics and in democracy and foster

and nurture an informed citizenry, for

ultimately it is the citizenry which decides

the fate and course of politics in a nation

and thereby ensures that “we shall be governed

no better than we deserve”, and thus, complete

information about the criminal antecedents of

the candidates forms the bedrock of wise

decision-making and informed choice by the

citizenry. Be it clearly stated that informed

choice is the cornerstone to have a pure and

strong democracy.

118. We have issued the aforesaid directions

with immense anguish, for the Election

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Commission cannot deny a candidate to contest

on the symbol of a party. A time has come that

Parliament must make law to ensure that persons

facing serious criminal cases do not enter into

the political stream. It is one thing to take

cover under the presumption of innocence of the

accused but it is equally imperative that

persons who enter public life and participate

in law making should be above any kind of

serious criminal allegation. It is true that

false cases are foisted on prospective

candidates, but the same can be addressed by

Parliament through appropriate legislation.

The nation eagerly waits for such legislation,

for the society has a legitimate expectation

to be governed by proper constitutional

governance. The voters cry for systematic

sustenance of constitutionalism. The country

feels agonised when money and muscle power

become the supreme power. Substantial efforts

have to be undertaken to cleanse the polluted

stream of politics by prohibiting people with

criminal antecedents so that they do not even

conceive of the idea of entering into politics.

They should be kept at bay.”

It would appear that the grant of relief would have

resulted in the rewriting of the provision.

Z. INDEPENDENCE; A STERLING AND INDISPENSABLE

ATTRIBUTE

THE CONCEPT OF LEGITIMATE POWER OF RECIPROCITY

186. What is independence? Independence is a value,

which is only one of the elements in the amalgam of

227

virtues that a person should possess. The competence

of a man is not to be conflated with fierce

independence. A person may be excellent, i.e., at his

chosen vocation. He may be an excellent Administrator.

He may be honest but the quality of independence

transcends the contours of the qualities of

professional excellence, as also the dictates of

honesty. We may, no doubt, clarify that, ordinarily,

honesty would embrace the quality of courage of

conviction, flowing from the perception of what is

right and what is wrong. Irrespective of consequences

to the individual, an honest person would, ordinarily,

unrelentingly take on the high and mighty and persevere

in the righteous path. An Election Commissioner is

answerable to the Nation. The people of the country

look forward to him so that democracy is always

preserved and fostered. We may qualify the above

observations by stating that true independence of a

Body of persons is not to be confused with sheer

unilateralism. This means that the Election Commission

must act within the Constitutional framework and the

laws. It cannot transgress the mandate of either and

228

still claim to be independent. Riding on the horse of

independence, it cannot act in an unfair manner either.

Independence must be related, finally, to the question

of ‘what is right and what is wrong’. A person, who is

weak kneed before the powers that be, cannot be

appointed as an Election Commissioner. A person, who

is in a state of obligation or feels indebted to the

one who appointed him, fails the nation and can have

no place in the 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, but coming to the rescue of the weak and the

wronged, who are otherwise in the right, would qualify

as true independence. Upholding the constitutional

values, which are, in fact, a 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, proclaim the

presence of independence. Independence must embrace the

ability to be firm, even as against the highest. Not

unnaturally, uncompromising fearlessness will mark an

229

independent person from those who put all they hold

dear before their Karma. It is in this context that we

feel advised to refer to the following discussion in

Supreme Court Advocates-on-Record Assn. and another v.

Union of India66:

“310. A little personal research resulted in

the revelation of the concept of the

“legitimate power of reciprocity” debated by

Bertram Raven in his article — “The Bases of

Power and the Power/Interaction Model of

Interpersonal Influence” (this article

appeared in Analyses of Social Issues and

Public Policy, Vol. 8, No. 1, 2008, pp. 1-22).

In addition to having dealt with various

psychological reasons which influenced the

personality of an individual, reference was

also made to the “legitimate power of

reciprocity”. It was pointed out that the

reciprocity norm envisaged that if someone does

something beneficial for another, the

recipient would feel an obligation to

reciprocate (“I helped you when you needed it,

so you should feel obliged to do this for me.”

— Goranson and Berkowitz, 1966; Gouldner,

1960). In the view expressed by the author, the

inherent need of power is universally available

in the subconscious of the individual. On the

satisfaction and achievement of the desired

power, there is a similar unconscious desire

to reciprocate the favour.”

It is important that the appointment must not be

overshadowed by even a perception, that a ‘yes man’

66 (2016) 5 SCC 1

230

will decide the fate of democracy and all that it

promises. Certainty, the darkest apprehensions of the

founding fathers as buttressed by the reports and other

materials, unerringly point to the imperative need to

act.

AA. THE APPOINTMENT OF SHRI ARUN GOEL: A TRIGGER

OR A MERE ASIDE?

187. An application was filed by the petitioner in W.P.

No. 569 of 2021 to seek interim relief to provide for

appointment to fill a vacancy of Election Commissioner

which had arisen on 15.05.2022 by a Committee. The

Bench commenced hearing of these cases on 17.11.2022.

The matter stood posted to 22.11.2022. It would appear

that on 18.11.2022, the vacancy of Election

Commissioner came to be filled up by the appointment

of one Shri Arun Goel. This appointment was attacked

by Shri Prashant Bhushan, learned Counsel appearing for

the petitioner, by contending that when the petitioner

had moved an application, seeking interim relief

relating to appointment, it was not open to the

respondent-Union to make the appointment. This Court

231

thereupon called upon the respondent to produce the

files relating to the appointment. We perused the note

as also the file. It is therein, inter alia, stated

that a vacancy in the post of Election Commissioner

arose upon the appointment of Shri Rajiv Kumar as the

Chief Election Commissioner w.e.f. 15.05.2022. No

specific law has been made under Article 324. A

convention is put forward, which consisted of

appointing senior Members of the Civil Services, other

serving or retired Officers of the rank of Secretary

to the Government of India/Chief Secretary of State

Government. The convention further comprised of the

appointment of the senior-most Election Commissioner

as the Chief Election Commissioner so far. We found,

undoubtedly, from the perusal of the files that the

respondent was aware of the pendency of Writ Petition

(Civil) No. 104 of 2015 apart from the other Writ

Petitions. The appointment has been made apparently on

the basis that there was no hinderance to the making

of the appointment. Approval was sought on 18.11.2022

for the appointment of one Election Commissioner. On

the very same day, drawing upon the database of IAS

232

Officers, serving and retired, in the position of

Secretary to the Government of India, it was accessed.

We found four names, which included at the top of the

list, the present appointee. Three other names were

also considered by the Minister of Law and Justice. One

of the Officers was from Andhra Pradesh and belonged

to the 1983 Batch. The third Officer empanelled

belonged to the Telangana State and he belonged to the

1983 Batch and the fourth Officer belonged to the Tamil

Nadu cadre and belonged to the 1985 Batch. The present

appointee belonged to the Punjab Cadre and was of the

1985 Batch. On the same day, i.e., on 18.11.2022, a

Note was seen put-up, wherein the Law Minister had

suggested the panel of four names for the consideration

of the Prime Minister and the President. Therein also,

the absence of a law and the convention, which we have

already referred to, has been noted. We further find

that three of the Officers mentioned had superannuated

during the last two years or so. The appointee, it was

noted was to superannuate in the month of December,

2022 and had taken voluntary retirement, was found to

be the youngest of the four Members of the panel. It

233

was recommended to the Prime Minister that considering

his experience, age, profile and suitability, the

current appointee may be considered. On the very same

day again, the Prime Minister recommended the name of

the present appointee. We notice further that, on the

same day again, an application is seen made by the

appointee in regard to voluntary retirement and

accepting the same, again, w.e.f., 18.11.2022, and

waiving the three months period required for acting on

the request of voluntary retirement, the Officer’s

request for voluntary retirement came to be accepted

by the Competent Authority. Not coming as a surprise,

on the same day, his appointment as Election

Commissioner was also notified. We are a little

mystified as to how the officer had applied for

voluntary retirement on 18.11.2022, if he was not in

the know about the proposal to appoint him. Whether

that be, we notice that 18.11.2022 was a Friday and

very next day, after the Court had directed the case

to be listed to 22.11.2022, for considering the matter.

188. In regard to this appointment, the salient features

may be noticed. The vacancy was subsisting from

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15.05.2022. The Constitution Bench held a preliminary

hearing on 17.11.2022. It was while so on the next day,

i.e., 18.11.2022, when an interim application was also

pending consideration, all the procedures commencing

with the proposal, processing of the same at the hands

of the Minister for Law, the further recommendations

of the concerned Officers, the recommendation of the

Prime Minister, the acceptance of the application of

the appointee seeking voluntary retirement, waiving the

three months period and the appointment by the

President under Article 324(2), which came to be

notified, took place in a single day. No doubt, there

was no interim Order, restraining such appointment but,

at the same time, I.A. No. 63145 of 2021 in Writ

Petition (Civil) No. 569 of 2021, seeking a direction

to make appointment to the vacant post by an

independent Body, was pending consideration. Shri

Prashant Bhushan would seek the invalidation of the

appointment itself on the said score.

189. Since the Constitution Bench has been constituted

to consider the need for a different method of

appointment of the Chief Election Commissioner and the

235

Election Commissioners, the procedure involved in the

appointment as has been followed throws up certain

pertinent questions. Appointment is, admittedly, made

from a panel of Senior Civil Servants, both retired and

serving. Learned Attorney General would contend that

the appointment is made from a panel of Officers. The

current appointee was due to retire on 31.12.2022. From

the date of birth of the other three persons, who formed

the panel, we find that one of the persons had

superannuated, apparently, in the year 2020. Another

Officer, whose name figured in the panel had also

superannuated in the year 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 the three were considered and appointed, they

would have had a tenure of less than three years. This

is for the reason that, under Section 4 of the 1991

Act, an Election Commissioner is entitled to a term of

six years, subject, however, to the condition that the

Officer would have to vacate the Office upon his

reaching the age of 65 years. In fact, even the

appointed Officer was due to retire on 31.12.2022, at

236

the age of sixty years. He would have a term of a little

over five years, on the basis of the appointment made

on 18.11.2022. He would be appointed not as a Chief

Election Commissioner but as an Election Commissioner.

Both the Chief Election Commissioner and the Election

Commissioner, as per Section 4 of the 1991 Act, are to

be appointed for a term of six years.

190. This brought up the question of Section 4,

declaring a fixed term of six years from the date of

assumption of Office, for a Chief Election Commissioner

and an Election Commissioner, being observed in its

breach. The learned Attorney General would respond as

follows. He pointed out that since the time, when the

Election Commission became a multi-Member team, a

convention has grown up of making appointments of

persons, initially as Election Commissioners and the

senior-most Election Commissioner, unless considered

unfit, is appointed as the Chief Election Commissioner.

As far as Section 4, declaring that the Chief Election

Commissioner and the Election Commissioner are to be

appointed for a term of six years and the appointments

falling foul of the said mandate, the learned Attorney

237

General would point out that the term of the Election

Commissioner and the term as Chief Election

Commissioner, for those who are appointed as the Chief

Election Commissioner, is aggregated. In view of the

first proviso to Section 4 of the 1991 Act, a shortfall,

in terms of the six years stint, may occur. But it is

pointed out that as far as possible, appointments are

being made so as to fulfil the requirements of the law.

In view of the operation of the proviso, resulting in

a compulsory and premature vacating of the Office by

the incumbent on attaining the age of 65 years, the

term may not last for the full six years, even on the

combination of the two appointments, viz., firstly as

Election Commissioner and later as Chief Election

Commissioner. The learned Attorney General would point

out that this Court should not be detained by the said

aspect, when the question, which this Court is

concerned with, is different. As far as the criticism

launched, both by Shri Prashant Bhushan and Shri Gopal

Sankaranarayanan, that the panel which was considered,

betrayed sheer arbitrariness and reinforced the

grievance and the complaint of the Writ Petitioners

238

that an undeniable case is made out for this Court to

step in and grant relief so that a fair procedure for

selection and appointment is laid down, till a law is

made by the Parliament, the learned Attorney General

would point out that Civil Servants or IAS Officers are

by dint of the experience gathered in the course of

their careers, ideally suited for appointment as

Election Commissioners and Chief Election

Commissioners. They have experience in the matter of

the conduct of the elections at different stages of

their career. They operate as observers in States other

than their cadre States. The Election Commission is not

to be conflated with the Chief Election Commissioner

and the Election Commissioners. The Commission

functions as a large team. It is in this regard that

Officers of the Civil Services are impeccably poised

for being considered under Article 324(2), it is

pointed out.

191. The learned Attorney General would point out that

that the panel of Officers, is born out of the database

of serving and retired IAS Officers in the position of

Secretaries to the Government of India.

239

192. When it was pointed out that it remained a mystery

to the Court that incongruous with the unambiguous

mandate of Section 4 of the 1991 Act, all the panellists

were either retired (3 out of four) and the person

finally appointed was himself appointed, when he had

less than a month for his 60th birthday, it was

submitted that the Court must bear in mind that the

panel was drawn up from the database of Officers in the

rank of Secretaries to the Government of India, both

serving and retired, and drawn up by the Ministry of

Law and Justice. When it was further queried as to why

the respondent did not appear to exhibit any anxiety

to ascertain whether there were Officers, who could be

appointed who would be assured the full term of six

years, in keeping with the mandate of law, it was

submitted that there is a dearth of such Officers.

193. Thereupon, it was the contention of both Shri

Prashant Bhushan 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

than Shri Arun Goel.

240

194. We have noted that the three Officers in the panel

were described and edged out, noting the factum of

superannuation. On the said basis, it was found that

the appointee was the youngest. Thereafter on the basis

of his experience, age and suitability, the appointee

was recommended and finally appointed.

195. If the drawing up of the panel itself results in a

fate accompli, then, the whole exercise would be

reduced to a foregone conclusion as to who would be

finally appointed. What we find about the method

involved is, even proceeding on the basis that the

Government has the right to confine the appointee to

Civil Servants, that it is in clear breach of the

contemplated mandate that be it as an Election

Commissioner or Chief Election Commissioner, the

appointee should have a period of six years. The

philosophy behind giving a reasonably long stint to the

appointee to the post of Election Commissioner or the

Chief Election Commissioner, is that it would enable

the Officer to have enough time to gear himself to the

needs of the Office and to be able to assert his

independence. An assured term would instil in the

241

appointee, the inspiration and the will to put in place

any reforms, changes, as also the inspiration to bring

out his best. A short-lived stint may drain the muchneeded desire besides the time to fulfil the sublime

objects of the high Office of the Election Commissioner

or the Chief Election Commissioner. Any tendency

towards placating the powers that be, would wax as also

the power and the will to assert his independence may

wane, bearing in mind, the short tenure. This

apparently is the underlying philosophy of the law made

by Parliament, assuring, a term of six years. The term

of six years is separately assured to both the Election

Commissioner and the Chief Election Commissioner. In

other words, the object of the law and its command

would stand defeated and the practice lends strength

to the complaint of the petitioners. We must make it

clear that the observations are not meant to be an

individualised assessment of the appointee, who we do

note, has excellent academic qualifications. But as we

have noted academic excellence which members of the

civil service may possess cannot be a substitute for

values such as independence and freedom from bias from

242

political affiliation. We draw the following

conclusions:

Parliament enshrined a term of six years separately

for the Chief Election Commissioner and the Election

Commissioner. This is the Rule, it is found in Section

4(1). A proviso cannot arrogate itself to the status

of the main provision. The exception cannot become the

Rule. Yet, this what the appointments have been reduced

to. It undermines the independence of the Election

Commission. The policy of the law is defeated.

BB. IS THERE A VACUUM IN ARTICLE 324? SHOULD THE

COURT INTERFERE, IF THERE IS ONE?

196. When Article 324(2) provides that the appointment

of the Chief 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 accordance with the advice of the

Council of Ministers. Taking into consideration Article

77 also and, in view of the Rules of Business made,

243

which we have referred to in paragraph 51 of this

Judgment, the appointment, till a law is made by

Parliament, would be made by the President in

accordance with advice of the Prime Minister. It was

precisely such an appointment, which was the cause of

unanimous concern to the Members of the Constituent

Assembly, which we have already adverted to.

197. The petitioners placed considerable reliance on

the Judgment of this Court rendered in Vineet Narain

and others v. Union of India and another67. No doubt,

it is a case where the Court, inter alia, held as

follows:

“49. There are ample powers conferred by

Article 32 read with Article 142 to make orders

which have the effect of law by virtue of

Article 141 and there is mandate to all

authorities to act in aid of the orders of this

Court as provided in Article 144 of the

Constitution. In a catena of decisions of this

Court, this power has been recognised and

exercised, if need be, by issuing necessary

directions to fill the vacuum till such time

the legislature steps in to cover the gap or

the executive discharges its role. It is in the

discharge of this duty that the IRC was

constituted by the Government of India with a

view to obtain its recommendations after an indepth study of the problem in order to

implement them by suitable executive

67 (1998) 1 SCC 226

244

directions till proper legislation is enacted.

The report of the IRC has been given to the

Government of India but because of certain

difficulties in the present context, no further

action by the executive has been possible. The

study having been made by a Committee

considered by the Government of India itself

as an expert body, it is safe to act on the

recommendations of the IRC to formulate the

directions of this Court, to the extent they

are of assistance. In the remaining area, on

the basis of the study of the IRC and its

recommendations, suitable directions can be

formulated to fill the entire vacuum. This is

the exercise we propose to perform in the

present case since this exercise can no longer

be delayed. It is essential and indeed the

constitutional obligation of this Court under

the aforesaid provisions to issue the necessary

directions in this behalf. We now consider

formulation of the needed directions in the

performance of this obligation. The directions

issued herein for strict compliance are to

operate till such time as they are replaced by

suitable legislation in this behalf.”

198. We must, at once, notice, however, that this Court

has also held as follows:

“51. In exercise of the powers of this Court

under Article 32 read with Article 142,

guidelines and directions have been issued in

a large number of cases and a brief reference

to a few of them is sufficient. In Erach Sam

Kanga v. Union of India [ WP No. 2632 of 1978

decided on 20-3-1979] the Constitution Bench

laid down certain guidelines relating to the

Emigration Act. In Lakshmi Kant

Pandey v. Union of India [(1984) 2 SCC

244] (In re, Foreign Adoption), guidelines for

adoption of minor children by foreigners were

245

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) 4 SCC 584]

, Delhi Judicial Service Assn. v. State of

Gujarat [(1991) 4 SCC 406] (Nadiad

case), Delhi Development Authority v. Skipper

Construction Co. (P) Ltd. [(1996) 4 SCC 622]

and Dinesh Trivedi, M.P. v. Union of

India [(1997) 4 SCC 306] guidelines were laid

down having the effect of law, requiring rigid

compliance. In Supreme Court Advocates-onRecord Assn. v. Union of India [(1993) 4 SCC

441] (IInd Judges case) a nine-Judge Bench

laid down guidelines and norms for the

appointment and transfer of Judges which are

being rigidly followed in the matter of

appointments of High Court and Supreme Court

Judges and transfer of High Court Judges. More

recently in Vishaka v. State of

Rajasthan [(1997) 6 SCC 241 : 1997 SCC (Cri)

932] elaborate guidelines have been laid down

for observance in 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 Constitution for the enforcement of

these fundamental rights in the absence of

legislation must be viewed along with the role

of judiciary envisaged in the Beijing Statement

of Principles of the Independence of the

Judiciary in the LAWASIA region. These

principles were accepted by the Chief Justices

of Asia and the Pacific at Beijing in 1995 (*)

(As amended at Manila, 28th August, 1997) as

those representing the minimum standards

necessary to be observed in order to maintain

the independence and effective functioning of

246

the judiciary. The objectives of the judiciary

mentioned in the Beijing Statement are:

“Objectives of the Judiciary:

10. The objectives and functions of the

Judiciary include the following:

(a) to ensure that all persons are able to live

securely under the rule of law;

(b) to promote, within the proper limits of the

judicial function, the observance and the

attainment of human rights; and

persons and between persons and the State.”

Thus, an exercise of this kind by the court is

now a well-settled practice which has taken

firm roots in our constitutional

jurisprudence. This exercise is essential to

fill the void in the absence of suitable

legislation to cover the field.”

199. It, therefore, becomes necessary for us to

undertake a journey back in time to recapture the views

taken by this Court, which has been referred to in

paragraph-51. In Lakshmi Kant Pandey v. Union of

India68, this Court was dealing a public interest

litigation lodged against malpractices in trafficking

of children in connection with adoption of Indian

children by foreigners living abroad. The Court noted

from the legislative history that though Bills were

introduced, including the Adoption of Children Bill,

68 (1984) 2 SCC 244

247

1980, besides the earlier Bill in 1972, it had not

attained a legislative effect. The Court found that

inter-country adoption had to be supported but great

care had to be exercised in the matter of giving

children in adoption to foreign parents. The Court

referred to, inter alia, the draft Declaration by the

Commission for Social Development at its twenty-sixth

session, besides the guidelines and draft guidelines,

which were approved on 04.09.1982. The Court notes, at

paragraph-10, the absence of a law providing for

adoption of an Indian child by the foreign parent.

