SUBMISSIONS ON BEHALF OF SHRI PRASHANT BHUSHAN, LEARNED COUNSEL ON BEHALF OF PETITIONER IN WRIT PETITION (CIVIL) NO. SUBMISSIONS BY SHRI JAYA THAKUR, PETITIONER IN WRIT PETITION (CIVIL) NO. THE CONSTITUENT ASSEMBLY DEBATES POWERS, FUNCTIONS AND JURISDICTION OF THE ELECTION COMMISSION OF INDIA.RULE OF LAW; FUNDAMENTAL RIGHTS AND AN INDEPENDENT ELECTION COMMISSION. AN ELECTION COMMISSIONER ENTITLED TO SAME PROTECTION AS GIVEN TO CHIEF ELECTION COMMISSIONER? THE CASES: THE FOUR WRIT PETITIONS 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.
Article 145 (3) of the Constitution of India would, therefore, require the Court to refer the matter to a Constitution Bench. 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 5 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. 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.” 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. 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.
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. Like the Judiciary, the Election Commission must display fearless independence. Inaction on the part of the Election Commission even in the face of alarming increase of criminals in public life, must guide this Court. In this regard, we are reminded that this Court has played a very proactive role in 10 matters relating to elections and electoral reforms. 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. This is because Article 324(2) mandates that Parliament should make a just, fair and 12 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. The concepts of power of reciprocity and loyalty to the appointing Body, referred to in 13 Supreme Court Advocates-on-Record Association and Another vs Union of India, is invoked. It is further contended that the Election Commission resolves various disputes between various political parties including the Ruling Government and other parties. Elaborating on the powers (2016) 5 SCC 1 14 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. 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). Still further, support is sought to be drawn from the Second Judges case in Supreme Court Advocates- on-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 India. SUBMISSIONS BY SHRI JAYA THAKUR, PETITIONER IN WRIT PETITION (CIVIL) NO. SUBMISSIONS OF SHRI KALEESWARAM RAJ, LEARNED COUNSEL FOR THE INTERVENOR in Writ Petition (Civil) 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. 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.
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. 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 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. 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. 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. The Minister of Law and Justice recommends a panel for the Prime Minister and the President from the database.
In the present batch of cases, there is no Fundamental Right involved, which can support any interference by this Court. Article 324(2) cannot lead to a constitutional duty on the part of Parliament to legislate. Article 324(2) cannot lead to a constitutional duty on the part of Parliament to legislate. The learned Solicitor General persuades the Court to exhibit judicial restraint. SUBMISSIONS OF SHRI BALBIR SINGH, LEARNED ADDITIONAL SOLICITOR GENERAL 14.
“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. 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.
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. 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. 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. 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. 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. 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 Union Constitution Committee deleted all the suggestions for the exercise of discretionary powers by the President and also the proposal 33 for a Council of State. 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. (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, 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.
(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. The amendment moved contemplated substitution of the original Article 289 inter alia as follows: 36 “(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. 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 37 right and provided for in the chapter dealing with Fundamental Rights. 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 38 break, or to permit the President to have an ad hoc body appointed at the time when there is an election on the anvil. 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. 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. 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.”
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. 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. The Chief Election Commissioners will have to be 42 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. 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.
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. Therefore, the Election Commission must remain to a large extent an 44 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. 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. 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. 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. 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) Thereafter, he proposed that an amendment which read as follows: 47 “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.” 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 48 made by Parliament. 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. THE USE OF CONSTITUENT ASSEMBLY DEBATES 28. In regard to the use of Constituent Assembly debates, the law has not stood still. 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. (1973) 4 SCC 225 51 Chief Minister and others, has approved, after referring to the decisions of this Court on the point, ‘the use of Constituent Assembly debates’. Most importantly, the Fundamental Rights Sub-Committee in (2021) 8 SCC 1 52 the meeting held on 29.03.1947 contemplated that an independent Commission must be set up under Union law. 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. 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. 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. 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.
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. 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. 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. Articles in the Constitution, which employ the words ‘subject to any law’ to be made by Parliament as contained in Article 324.
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. 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. 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. 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 64 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.” 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.
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. 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). (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.
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. 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. 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. 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.
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. 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). 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). 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).
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. 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. 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. Shri James Michael Lyngdoh became an Election Commissioner in the year 1997 and was made the Chief 77 Election Commissioner on 14.06.2001, on the expiry of the term of Shri M.S. N.Gopalaswamy, EC 08.02.200 4- 29.06.200 6 30.06.2006 – 20.04.2009 5 yrs 2 mts 13 days 4. Navin B.Chawla, EC 16.05.200 5- 20.04.200 9 21.04.2009 -29- 07.2010 5 yrs 2 mts 14 days 5. Sushil Chandra, EC 15.02.201 9- 12.04.202 1 13.04.2021 – 14.05.2022 3 yers 3 mts 14. Rajiv Kumar, EC 01.09.202 0- 18.02.202 5 15.05.2022 – 14.05.2022 4 yrs 8 mts 14 days (expected ) 15.
Another Notification rescinding the Notification dated 16.10.1989, by which the two Election Commissioners were appointed, came to be issued. 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. 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.