Thereafter, it elaborated on the materials available

and finally proceeded to lay down certain principles

and norms which were to be observed in the matter of

giving a child in adoption to foreign parents.

200. In Union Carbide Corporation and others. v. Union

of India and others69, one of the questions, which fell

for consideration was whether the Supreme Court had the

power under Article 142 to withdraw to itself, Original

Suits pending in the District Court at Bhopal and

69 (1991) 4 SCC 584

248

dispose of the same in accordance with the settlement.

Similarly, the Court had to deal with the contention

that it had no jurisdiction to withdraw the criminal

proceedings. This is what, inter alia, the Court held:

“58. This Court had occasion to point out that

Article 136 is worded in the widest terms

possible. It vests in the Supreme Court a

plenary jurisdiction in the matter of

entertaining and hearing of appeals by granting

special leave against any kind of judgment or

order made by a Court or Tribunal in any cause

or matter and the powers can be exercised in

spite of the limitations under the specific

provisions for appeal contained in the

Constitution or other laws. The powers given

by Article 136 are, however, in the nature of

special or residuary powers which are

exercisable outside the purview of the ordinary

laws in cases where the needs of justice demand

interference by the Supreme Court. (See Durga

Shankar Mehta v. Thakur Raghuraj Singh [(1955)

1 SCR 267 : AIR 1954 SC 520 : 9 ELR 494] ).

xxx xxx xxx

61. To the extent power of withdrawal and

transfer of cases to the apex Court is, in the

opinion of the Court, necessary for the purpose

of effectuating the high purpose of Articles

136 and 142(1), the power under Article 139-A

must be held not to exhaust the power of

withdrawal and transfer. Article 139-A, it is

relevant to mention here, was introduced as

part of the scheme of the Constitution Fortysecond Amendment. That amendment proposed to

invest the Supreme Court with exclusive

jurisdiction to determine the constitutional

validity of central laws by inserting Articles

131-A, 139-A and 144-A. But Articles 131-A and

144-A were omitted by the Forty-third Amendment

249

Act, 1977, leaving Article 139-A intact. That

article enables the litigants to approach the

apex Court for transfer of proceedings if the

conditions envisaged in that article are

satisfied. Article 139-A was not intended, nor

does it operate, to whittle down the existing

wide powers under Articles 136 and 142 of the

Constitution.”

201. In Delhi Judicial Service Association, Tis Hazari

Court, Delhi v. State of Gujarat and others70, the

question arose in the following factual context:

Police Officers assaulted and arrested on flimsy

grounds and handcuffed and tied with a rope, a Chief

Judicial Magistrate. The scope of the Criminal Contempt

Jurisdiction fell for consideration. This Court wished

to provide against the recurrence of such instances.

The Court directed the State Government to take

immediate steps for review and revision of the Police

Regulations. In the light of the Commission appointed,

the Court held, inter alia, as follows:

“49. Learned counsel, appearing on behalf of

the State of Gujarat and the police officers,

urged that in the present proceedings this

Court has no jurisdiction or power to quash the

criminal proceedings pending against N.L.

70 (1991) 4 SCC 406

250

Patel, CJM. Elaborating his contention,

learned counsel submitted that once a criminal

case is registered against a person the law

requires that the court should allow the case

to proceed to its normal conclusion and there

should be no interference with the process of

trial. He further urged that this Court has no

power to quash a trial pending before the

criminal court either under the Code of

Criminal Procedure or under the Constitution,

therefore, the criminal proceedings pending

against Patel should be permitted to continue.

Learned Attorney General submitted that since

this Court has taken cognizance of the contempt

matter arising out of the incident which is the

subject matter of trial before the criminal

court, this Court has ample power under Article

142 of the Constitution to pass any order

necessary to do justice and to prevent abuse

of process of the court. The learned Attorney

General elaborated that there is no limitation

on the power of this Court under Article 142

in quashing a criminal proceeding pending

before a subordinate court. Before we proceed

to consider the width and amplitude of this

Court's power under Article 142 of the

Constitution it is necessary to remind

ourselves that though there is no provision

like Section 482 of the Criminal Procedure Code

conferring express power on this Court to quash

or set aside any criminal proceedings pending

before a criminal court to prevent abuse of

process of the court, but this Court has power

to quash any such proceedings in exercise of

its plenary and residuary power under Article

136 of the Constitution, if on the admitted

facts no charge is made out against the accused

or if the proceedings are initiated on

concocted facts, or if the proceedings are

initiated for oblique purposes. Once this Court

is satisfied that the criminal proceedings

amount to abuse of process of court it would

quash such proceedings to ensure justice.

In State of W.B. v. Swapan Kumar Guha [(1982)

251

1 SCC 561 : 1982 SCC (Cri) 283 : (1982) 3 SCR

121] , this Court quashed first information

report and issued direction prohibiting

investigation into the allegations contained

in the FIR as the Court was satisfied that on

admitted facts no offence was made out against

the persons named in the FIR. In Madhavrao

Jiwajirao Scindia v. Sambhajirao Chandrojirao

Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234]

, criminal proceedings were quashed as this

Court was satisfied that the case was founded

on false facts, and the proceedings for trial

had been initiated for oblique purposes.

50. Article 142(1) of the Constitution

provides that Supreme Court in exercise of its

jurisdiction may pass such decree or make such

order 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 cover almost every kind of

proceeding in court including civil or

criminal. The inherent power of this Court

under Article 142 coupled with the plenary and

residuary powers under Articles 32 and 136

embraces power to quash criminal proceedings

pending before any court to do complete justice

in the matter before this Court. If the court

is satisfied that the proceedings in a criminal

case are being utilised for oblique purposes

or if the same are continued on manufactured

and false evidence or if no case is made out

on the admitted facts, it would be in the ends

of justice to set aside or quash the criminal

proceedings. It is idle to suggest that in such

a situation this Court should be a helpless

spectator.

51. Mr Nariman urged that Article 142(1) does

not contemplate any order contrary to statutory

provisions. He placed reliance on the Court's

observations in Prem Chand Garg v. Excise

252

Commissioner, U.P., Allahabad [1963 Supp 1 SCR

885, 899 : AIR 1963 SC 996] and A.R.

Antulay v. R.S. Nayak [(1988) 2 SCC 602 : 1988

SCC (Cri) 372] , where the Court observed that

though the powers conferred on this Court under

Article 142(1) are very wide, but in exercise

of that power the Court cannot make any order

plainly inconsistent with the express

statutory provisions of substantive law. It may

be noticed that in Prem Chand Garg [1963 Supp

1 SCR 885, 899 : AIR 1963 SC 996] and Antulay

case [(1988) 2 SCC 602 : 1988 SCC (Cri) 372]

observations with regard to the extent of this

Court's power under Article 142(1) were made

in the context of fundamental rights. Those

observations have no bearing on the question

in issue as there is no provision in any

substantive law restricting this Court's power

to quash proceedings pending before

subordinate court. This Court's power under

Article 142(1) to do “complete justice” is

entirely of different level and of a different

quality. Any prohibition or restriction

contained in ordinary laws cannot act as a

limitation on the constitutional power of this

Court. Once this Court has seisin of a cause

or matter before it, it has power to issue any

order or direction to do “complete justice” in

the matter. This constitutional power of the

Apex Court cannot be limited or restricted by

provisions contained in statutory law.

In Harbans Singh v. State of U.P. [(1982) 2

SCC 101 : 1982 SCC (Cri) 361 : (1982) 3 SCR

235, 243] , A.N. Sen, J. in his concurring

opinion observed: (SCC pp. 107-08, para 20)

“Very wide powers have been conferred on this

Court for due and proper administration of

justice. Apart from the jurisdiction and powers

conferred on this Court under Articles 32 and

136 of the Constitution I am of the opinion

that this Court retains and must retain, an

inherent power and jurisdiction for dealing

253

with any extraordinary situation in the larger

interests of administration of justice and for

preventing manifest injustice being done. This

power must necessarily be sparingly used only

in exceptional circumstances for furthering

the ends of justice.”

No enactment made by Central or State

legislature can limit or restrict 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 provisions regulating the matter in

dispute. What would be the need of “complete

justice” in a cause or matter would depend upon

the facts and circumstances of each case and

while exercising that power the Court would

take into consideration the express provisions

of a substantive statute. Once this Court has

taken seisin of a case, cause or matter, it

has power to pass any order or issue direction

as may be necessary to do complete justice in

the matter. This has been the consistent view

of this Court as would appear from the

decisions of this Court in State of

U.P. v. Poosu [(1976) 3 SCC 1 : 1976 SCC (Cri)

368 : (1976) 3 SCR 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 1966 SC 1942 : (1967) 1 LLJ 698]

; Special Reference No. 1 of 1964 [(1965) 1 SCR

413, 499 : AIR 1965 SC 745] and Harbans

Singh v. State of U.P. [(1982) 2 SCC 101 : 1982

SCC (Cri) 361 : (1982) 3 SCR 235, 243] Since

the foundation of the criminal trial of N.L.

Patel is based on the facts which have already

been found to be false, it would be in the ends

of justice and also to do complete justice in

the cause to quash the criminal proceedings.

We accordingly quash the criminal proceedings

pending before the Chief Judicial Magistrate,

254

Nadiad in Criminal Cases Nos. 1998 of 1990 and

1999 of 1990.”

202. It issued various guidelines also for the

protection of the Members of the Subordinate Judiciary.

The decision in Supreme Court Advocates-on-Record

Association and others v. Union of India71 related to

the appointment of Judges to the Supreme Court and High

Court and transfer of Judges and Chief Justices. In the

majority opinion of Justice J. S. Verma, we may notice

the following:

“447. When the Constitution was being drafted,

there was general agreement that the

appointments of Judges in the superior

judiciary should not be left to the absolute

discretion of the executive, and this was the

reason for the provision made in the

Constitution imposing the obligation to

consult the Chief Justice of India and the

Chief Justice of the High Court. This was done

to achieve independence of the Judges of the

superior judiciary even at the time of their

appointment, instead of confining it only to

the provision of security of tenure and other

conditions of service after the appointment was

made. It was realised that the independence of

the judiciary had to be safeguarded not merely

by providing security of tenure and other

conditions of service after the appointment,

but also by preventing the influence of

political considerations in making the

71 (1993) 4 SCC 441

255

appointments, if left to the absolute

discretion of the executive as the appointing

authority. It is this reason which impelled the

incorporation of the obligation of

consultation with the Chief Justice of India

and the Chief Justice of the High Court in

Articles 124(2) and 217(1). The Constituent

Assembly Debates disclose this purpose in

prescribing for such consultation, even though

the appointment is ultimately an executive

act.”

(Emphasis Supplied)

203. We may at once observe as follows:

We have noticed in the context of the Constituent

Assembly debates, as also what preceded it in the form

of Sub-Committee Reports, that there was general

agreement that a law must be made by Parliament and the

amended draft Article 289 came to be, accordingly,

further amended and approved, leading to the insertion

of the words ‘subject to the law to be made by

Parliament’ in Article 324(2). In other words, the

purpose for which the provision was made, as also the

imperative need to make such a law, has been eloquently

articulated in the views of the Members of the

Constituent Assembly. The appointment of Judges of the

Superior Judiciary under the Government of India Act,

which preceded the Constitution, was being made in the

256

absolute discretion of the Crown. This Court took note

of the fact that if left to the absolute discretion of

the Executive, as the appointing Authority, it may lead

to political considerations in making the appointment.

Article 124(2) dealing with appointments to the Supreme

Court and Article 217(1) which deals with appointments

to the High Courts, was to be made based on what was

described as ‘consultations’ in these Articles. It will

be again noticed that Article 324(2), does not provide

for consultation with any one and it appears to place

the power to make appointments, exclusively with the

Executive as the President is bound by the advice of

the Prime Minister. However, it is precisely to guard

against the abuse by the exclusive power being vested

with the Executive that instead of a consultative

process being provided, Parliament was to make a law.

This clearly was the contemplation of the Founding

Fathers. This Court proceeded to lay down norms in the

absence of any specific guidelines. We may, in this

regard, notice paragraph-477:

“477. The absence of specific guidelines in the

enacted provisions appears to be deliberate,

since the power is vested in high

257

constitutional functionaries and it was

expected of them to develop requisite norms by

convention in actual working as envisaged in

the concluding speech of the President of the

Constituent Assembly. The hereinafter

mentioned norms emerging from the actual

practice and crystallized into conventions —

not exhaustive — are expected to be observed

by the functionaries to regulate the exercise

of their discretionary power in the matters of

appointments and transfers.”

204. We may also indicate that this Judgment provides a

situation where this Court has laid down norms, even

in the constitutional realm.

205. It is further of the greatest moment that this

Court noted that it was realised that independence of

the Judiciary had to be protected not merely after

appointment but by the process of appointment. The

Chief Election Commissioner can also be removed only

in the same fashion as a Judge of the Supreme Court.

His conditions of service cannot be varied to his

disadvantage. But unlike the Comptroller and Auditor

General, who also enjoys protection after appointment,

the Founding Fathers clearly intended to also provide

for an independent Election Commission regulating by

258

law, the appointment itself. This is in place 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 of working women under Articles 14,

19 and 21. The complaint in the Writ Petition was sexual

harassment of working women at work places. An alleged

brutal gangrape of a social worker provided, what may

be described as, an immediate trigger. This Court went

on to find that an incident of sexual harassment

violated the Fundamental Rights of General Equality,

under Articles 14 and 15, and a Right to Life and

Liberty, under Article 21. The Court drew support from

the role of the Judiciary in the Beijing Statement of

Principles of the Independence of Judiciary in Law Asia

Region. We may set down the objectives, which the Court

drew upon, inter alia:

“Objectives of the Judiciary:

10. The objectives and functions of the

Judiciary include the following:

(a) to ensure that all persons are able to live

securely under the rule of law;

72 (1997) 6 SCC 241

259

(b) to promote, within the proper limits of the

judicial function, the observance and the

attainment of human rights; and

persons and between persons and the State.”

207. The Court also drew on an International Convention

providing for elimination of all forms of

discrimination against women. Finally, on the basis of

the Principle that when there is no inconsistency

between a Convention and a Domestic Law and there is a

void in the Domestic Law, and bearing in mind the

meaning and content of the Fundamental Rights, the

Court went on to lay down elaborate guidelines and

norms. The norms included as to what constituted sexual

harassment, inter alia. This Court went on to even

provide for disciplinary action to be initiated and a

complaint mechanism. The guidelines were, however, made

binding and enforceable in law, until suitable

legislation was enacted. The norms enunciated by this

Court, which may have been legislative in nature,

interestingly, held the field for more than fifteen

years, when Parliament came out with a law.

260

208. In Special Reference No. 1 of 1998, Re

73 (The Third

Judges case), which no doubt, was a Judgement rendered

in a Reference made under Article 143(1) of the

Constitution, one of the contentions was, whether the

expression, both in Articles 217(1) and 222(1), viz.,

(consultation with the Chief Justice of India required

consultation with the plurality of Judges or the sole

opinion of the Chief Justice sufficed), this Court went

on to answer the question that the sole individual

opinion of the Chief Justice would not constitute

‘consultation’. It was also laid down that the Chief

Justice of India must consult four senior-most puisne

Judges before making appointment to the Supreme Court

and High Courts. No doubt, it could be said that the

decisions [the Judges cases] could be said to have

sprouted from the construction of the words used in the

relevant Articles and, in particular, the word

‘consult’. Also, it is true that Article 124(2) as it

stood then, read as follows:

“124(2). Every Judge of the Supreme Court shall

be appointed by the President by warrant under

73 (1998) 7 SCC 739

261

his hand and seal after consultation with such

of the Judges of the Supreme Court and of High

Courts in the States as the President may deem

necessary for the purpose and shall hold office

until he attains the age of sixty-five years:

Provided that in the case appointment of a

Judge other than the Chief Justice, the Chief

Justice of India shall always be consulted:

Provided further that –

(a) A Judge may, by writing under his hand

addressed to the President, resign his office;

(b) A judge may be removed from his office in

the manner provided in clause (4).”

(Emphasis supplied)

209. What is of relevance is, however, the elaboration

of the procedure, as regards consultation, and the

laying down of norms, which were to govern the

appointment to the Superior Judiciary. The mandate to

consult four may appear to crystalize a figure not to

be found in the Constitution.

210. In fact, we may observe that the Doctrine of

Separation of Powers has spawned decisions of this

Court largely in the context of litigation where

challenges led to actions by the Legislative Organ,

allegedly contravening the limits set for it. This is

not to say that we are holding that it would be open

to the courts to be oblivious to the true role it is

262

called upon to perform and which flows from the

judicial function that it discharges. As noticed by

this Court, however, there is no magic formula and what

it all amounts to is, the need to maintain a delicate

balance. While, it is true that, ordinarily, the Court

cannot, without anything more, usurp what is purely a

legislative power or function, in the context of the

Constitution, which clothes the citizens with

Fundamental Rights and provides for constitutional

goals to be achieved and inertia of the Legislative

Department producing a clear situation, where there

exist veritable gaps or a vacuum, the Court may not shy

away from what essentially would be part of its

judicial function.

211. A Writ Petition was filed under Article 32 of the

Constitution assailing the appointment of certain

Ministers despite their involvement in serious and

heinous crimes. The Constitution Bench of this Court

in Manoj Narula v. Union of India74 went on to refer

to the criminalisation of politics as being an anathema

74 (2014) 9 SCC 1

263

for the sanctity of democracy. Of immediate interest

to this Court, are the following observations:

“Principle of constitutional silence or abeyance

65. The next principle that can be thought of

is constitutional silence or silence of the

Constitution or constitutional abeyance. The

said principle is a progressive one and is

applied as a recognised advanced

constitutional practice. It has been

recognised by the Court to fill up the gaps in

respect of certain areas in the interest of

justice and larger public interest.

Liberalisation of the concept of locus standi

for the purpose of development of public

interest litigation to establish the rights of

the have-nots or to prevent damages and protect

environment is one such feature. Similarly,

laying down guidelines as procedural

safeguards in the matter of adoption of Indian

children by foreigners in Laxmi Kant

Pandey v. Union of India [(1987) 1 SCC 66 :

1987 SCC (Cri) 33 : AIR 1987 SC 232] or issuance

of guidelines pertaining to arrest in D.K.

Basu v. State of W.B. [(1997) 1 SCC 416 : 1997

SCC (Cri) 92 : AIR 1997 SC 610] or directions

issued in Vishaka v. State of

Rajasthan [(1997) 6 SCC 241 : 1997 SCC (Cri)

932] are some of the instances.”

212. In Bhanumati and others v. State of U.P. through

its Principal Secretary and others75, pronouncing a

State Law providing for No Confidence Motion as valid,

a Bench of this Court, inter alia, held as follows:

75 (2010) 12 SCC 1

264

“50. The learned author elaborated this

concept further by saying, “Despite the absence

of any documentary or material form, these

abeyances are real and are an integral part of

any Constitution. What remains unwritten and

indeterminate can be just as much responsible

for the operational character and restraining

quality of a Constitution as its more tangible

and codified components.” (P. 82)

51. Many issues in our constitutional

jurisprudence evolved out of this doctrine of

silence. The basic structure doctrine vis-àvis Article 368 of the Constitution emerged out

of this concept of silence in the Constitution.

A Constitution which professes to be democratic

and republican in character and which brings

about a revolutionary change by the Seventythird Constitutional Amendment by making

detailed provision for democratic

decentralisation and self-government on the

principle of grass-root democracy cannot be

interpreted to exclude the provision of noconfidence motion in respect of the office of

the Chairperson of the panchayat just because

of its silence on that aspect.”

213. In Kalpana Mehta and others v. Union of India and

others76, a Constitution Bench of this Court, inter

alia, held as follows:

“51. The Constitution being an organic

document, its ongoing interpretation is

permissible. The supremacy of the Constitution

76 (2018) 7 SCC 1

265

is essential to bring social changes in the

national polity evolved with the passage of

time. The interpretation of the Constitution

is a difficult task. While doing so, the

constitutional courts are not only required to

take into consideration their own experience

over time, the international treaties and

covenants but also keep the doctrine of

flexibility in mind. It has been so stated

in Union of India v. Naveen Jindal [Union of

India v. Naveen Jindal, (2004) 2 SCC 510].

XXX XXX XXX

53. Recently, in K.S. Puttaswamy v. Union of

India [K.S. Puttaswamy v. Union of India,

(2017) 10 SCC 1], one of us (Dr D.Y.

Chandrachud, J.) has opined that

constitutional developments have taken place

as the words of the Constitution have been

interpreted to deal with new exigencies

requiring an expansive reading of liberties and

freedoms to preserve human rights under the

Rule of Law. It has been further observed that

the interpretation of the Constitution cannot

be frozen by its original understanding, for

the Constitution has evolved and must

continuously evolve to meet the aspirations and

challenges of the present and the future. The

duty of the constitutional courts to interpret

the Constitution opened the path for succeeding

generations to meet the challenges. Be it

stated, the Court was dealing with privacy as

a matter of fundamental right.”

(Emphasis supplied)

266

In case of Article 324(2), it was the original

understanding itself that law be made. This

understanding has received reinforcement by subsequent

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 a living

instrument with capabilities of enormous

dynamism. It is a Constitution made for a

progressive society. Working of such a

Constitution depends upon the prevalent

atmosphere and conditions. Dr Ambedkar had,

throughout the debate, felt that the

Constitution can live and grow on the bedrock

of constitutional morality. Speaking on the

same, he said:

“Constitutional morality is not a natural

sentiment. It has to be cultivated. We must

realise that our people have yet to learn

it. Democracy in India is only a topdressing on an Indian soil, which is

essentially undemocratic.” [Constituent

Assembly Debates, 1948, Vol. VII, 38.]”

215. We have set down the legislative history of Article

324, which includes reference to what transpired,

which, in turn, includes the views formed by the

members of Sub-Committees, and Members of the

267

Constituent Assembly. They unerringly point to one

conclusion. The power of appointment of the Members of

the Election Commission, which was charged with the

highest duties and with nearly infinite powers, and

what is more, to hold elections, not only to the Central

Legislature but to all the State Legislatures, was not

to be lodged exclusively with the Executive. It is,

accordingly that the words ‘subject to any law to be

made by Parliament’ were, undoubtedly, incorporated.

216. No law, however, came to be enacted by Parliament.

We have elaborately referred to the noises and voices

eloquently and without a discordant note being struck,

which points to an overpowering symphony, which calls

for the immediate need to fulfil the intention of the

Founding Fathers, starting with the Goswami Committee

in the year 1990, more than three decades ago, the Two

Hundred and Fifty-Fifth Central Law Commission Report

in 2015 and the Reports, both in the Press and other

materials.

217. It may be true that Election Commission of India

provide its services to certain countries. That,

however, cannot deflect this Court from providing for

268

what the Founding Fathers contemplated also and

advocated by in various reports.

218. It may be true only Chief Election Commissioners

were appointed for the first four decades of the

Republic and, thereafter, since the year 1993, the

Election Commission has become a team, which consists

of the Chief Election Commissioner and the two Election

Commissioners. It may be true that in the sense that

the President, acting on the advice of the Prime

Minister, in accordance with the concerned Rules of

Business, has been making appointments.

219. However, it is equally clear that Article 324 has

a unique background. The Founding Fathers clearly

contemplated a law by Parliament and did not intend the

executive exclusively calling the shots in the matter

of appointments to the Election Commission. Seven

decades have passed by. Political dispensations of

varying hues, which have held the reigns of power have

not unnaturally introduced a law. A law could, not be

one to perpetuate what is already permitted namely

appointment at the absolute and sole discretion of the

Executive. A law, as Gopal Sankaranarayanan points out,

269

would have to be necessarily different. The absence of

such a law does create a void or vacuum. This is despite

a chorus of voices even cutting across the political

divide urging divesting of the exclusive power of

appointment from the Executive.

220. We have noticed, that while making a law is

ordinarily a power with the legislative branch and

being a power, it cannot be compelled by a Court, the

making of law may be a constitutional imperative. In

the context of Article 326, making of law as

contemplated in Article 326, was an unavoidable

necessity. Realising that the statutory framework was

necessary to breathe life into Article 326 and which

was not to be incongruous with this command, Parliament

enacted the 1950 Act and the 1951 Act. The first General

Election followed. Making of law by Parliament as

provided for in Article 146 and Article 229 dealing

with conditions of service of employees of the Supreme

Court and the High Court respectively, was and is a

sheer power and enabling provision. The context and the

purpose signals no imperative need. No intention to

indeed peremptorily provide for a law as is discernible

270

in the case of appointment of the members of the

Election Commission of India pervades the Articles. The

vacuum in the case of Article 324 (2) is the absence

of the law which Parliament was contemplated to enact.

221. Political parties undoubtedly would appear to

betray a special interest in not being forthcoming with

the law. The reasons are not far to seek. There is a

crucially vital link between the independence of the

Election Commission and the pursuit of power, its

consolidation and perpetuation.

222. As long as the party that is voted into power is

concerned, there is, not unnaturally a near insatiable

quest to continue in the saddle. A pliable Election

Commission, an unfair and biased overseer of the

foundational exercise of adult franchise, which lies

at the heart of democracy, who obliges the powers that

be, perhaps offers the surest gateway to acquisition

and retention of power.

223. The values that animated the freedom struggle had

to be brought home to a new generation through the

insertion of the provision relating to fundamental

duties. Criminalisation of politics, a huge surge in

271

the influence of money power, the role of certain

sections of the media where they appear to have

forgotten their invaluable role and have turned

unashamedly partisan, call for the unavoidable and

unpostponable filling up of the vacuum. Even as it is

said that justice must not only be done but seen to be

done, the outpouring of demands for an impartial mode

of appointment of the Members require, at the least,

the banishing of the impression, that the Election

Commission is appointed by less than fair means.

224. We bear in mind the fact that the demand for

putting in place safeguards to end the pernicious

effects of the exclusive power being vested with the

Executive to make appointment to the Election

Commission, has been the demand of political parties

across the board. Once power is assumed, however, the

fact of the matter is that, despite the 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 by Parliament, by the

Founding Fathers.

272

225. The electoral scene in the country is not what it

was in the years immediately following the country

becoming a Republic. Criminalisation of politics, with

all its attendant evils, has become a nightmarish

reality. The faith of the electorate in the very

process, which underlies democracy itself, stands

shaken. The impact of ‘big money' and its power to

influence elections, the influence of certain sections

of media, makes it also absolutely imperative that the

appointment of the Election Commission, which has been

declared by this Court to be the guardian of the

citizenry and its Fundamental Rights, becomes a matter,

which cannot be postponed further.

226. While this Court is neither invited nor if it is

invited, would issue a Mandamus to the Legislature to

make a law, as contemplated in Article 324(2), it may

not be the end of the duty of this Court in the context

of the provision in question. We have already

elaborated and found that core values of the

Constitution, including democracy, and Rule of Law, are

being undermined. It is also intricately interlinked

with the transgression of Articles 14 and 19. Each

273

time, on account of a ‘knave’, in the words of Dr.

Ambedkar, or again in his words, ‘a person under the

thumb of the Executive’, calls the shots in the matter

of holding the elections, which constitutes the very

heart of democracy, even formal democracy, which is

indispensable for a Body Polity to answer the

description of the word ‘democracy’, is not realised.

227. In the unique nature of the provision, we are

concerned with and the devastating effect of continuing

to leave appointments in sole hands of the Executive

on fundamental values, as also the Fundamental Rights,

we are of the considered view that the time is ripe for

the Court to lay down norms. In other words, the vacuum

exists on the basis that unlike other appointments, it

was intended all throughout that appointment

exclusively by the Executive was to be a mere transient

or stop gap arrangement and it was to be replaced by a

law made by the Parliament taking away the exclusive

power of the Executive. This conclusion is clear and

inevitable and the absence of law even after seven

decades points to the vacuum.

274

228. Article 148 of the Constitution, dealing with

appointment of the Comptroller and Auditor General of

India, provides that it is to be made by the President.

This is to be contrasted with the appointment of the

Members of the Election Commission in Article 324(2).

On a comparison of both the Articles, the difference

is stark and would justify the petitioners contention

that in regard to the appointment of the Members of the

Election Commission, having regard to the overwhelming

importance and the nearly infinite plenary powers, they

have in regard to the most important aspect of

democracy itself, viz., the holding of free and fair

elections, the Founding Fathers have provided for the

unique method of appointment suited to the requirements

of the posts in question. The refusal of Parliament,

despite what was contemplated by the Founding Fathers,

and what is more, the availability of a large number

of Reports, all speaking in one voice, reassures us

that even acting within the bounds of the authority

available to the Judicial Branch, we must lay down

norms, which, undoubtedly, must bear life only till

Parliament steps in. We have found, how appointments

275

are being made in our discussion earlier. Our minds

stand fortified that there is an imperative need for

the Court to step in.

229. As regards the exact norm, which should be put in

place, we bear in mind the following considerations:

We have before us the various Reports, which we

have referred to. We would think that, while what must

be laid down, must be fair and reasonable, but it must

be what Parliament would or could lay down, if it were

to make a law. Under the Rules of Business made under

Article 77, it is acknowledged that the appointment of

the Chief Election Commissioner and the Election

Commissioners do not engage the Cabinet. We take note

of the fact that for the appointment to the Director

of the Central Bureau of Investigation [which is not a

constitutional post], Section 4A of Delhi Special

Police Establishment Act, 1946, contemplates that

appointment shall be made by the Central Government on

the basis of recommendation of a committee consisting

of the Prime Minister as the Chairperson, the Leader

of the Opposition recognised in the House of People,

as such, or where there is no such Leader of the

276

Opposition, then, the Leader of the Single Largest

Opposition Party in the House and the Chief Justice of

India or a Judge of the Supreme Court nominated by him.

Similarly, we find, in regard to the appointment of the

Chairperson and Members of the Lokpal, under the Lokpal

and Lokayuktas Act, 2013, the Chief Justice is one of

the five Members of a Selection Committee, in the

matter of appointment. We deem it appropriate to notice

Section 4 of the Lokpal and Lokayuktas Act, 2013, which

reads as follows:

“4. (1) The Chairperson and Members shall be

appointed by the President after obtaining the

recommendations of a Selection Committee

consisting of—

(a) the Prime Minister—Chairperson;

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

Member;

the People—Member;

(d) the Chief Justice of India or a Judge of

the Supreme Court nominated by him—Member;

(e) one eminent jurist, as recommended by the

Chairperson and Members referred to in clauses

(a) to (d) above, to be nominated by the

President—Member.

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(2) No appointment of a Chairperson or a Member

shall be invalid merely by reason of any

vacancy in the Selection Committee.

(3) The Selection Committee shall for the

purposes of selecting the Chairperson and

Members of the Lokpal and for preparing a panel

of persons to be considered for appointment as

such, constitute a Search Committee consisting

of at least seven persons of standing and

having special knowledge and expertise in the

matters 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 opinion of the Selection

Committee, may be useful in making the

selection of the Chairperson and Members of the

Lokpal:

Provided that not less than fifty per cent. of

the members of the Search Committee shall be

from amongst the persons belonging to the

Scheduled Castes, the Scheduled Tribes, Other

Backward Classes, Minorities and women:

Provided further that the Selection Committee

may also consider any person other than the

persons recommended by the Search Committee.

(4) The Selection Committee shall regulate its

own procedure in a transparent manner for

selecting the Chairperson and Members of 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 manner of

selection of panel of names shall be such as

may be prescribed.”

278

We bear in mind the Report of the Goswami Committee

and, what is more, the Law Commission Report (Two

Hundred and Fifty-Fifth) and lay down as follows.

230. The appointment of the Chief Election Commissioner

and the Election Commissioners, shall be made by the

President on the advice of a Committee consisting of

the Prime Minister, the Leader of the Opposition of the

Lok Sabha, and in case no leader of Opposition is

available, the leader of the largest opposition Party

in the Lok Sabha in terms of numerical strength, and

the Chief Justice of India.

231. We make it clear that this will be subject to any

law to be made by Parliament.

CC. AN ELECTION COMMISSIONER ENTITLED TO SAME

PROTECTION AS GIVEN TO CHIEF ELECTION

COMMISSIONER?

232. One of the contentions raised by the petitioners

is this Court must provide for the same protection to

the Election Commissioners as is available to the Chief

Election Commissioners. Even the Report of the Election

Commission itself would appear to endorse the said view

and complaint. We expatiate. It is the contention of

279

the petitioners that when the Constitution was framed,

the Founding Fathers contemplated that appointment of

Election Commissioners was to be need based and not a

full-time affair. Contrary to the said view, however,

a multi-Member team, is what the Election Commission

of India has become, in fact, since 1993. It is here

to stay. The distinction between the Chief Election

Commissioner and the Election Commissioners have been

whittled down considerably by the amendments brought

to the 1991 Act. However, when it comes to the

constitutional protection, it is pointed out that the

second proviso to Article 324(5) only enacts the

protection that the Election Commissioner or Regional

Commissioner shall not be removed from Office except

on the recommendation of the Chief Election

Commissioner. An attempt has, in fact, been made to

persuade this Court to hold that, being in the nature

of a further proviso, as the words of the second proviso

begin as ‘provided further’, it is only a further

protection to the Election Commissioner or a Regional

Commissioner. Thus, it is pointed out, the Court must

adopt the following interpretation. An Election

280

Commissioner or Regional Commissioner can be removed

only in the like manner and on like grounds as a Judge

of the Supreme Court of India. A further safeguard is,

however, provided to the Election Commissioner, viz.,

that he can be removed from Office only on the

recommendation of the Chief Election Commissioner. To

appreciate the argument, we recapture Article 324(5).

It reads as follows:

“324(5) Subject to the provisions of any law

made by Parliament, the conditions of service

and tenure of office of the Election

Commissioners and the Regional Commissioners

shall be such as the President may by rule

determine;

Provided that the Chief Election Commissioner

shall not be removed from his office except in

like manner and on the like grounds as a Judge

of the Supreme Court and the conditions of

service of the Chief Election Commissioner

shall not be varied to his disadvantage after

his appointment:

Provided further that any other Election

Commissioner or a Regional Commissioner shall

not be removed from office except on the

recommendation of the Chief Election

Commissioner.”

233. We decode the said provision as follows:

The conditions of service and tenure of the

Election Commissioners and the Regional Commissioners

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was to be such as made by the Rule provided. This,

however, was subject to any law made by Parliament.

Parliament has quickly on the heels of the Goswami

Committee, stepped in with the 1991 Act. We have

already noted the terms of the Act as subsequently

amended. It contemplates salary to be paid, not only

to the Election Commissioner but also to the Chief

Election Commissioners, which is to be equal to the

salary of the Judge of the Supreme Court of India. The

term as we have already noticed, both of the Chief

Election Commissioner and the Election Commissioner,

was to be six years, subject to the proviso, which we

have noticed. It also provides for other aspects

relating to conditions of service. While unanimity of

views among the members is statutorily contemplated in

Section 10(1) as a 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 majority of the Members, which would

prevail. We have already noticed how in T.N. Seshan

(supra), this has been found to not militate against

the Chief Election Commissioner being given the power

282

to act as the Chairman of the Commission. It may be

true that there is equality otherwise, which exists

between the Chief Election Commissioner and the

Election Commissioners in various matters dealt with

under the Act. However, we must bear in mind, in law,

Article 324 is inoperable without the Chief Election

Commissioner [See T.N. Seshan (supra)]. In law, there

may not be an insuperable obstacle for Parliament to

decide to do away with the post of Election

Commissioner. In fact, it happened, as can be seen in

the Judgment in Dhanoa (supra) wherein it was found

that the termination of service of the Election

Commissioners following the abolition of the posts did

not constitute removal of the Election Commissioner

within the meaning of the second proviso to Article

324(5). More importantly, even on a plain reading of

Article 324(5), we are of the view that in regard to

the prayer that the Election Commissioner must be

accorded the same protection as is given to the Chief

Election Commissioner, the argument appears to be

untenable. This prayer was rejected, in fact, in T.N.

Seshan (supra). It is clear as day light that the first

283

proviso protects the Chief Election Commissioner alone

from removal by providing for protection as is accorded

to a Judge of the Supreme Court of India. It is still

further more important to notice that the first proviso

interdicts varying of the conditions of service of the

Chief Election Commissioner to his disadvantage after

the appointment. It is, thereafter, that the second

proviso appears. The second proviso exclusively deals

with any other Election Commissioner, inter alia. The

word ‘any other Election Commissioner’ has been

provided to distinguish him from the Chief Election

Commissioner. Therefore, for the Election

Commissioners other than the Chief Election

Commissioner, the protection which is clearly

envisaged, as against his removal is only that it can

be effected only with the recommendation of the Chief

Election Commissioner. We are of the view that in the

context of the provision, the words ‘provided further’

cannot be perceived as an additional protection to the

Election Commissioner. It is intended only to be a

standalone provision, specifically meant to deal with

the categories of persons mentioned therein. In fact,

284

the acceptance of the argument of the petitioners would

involve yet another consequence, which to our minds,

would appear to project an anomalous result. To put it

mildly, if the Election Commissioner is accorded the

protection available under the first proviso to the

Chief Election Commissioner, the result will be as

follows. He would be entitled to not only claim

immunity from removal except on being impeached like a

Judge of the Supreme Court but he would be conferred

with a further protection 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 Election Commissioners have

become part of the Election Commission, perhaps on the

basis of the volume of work that justifies such an

appointment and also the need to have a multi-Member

team otherwise, it is for Parliament acting in the

constituent capacity to consider whether it would be

advisable to extend the protection to the Election

Commissioners so as to safeguard and ensure the

285

independence of the Election Commissioners as well.

This goes also as regards variation of service

conditions after appointment.

DD. REGARDING INDEPENDENT SECRETERIAT/CHARGING

EXPENDITURE ON THE CONSOLIDATED FUND OF INDIA

234. One of the contentions and, therefore, relief

sought is, that there must be an independent

Secretariat to the Election Commission of India and the

its expenditure must be charged on the Consolidated

Fund of India on the lines of the Lok Sabha/Rajya Sabha

Secretariat.

235. In this regard, the second respondent (the Election

Commission of India) has filed a counter affidavit in

Writ Petition (C) No. 1043 of 2017, in which Writ

Petition, the contention and the prayer have been

incorporated. In the Counter Affidavit of the Election

Commission itself, the stand of the Election Commission

can be stated in a nutshell as follows:

It has sent a proposal that the expenditure of the

Commission should be charged on the Consolidated Fund

of India. It refers to the Election Commission Charging

286

of Expenses on the Consolidated Fund of India Bill,

1994, which provided for the various items of

expenditure to be charged upon the Consolidated Fund

of India. It reiterated its proposal for an independent

Secretariat as also charging of the expenditure on the

Consolidated Fund of India by letter dated 13.04.2012,

as also in December, 2016. It has also laid store by

the recommendation of the Law Commission, which inter

alia, recommended the insertion of Article 324(2A),

which contemplated the Election Commission being

provided with an independent and permanent secretarial

staff.

236. There cannot be any doubt that the Election

Commission of India is to perform the arduous and

unenviable task of remaining aloof from all forms of

subjugation by and interference from the Executive. One

of the ways, in which, the Executive can bring an

otherwise independent Body to its knees, is by starving

it off or cutting off the requisite financial

wherewithal and resources required for its efficient

and independent functioning. It would not be unnatural

if faced with the prospect of it not being supplied

287

enough funds and facilities, a vulnerable Commission

may cave in to the pressure from the Executive and,

thus, it would result in an insidious but veritable

conquest of an otherwise defiant and independent

Commission. This is apart from the fact that cutting

off the much-needed funds and resources will detract

from its efficient functioning.

237. No doubt, the stand of the Union of India would

appear to be that these are all matters of policy and

no interference is needed or warranted.

238. We must bear in mind that to elevate it to a

constitutional provision and protection thereunder,

maybe a matter, which must engage the attention of the

Constituent Body. This is again a matter which can also

be provided by way of a law by Parliament. We have no

doubt that there is considerable merit in the complaint

of the petitioner, which apparently, is endorsed by the

Election Commission of India itself. We cannot be

oblivious to the need for articulation of details in

regard to the expenditure, which is a matter of policy,

which we refrain from doing. We would only make an

appeal on the basis that there is an urgent need to

288

provide for a permanent Secretariat and also to provide

that the expenditure be charged on the Consolidated

Fund of India and it is for the Union of India to

seriously consider bringing in the much-needed changes.

EE. THE FINAL RELIEF

239. The Writ Petitions are partly allowed and they are

disposed of as follows:

I. We declare that as far as appointment to the

posts of Chief Election Commissioner and the

Election Commissioners are concerned, the same

shall be done by the President of India on the

basis of the advice tendered by a Committee

consisting of the Prime Minister of India, the

Leader of the Opposition in the Lok Sabha and,

in case, there is no such Leader, the Leader of

the largest Party in the Opposition in the Lok

Sabha having the largest numerical strength, and

the Chief Justice of India. This norm will

continue to hold good till a law is made by the

Parliament.

289

II. As regards the relief relating to putting in

place a permanent Secretariat for the Election

Commission of India and charging its expenditure

to the Consolidated Fund of India is concerned,

the Court makes a fervent appeal that the Union

of India/Parliament may consider bringing in the

necessary changes so that the Election

Commission of India becomes truly independent.

…………………………………………J.

[K.M. JOSEPH]

…………………………………………J.

[Aniruddha Bose]

…………………………………………J.

[Hrishikesh Roy]

…………………………………………J.

[C. T. Ravikumar]

NEW DELHI;

DATED: MARCH 2, 2023.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION(CIVIL) NO(S). 104 OF 2015

ANOOP BARANWAL …PETITIONER(S)

VERSUS

UNION OF INDIA …RESPONDENT(S)

WITH

WRIT PETITION(CIVIL) NO(S). 1043 OF 2017

WRIT PETITION(CIVIL) NO(S). 569 OF 2021

WRIT PETITION(CIVIL) NO(S). 998 OF 2022

J U D G M E N T

RASTOGI, J.

1. I have had the advantage of going through the judgment penned

by my brother K.M. Joseph, J. I entirely agree with the conclusions

which my erudite Brother has drawn, based on the remarkable

process of reasoning with my additional conclusion. I wish to add few

lines and express my views not because the judgment requires any

further elaboration but looking for the question of law that emerge of

considerable importance.

2. For the purpose of analysis, the judgment has been divided into

following sections:

I. Reference

II. Election Commission of India

III. Why an independent Election Commission is necessary

A. Working a Democratic Constitution

B. Right to vote

C. Free and fair elections

IV. Constitutional and statutory framework: The

Constitutional Vacuum

V. The Judgment in TN Seshan

VI. Reports of various Commissions on Manner of

Appointment of Chief Election Commissioner and Election

Commissioners

VII. Comparative framework - Foundational parameters

VIII. Process of selection of other constitutional/statutory

bodies

IX. Constitutional silence and vacuum- power of the Court to

lay down guidelines

X. Independence of Election Commissioners

XI. Directions

I. Reference

3. This case arises out of a batch of writ petitions, with the initial

petition filed as a public interest litigation by Anoop Baranwal in

January 2015. The petitioner raised the issue of the constitutional

validity of the practice of the Union of India to appoint the members

of the Election Commission. It was argued in the petition that a fair,

just, and transparent method to select the members of the Election

Commission is missing. The petition also referred to several reports,

which we will discuss in due course, to highlight the issue of bringing

reforms in the selection of members of the Election Commission. It

was further highlighted that since the appointment of the members

of the Election Commission was solely on the advice of the

parliamentary executive of the Union, which leads to arbitrariness

and is in violation of Article 14 of the Constitution. The petition has

also suggested that the process of selection of members of the

Election Commission (Chief Election Commissioner/Election

Commissioner) should be transparent and with greater scrutiny,

accountability and stability as it is for the other constitutional and

legal authorities including Judges of the Supreme Court and High

Courts, Chief Information Commissioner, Chairpersons and

Members of the Human Rights Commission, Chief Vigilance

Commissioner, Director of Central Bureau of Investigation, Lokpal,

Members of the Press Council of India. The writ petition made a

prayer for issuing of mandamus to the Union Government to make

law for ensuring a transparent process of selection by constituting a

neutral and independent committee to recommend the names of

Chief Election Commissioner/Election Commissioners. Vide order

dated 23 October, 2018, a two Judge Bench of this Court emphasized

on the importance of the matter, and referred the matter under

Article 145(3) of the Constitution to the Constitutional Bench. The

order is reproduced as follows:

“The matter relates to what the petitioner perceives to be a

requirement of having a full-proof and better system of appointment

of members of the Election Commission.

Having heard the learned counsel for the petitioner and the learned

Attorney General for India we are of the view that the matter may

require a close look and interpretation of the provisions of Article

324 of the Constitution of India. The issue has not been debated and

answered by this Court earlier. Article 145 (3) of the Constitution of

India would, therefore, require the Court to refer the matter to a

Constitution Bench. We, accordingly, refer the question arising in

the present proceedings to a Constitution Bench for an authoritative

pronouncement. Post the matter before the Hon’ble the Chief Justice

of India on the Administrative Side for fixing a date of hearing.”

4. A couple of similar writ petitions were tagged with the above

petition. On 29 September 2022, this Constitution Bench started the

hearing of the case. The Bench sat for several days hearing the

arguments of the petitioner side and of the Union government and

Election Commission of India on the respondents’ side.

5. The Union Government has opposed this group of petitions on

the premise that the Court must respect the principle of separation

of power between different organs of the State and should refrain

from interfering in the selection process of the Election Commission

under Article 324. It was argued by the Union that Article 324 of the

Constitution conferred the power to appoint Election Commissioners

solely upon the Parliament. He made a reference to the Election

Commission (Conditions of Service of Election Commissioners and

Transaction of Business) Act, 1991 (hereinafter being referred to as

the “Act 1991”) to emphasize his point that the Parliament being

cautious of its responsibility protected the condition of service of the

Chief Election Commissioner/Election Commissioners.

6. The learned Attorney General Mr. R. Venkataramani suggested

that the absence of any law does not mean that a constitutional

vacuum exists, calling for the interference of the Court. It was also

argued by the learned Attorney General that the appointment of the

members of the Election Commission by the President has not

damaged the process of free and fair elections.

7. The learned Solicitor General Mr. Tushar Mehta argued that if

there are lacunas in the process of selection/appointment of Election

Commission, then it is for the Parliament and not the Court to look

into the issues. The learned counsel further argued that the

appointment of the Election Commissioners is to be made by the

President, therefore it is not open to the judiciary to interfere with the

power of the executive. Mr. Mehta further argued that there is

something called “independence of the executive” which must not be

interfered with. It was also argued by the counsel for the Election

Commission that since the right to vote is a statutory right and not a

fundamental right, so it does not call any interference for violation of

fundamental rights.

8. It was raised by the petitioners that the issue of appointment of

Election Commission is linked not just with the right to vote but with

the conception of free and fair elections. Reference was also made to

the selection processes in other jurisdictions to emphasize on the

point that a larger set of parameters or factors play an important role

in appointment of Commissioners. Points were also debated

regarding the term of the Chief Election Commissioner/Election

Commissioners, and the process of removal of Election

Commissioners. The petitioners further argued that there must be

constitutional safeguards in the term and tenure of the Election

Commissioners, so that they can function independently.

9. This case not only raises certain fundamental questions about

the interpretation of Article 324 of the Constitution but also forces

us to look at the larger perspective about how the process of selection

of Election Commission is linked with the working of a democracy,

the right to vote, idea of free and fair elections, and the importance

of a neutral and accountable body to monitor elections. This Court

ought to make a discussion on these interconnected debatable issues

raised for our consideration. All these points are indeed sacrosanct

for democracy and 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

the conduct of, elections to Parliament and to the Legislature of every

State and of elections to the offices of President and Vice-President

held under the Constitution is vested in the Election Commission.

11. As to the composition of the Election Commission, Article 324(2)

provides that the Election Commission shall consist of the Chief

Election Commissioner and such number of other Election

Commissioners, if any, as the President may from time to time fix,

and the appointment of the Chief Election Commissioner and other

Election Commissioners, subject to the provisions of any law made

in that behalf by the Parliament, be made by the President.

12. By an order dated 1st October 1993, the President has fixed the

number of Election Commissioners as two, until further orders. The

current composition of the Election Commission is that of Chief

Election Commissioner and two Election Commissioners.

13. Article 324(3) provides that the Chief Election Commissioner

shall act as the Chairman of the Election Commission.

14. As regards the service conditions, Article 324(5) provides that

subject to the provisions of any law made by Parliament, the

conditions of service and tenure of office of the Election

Commissioners and the Regional Commissioners shall be determined

by the rules made by the President. In exercise of its power under

Article 324(5), the Parliament has enacted the Act 1991.

15. The provisos to Article 324(5) provide the mechanism for

removal of Chief Election Commissioner, Election Commissioners,

and Regional Commissioner. The first proviso to Article 324(5)

provides that the Chief Election Commissioner shall not be removed

from his office except in like manner and on the like grounds as a

Judge of the Supreme Court and the conditions of service of the Chief

Election Commissioner shall not be varied to his disadvantage after

his appointment. Furthermore, any other Election Commissioner or

a Regional Commissioner, according to the second proviso to Article

324(5), shall not be removed from office except on the

recommendation of the Chief Election Commissioner.

16. The facility of support staffs of the Election Commission has

been covered under Article 324(6), which provides that the President,

or the Governor of a State, shall, when so requested by the Election

Commission, make available to the Election Commission or to a

Regional Commissioner such staff as may be necessary for the

discharge of the functions conferred on the Election Commission.

17. The question that emerges for consideration is what

interpretation needs to be afforded to the above-discussed provisions,

so that the independence of the Election Commission is ensured.

Before dealing with that, we shall deal with the necessity of the

independence which is imperative of the Election Commission.

III. Why an independent Election Commission is Necessary

A. “Working a Democratic Constitution”

18. The basic perception of democracy is that it is a government by

the people, of the people, and for the people. “People” is the central

axis on which the concept of democracy revolves. The establishment

of democracy has been linked with the idea of welfare of the people.

Dr BR Ambedkar had once noted that democracy means “a form and

a method of government whereby revolutionary changes in the

economic and social life of the people are brought about without

bloodshed.”2 Democracy is thus linked with the realization of the

aspirations of the people.

1 Borrowed from the title of the classic book - Granville Austin, Working a Democratic Constitution: A

History of the Indian Experience, Oxford University Press.

2 Babasaheb Ambedkar: Writings and Speeches, Vol. 17 Part III, page 475

19. According to the celebrated philosopher John Dewey,

“Democracy is not simply and solely a form of government, but a

social and personal ideal”, in other words, it is not only a property of

political institutions but of a wide range of social relationships.3

Democracy is thus about collective decision-making. The principles

of democracy have been held as a part of the basic structure of the

Constitution.4

20. The Indian Constitution establishes a constitutional

democracy. The Preamble to the Constitution clearly lays down the

vision and creates an outline of the structure of democracy that India

envisaged to be, right at the moment of independence. The Preamble

to the Indian Constitution begins with the phrase “We, the People of

India”. This clearly indicates that the foundations of the future of the

Indian Constitution and democracy begin with the people of India at

the core. The phrase also means that the people of India would be in

a deciding position to choose the governments they want. The phrase

also highlights that the structures of governance which were being

created by the Constitution were supposed to act towards the welfare

of the people. The Preamble provides that the people of India have

3 https://plato.stanford.edu/entries/dewey-political/

4 His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Another, (1973) 4 SCC 225

resolved to constitute India into a “SOVEREIGN SOCIALIST

SECULAR DEMOCRATIC REPUBLIC”. Each term in this phrase

defined the collective vision of not only the founders of the Indian

Constitution but also the collective destiny of the people of India.

These words also denote the kind of democratic structures that we

were going to create. The word “DEMOCRATIC” in the Preamble is

interlinked with the words preceding and succeeding it, that is

“SOVEREIGN”, “SOCIALIST”, “SECULAR”, “REPUBLIC”. The

Preamble 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 was prevalent on Indian soil. Justice was to be based

on three components: social, economic, and political.

21. Democracy was established in India to fulfill the goals which

have been significantly encapsulated in the terms of the Preamble.

The institutions which were set up were given a role and duty to fulfill

the task as enshrined in the Preamble and the Constitution. While

the three main pillars of the State rest on the legislature, executive,

and judiciary have their designated roles, the Constitution framers

were also visionary in the sense that they envisaged the creation of

other institutions, which would be independent in nature and would

facilitate the working of the three pillars by either demanding

accountability or by taking on roles which would maintain the faith

of the people in the three pillars of democracy. The Election

Commission of India is one such institution that has been created

through the text of the Constitution. It is constitutionally an

independent body. The role of the Election Commission of India is to

ensure that the democratic process in India does not come to a

standstill. The task conferred on the Election Commission is

enormous. It has to ensure that periodical elections keep on

happening.

22. India has chosen a system of direct elections. This means that

elections are supposed to happen at regular intervals where the

people of India directly participate by exercising their right to vote.

The Constitution also provides for elections where the representatives

of the people are chosen by an indirect method. These include the

elections for the post of President and Vice-President and the

members of State Legislative Councils. The task to maintain the

sanctity of the elections is supposed to be carried out by the Election

Commission in a fair, transparent and impartial manner, and

without any bias or favour. The Election Commission has been given

a wide range of powers towards “superintendence, direction, and

control” over the conduct of all elections to Parliament and the

Legislature of every State and of elections to the offices of President

and Vice-President held under this Constitution. The three words

“superintendence”, “direction”, and “control” have not been defined in

the Constitution but were used in a sense to give the widest

responsibility to the Election Commission. In that sense, the Election

Commission becomes one of the most important as well as central

institutions for preserving and promoting the democratic process and

the structures of democracy on Indian soil. The role of the Election

Commission takes much more relevance given the fact that how the

Indian society and polity used to traditionally behave. As a chief

architect of the constitution, Dr. B.R. Ambedkar once said

“Democracy in India is only a top-dressing on an Indian soil, which

is essentially undemocratic.”5

23. The Election Commission performs its role to ensure that every

person in the society is able to participate in the process of elections

to select the government. Therefore, the Election Commission in its

5 Constituent Assembly Debates, 4 November 1948,

http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C04111948.html

working needs to demonstrate the highest degree of transparency

and accountability. The decisions taken by the Election Commission

need to generate the trust of the people so that the sanctity of the

democratic process is maintained. If the Election Commission starts

showing any arbitrary decision-making, then the resulting situation

would not just create doubt on the members of the Election

Commission of being biased but would create fear in the minds of the

common citizens that the democratic process is being compromised.

Therefore, the Election Commission needs to be independent and

fully insulated from any external or internal disrupting environment.

The working of the Commission has to generate confidence in the

minds of the people. In a country like India, where millions of people

still struggle to fulfill their basic needs, it is their right to vote which

gives them hope that they would elect a government that would help

them in crossing the boundaries of deprivation. If this power is

compromised or taken away even by one slight bad decision or biases

of the members of the Election Commission, it would undoubtedly

attack the very basic structure of Indian democracy. The Indian

democracy has succeeded because of the people's faith and

participation in the electoral process as well as the everyday work of

the institution. As a constitutional court of the world’s largest

democracy, we cannot allow the dilution of people’s faith in

democratic institutions. The country gained and adopted democracy

after decades of struggle and sacrifices, and the gains received by us

cannot be given away because the institutions still continue to

operate in an opaque manner.

24. A nine-judge bench of this Court in the case of K.S.

Puttaswamy and Another v. Union of India and Others6 held:

“Opacity enures to the benefit of those who monopolize scarce

economic resources. On the other hand, conditions where civil and

political freedoms flourish ensure that governmental policies are

subjected to critique and assessment. It is this scrutiny which subserves the purpose of ensuring that socio-economic benefits actually

permeate to the underprivileged for whom they are meant.

Conditions of freedom and a vibrant assertion of civil and political

rights promote a constant review of the justness of socio-economic

programmes and of their effectiveness in addressing deprivation and

want. Scrutiny of public affairs is founded upon the existence of

freedom.”

25. Indian democracy will work only when the institutions which

have the responsibility to preserve democracy work. Each institution

in our Constitution has its demarcated role, which can only be

fulfilled if the people who are running these institutions are

responsible. The people who run these institutions need to be

(2017) 10 SCC 1

accountable to the people, and therefore the process of selecting them

has to ensure the independence of the institution.

26. Democracy is not an abstract phenomenon. It has been given

effect by a range of processes. The perception and trust in

institutions are important parameters on which the working of

democracy is assessed. The success of democracy, thus, depends on

the working of institutions that support the pillars of the structure of

democracy.

27. Accountability of institutions provides legitimacy not only to the

institutions themselves, but also to the very idea of democracy. That

is to say, if the institutions are working in a fair and transparent

manner, then the citizens would be assured that democracy is

working. In that sense, democracy is a means to check on

officeholders and administrators and to call them to account.

Therefore, the norms and rules governing these institutions cannot

be arbitrary or lack transparency.

28. To strengthen the democratic processes, the institution of the

Election Commission needs to be independent and demonstrate

transparency and accountability. This reason is enough in itself to

call this Court to examine the institutional structure of the Election

Commission of India.

B. Right to Vote

29. The working of democracy depends on whether the people can

decide the fate of the elected form of government. It depends on the

choices which people make in different ways. This choice of people

cannot be compromised, as their mandate in elections changes the

destinies of government. India is democratic because the people

govern themselves. It is a republic because the government’s power

is derived from its people. Through the electoral process and voting,

citizens participate in democracy. By voting, citizens take part in the

public affairs of the country. Thus, citizens by voting enjoy their right

to choose the composition of their government. It is their choice, and

their ability to participate. A 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 to

scrutinize and the right to dissent which enables an informed

citizenry to scrutinize the actions of government. Those who are

governed are entitled to question those who govern, about the

discharge of their constitutional duties including in the provision of

socio-economic welfare benefits. The power to scrutinize and to

reason enables the citizens of a democratic polity to make informed

decisions on basic issues which govern their rights.”

30. The right to vote is now widely recognized as a fundamental

human right.7 However, this was not always the case. The history of

the adult franchise tells us that it was limited to the privileged in

society.8 It took several decades of struggles by marginalized

communities to gain the right to vote. The right to vote is so intrinsic

to the practice of democracy.

31. It has been argued by the counsel for the Election Commission

of India, that the right to vote is merely a statutory right, and since

no fundamental right is violated, it does not call the attention of this

Court. This Court does not agree with the view argued by the Election

Commission. Furthermore, it becomes necessary to look at the

Constituent Assembly Debates to examine the scope of the right to

vote.

32. The demand for the adult franchise was consistently raised by

several Indian leaders. In their drafts prepared for the consideration

of the Constituent Assembly, Dr. BR Ambedkar9 and KT Shah10 had

7 https://www.ohchr.org/en/elections

8 BR Ambedkar, “Evidence before the Southborough Committee”, in Babasaheb Ambedkar: Writings and

Speeches, published by Government of India, Vol. 1, pages 243-278

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 Page 54 (hereinafter

“Shiva Rao”)

proposed the incorporation of the right to vote in the fundamental

rights portion. This proposal was initially endorsed in the initial draft

report of the Fundamental Rights Sub-Committee, which was a part

of the Advisory Committee of the Constituent Assembly.11 The draft

provision also included a sub-clause on an independent Election

Commission. Reproduced as follows:

1. “Every citizen not below 21 years of age shall have the right to vote

at any election to the Legislature of the Union and any unit thereof,

or, where the Legislature is bicameral, to the lower chamber of the

Legislature, subject to such disqualifications on the ground of

mental incapacity, corrupt practice or crime as may be imposed, and

subject to such qualifications relating to residence within the

appropriate constituency, as may be required by or under the law.

2. The law shall provide for free and secret voting and for periodical

elections to the Legislature.

3. The superintendence, direction and control of all elections to the

Legislature whether of the Union or the unit, including the

appointment of Election Tribunals shall be vested in an Election

Commission for the Union or the unit, as the case may be, appointed

in all cases, in accordance with the law of the Union.”

33. This shows that the Framers envisaged that the right to vote

must be accompanied by a provision establishing the Election

Commission. Constitutional Adviser B.N. Rau’s note on the draft

provision explains the inclusion of the right to vote as a fundamental

right: “Clause 12. This secures that the right to vote is not refused to

11 Shiva Rao, at pages 137 & 139 (dated 03.04.1947)

any citizen who satisfies certain conditions. The idea of an Election

Commission to supervise, direct and control all elections is new.”

34. KT Shah however objected to the idea of a centralized Election

Commission. He argued that, “if adopted, would be a serious

infringement of the rights of Provincial Autonomy; and as such, I

think it ought to be either dropped or reworded, so as not to prejudice

the rights of the Provincial Legislature to legislate on such

subjects.”13 The clause on right to vote and the creation of the

Election Commission as part of the fundamental rights was then

accepted by a majority vote by the Fundamental Rights SubCommittee.14 The clause was then forwarded to the Advisory

Committee in the “Report of the Sub-Committee on Fundamental

Rights” dated April 16, 1947.15

35. The draft prepared by the Fundamental Rights Sub-Committee

was examined by the Minorities Sub-Committee to see if any rights

proposed needed to be “amplified or amended” to protect minority

rights.16 In the Minutes of the Meeting of the Minorities Sub12 Shiva Rao, page 148

13 ibid, page 155

14 Ibid, page 164

15 Ibid, p. 173. Furthermore, the ground for contrary views was only that the right was being extended the

States/units. See “Minutes Of Dissent To The Report” dated April 17-20, 1947 by KM Panikkar, page 187

16 ibid, page 199

Committee dated April 17, 1947, there were two suggestions on the

fundamental right to vote and Election Commission. S.P. Mukherjee

proposed, “Minorities should be adequately represented on the

Election Commissions proposed for the Union and the units”.17

Jairamdas Daulatram suggested that “such bodies should be made

neutral so that they may inspire confidence among all parties and

communities. Separate representation for the minorities may not be

workable.”18 It was also decided by the Minorities Sub-Committee on

April 18, 1947 “to mention in [their] report that the Election

Commission should be an independent quasi-judicial body.”19

36. After the clause on the right to vote passed by the Fundamental

Rights Sub-Committee and the Minorities Sub-Committee reached

for consideration before the Advisory Committee, there was a serious

debate on whether to keep the clause in the fundamental rights

chapter or not. Dr. Ambedkar argued for retaining it as a

fundamental right.20 He stated:

“… so far as this committee is concerned my point is that we should

support the proposition that the committee is in favour of adult

suffrage. The second thing we have guaranteed in this fundamental

right is that the elections shall be free and the elections shall be by

17 ibid, page 201

18 ibid, page 201

19 ibid, page 205

20 ibid, page 247

secret voting. It shall be by periodical elections... The third

proposition which this fundamental clause enunciates is that in

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, and

that they should be conducted by an independent body which we

may here call an Election Commission.”21

37. But this view was disagreed with by several members of the

Advisory Committee. They had an apprehension that such a clause

may be objected to in the Constituent Assembly by the

representatives of the Princely States.22 C. Rajagopalachari expressed

that the future method of elections was not clear, and hence it was

not right to keep a detailed clause on the franchise in the

fundamental rights. He said:

“My only point is whether it is proper to deal with this as a

fundamental right or whether we should leave it, or a greater part of

it, for the consideration of the whole Assembly. I submit we cannot

take it for granted that the Union Legislature shall be elected by the

direct vote from all citizens from all India. It may be a Federation

Constitution. It may be indirectly elected. The Government of the

Union may be formed indirectly, so that we cannot assume that

every adult or any one whatever the description may be, shall have

a direct vote to the Legislature. We cannot lay down a proposition

here without going into those details. We cannot therefore deal with

the subject at all now. Whether there is going to be direct election or

indirect election, that must be settled first.”23 (sic)

38. Dr. Ambedkar tried to resolve the opposition to this clause by

arguing that:

21 ibid, page 249-250

22 Statement of Sardar Patel, p. 249

23 ibid, page 250

“My reply is that this document or report will go before the

Constituent Assembly. There will be representatives of the States;

there will be representatives of the Muslim League. We shall hear

from them what objection they have to adult suffrage. If the whole

Constituent Assembly is convinced that while it may be advisable to

have adult suffrage for British India, for reasons of some special

character, the Indian States cannot have adult suffrage, and there

must be some sort of a restricted suffrage, it will be still open to the

Constituent Assembly to modify our proposals.”24

39. Govind Ballabh Pant explained the reason why there was a

concern regarding inclusion of the right to vote in the fundamental

rights chapter. He said:

“The only apprehension is that some people belonging to the States

may prick the bubble and say that their rights have been interfered

with and so on. They may not be represented. We will have what we

desire.”25

40. In response to Pant, the following reply was given by Dr

Ambedkar:

“While we are anxious that the Indian States should come in, we

shall certainly stick to certain principles and not yield simply to

gather the whole lot of them in our Constitution.”26

41. As an alternative, Govind Ballabh Pant suggested that “this very

clause is sent to the Constituent Assembly, not as part of these

fundamental rights, but included in the letter of the Chairman to the

24 ibid, page 250

25 251

26 ibid, page 251

effect that we recommend to the Constituent Assembly the following

principles in regard to the framing of the Constitution.”27 While Dr.

Ambedkar insisted on his view, the majority of members of the

Advisory Committee including Sardar Patel adopted Pant’s

suggestion.28

42. Accordingly, in the “Minutes of the Meetings of the Advisory

Committee” dated April 21, 1947, it was noted: “Clause 13 to be

deleted from the fundamental rights, but it should be recommended

by the Chairman in his report to the Constituent Assembly on behalf

of the committee, that it be made a part of the Union Constitution.”29

In his letter addressed to the President of the Constituent Assembly,

Sardar Patel presented the interim report of the Advisory Committee,

while also noting that: “While agreeing in principle with this clause,

we recommend that instead of being included in the list of

fundamental rights, it should find a place in some other part of the

Constitution.”30

27 ibid, page 251

28 ibid, page 251-52

29 ibid, page 288

30 ibid, page 296

43. What emerges from this discussion is that there was an initial

agreement among the members of the fundamental rights subcommittee and the minority rights sub-committee that there needs

to be a clause in the fundamental rights chapter which should

provide for the right to vote; and the task to conduct free and fair

elections, there shall be an independent body called the Election

Commission. However, the clause was not retained by the Advisory

Committee as a fundamental right because it was apprehended that

the princely states might not agree to the Union Constitution if that

clause is retained, as India was going through a historical period of

unification where negotiations were being made with the princely

states to become part of a united India. Despite this, the Founders

retained the right to vote as a constitutional right by recommending

that it should find a place in the text of the constitution.

44. On 16 June 1949, Dr. B.R. Ambedkar moved the following

clause, providing for the adult franchise:

“289-B: Elections to the House of the People and to the

Legislative Assemblies of states to be on the basis of adult

suffrage: The elections to the House of the People and to the

Legislative Assembly of every State shall be on the basis of adult

suffrage; that is to say, every citizen, who is not less than twentyone years of age on such date as may be fixed in this behalf by or

under any law made by the appropriate Legislature and is not

otherwise disqualified under this Constitution or any law made by

the appropriate Legislature on the ground of nonresidence,

unsoundness of mind, crime or corrupt or illegal practice, shall be

entitled to be registered as a voter at any such election.”31

45. The clause was adopted, which later became Article 326 of the

Constitution.

46. By virtue of Article 326, the right to vote became a constitutional

right granted to citizens. The said right was given effect 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 who is, for the time being entered in the

electoral roll of any constituency shall be entitled to vote in that

constituency.” The legal position is that the relevant provision of the

ROP Act is derived from the text of the Constitution, which in this

case, is Article 326.

47. However, the judgments of this Court adopted a restricted view

of the right to vote for a number of decades. In N.P. Ponnuswami v.

Returning Officer, Namakkal Constituency and Others32

(hereinafter “N.P. Ponnuswami”), a bench of six judges of this Court

was dealing with the question whether the High Court under Article

31 CONSTITUENT ASSEMBLY OF INDIA DEBATES (PROCEEDINGS)- VOLUME VIII Thursday,

the 16th June 1949, Available at:

http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C16061949.html

32 1952 SCR 218

226 can have jurisdiction to interfere with the order of the Returning

Officer by reason of the provisions of Article 329(b) of the

Constitution. While the Court was examining the contours of Article

329(b), it also made the following observation: “The right to vote or

stand as a candidate for election is not a civil right but is a creature

of statute or special law and must be subject to the limitations

imposed by it.”

48. A different view was adopted by a Constitution Bench of this

Court in the case of Mohindhr Singh Gill and Another v. Chief

Election Commissioner, New Delhi and Others.

33 (hereinafter

“Mohindhr Singh Gill”). The Bench was called on to interpret Articles

324 and 329(b) of the Constitution. It noted:

“The most valuable right in a democratic polity is the 'little man's'

little pencil-marking, accenting and dissenting, called his vote....

Likewise, the little man's right, in a representative system of

Government to rise to Prime Ministership or Presidentship by use of

the right to be candidate cannot be wished away by calling it of no

civil moment. If civics mean anything to self-governing citizenry, if

participatory democracy is not to be scuttled by law.... The

straightaway conclusion is that every Indian has a right to elect and

be elected and this is constitutional as distinguished from a common

law right and is entitled to cognizance by Courts, subject to statutory

Regulations.”

(1978) 1 SCC 405

49. However, a subsequent decision of a two-judge bench in Jyoti

Basu and Others v. Debi Ghosal and Others34 (hereinafter “Jyoti

Basu”) relied upon the position taken by N.P. Ponnuswami (Supra).

The two-judge bench was dealing with the specific question who may

be joined as a party to an election petition, but went to observe:

“A right to elect, fundamental though it is to democracy, is,

anomalously enough, neither a fundamental right nor a Common

Law Right. It is pure and simple, a statutory right. So is the right

to 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

to dispute and election. Statutory creations they are, and therefore,

subject to statutory limitation.”

50. While the above three decisions made statements of the right to

vote, the issue of interpretation of Article 326, dealing with adult

franchise, had not arisen in these cases. Therefore, the statements

made cannot be treated as an authority on the subject.

51. In the case of Union of India v. Association for Democratic

Reforms and Another35 (hereinafter “ADR”), this Court was

considering whether there is a right of the voter to know about the

candidates contesting election. Holding in affirmative, it was held:

“In democracy, periodical elections are conducted for having efficient

governance for the country and for the benefit of citizens - voters. In

a democratic form of government, voters are of utmost importance.

34 (1982) 1 SCC 691

35 (2002) 5 SCC 294

They have right to elect or re- elect on the basis of the antecedents

and past performance of the candidate. The voter has the choice of

deciding whether holding of educational qualification or holding of

property is relevant for electing or re-electing a 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

were scrutinized by a three-judge bench case of People’s Union for

Civil Liberties (PUCL) and Another v. Union of India and

Another36 (hereinafter “PUCL 2003”). This Court re-examined the

issue of whether a voter has any fundamental right to know the

antecedents/assets of a candidate contesting the election under

Article 19(1)(a). An argument was made before this Court that a voter

does not have such a right, as there is no fundamental right to vote

from which the right to know the antecedents of a candidate arises.

While the three judges (M.B. Shah, Venkatarama Reddi, D.M.

Dharmadhikari, JJ.) unanimously agreed that the voters have a right

under Article 19(1)(a) to know the antecedents of a candidate, there

was a difference on whether the scope of the right to vote.

53. Referring to N.P. Ponnuswami and Jyoti Basu judgments,

Justice MB Shah held that “there cannot be any dispute that the

36 (2003) 4 SCC 399

right to vote or stand as a candidate for election and decision with

regard to violation of election law is not a civil right but is a creature

of statute or special law and would be subject to the limitations

envisaged therein.” He held that, “Merely because a citizen is a voter

or has a right to elect his representative as per the [ROP] Act, his

fundamental rights could not be abridged, controlled or restricted by

statutory provisions except as permissible under the Constitution.”

He stated that whether the right to vote is a statutory right or not

does not have any implication on the right to know antecedents,

which is a part of fundamental right under Article 19(1)(a). He

however also held that democracy based on adult franchise is part of

the basic structure of the Constitution, and that the right of adults

to take part in the election process either as a voter or a candidate

could only be restricted by a valid law which does not offend

constitutional provisions.

54. Justice Venkatarama Reddi emphasized on the right to vote, and

held:

“The right to vote for the candidate of one's choice is of the essence

of democratic polity. This right is recognized by our Constitution and

it is given effect to in specific form by the Representation of the

People Act. The Constituent Assembly debates reveal that the idea

to treat the voting right as a fundamental right was dropped;

nevertheless, it was decided to provide for it elsewhere in the

Constitution. This move found its expression in Article 326…”

55. He disagreed with the views expressed in N.P. Ponnuswami and

Jyoti Basu, and held:

“the right to vote, if not a fundamental right, is certainly a

constitutional right. The right originates from the Constitution and

in accordance with the constitutional mandate contained in Article

326, the right has been shaped by the statute, namely, R.P. Act.

That, in my understanding, is the correct legal position as regards

the nature of the right to vote in elections to the House of people and

Legislative Assemblies. It is not very accurate to describe it as a

statutory right, pure and simple.”

56. Justice Venkatarama Reddi then distinguished the

constitutional right to vote with the act of giving vote/freedom of

voting. He held:

“a distinction has to be drawn between the conferment of the right

to vote on fulfillment of requisite criteria and the culmination of that

right in the final act of expressing choice towards a particular

candidate by means of ballot. Though the initial right cannot be

placed on the pedestal of a fundamental right, but, at the stage when

the voter goes to the polling booth and casts his vote, his freedom to

express arises. The casting of vote in favour of one or the other

candidate tantamounts to expression of his opinion and preference

and that final stage in the exercise of voting right marks the

accomplishment of freedom of expression of the voter. That is where

Article 19(1)(a) is attracted. Freedom of voting as distinct from right

to vote is thus a species of freedom of expression and therefore

carries with it the auxiliary and complementary rights such as right

to secure information about the candidate which are conducive to

the freedom. None of the decisions of this Court wherein the

proposition that the right to vote is a pure and simple statutory right

was declared and reiterated, considered the question whether the

citizen's freedom of expression is or is not involved when a citizen

entitled to vote casts his vote in favour of one or the other

candidate…”

In his conclusions, he noted:

“The right to vote at the elections to the House of people or

Legislative Assembly is a constitutional right but not merely a

statutory right; freedom of voting as distinct from right to vote is a

facet of the fundamental right enshrined in Article 19(1)(a). The

casting of vote in favour of one or the other candidate marks the

accomplishment of freedom of expression of the voter.”

57. Justice DM Dharmadhikari expressed his agreement with the

view taken by Justice Venkatarama Reddi, thus making it a majority

decision holding that the right to vote is a constitutional right. Even

Justice Shah had held that the right of adults to take part in the

election process as a voter could only be restricted by a valid law

which does not offend constitutional provisions.

58. An argument based on the majority view in PUCL 2003 was put

forth before a Constitution Bench of this Court in Kuldip Nayar and

Others v. Union of India and Others37 (hereinafter “Kuldip Nayar”).

It was argued that a right to vote is a constitutional right besides that

it is also a facet of fundamental right under Article 19(1)(a) of the

37 (2006) 7 SCC 1

Constitution. The Constitution bench rejected the argument. It was

held:

“The argument of the petitioners is that the majority view in the case

of People's Union for Civil Liberties, therefore, was that a right to

vote is a constitutional right besides that it is also a facet of

fundamental right under Article 19(1)(a) of the Constitution.

We do not agree with the above submission. It is clear that a fine

distinction was drawn between the right to vote and the freedom of

voting as a species of freedom of expression, while reiterating the

view in Jyoti Basu v. Debi Ghosal (supra) that a right to elect,

fundamental though it is to democracy, is neither a fundamental

right nor a common law right, but pure and simple, a statutory right.

Even otherwise, there is no basis to contend that the right to vote

and elect representatives of the State in the Council of States is a

Constitutional right. Article 80(4) merely deals with the manner of

election of the representatives in the Council of States as an aspect

of the composition of the Council of States. There is nothing in the

Constitutional provisions declaring the right to vote in such election

as an absolute right under the Constitution.”

59. The Constitution Bench in Kuldip Nayar seems to have missed

the point that Justice Venkatarama Reddi’s opinion in PUCL 2003

that the right to vote is a constitutional right was explicitly concurred

by Justice Dharmadhikari. Therefore, Kuldip Nayar’s view that

PUCL 2003 considered the right to vote/elect as a statutory right

does not seem to portray the correct picture.

60. In Desiya Murpokku Dravida Kazhagam and Another v.

Election Commission of India,38 a three-judge bench was

38 2009 (16) SCC 781

considering a challenge to the constitutional validity of the

amendment of the Election Symbols (Reservation and Allotment)

Order, 1968, which mandated that in order to be recognized as a

State party in the State, a political party would have to secure not

less than 6% of the total valid votes polled in the State and should

also have returned at least 2 members to the Legislative Assembly of

the State. The counsel for the Election Commission of India in the

case had argued that since the right to vote was a statutory right, it

could not be questioned by way of a writ petition. The majority by 2:1

upheld the amendment. However, Justice Chelameswar wrote a

dissenting opinion. The dissenting judge also addressed the counsel

for the Election Commission of India that the right to vote is merely

a statutory right. He held:

“The right to elect flows from the language of Articles 81 and 170

r/w Articles 325 and 326. Article 326 mandates that the election to

the Lok Sabha and legislative Assemblies shall be on the basis of

Adult Suffrage, i.e., every citizen, who is of 18 years of age and is not

otherwise disqualified either under the Constitution or Law on the

ground specified in the Article Shall Be entitled to be registered as a

voter. Article 325 mandates that there shall be one general electoral

roll for every territorial constituency. It further declares that no

person shall be ineligible for inclusion in such electoral roll on the

grounds only of religion, race, caste, sex, etc. Articles 81 and 170

mandate that the members of the Lok Sabha and Legislative

Assembly are required to be Chosen by Direct Election from the

territorial constituencies in the States. The States are mandated to

be divided into territorial constituencies under Articles 81(2) (b) and

170(2)17. The cumulative effect of all the above mentioned

provisions is that the Lok Sabha and the Legislative Assemblies are

to consist of members, who are to be elected by all the citizens, who

are of 18 years of age and are not otherwise disqualified, by a valid

law, to be voters. Thus, a Constitutional right is created in all

citizens, who are 18 years of age to choose (participate in the

electoral process) the members of the Lok Sabha or the Legislative

Assemblies. Such a right can be restricted by the appropriate

Legislature only on four grounds specified under Article 326.”

61. Justice Chelameswar also clarified that the question whether the

right to vote or contest at any election to the Legislative Bodies created

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 both

the statements (extracted above) are overbroad statements made

without a complete analysis of the scheme of the Constitution

regarding the process of election to the Legislative Bodies adopted in

subsequent decisions as a complete statement of law. A classical

example of the half truth of one generation becoming the whole truth

of the next generation.”

62. The majority decision in this case did not record any

disagreement regarding the conclusion that the right to participate

in the electoral process, either as a voter or as a candidate, is a

constitutional right.

63. In 2013, the correctness of ADR and PUCL 2003 was doubted

before a three judge-bench of this Court in People’s Union for Civil

Liberties and Another v. Union of India and Another39 (PUCL

39 (2013) 10 SCC 1

2013). In this case, the validity of certain rules of the Conduct of

Election Rules, 1961 to the extent that these provisions violate the

secrecy of voting which is fundamental to the free and fair elections.

It was put forward that the Constitution bench judgment in Kuldip

Nayar created a doubt on ADR and PUCL 2003. The three-judge

bench in PUCL 2013 held that “Kuldip Nayar does not overrule the

other two decisions rather it only reaffirms what has already been

said by the two aforesaid decisions”. However, the three-judge bench

went on to note that:

“… there is no contradiction as to the fact that right to vote is neither

a fundamental right nor a Constitutional right but a pure and simple

statutory right. The same has been settled in a catena of cases and

it is clearly not an issue in dispute in the present case.”

64. While the scope of the right to vote was not before PUCL 2013,

but it went on to observe that the right to vote is only a statutory

right. But, the three-judge bench in PUCL 2013 followed ADR and

PUCL 2003 to reiterate that “[t]he casting of the vote is a facet of the

right of expression of an individual and the said right is provided

under Article 19(1)(a) of the Constitution of India”, and therefore, a

prima facie case existed for the exercise of jurisdiction of this Court

under Article 32. The bench concluded that:

“No doubt, the right to vote is a statutory right but it is equally vital

to recollect that this statutory right is the essence of democracy.

Without this, democracy will fail to thrive. Therefore, even if the right

to vote is statutory, the significance attached with the right is

massive. Thus, it is necessary to keep in mind these facets while

deciding the issue at hand.”

65. A clarity on the status of the right to vote was given in the

judgment in Raj Bala v. State of Haryana and Others.

40 Justice

Chelameswar and Justice Sapre gave separate concurring opinions.

After analysing the previous decisions of this Court, Justice

Chelameswar came to the conclusion that “every citizen has a

constitutional right to elect and to be elected to either Parliament or

the State legislatures.” Justice Sapre reiterated the view taken in

PUCL 2003 that the “right to vote” is a constitutional right but not

merely a statutory right.

66. What emerges from this detailed discussion is that there has

been a conflicting view on the status of the right to vote. This gives

an opportunity for us to authoritatively hold that the right to vote is

not just a statutory right. In our view, we must look beyond that. Our

decision to analyse the contours of the right to vote is facilitated by

the reasoning provided by the nine-judge bench in K.S. Puttaswamy.

40 (2016) 1 SCC 463

In that case, a plea was made that since privacy was not included as

a fundamental right in the original Constitution, it cannot be

declared a fundamental right. The bench rejected this argument, and

held:

“it cannot be concluded that the Constituent Assembly had

expressly resolved to reject the notion of the right to privacy as an

integral element of the liberty and freedoms guaranteed by the

fundamental rights... The interpretation of the Constitution cannot

be frozen by its original understanding. The Constitution has

evolved and must continuously evolve to meet the aspirations and

challenges of the present and the future.”

67. In the instant case, the provision on adult franchise is in Article

326 of the Constitution. An analysis of Constituent Assembly

Debates shows that it was initially considered as a fundamental right

in the proceedings of the Advisory Committee. The only reason why

it was shifted from fundamental rights status to another

constitutional provision was that the founders did not want to offend

the Princely States, with whom they were negotiating to be a part of

a united India. Otherwise, they had stressed the importance of the

right to vote and universal adult franchise. Seventy-five years after

Independence, we have the opportunity to realize their absolute

vision by recognizing what they could not due to socio-political

circumstances of their time. When the Constitution came into force,

what were known as Princely States became a part of India, and

accepted direct elections as a method of choosing the government.

These areas have now been included in different states. Therefore,

there has been no objection to the right to vote.

68. The right to take part in the conduct of public affairs as a voter

is the core of the democratic form of government, which is a basic

feature of the Constitution. The right to vote is an expression of the

choice of the citizen, which is a fundamental right under Article

19(1)(a). The right to vote is a part of a citizen's life as it is their

indispensable tool to shape their own destinies by choosing the

government they want. In that sense, it is a reflection of Article 21.

In history, the right to vote was denied to women and those were

socially oppressed. Our Constitution took a visionary step by

extending franchise to everyone.41 In that way, the right to vote

enshrines the protection guaranteed under Article 15 and 17.

Therefore, the right to vote is not limited only to Article 326, but flows

through Article 15, 17, 19, 21. Article 326 has to be read along with

these provisions. We therefore declare the right to vote in direct

elections as a fundamental right, subject to limitations laid down in

41 https://journals.library.brandeis.edu/index.php/caste/article/view/282/63

Article 326. This Court has precedents to support its reasoning. In

Unnikrishnan J.P. and Others v. State of Andhra Pradesh and

Others,

42 this Court read Article 45 and 46 along with Article 21 to

hold that the right to education is a fundamental right for children

between the age group of 6-14.

69. Now that we have held that the right to vote is not merely a

constitutional right, but a component of Part III of the Constitution

as well, it raises the level of scrutiny on the working of the Election

Commission of India, which is responsible for conducting free and

fair elections. As it is a question of constitutional as well as

fundamental rights, this Court needs to ensure that the working of

the Election Commission under Article 324 facilitates the protection

of people’s voting rights.

C. Free and Fair Elections

70. Democracy works when the citizens are given a chance to decide

the fate of the ruling government by casting their vote in periodical

elections. The faith of the citizens in the democratic processes is

42 (1993) 1 SCR 594

ensured by conducting free and fair elections through an

independent and neutral agency.

71. Free and fair elections have been enshrined as a precedent for

the working of democracy in global conventions and rights-based

frameworks. The Universal Declaration of Human Rights 1948

recognizes that:

“1. Everyone has the right to take part in the government of his

country, directly or through freely chosen representatives.

2. Everyone has the right of equal access to public service in his

country.

3. The will of the people shall be the basis of the authority of

government; this will shall be expressed in periodic and genuine

elections which shall be by universal and equal suffrage and shall

be held by secret vote or by equivalent free voting procedures.”43

72. Article 25 of the International Covenant on Civil and Political

Rights provides:

“Every citizen shall have the right and the opportunity, without any

of the distinctions mentioned in article 2 and without unreasonable

restrictions:

(a) To take part in the conduct of public affairs, directly or through

freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall

be by universal and equal suffrage and shall be held by secret ballot,

guaranteeing the free expression of the will of the electors;

his country.”

43 Article 21, Universal Declaration of Human Rights

73. India is committed to these international frameworks. This

Court has previously read India’s obligation to international

frameworks to recognise new areas of constitutional discourse, which

are explicitly not covered by the provisions of the Constitution or

where there is a constitutional vacuum.44 But free and fair elections

have been recognised as an essential feature of the democratic

apparatus by the judgments of this Court as well.

74. In Indira Nehru Gandhi Smt v. Shri Raj Narain and

Another,

45 Justice HR Khanna held in his opinion:

“All the seven Judges [in Kesavananda Bharti case] who constituted

the majority were also agreed that democratic set-up was part of the

basic structure of the Constitution. Democracy postulates that there

should be periodical election, so that people may be in a position

either to re-elect the old representatives or, if they so choose, to

change the representatives and elect in their place other

representative. Democracy further contemplates that the elections

should be free and fair, so that the voters may be in a position to

vote for candidates of their choice. Democracy can indeed function

only upon the faith that elections are free and fair and not rigged

and manipulated, that they are effective instruments of ascertaining

popular will both in reality and form and are not mere rituals

calculated to generate illusion of deference to mass opinion. Free

and fail elections require that the candidates and their agents

should not resort to unfair means or malpractices as may impinge

upon the process of free and fair elections.”

44 Vishakha v. State of Rajasthan, AIR 1997 SC 3011

45 AIR 1975 SC 2299

75. For conducting free and fair elections, an independent body in

the form of Election Commission is a must. In Mohindhr Singh Gill,

a Constitution Bench was called to interpret Article 324 and Article

329(b) of the Constitution. emphasized on the connection between

elections and the role of the Election Commission. Justice Krishna

Iyer (speaking for Chief Justice Beg, Justice Bhagwati, and himself)

stated:

“Democracy is government by the people. It is a continual

participative operation, not a cataclysmic, periodic exercise. The

little man, in his multitude, marking his vote at the poll does a social

audit of his Parliament plus political choice of this proxy. Although

the full flower of participative Government rarely blossoms, the

minimum credential of popular Government is appeal to the people

after every term for a renewal of confidence. So we have adult

franchise and general elections as constitutional compulsions. “The

right of election is the very essence of the constitution” (Junius). It

needs little argument to hold that the heart of the Parliamentary

system is free and fair elections periodically held, based on adult

franchise, although social and economic democracy may demand

much more.”

76. It was emphasized by Justice Krishna Iyer:

“The Election Commission is an institution of central importance

and enjoys far-reaching powers and the greater the power to affect

others' right or liabilities the more necessary the need to hear.”

77. Justice PK Goswami in his concurring opinion (for himself & PN

Singhal) held:

“Elections supply the visa viva to a democracy. It was, therefore,

deliberately and advisedly thought to be of paramount importance

that the high and independent office of the Election Commission

should be created under the Constitution to be in complete charge

of the entire electoral process commencing with the issue of the

notification, by the President to the final declaration of the result.”

78. Justice Goswami further emphasized on the need of

independence of the Election Commission in the following words:

“The Election Commission is a high-powered and independent body

which is irremovable from office except in accordance with the

provisions of the Constitution relating" to the removal of Judges of

the Supreme Court and is intended by the framers of the

Constitution, to be kept completely free from any pulls and

pressures that may be brought through political influence in a

democracy run on party system.”

79. The importance of periodical elections was also emphasized in

the Constitution Bench decision in Manoj Narula v. Union of

India,46 which held:

“In the beginning, we have emphasized on the concept of democracy

which is the corner stone of the Constitution. There are certain

features absence of which can erode the fundamental values of

democracy. One of them is holding of free and fair election by adult

franchise in a periodical manner… for it is the heart and soul of the

parliamentary system.”

80. Thus, the role of the Election Commission is integral to

conducting free and fair elections towards the working of democracy.

46 (2014) 9 SCC 1

It is the duty and constitutional obligation of this Court to protect

and nurture the independence of the Election Commission.

IV. Constitutional and statutory framework: The Constitutional

Vacuum

81. Article 324 of the Constitution provides that superintendence,

direction and control of elections shall be vested in an Election

Commission. Clause 1 of Article 324 provides:

“The superintendence, direction and control of the preparation of

the electoral rolls for, and the conduct of, all elections to Parliament

and to the Legislature of every State and of elections to the offices of

President and Vice-President held under this Constitution shall be

vested in a Commission (referred to in this Constitution as the

Election Commission).”

82. The composition of the Election Commission is provided under

Clause (2) of Article 324. It provides:

“The Election Commission shall consist of the Chief Election

Commissioner and such number of other Election Commissioners,

if any, as the President may from time to time fix and the

appointment of the Chief Election Commissioner and other Election

Commissioners shall, subject to the provisions of any law made in

that behalf by Parliament, be made by the President.”

83. Article 324(3) states that the Chief Election Commissioner shall

act as the Chairman of the Election Commission.

84. Clause (5) of Article 324 deals with conditions of service and

tenure of office of the Election Commissioner. It provides that:

“Subject to the provisions of any law made by Parliament, the

conditions of service and tenure of office of the Election

Commissioners and the Regional Commissioners shall be such as

the President may by rule determine: Provided that the Chief

Election Commissioner shall not be removed from his office except

in like manner and on the like grounds as a Judge of the Supreme

Court and the conditions of service of the Chief Election

Commissioner shall not be varied to his disadvantage after his

appointment: Provided further that any other Election

Commissioner or a Regional Commissioner shall not be removed

from office except on the recommendation of the Chief Election

Commissioner.”

85. What comes out of this provision is that the Office of the Chief

Election Commissioner stands on a higher constitutional pedestal,

as he is given equivalence to a Judge of the Supreme Court in matters

of removal. The other thing which comes out is that “the conditions

of service of the Chief Election Commissioner shall not be varied to

his disadvantage after his appointment.” That is to say, the

independence cannot be indirectly diluted by creating unwarranted

conditions of service. Lastly, a wide discretion has been vested with

the Chief Election Commissioner to seek removal of any other

Election Commissioner or a Regional Commissioner.

86. It has been argued before us that there exists a constitutional

vacuum in the method of selection of the Chief Election

Commissioner and 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 Election Commission. Furthermore,

it was pointed out that the term and tenure of the Election

Commissioners also need to be streamlined in order to ensure

absolute independence of the Election Commission and to prevent

any arbitrary or biased decision to be taken by the Chief Election

Commissioner.

87. It has been argued by the learned Attorney General that the

conditions of service and tenure of the Chief Election Commissioner

and Election Commissioners is already governed by the Act, 1991.

88. The Act provides “the conditions of service of the Chief Election

Commissioner and other Election Commissioners to provide for the

procedure and for transaction of business by the Election

Commission and for matters] connected therewith or incidental

thereto”. The Act deals with salary (Section 3), tenure/term of office

(Section 4), leave (Section 5), pension (Section 6), and other

conditions of service (Section 8).

89. The term of office provided under Section 4 for the Chief

Election Commissioner or an Election Commissioner is “of six years

from the date on which he assumes his office”, subject to the proviso

that “where the Chief Election Commissioner or an Election

Commissioner attains the age of sixty-five years before the expiry of

the said term of six years, he shall vacate his office on the date on

which he attains the said age”. Section 4 thus does not provide a

mandatory 6 years of term.

90. An analysis of the provisions of the Act also indicates that there

is nothing provided in terms of the selection process of the Chief

Election Commissioner or the Election Commissioners. Thus, what

emerges from this discussion is that both Article 324 and the Act,

1991 are silent on the selection process of the Chief Election

Commissioner and the Election Commissioners. There also appears

to be a lacunae in ensuring independence as the Act indirectly

provides a discretion to the Executive to appoint someone close to

retirement at the age of 65 as the Chief Election Commissioner or the

Election Commissioner, and thus will not be able to take the full term

of 6 years.

91. We need to look at the Constituent Assembly Debates to

examine the level of independence which was expected from the

Election Commission. Moving the draft Article on the Election

Commission before the Constituent Assembly on 15 June 1949, Dr

BR Ambedkar explained the vision behind the provision was

independence from the executive in conducting elections. Dr

Ambedkar said:

“... the House affirmed without any kind of dissent that in the

interests of purity and freedom of elections to the legislative bodies,

it was of the utmost importance that they should be freed from any

kind of interference from the executive of the day… Therefore, so far

as the fundamental question is concerned that the election

machinery should be outside the control of the executive

Government, there has been no dispute. What Article 289 does is to

carry out that part of the decision of the Constituent Assembly. It

transfers the superintendence, direction and control of the

preparation of the electoral rolls and of all elections to Parliament

and the Legislatures of States to a body outside the executive to be

called the Election Commission. That is the provision contained in

sub-clause (1).”47

92. The reason behind having a permanent office of Chief Election

Commissioner was explained by Dr Ambedkar as follows:

“What the Drafting Committee proposes by sub-clause (2) is to have

permanently in office one man called the Chief Election

Commissioner, so that the skeleton machinery would always be

available. Elections no doubt will generally take place at the end of

five years; but there is this question, namely that a bye-election may

take place at any time. The Assembly may be dissolved before its

period of five years has expired. Consequently, the electoral rolls will

47 Constituent Assembly Debates, 15 June 1949,

http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C15061949.html

have to be kept up to date all the time so that the new election may

take place without any difficulty. It was therefore felt that having

regard to these exigencies, it would be sufficient if there was

permanently in session one officer to be called the Chief Election

Commissioner, while when the elections are coming up, the

President may further add to the machinery by appointing other

members to the Election Commission.”

93. The above statement suggests that the office of the Chief

Election Commissioner requires a kind of permanency, which may be

fulfilled by having someone with a stable full term as the Chief

Election Commission.

94. Regarding the conditions of service, Dr Ambedkar said:

“So far as clause (4) is concerned, we have left the matter to the

President to determine the conditions of service and the tenure of

office of the members of the Election Commission, subject to one or

two conditions, that the Chief Election Commissioner shall not be

liable to be removed except in the same manner as a Judge of the

Supreme Court. If the object of this House is that all matters relating

to Elections should be outside the control of the Executive

Government of the day, it is absolutely necessary that the new

machinery which we are setting up, namely, the Election

Commission should be irremovable by the executive by a mere fiat.

We have therefore given the Chief Election Commissioner the same

status so far as removability is concerned as we have given to the

Judges of the Supreme Court. We, of course, do not propose to give

the same status to the other members of the Commission. We have

left the matter to the President as to the circumstances under which

he would deem fit to remove any other member of the Election

Commission; subject to one condition that-the Chief Election

Commissioner must recommend that the removal is just and

proper.”

95. However, Shibban Lal Saxena pointed out that the draft

provision may favour the Executive in the appointment of the Chief

Election Commissioner and the Election Commissioners, and

therefore appealed for a change in the provision. He argued:

“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 his recommendations. Now,

this does not ensure their independence. Of course once he is

appointed, he shall not be removable except by 2/3rd majority of

both Houses. That is certainly something which can instill

independence in him, but it is quite possible that some party in

power who wants to win the next election may appoint a staunch

party-man as the Chief Election Commissioner. He is removable only

by 2/3rd majority of both Houses on grave charges, which means

he is almost irremovable. So what I want is this that even the person

who is appointed originally should be such that he should be

enjoying the confidence of all parties his appointment should be

confirmed not only by majority but by two-thirds majority of both

the Houses…Of course, there is a danger when one party is in huge

majority. Still, if he does appoint a party-man, and the appointment

comes up for confirmation in a joint session, even a small opposition

or even a few independent members can down the Prime Minister

before the bar of public opinion in the world.”

96. On 16 June 1949, Hirday Nath Kunzru echoed a similar

sentiment, and also highlighted the issues regarding the removal of

the Election Commissioners. He said:

“Here two things are noticeable: the first is that it is only the Chief

Election Commissioner that can feel that he can discharge his duties

without the slightest fear of incurring the displeasure of the

executive, and the second is that the removal of the other Election

Commissioners will depend on the recommendations of one man

only, namely the Chief Election Commissioner. However responsible

he may be it seems to me very undesirable that the removal of his

colleagues who will occupy positions as.responsible as those of

judges of the Supreme Court should depend on the opinion of one

man. We are anxious, Sir, that the preparation of the electoral rolls

and the conduct of elections should be entrusted to people who are

free from political bias and whose impartiality can be relied upon in

all circumstances. But, by leaving a great deal of power in the hands

of the President we have given room for the exercise of political

influence in the appointment of the Chief Election Commissioner

and the other Election Commissioners and officers by the Central

Government. The Chief Election Commissioner will have to be

appointed on the advice of the Prime Minister, and, if the Prime

Minister suggests the appointment of a party-man, the President will

have no option but to accept the Prime Minister's nominee, however

unsuitable he may be on public grounds.”

97. He warned thus:

“If the electoral machinery is defective or is not efficient or is worked

by people whose integrity cannot be depended upon, democracy will

be poisoned at the source; nay, people, instead of learning from

elections how they should exercise their vote, how by a judicious use

of their vote they can bring about changes in the Constitution and

reforms in the administration, will learn only how parties based on

intrigues can be formed and what unfair methods they can

adopt to secure what they want.”

98. Dr Ambedkar agreed with the points made by Saksena and

Kunzru, and said:

“...with regard to the question of appointment I must confess that

there is a great deal of force in what my Friend Professor Saksena

said that there is no use making the tenure of the Election

Commissioner a fixed and secure tenure if there is no provision in

the Constitution to prevent either a fool or a knave or a person who

is likely to be under the thumb of the Executive. My provision—I

must admit—does not contain anything to provide against

nomination of an unfit person to the post of the Chief Election

Commissioner or the other Election Commissioners…”

99. The solution which Dr Ambedkar gave was that the Constituent

Assembly should adopt as “Instrument of Instructions to the

President”, which may consist of the guidelines according to which

the President has to make the appointments. He said:

“The Drafting Committee had paid considerable attention to this

question because as I said it is going, to be one of our greatest

headaches and as a via media it was thought that if this Assembly

would give or enact what is called an Instrument of Instructions to

the President and provide therein some machinery which it would

be obligatory on the President to consult before making any

appointment, I think the difficulties which are felt as resulting…

may be obviated and the advantage which is contained therein may

be secured.”

100. He, however, added that since he was unsure whether the

Assembly would adopt his suggestion of Instrument of Instructions,

he suggested an amendment to the effect that “The appointment of

the Chief 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 Article 324(2). The idea behind this amendment was that the “law

made in this behalf by Parliament” would address the concerns and

fear raised by members of the Constituent Assembly that the

Executive should not have the exclusive say in the appointment of

the Chief Election Commissioner and the Election Commissioners.

However, we find that the Act, 1991 does not cover any aspect

highlighted in the Constituent Assembly. It is for this reason that this

Court needs to lay down certain broader parameters to fill the

constitutional/legislative gap.

V. The Judgment in TN Seshan

101. It would be relevant to quote the following excerpt from the

Constitution-bench judgment of this Court in T.N. Seshan, Chief

Election Commissioner of India v. Union of India and Others48:

“10. The Preamble of our Constitution proclaims that we are a

Democratic Republic. Democracy being the basic feature of our

constitutional set-up, there can be no two opinions that free and fair

elections to our legislative bodies alone would guarantee the growth

of a healthy democracy in the country. In order to ensure the purity

of the election process it was thought by our Constitution-makers

that the responsibility to hold free and fair elections in the country

should be entrusted to an independent body which would be

insulated from political and/or executive interference. It is inherent

in a democratic set-up that the agency which is entrusted the task

of holding elections to the legislatures should be fully insulated so

that it can function as an independent agency free from external

pressures from the party in power or executive of the day.”

102. In that case, a petition challenged the validity of "The Chief

Election Commissioner and other Election Commissioners (Condition

of Service) Amendment Ordinance, 1993" (hereinafter called 'the

Ordinance’) to amend the Act, 1991. While upholding the

amendment, the court discussed the role of the election commission

being a multi member body and the relation between CEC and other

ECs. Some important points highlighted were as follows:

“The ECs and the RCs have been assured independence of

functioning by providing that they cannot be removed except on the

48 (1995) 4 SCC 611

recommendation of the CEC. Of course, the recommendation for

removal must be based on intelligible, and cogent considerations

which would have relation to efficient functioning of the Election

Commission. That is so because this privilege has been conferred on

the CEC to ensure that the ECs as well as the RCs are not at the

mercy of political or executive bosses of the day…. If, therefore, the

power were to be exercisable by the CEC as per his whim and

caprice, the CEC himself would become an instrument of oppression

and would destroy the independence of the ECs and the RCs if they

are required to function under the threat of the CEC recommending

their removal. It is, therefore, needless to emphasise that the CEC

must exercise this power only when there exist valid reasons which

are conducive to efficient functioning of the Election Commission.”

Held further:

“15. We have already highlighted the salient features regarding the

composition of the Election Commission. We have pointed out the

provisions regarding the tenure, conditions of service, salary,

allowances, removability, etc., of the CEC, the ECs and the RCs. The

CEC and the ECs alone constitute the Election Commission whereas

the RCs are appointed merely to assist the Commission…”

Furthermore:

“17. Under clause (3) of Article 324, in the case of a multi-member

Election Commission, the CEC “shall act” as the Chairman of the

Commission. As we have pointed out earlier, Article 324 envisages a

permanent body to be headed by a permanent incumbent, namely,

the CEC. The fact that the CEC is a permanent incumbent cannot

confer on him a higher status than the ECs for the simple reason

that the latter are not intended to be permanent appointees. Since

the Election Commission would have a staff of its own dealing with

matters concerning the superintendence, direction and control of

the preparation of electoral rolls, etc., that staff would have to

function under the direction and guidance of the CEC and hence it

was in the fitness of things for the Constitution-makers to provide

that where the Election Commission is a multi-member body, 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 from Article

324 between the position of the CEC and the ECs. It is essentially

on account of their tenure in the Election Commission that certain

differences exist. We have explained why in the case of ECs the

removability clause had to be different. The variation in the salary,

etc., cannot be a determinative factor otherwise that would oscillate

having regard to the fact that the executive or the legislature has to

fix the conditions of service under clause (5) of Article 324. The only

distinguishing feature that survives for consideration is that in the

case of the CEC his conditions of service cannot be varied to his

disadvantage after his appointment whereas there is no such

safeguard in the case of ECs. That is presumably because the posts

are temporary in character. But even if it is not so, that feature alone

cannot lead us to the conclusion that the final word in all matters

lies with the CEC. Such a view would render the position of the ECs

to that of mere advisers which does not emerge from the scheme of

Article 324.”

(emphasis added)

103. The judgment in T.N. Seshan did not directly consider the

issues which are before this Bench. Furthermore, the observations

made in T.N. Seshan indicate that the Election Commissioners were

not mere advisors, but have a crucial constitutional role.

VI. Reports of Various Commissions on Manner of Appointment

of Chief Election Commissioner and Election Commissioners:

A. Dinesh Goswami Commission, 199049

“Appointment of CEC

1. The appointment of the Chief Election Commissioner should

be made by the President in consultation with the Chief Justice 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.p

India and the Leader of the Opposition (and in case no Leader of the

opposition is available, the consultation should be with the leader of

the largest opposition group in the Lok Sabha).

2. The consultation process should have a statutory backing.

3. The appointment of the other two Election Commissioners

should be made in consultation with the Chief Justice of India,

Leader of the Opposition (in case the Leader of the opposition is not

available, the consultation should be with the leader of the largest

opposition group in the Lok Sabha) and the Chief Election

Commissioner.”

B. National Commission to Review the Working of

Constitution-Report (2002)50

“(62) The Chief Election Commissioner and the other Election

Commissioners should be appointed on the recommendation of a

body consisting of the Prime Minister, Leader of the Opposition in

the Lok Sabha, Leader of the Opposition in the Rajya Sabha, the

Speaker of the Lok Sabha and the Deputy Chairman of the Rajya

Sabha. Similar procedure should be adopted in the case of

appointment of State Election Commissioners. [Para 4.22]”

C. Election Commission of India Proposed Reforms (2004)51

“The independence of the Election Commission upon which the

Constitution makers laid so much stress in the Constitution would

be further strengthened if the Secretariat of the Election

Commission consisting of officers and staff at various levels is also

insulated from the interference of the Executive in the matter of their

appointments, promotions, etc., and all such functions are

exclusively vested in the Election Commission on the lines of the

Secretariats of the Lok Sabha, and Rajya Sabha, Registries of the

50 National Commission to Review the Working of Constitution-Report (2002) Para 4.22, pg. 14 , Available

at: https://www.thehinducentre.com/multimedia/archive/03091/ncrwc_3091109a.pdf

51 Election Commission of India Proposed Reforms (2004), 12. COMPOSITION OF ELECTION

COMMISSION AND CONSTITUTIONAL PROTECTION OF ALL MEMBERS OF THE

COMMISSION AND INDEPENDENT SECRETARIAT FOR THE COMMISSION, Pg. 14, 15, available

at:

https://prsindia.org/files/bills_acts/bills_parliament/2008/bill200_20081202200_Election_Commission_P

roposed_Electoral_Reforms.pdf

Supreme Court and High Courts, etc. The Independent Secretariat

is vital to the functioning of the Election Commission as an

independent constitutional authority. In fact, the provision of an

independent Secretariat to the Election Commission has already

been accepted in principle by the Goswami Committee on Electoral

Reforms and the Government had, in the Constitution (Seventieth

Amendment) Bill, 1990, made a provision also to that effect. That

Bill was, however, withdrawn in 1993 as the Government proposed

to bring in a more comprehensive Bill.”

D. Report of Second Administrative Reform Commission

(2009)52

“In recent times, for statutory bodies such as the National Human

Rights Commission (NHRC) and the Central Vigilance Commission

(CVC) , appointment of Chairperson and Members are made on the

recommendations of a broad based Committee. Given the far

reaching importance and critical role of the Election Commission in

the working of our democracy, it would certainly be appropriate if a

similar collegium is constituted for selection of the Chief Election

Commissioner and the Election Commissioners.”

E. Background Paper on Electoral Reform, Ministry of Law &

Justice (2010)53

“Recommendation

Clause (5) of Article 324 of the Constitution, inter alia, provides that

the Chief Election Commissioner shall not be removed from his office

except in like manner and on like grounds as a Judge of the

Supreme Court. However, Clause (5) of Article 324 does not provide

similar protection to the Election Commissioners and it only says

that they cannot be removed from office except on the

recommendation of the Chief Election Commissioner. The provision,

in the opinion of the Election Commission, is inadequate and

requires an amendment to provide the very same protection and

safeguard in the matter of removability of Election Commissioners

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), 6.3 Measures for Election

Commission, pg. 19, Available at: https://lawmin.gov.in/sites/default/files/bgp_0.doc

from office as is provided to the Chief Election Commissioner. The

Election Commission recommends that constitutional protection be

extended to all members of the Election Commission.

The Election Commission also recommends that the Secretariat of

the Election Commission, consisting of officers and staff at various

levels is also insulated from the interference of the Executive in the

matter of their appointments, promotions, etc., and all such

functions are exclusively vested in the Election Commission on the

lines of the Secretariats of the Lok Sabha, and Rajya Sabha,

Registries of the Supreme Court and High Courts etc.

The third recommendation of the Election Commission is that its

budget be treated as “Charged” on the Consolidated Fund of India.”

F. Law Commission of India Report, 2015 (255th Report)54

104. Taking note of the important role played by the Election

Commission of India i.e., the task of conducting elections throughout

the country, the Law Commission in its 255th Report emphasized that

the Commission should be completely insulated from political

pressure or executive interference to maintain the purity of elections,

inherent in a democratic process, and recommended:

“Appointment of Chief Election Commissioner and Election

Commissioners – (1) The Election Commissioners, including the

Chief Election Commissioners, shall be appointed by the President

by warrant under his hand and seal after obtaining the

recommendations of a Committee consisting of: (a) the Prime

Minister of India – Chairperson (b) the Leader of the Opposition in

the House of the People – Member (c) the Chief Justice of India –

Member

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.p

Provided that after the Chief Election Commissioner ceases to hold

office, the senior-most Election Commissioner shall be appointed as

the Chief Election Commissioner, unless the Committee mentioned

in sub-section (1) above, for reasons to be recorded in writing, finds

such Election Commissioner to be unfit.

Explanation: For the purposes of this sub-section, “the Leader of the

Opposition in the House of the People” shall, when no such Leader

has been so recognised, include the Leader of the single largest

group in opposition of the Government in the House of the People.”

105. The Law Commission also recommended the formation of an

independent and permanent Secretariat staff for Election

Commission and suggested that:

“The Election Commission shall have a separate independent and

permanent secretarial staff. The Election Commission may, by rules

prescribed by it, regulate the recruitment, and the conditions of

service of persons appointed, to its permanent secretarial staff.”

106. These reports clearly indicate the need for reforms in the

working of the Election Commission, in particular in the process of

selection and removal of the members of the Election Commission.

VII. Comparative framework - Foundational parameters

107. An examination of practice for appointment of the head of

election-conducting bodies across the world shows some trends that

include amongst others, the inclusion of members of the opposition.

In most jurisdictions, such appointments are a consultative process,

involving members/ nominees of both the ruling party and the

opposition party. The presence of opposition in various critical

decision-making processes of governance is a sine qua non for a

healthy democracy. It not only provides a system of accountability of

the ruling party but also ensures a much-crucial deliberative

process. This, in turn, plays a pivotal role in preserving the true

essence of democracy by raising the concerns of the people of the

country. In addition, some jurisdictions also have Constitutional

functionaries such as Speakers of the house of Parliament/

Legislature, and Judges of the Highest Court in the country in a

multi-member Committee. Relevant details of electoral bodies of

some countries are as follows:

COUNTRY Composition

of Election

Body

Composition

of Selection

Committee

Appointing

Authority

Eligibility/

Tenure

Removal

method/

measures to

ensure

Independence

1 PAKISTAN

There shall

be Chief

Election

Commissioner

and 4

members

who shall

be High

Court

Judges

from each

Province.

[Article 218

(2)]

PM in

consultation

with LOP in

the National

Assembly,

forward 3

names for

appointment

of the

commissioner

to a

parliamentary

committee for

hearing and

President CEC- A Judge of

the SC or has

been a Judge of a

High Court

(qualified to be a

Judge of the

Supreme Court)

[Art 213(2)]

Members- Must

be a High Court

Judge.

Not more than 68

years of age.

Under

Article

215(2) of the

constitution,

the

commissioner

or a member

can only be

removed

from office in

a manner

prescribed in

Article 209

as the

55 Constitution of Islamic Republic of Pakistan, available at :

https://drive.google.com/file/d/1TMpGdvhpYXMh07ZQoS_SDxwQoH_C8itF/view?usp=sharing

COUNTRY Composition

of Election

Body

Composition

of Selection

Committee

Appointing

Authority

Eligibility/

Tenure

Removal

method/

measures to

ensure

Independence

confirmation

of any one

person.

The

Parliamentary

Committee to

constituted

by the

speaker shall

comprise 50%

members

from the

treasury

Branch and

50% from

opposition

parties, to be

nominated by

respective

Parliamentary

leaders.

[Article 213]

For a term of 5

years [Art 215(1)]

removal of

judges i.e. if

he has been

guilty of

misconduct

2 Bangladesh

The

appointment

of the Chief

Election

Commissioner

Bangladesh

and other

election

commissioners

(if any) is

made by

the

president.

When the

election

commission

consists of

more than

-CEC

-Not more

than four

election

Commissioner

[Art 118 (1)]

President Five years.

[Art 118(3)]

Not eligible for

appointment in

the service of the

Republic. Any

other Election

Commissioner is,

on ceasing to hold

such office,

eligible for

appointment as

Chief Election

Commissioner,

but is not eligible

for appointment

in the service of

the Republic.

[Art 118 (3)(b)]

that an

Election

Commissioner

shall not be

removed

from his

office except

in like

manner and

on the like

grounds as a

Judge of the

Supreme

Court.

An Election

Commissioner

may resign

his office by

writing

56Constitution of the People’s Republic of Bangladesh, Available at:

https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/33095/73768/F-2125404014/BGD33095%20Eng2.pdf

COUNTRY Composition

of Election

Body

Composition

of Selection

Committee

Appointing

Authority

Eligibility/

Tenure

Removal

method/

measures to

ensure

Independence

one person,

the chief

election

commission

er is to act

as its

chairman.

[Art 118 (1)]

under his

hand

addressed to

the

President.

[Art 118(5)]

3 Australia

Section 6 of

the

Commonwealth

Electoral

Act 1918

(Electoral

Act)

establishes

the

Australian

Electoral

Commission

(the

Commission)

a three

person

body which

holds

responsibilities

outlined

under

section 7 of

the

Electoral

Act.

-Chairperson

-Electoral

Commissioner

- one other

member

[S.6(2)]

Chairperson

and

nonjudicial

appointee

are

appointed

Governor

General.

-7 years [S.8(1)]

The Commission

is headed by a

Chairperson, who

must be an active

or retired judge of

the Federal Court

of Australia. The

other members

are the Electoral

Commissioner and

a non-judicial

member.

eligible for reappointment.

misbehaviour

or physical

or mental

incapacity by

GovernorGeneral.

[Art.25(1)]

4. Canada58 Chief

Electoral

Officer

(S.13 of

Canada

Elections

Act)

- Appointed

resolution

of the

House

commons

10 years [S.13(1)]

Not eligible for reappointment to

that office.

He/She may

be removed

for cause by

the Governor

General on

address of

the Senate

and House of

57 Commonwealth Electoral Act,1918 available at: https://www.legislation.gov.au/Details/C2022C00074

58 Canada Election Act, available at: https://laws-lois.justice.gc.ca/eng/acts/E-2.01/page-2.html#docCont

COUNTRY Composition

of Election

Body

Composition

of Selection

Committee

Appointing

Authority

Eligibility/

Tenure

Removal

method/

measures to

ensure

Independence

Commons.

[S.13(1)]

5 Sri

Lanka59

Chairman

and Four

Members

[Art. 103(1)]

In making

such

appointments

the President

shall seek the

observations

of a

Parliamentary

Council

(hereinafter

referred to as

“the

Council”),

comprising –

(a) the Prime

Minister;

(b) the

Speaker;

of the

Opposition;

(d) a nominee

of the Prime

Minister, who

shall be a

Member of

Parliament;

and

(e) a nominee

of the Leader

of the

Opposition,

who shall be a

Member of

Parliament.

President To be selected

amongst persons

who have

distinguished

themselves in any

profession or in

the field of

administration or

education.

One of the

members so

appointed shall be

a retired officer of

the Department of

Elections or

Election

Commission, who

has held office as

a Deputy

Commissioner of

Elections or

above. The

President shall

appoint one

member as its

Chairman.

The term of office

of members of the

Elections

Commission is

five years. [Art.

103(6)]

The

procedure

followed in

removing a

Judge of the

Supreme

Court or the

Court of

Appeal

should be

followed in

removing a

member

from office

during the

period of the

term of

office. [Art

103(4)]

A member of

the

Commission

shall be paid

such

emoluments

as may be

determined

Parliament.

The

emoluments

paid to a

member of

the

Commission

shall be

charged on

the

Consolidated

59 Constitution of Sri Lankahttps://drive.google.com/file/d/1W5j3D_8CUiYjox8t8eUSlg7SFifjmebK/view?usp=sharing

COUNTRY Composition

of Election

Body

Composition

of Selection

Committee

Appointing

Authority

Eligibility/

Tenure

Removal

method/

measures to

ensure

Independence

Fund and

shall not be

diminished

during the

term of office

of the

member. [Art

103(8)]

6 United

States of

America

The Federal

Election

Commission

consists of

6 election

commission

ers, and not

more than

3 members,

may

represent

the same

political

party.

[S.306(a)(1)]

The

Commission

is appointed

by the

President and

confirmed by

the Senate.

President

and

confirmed

by the

Senate

-Each

commissioner is

appointed for a

six-year term

-Two

commissioners

are appointed

every two years.

-The Chair of

Commission

changes every

year.

[S.306(2)(a)]

7 Nepal61 Chief

Election

Commissioner

and four

other

Election

Commissioners

[Art 245(1)]

The President

shall, on the

recommendation

of the

Constitutional

Council

(Art.284)

Comprising

of:

a. Prime

Minister -

Chairperson

b. Chief

JusticeMember

c. Speaker of

President a. holds a

Bachelor's Degree

from a recognized

university,

b. is not a member

of any political

party immediately

before the

appointment;

c. has attained the

age of forty-five

and

d. possesses high

moral character.

[Art. 245(6)]

Six Years [Art.

Removal by

the President

recommendation

of the

Constitutional

Council on

grounds of

his or her

inability to

hold office

and

discharge

the functions

due to

physical or

mental

60 FEDERAL ELECTION CAMPAIGN ACT OF 1971, available at:

https://www.govinfo.gov/content/pkg/COMPS-985/pdf/COMPS-985.pdf

61 Constitution of Nepal, Available at: https://lawcommission.gov.np/en/wpcontent/uploads/2021/01/Constitution-of-Nepal.pdf

COUNTRY Composition

of Election

Body

Composition

of Selection

Committee

Appointing

Authority

Eligibility/

Tenure

Removal

method/

measures to

ensure

Independence

the House of

Representatives -

Member

Chairperson

of National

Assembly -

Member

e. Leader from

the

Opposition

Party in

House of

RepresentativeMember

f. Deputy

Speaker of

House of

RepresentativesMember),

appoint the

Chief Election

Commissioner

and the

Election

Commissioners.

245(3)] illness.

[Art.

245(4)(d)]

8 South

Africa62

The

Commission

shall

consist of

five

members,

one of

whom shall

be a judge,

appointed

by the

President.

[S.6(1)]

Panel shall

consist of:

(a) President

of the

constitutional

courtChair-person

(b)

Representative of

the human

rights court.

(c)

representative

of the

President

nomination

committee

national

assembly

proportionally

consisting

members

of all the

parties

represented

in that

Assembly

from a

(a) is a

South

African

citizen;

(b) does

not at

that

stage

have a

high

partypolitical

profile;

(c)·has

been

recommended

years

[S.7(1)

]

Can

be reappointed

for 1

term

By the

President:

-on ground

misconduct,

incapacity or

incompetence

-after a

finding to

that effect by

a committee

of the

National

Assembly

upon the

62 Electoral Commission Act 51 of 1996, available at:

https://www.gov.za/sites/default/files/gcis_document/201409/act51of1996.pdf

COUNTRY Composition

of Election

Body

Composition

of Selection

Committee

Appointing

Authority

Eligibility/

Tenure

Removal

method/

measures to

ensure

Independence

commission

on gender

equality

(d) public

prosecutor

established.

[Section 6(3)]

list of

candidates

recommended

by the

panel.

by the

National

Assembly

by a

resolution

adopted

by a

majority

of the

members

of that

Assembly

; and

(d) has

been

nominated

by a

committee

of the

National

Assembly,

proportionally

composed

members

of all

parties

represented

in that

Assembly

, from a

list of

recommended

candidates

submitted

to the

committee

by the

panel

referred

to in

subsection

(3)

[S.6(2)]

recommendation of

the Electoral

Court, and

-the

adoption by

a majority of

the members

of that

Assembly of

a resolution,

calling for

that

commissioner's

removal from

office

[S.7(3)(a)]

9 United

Kingdom

The

Electoral

Commission

The Speaker's

Committee on

the Electoral

Commission,

If the

House

agrees

COUNTRY Composition

of Election

Body

Composition

of Selection

Committee

Appointing

Authority

Eligibility/

Tenure

Removal

method/

measures to

ensure

Independence

63 comprises

of Ten

commissioners

that are

appointed

by the

committee

with

membership

drawn from

MPs within

the UK

Parliament.

with

membership

drawn from

MPs within

the UK

Parliament,

oversees the

recruitment

of electoral

commissioners

. The

candidates

for these

posts are

then

approved by

the House of

Commons

and

appointed by

HM the

Queen.

The Speaker

will ask the

Leader of the

House to

table a motion

for an humble

Address to

appoint the

recommended

candidates.

the

motion,

the King

appoints

the

commissioners

by Royal

Warrant

VIII. Process of Selection of other Constitutional/Statutory

Bodies

63 https://www.electoralcommission.org.uk/who-we-are-and-what-we-do/about-us/commissioners/ourcommissioners

108. Various state institutions supporting constitutional democracy

have an independent mechanism for the appointment of its heads

and members. The same is carried out with an object to keep them

insulated from any external influence that allows them to remain

neutral to carry on the assigned functions. Table showing the

position of various authorities is as follows:

No.

Authorities Composition

of Body

Composition

Selection

Committee

Appointing

Authority

Eligibility Tenure Conditions

ensuring

Independence

1. National

Human

Rights

Commission

(The

Protection of

Human

Rights Act,

1993)

NHRC

composed

Chairperson

and 12

other

members

(5 full

time

members

and 7

deemed

members)

(Section

Constitution

of NHRC)

The

Protection

Human

Rights

Act, 1993

The

Selection

Committee

includes:

● Prime

Minister

(Chairman)

●Speaker

of Lok

Sabha,

●Union

Home

Minister,

●Deputy

Chairman

of Rajya

Sabha,

●Leaders

of the

Opposition

in both

Houses of

the

Parliament

President

(Section4)

Chairman

- retired

Judge of

the

Supreme

Court

Member

1- One

who has

been

judge of

the SC

Member

2- One

who has

been CJ

of the HC

3 -

Members

out of

which at

least on

shall be a

woman

among

candidate

with the

knowledge

practical

experience

3 years

or until

the age

of 70

years

(Section

6. Term

of office

Chairperson

and

Members)

The

President

can remove

the

chairman

or any

member

from the

office

under

some

circumstances

No.

Authorities Composition

of Body

Composition

Selection

Committee

Appointing

Authority

Eligibility Tenure Conditions

ensuring

Independence

in the

matter of

Human

Rights.

2. State Human

Rights

Commission

(The

Protection of

Human

Rights Act,

1993)

Chairperson

and 2

members

(Section

Appointment

Chairper

son and

Members

of State

Commission)

The

Protection

Human

Rights

Act, 1993

Appointed

by the

Governor

on the

recommendation

Committee

consisting:

● CM

● Speaker

Legislative

Assembly,

● State

Home

Minister,

● Leader of

the

Opposition in

the

Legislative

Assembly

Governor

(S. 22)

Chairman

– Retired

Chief

Justice or

a judge of

a HC

Membersserving or

retired

judge of

the HC or

a District

Court in

the state

3 years

or 70

years

whichever

earlier

(Section

Term of

office of

Chairperson

and

Members

of the

State

Commission)

Eligible

for reappointment

Removed

only by the

President

3. CBI (headed

by Director)

(Delhi Special

Police

Establishmen

t Act, 1946)

(Section

Committee

for

appointment

Director)

Delhi

Special

Police

Establishment

Act, 1946

Central

Government

shall

appoint

Director of

the CBI on

the

recommendation

of the 3-

member

committee

consisting

of:

● The Prime

Minister

as the

Chairperson

● Leader of

Opposition

in the Lok

Sabha,

and

Appointment

Committee

- 2 years

tenure

(Section

Terms

and

conditions

service

Director

)

Delhi

Special

Police

Establishment

Act,

1946

President

has the

authority

to remove

or suspend

the

Director on

the

reference

by the

CVC, of

misbehaviour

incapacity

(Removal)

No.

Authorities Composition

of Body

Composition

Selection

Committee

Appointing

Authority

Eligibility Tenure Conditions

ensuring

Independence

● CJI or

Judge of

the SC,

nominated

by him.

4. Chief

Information

Commissioner

(The Right to

Information

Act, 2005)

- Chief

Information

Commissioner

- Central

Information

Commissioners

(as

deemed

fit,

maximum

10)

(Section

Constitution

of Central

Information

Commission)

Right to

Information

Act, 2005

●Prime

Minister

(Chairman)

●Leader of

Opposition

in the Lok

Sabha

● Union

Cabinet

Minister

(nominated

by the

PM)

President

on the

recommendation

of the

committee

Persons

eminence

in public

life with

wide

knowledge

and

experience

in law,

science,

and

technology

,social

service,

management,

journalism,

mass

media or

administration

and

governance.

Shall not

be a

member

parliament

legislature

of any

state or

UT and

should

not hold

any

officer of

profit

under

state.

…as

may be

prescri

bed by

Central

Government

or 65,

whichever

earlier

- Shall

ineligible

for reappointment

Information

Commissioners

can be

appointed

as CIC,

provided

the

collective

tenure

of both

posts

does

not

exceed

5 years.

(Section

Term of

office

and

conditions

service)

Removal

President

on ground

of proven

misbehaviour

incapacity

(After SC’s

inquiry

that such

officer

shall be

removable

on such

grounds)

Other

grounds:

insolvency

conviction

of offense

involving

moral

turpitude.

- unfit due

to infirmity

of mind.

- acquired

financial

interests

inconsiste

nt with his

official

position.

No.

Authorities Composition

of Body

Composition

Selection

Committee

Appointing

Authority

Eligibility Tenure Conditions

ensuring

Independence

5. Central

Vigilance

Commission

(CVC Act,

2003)

- Central

Vigilance

Commissioner

Vigilance

Commissioners

(not more

than 2)

(Section 3

Constituti

on of

Central

Vigilance

Commission)

Central

Vigilance

Commission

Act, 2003

● Prime

Minister

(Chairman

)

● Leader of

Opposition

in the Lok

Sabha

● Minister

Home

Affairs

President

on the

recommendation

of the

committee

For CVC

- Persons

who are

or have

been in

All India

Service or

Civil

Service

with

experienc

e in

matters

related to

vigilance,

policymaking,

and

administration

including

police

administration.

-held or

holding

office in a

corporati

establishe

d under

Central

Governm

ent and

having

expertise

and

experienc

e in

finance

including

insurance

and

banking,

law,

vigilance

and

investigat

ions

4 years

from

the

date he

enters

office or

years,

whichever

earlier.

- Shall

ineligible

for reappointment

Vigilance

Commissioner

shall be

eligible

to be

appointed

CVC,

provided

the

collective

tenure

of both

the

posts

does

not

exceed

4 years.

(Section

Terms

and

other

conditions

service

Central

Vigilance

Commissioner)

Central

Vigilance

Commission

Removal

President

on ground

of proved

misbehaviour

incapacity

(After SC’s

inquiry

that such

officer

shall be

removable

on such

grounds)

Other

grounds:

insolvency

conviction

of offense

involving

moral

turpitude.

- unfit due

to infirmity

of mind.

- acquired

financial

interests

inconsiste

nt with his

official

position.

No.

Authorities Composition

of Body

Composition

Selection

Committee

Appointing

Authority

Eligibility Tenure Conditions

ensuring

Independence

Act,

2003

6. Lokpal

(Lokpal and

Lokayukta

Act, 2013)

Chairperson

- other

members

(as

deemed

fit, not

than

50%

shall be

judicial

members

)

(Section 4

Appointment

Chairperson

and

Members

recommendations

of the

Selection

Committee)

Lokpal

and

Lokayuktas

Act, 2013

● Prime

Minister

(Chairman

)

● Leader of

Oppositi

on in the

Lok

Sabha

● Speaker

of House

of the

People

● CJI/Judge

of SC

● One

eminent

Jurist

President

on the

recommendation

of the

committee

For

Chairman

- who is

or has

been a

Chief

Justice of

India or is

or has

been a

Judge of

the

Supreme

Court or

eminent

person of

impeccable

integrity

and

outstanding

ability

having

special

knowledge

and

expertise

of not less

than

twentyfive years

in the

matters

relating to

anticorruption

policy,

public

administration,

vigilance,

finance

including

insurance

and

banking,

5 years

from

entering

office or

years,

whichever

earlier.(

S.6 )

Shall

ineligible

for:

-reappointment

Chairman

Member

Lokpal.

- other

appointment

required

to be

made

President

- other

office of

profit

under

the

government.

contesting

election

within

period

of 5

years

from

relinquishing

President

on ground

of proved

misbehaviour

incapacity

After SC’s

inquiry

that such

officer

shall be

removable

on such

grounds)

Other

grounds:

insolvency

- unfit due

to infirmity

of mind.

- engages

employme

nt outside

his office.

No.

Authorities Composition

of Body

Composition

Selection

Committee

Appointing

Authority

Eligibility Tenure Conditions

ensuring

Independence

law and

management.

Chairpersons

and

members

shall not

be:

MP/MLA

- less

than 45

years

convicted

of offence

involving

moral

turpitude

- member

Panchayat

municipality

- person

who has

been

dismissed

removed

from

services.

the

post.

: Member

can be

appointed

Chairm

an,

provided

aggregate

term

does

not

exceed

5 years.

(Section

6 Term

of office

Chairperson

and

Members)

Lokpal

and

Lokayuktas

Act,

2013.

7. Press

Council of

India

(Press

Council of

India Act,

1978)

Chairman

- 28

other

members

(Section 5

Composition

of the

Council)

● Chairman

of the

Council

of States

(Rajya

Sabha)

● Speaker

of the

House of

Different

set of

members

are

appointed

according

to the

requirement

of their

roles. For

chairman,

working

journalist

who

owns, or

carries on

the

business

of management

of, any

newspaper

3 years

(Chairman

& other

Members)

PROVISO

–

Chairman

continue

to hold

No.

Authorities Composition

of Body

Composition

Selection

Committee

Appointing

Authority

Eligibility Tenure Conditions

ensuring

Independence

Press

Council

Act, 1978

the

People

(Lok

Sabha)

● A person

elected

by the

members

of the

Council

committe

e is

formed.

shall

eligible

for

nomination

(Proviso

to Sec

5(3))

office

until

the

Council

reconstituted

accordance

with

Section

5 or for

period

of 6

months

whichever

earlier

Retiring

member

eligible

for only

one

term.

(Section

Term of

office

and

retirement

members)

Press

Council

Act,

1978

IX. Constitutional Silence and Vacuum: Power of the Court to lay

guidelines

109. This Court has plenary power under Article 142 to issue

directions to do “complete justice”. An analysis of the judgments of

this Court shows that the Court has created a jurisprudence, where

it has exercised its power under Article 142 to fill legislative gaps.64

Reference can also be made to the speech given by Dr B.R. Ambedkar

in the Constituent Assembly on 4 November 1948, where he noted

that the Drafting Committee had tried to include detailed processes

to avoid the misuse of power. Dr Ambedkar was emphasizing on a

constitutional design which would prevent arbitrariness by laying

down legal procedures to regulate power.65

110. This Court has laid down guidelines in order to fill the legislative

gap on a number of occasions. In Lakshmi Kant Pandey v Union of

India,66 in the absence of statutory enactment for the adoption of

Indian children by foreign parents, their Court laid down safeguards

to prevent malpractice by social organizations and private adoption

agencies. Directions were provided in Kumari Madhuri Patil and

Another v Addl. Commissioner, Tribal Development and Others67

for issuance and early scrutiny of social status certificates (showing

that a person belongs to SC/ST community) for admission in

64 Krishnan RH and Bhaskar A, “Article 142 of the Indian Constitution: On the Thin Line 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-times101637851829964.html

66 AIR 1984 SC 469

67 (1994) 6 SCC 241

educational institutions or for employment. This Court laid down

guidelines for autonomy of CBI and other special investigating

agencies in the case of Vineet Narain and Others v Union of India

and Another.

68 In the case of Vishaka and Others v State of

Rajasthan and Others,

69 this Court laid down guidelines to ensure

prevention of sexual harassment of women at workplace. Another

judgment in this regard is Vishwa Jagriti Mission Through

President v Central Govt. Through Cabinet Secretary and

Others,

70 where a two-judge bench of this Court laid down guidelines

for educational institutes to prevent the menace of ragging.

111. This Court in the case of Prakash Singh and Others v Union

of India and Others,

71 after studying various committee reports on

police reforms, laid down certain directions in the nature of police

reforms to be operative until the new Police Act is to be framed. It is

necessary to quote the following excerpt from the judgment:

“It is not possible or proper to leave this matter only with an

expression of this hope and to await developments further. It is

essential to lay down guidelines to be operative till the new

legislation is enacted by the State Governments. Article 32 read

with Article 142 of the Constitution empowers this Court to issue

such directions, as may be necessary for doing complete justice in

68 (1998) 1 SCC 226

69 AIR 1997 SC 3011

70 (2001) 6 SCC 577

71 (2006) 8 SCC 1

any cause or matter. All authorities are mandated by Article 144 to

act in aid of the orders passed by this Court….In the discharge of

our constitutional duties and obligations having regard to the

aforenoted position, we issue the following directions to the Central

Government, State Governments and Union Territories for

compliance till framing of the appropriate legislations.”

112. This Court has also laid down guidelines to streamline and

facilitate the institutional apparatus and procedural system. In the

case of Laxmi v Union of India and Others,

72 this Court intervened

to prevent cases of acid violence, and laid down guidelines on sale of

acid and the treatment of victims of acid attack. A three-judge bench

decision in Shakti Vahini v Union of India and Others73 issued

guidelines to check unlawful interference by Khap panchayat in

interfaith and inter caste 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 punitive

measures and, accordingly, we state the broad contours and the

modalities with liberty to the executive and the police administration

of the concerned States to add further measures to evolve a robust

mechanism for the stated purposes.”

113. The series of case laws authoritatively demonstrate the

commitment of this Court to intervene to preserve and promote the

“Rule of Law”, by supplementing the legislative gaps till the

72 (2014) 4 SCC 427

73 (2018) 7 SCC 192

Legislature steps in. This has been done in exercise of the plenary

power of this Court under Article 142 of the Constitution.

114. Our decision is therefore to lay down parameters or guidelines

for the selection process for the appointment of the Chief Election

Commissioner and the Election Commissioner. This decision is

supported by the two-judge judgment in State of Punjab v. Salil

Sabhlok and Others.

74 In this case, it was pointed out that no

parameters or guidelines have been laid down in Article 316 of the

Constitution for selecting the Chairperson of the Public Service

Commission and no law has been enacted on the subject with

reference to Schedule VII List II Entry 41 of the Constitution. In his

concurring opinion, Justice Madan Lokur, for the bench, relied on

Mohindhr Singh Gill case to reiterate that:

“... wide discretion is fraught with tyrannical potential even in high

personages. Therefore, the jurisprudence of prudence demands a

fairly high degree of circumspection in the selection and

appointment to a constitutional position having important and

significant ramifications.”

115. Justice Lokur also analysed the previous judgments of this

Court on judicial review of the selection process, and noted:

74 (2013) 5 SCC 1

“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 the appointment

of the Central Vigilance Commissioner while reaffirming the

distinction between merit review pertaining to the eligibility or

suitability of a selected candidate and judicial review pertaining to

the recommendation-making process.…Acknowledging this, this

Court looked at the appointment of the Central Vigilance

Commissioner not as a merit review of the integrity of the selected

person, but as a judicial review of the recommendation-making

process relating to the integrity of the institution. It was made clear

that while the personal integrity of the candidate cannot be

discounted, institutional integrity is the primary consideration to be

kept in mind while recommending a candidate. It was observed that

while this Court cannot sit in appeal over the opinion of HPC, it can

certainly see whether relevant material and vital aspects having

nexus with the objects of the Act are taken into account when a

recommendation is made. This Court emphasised the overarching

need to act for the good of the institution and in the public interest.

Reference in this context was made to N. Kannadasan [N.

Kannadasan v. Ajoy Khose, (2009) 7 SCC 1 : (2009) 3 SCC (Civ) 1] .”

(emphasis added)

116. It was also held that the selection process of a constitutional

post cannot be equated with the selection process of a bureaucratic

functionary. If the Executive is left with the exclusive discretion to

select the candidate, it may destroy the fabric of the constitutional

institution. This Court held:

“A constitutional position such as that of the Chairperson of a Public

Service Commission cannot be equated with a purely administrative

position—it would be rather facetious to do so. While the Chief

Secretary and the Director General of Police are at the top of the

ladder, yet they are essentially administrative functionaries. Their

duties and responsibilities, however onerous, cannot be judged

against the duties and responsibilities of an important

constitutional authority or a constitutional trustee, whose very

appointment is not only expected to inspire confidence in the

aspirational Indian but also project the credibility of the institution

to which he or she belongs. I am, therefore, unable to accept the

view that the suitability of an appointee to the post of Chairperson

of a Public Service Commission should be evaluated on the same

yardstick as the appointment of a senior administrative

functionary… The Chairperson takes the oath of allegiance to India

and to the Constitution of India—not an oath of allegiance to the

Chief Minister. An appointment to that position cannot be taken

lightly or on considerations other than the public interest.

Consequently, it is not possible to accept the contention that the

Chief Minister or the State Government is entitled to act only on the

perceived suitability of the appointee, over everything else, while

advising the Governor to appoint the Chairperson of the Public

Service Commission. If such a view is accepted, it will destroy the

very fabric of the Public Service Commission.” (para 119 and 125)

117. It was concluded that the Court can frame guidelines till the

Legislature steps in. To quote:

“136. In the light of the various decisions of this Court adverted to

above, the administrative and constitutional imperative can be met

only if the Government frames guidelines or parameters for the

appointment of the Chairperson and Members of the Punjab Public

Service Commission. That it has failed to do so does not preclude

this Court or any superior court from giving a direction to the State

Government to conduct the necessary exercise within a specified

period. Only because it is left to the State Legislature to consider

the desirability or otherwise of specifying the qualifications or

experience for the appointment of a person to the position of

Chairperson or Member of the Punjab Public Service Commission,

does not imply that this Court cannot direct the executive to frame

guidelines and set the parameters. This Court can certainly issue

appropriate directions in this regard, and in the light of the

experience gained over the last several decades coupled with the

views expressed by the Law Commission, the Second

Administrative Reform Commission and the views expressed by

this Court from time to time, it is imperative for good governance

and better administration to issue directions to the executive to

frame appropriate guidelines and parameters based on the

indicators mentioned by this Court. These guidelines can and

should be binding on the State of Punjab till the State Legislature

exercises its power.” (emphasis added)

118. That Article 324(2) refers to the appointment of the Chief

Election 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 a law laying down the procedure of selection for

appointment of the Chief Election Commissioner and other Election

Commissioners, but such law has not been made by the Parliament,

even after 73 years since the adoption of the Constitution. In order

to fill the legislative vacuum, i.e. the absence of any law made by the

Parliament for the appointment of members of the Election

Commission and in the light of the views expressed in various reports

of the Law Commission, Election Commission, etc., this Court is of

the considered view that the instant case thus aptly calls for the

exercise of the power of this Court under Article 142 to lay down

guidelines to govern the process of selection and removal 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 the Election

Commission as a Constitutional body, the office of Chief Election

Commissioners as well as the Election Commissioners have to be

insulated from the executive interference. This is envisaged under the

proviso to Article 324(5) which reads:

“Provided that the Chief Election Commissioner shall not be

removed from his office except in like manner and on the like

grounds as a Judge of the Supreme Court and the conditions of

service of the Chief Election Commissioner shall not be varied to his

disadvantage after his appointment:

Provided further that any other Election Commissioner or a Regional

Commissioner shall not be removed from office except on the

recommendation of the Chief Election Commissioner.”

120. There are two procedural safeguards available regarding the

removal of the CEC: (i) shall not be removed from his office except in

like manner and on the like grounds as a Judge of the Supreme

Court; (ii) the conditions of service of the Chief Election

Commissioner shall not be varied to his disadvantage after his

appointment. However, second proviso to Article 324(5) postulates

that the removal of the Election Commissioners could be made only

on the recommendation of the Chief Election Commissioner. The

protection available to the Chief Election Commissioners is not

available to other Election Commissioners. Various reports have

recommended that the protection against removal available to the

Chief Election Commissioner should be made available to the other

Election Commissioners to ensure the independence of the Election

Commission.

121. A note titled “Proposed Electoral Reforms” (2004)75 prepared

and published by the Election Commission of India itself

recommended that:

“In order to ensure the independence of the Election Commission

and to keep it insulated from external pulls and pressures, Clause

(5) of Article 324 of the Constitution, inter alia, provides that the

Chief Election Commissioner shall not be removed from his office

except in like manner and on like grounds as a Judge of the

Supreme Court. However, that Clause (5) of Article 324 does not

provide similar protection to the Election Commissioners and it

merely says that they cannot be removed from office except on the

recommendation of the Chief Election Commissioner. The provision,

in the opinion of the Election Commission, is inadequate and

requires an amendment to provide the very same protection and

safeguard in the matter of removability of Election Commissioners

from office as is available to the Chief Election Commissioner.”

(emphasis added)

122. The above recommendation was reiterated in the Background

Paper on Electoral Reform (2010)76 prepared by the Union Ministry

of Law and Justice, in co-sponsorship of Election Commission of

India states:

“Recommendation

75 Election Commission of India Proposed Reforms (2004), Pg. 14, 15, available at:

https://prsindia.org/files/bills_acts/bills_parliament/2008/bill200_20081202200_Election_Commission_P

roposed_Electoral_Reforms.pdf

76 Background Paper on Electoral Reform, Ministry of Law & Justice (2010), 6.3 Measures for Election

Commission, pg. 19, Available at: https://lawmin.gov.in/sites/default/files/bgp_0.doc

Clause (5) of Article 324 of the Constitution, inter alia, provides that

the Chief Election Commissioner shall not be removed from his office

except in like manner and on like grounds as a Judge of the

Supreme Court. However, Clause (5) of Article 324 does not provide

similar protection to the Election Commissioners and it only says

that they cannot be removed from office except on the

recommendation of the Chief Election Commissioner. The provision,

in the opinion of the Election Commission, is inadequate and

requires an amendment to provide the very same protection and

safeguard in the matter of removability of Election Commissioners

from office as is provided to the Chief Election Commissioner. The

Election Commission recommends that constitutional protection be

extended to all members of the Election Commission.

The Election Commission also recommends that the Secretariat of

the Election Commission, consisting of officers and staff at various

levels is also insulated from the interference of the Executive in the

matter of their appointments, promotions, etc., and all such

functions are exclusively vested in the Election Commission on the

lines of the Secretariats of the Lok Sabha, and Rajya Sabha,

Registries of the Supreme Court and High Courts etc.

The third recommendation of the Election Commission is that its

budget be treated as “Charged” on the Consolidated Fund of India.”

(emphasis added)

123. The office of the Election Commission is an independent

constitutional body which has been vested with the powers of

superintendence, direction and control of the preparation of electoral

rolls and the conduct of all parliamentary and State Legislatures’

elections and that of the office of President and Vice-President in

terms of Article 324(1) of the Constitution. In terms of Article 324(2),

the office of Election Commission comprises of Chief Election

Commissioner and “such number of other Election Commissioners, if

any, as the President may from time to time fix” and by an Order dated

01 October, 1993, the President has fixed the number of Election

Commissioners to two until further orders. Since 1993, it is a multimember Commission with equal participation in transacting the

business of the Election Commission as provided under Chapter III

of the Act, 1991 to ensure the smooth and effective functioning of the

Election Commission.

124. Article 324(5) of the Constitution is intended to ensure the

independence of the Election Commission free from all external

political interference and, thus, expressly provides that the removal

of the Chief Election Commission from office shall be in like manner

as on the grounds as of a Judge of the Supreme Court. Nevertheless,

a similar procedure has not been provided for other Election

Commissioners under second proviso to Article 324(5) of the

Constitution. The other conditions of the service of Chief Election

Commissioner/other Election Commissioners have been protected by

the Legislature by the Act 1991.

125. In the facts and circumstances, keeping in view the importance

of maintaining the neutrality and independence of the office of the

Election Commission to hold free and fair election which is a sine qua

non for upholding the democracy as enshrined in our Constitution, it

becomes imperative to shield the appointment of Election

Commissioners and to be insulated from the executive interference.

It is the need of the hour and advisable, in my view, to extend the

protection available to the Chief Election Commissioner under the

first proviso to Article 324(5) to other Election Commissioners as well

until any law is being framed by the Parliament.

XI. Directions

126. Until the Parliament makes a law in consonance with Article

324(2) of the Constitution, the following guidelines shall be in effect:

(1) We declare that the appointment of the Chief Election

Commissioner and the Election Commissioners shall be made

on the recommendations made by a three-member Committee

comprising of the Prime Minister, Leader of the Opposition of

the Lok Sabha and in case no Leader of Opposition is available,

the Leader of the largest opposition party in the Lok Sabha in

terms of numerical strength and the Chief Justice of India.

(2)It is desirable that the grounds of removal of the Election

Commissioners shall be the same as that of the Chief Election

Commissioner that is on the like grounds as a Judge of the

Supreme Court subject to the “recommendation of the Chief

Election Commissioner” as provided under the second proviso

to Article 324(5) of the Constitution of India.

(3) The conditions of service of the Election Commissioners shall

not be varied to his disadvantage after appointment.

……………………………J.

(AJAY RASTOGI)

NEW DELHI;

MARCH 02, 2023

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