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 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. 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 84 Commissioner at two. 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 (1995) 4 SCC 611 85 interference. 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. What the Drafting Committee proposes by sub-clause (2) is to have 86 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 Constitution- makers 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. 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 87 CEC that the first proviso to clause (5) lays down that they cannot be varied to the disadvantage of the CEC after his appointment.
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. Munshi in the Constituent Assembly when he supported the amended draft submitted by Dr Ambedkar: 88 “We cannot have an Election Commission sitting all the time during those five years doing nothing. 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. The functions of the Election Commission are essentially administrative but there are certain adjudicative and legislative functions as well. We need say no more on this aspect of the matter.” 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.
Under Article 324, the Chief Election Commissioner is an unalterable feature or figure. 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. 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 Election Commission should be a multi- member body with three members. 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.
The tenure of the Chief Election Commissioner and other Election Commissioners should be for a term of five years or sixty- five 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.” In the year 1991, Parliament enacted the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. 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.” Section 5 deals with the leave available to both the Chief Election Commissioner or an Election Commissioner. Under Section 9, the business of the Election Commissioner is to be transacted in accordance with the 1991 Act. (3) Subject to the provisions of sub-section (2), if the Chief Election Commissioner and 97 other Election Commissioners differ in opinion on any matter, such matter shall be decided according to the opinion of the majority.” In the year 1993, the Government of India constituted, what is known as the ‘Vohra Committee’. In relation to electoral processes and political parties, various recommendations were 98 made by the Commission. 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.
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. 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 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.
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. 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.” The next milestone to be noticed is the Second Administrative Reforms Commission Report made in January, 2007. The proposal to make the expenses of the Election Commission of India ‘charged’ was considered by the Dinesh Goswami Committee but was not favoured. 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.
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. 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. The Supreme Court in Bhagwati Prashad 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.” 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. 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. 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. 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”. 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 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 unfit. 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. – (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.
(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). (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).” 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…”. 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. 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. State of Punjab and Another, 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. 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.
Undoubtedly, an observance of doctrine of separation of powers has been traced to the principle of equality (See Madras Bar Association v. 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.” SCC 1 119 the Constitution of India (See His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and others, 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. 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. 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? Separation of powers in one sense is a limit on active jurisdiction of each organ. If we notice the evolution of separation of powers doctrine, traditionally the checks and balances dimension was only associated with governmental excesses and violations. Separation of powers is part of the basic structure of the Constitution of India. 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.
Being the grundnorm, it is indeed a rarefied field where the court must tread wearily (See Divisional Manager, Aravali Golf Club and Another v. 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 (2008) 1 SCC 683 (1989) Suppl.2 SCC 364 125 coalesce. 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. 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’.
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.” 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. 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. 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. 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. Elections can be conflated with a non-violent coup capable of unseating the most seemingly powerful governing parties, if they do not perform to fulfil the aspirations of the governed. 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.
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. First, judicial restraint not only recognises the equality of the other two branches with the judiciary, it also fosters that equality by minimising inter- branch interference by the judiciary. 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). 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. 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.
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. 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. 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. 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’. We may only notice the following views expressed by the Court: “5. Any provision enacted with a view to promote this object must be welcomed and upheld as subserving the constitutional purpose.
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. 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 non- residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election. 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 qualified under the Constitution and the law to exercise the right to franchise. 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 sub- section (1) of Section 16, two consequences may follow.
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. 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. 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.
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 (2003) 4 SCC 399 146 constitutional right. 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. 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.
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. 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”. 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. 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 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. 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 non- residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.” 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 153 preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses.”
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. The appropriate Legislature can make a law providing for a disqualification, however, only as provided in Article 326 itself., 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. 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.
(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- 157 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.
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. 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)’. 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.
(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. (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. 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.
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. 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. 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 Section 16(1)(b) of the 1950 Act, provides for disqualification for a person of unsound mind to be registered in an electoral roll.
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. 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. (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 169 at 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 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. 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 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. 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. (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. 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. 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. 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. 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. 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 137? 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. 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. 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)]. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Without fraternity, liberty and equality could not become a natural course of things.
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. 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. 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. 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).
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. 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 decision involved the interpretation of (2001) 7 SCC 126 Article 164, and in particular, Article 164 (4) of the Constitution of India. Article 164 reads as follows. — (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. 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 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.
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. Union of India and Another, dealing with Article 156(1) which declares that a Governor shall hold office during the pleasure of the President. 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. 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. 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. 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. 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.
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 (1996) 2 SCC 752 (2000) 8 SCC 216 (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. 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 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 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 guardian of democracy should be recognised. 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 198 presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.” 162. 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 (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 completing of proceedings in elections. ( 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. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. 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. 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. Abrahim Lincoln declared democracy to be Government of the people, by the people and for the people. 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. 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 205 the will of the people so that the fruits of democracy are truly reaped.
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. 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. 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. Power of Commission in relation to splinter groups or rival sections of a recognised political party– 209 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.” The Model Code of Conduct for Guidance of Political Parties and Candidates provides, inter alia, as follows: “1. 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 (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; 211 XXXX XXXX XXXX 3. Power of Commission to suspend or withdraw recognition of a recognised political party for its failure to observe Model Code of Conduct or follow lawful directions and instructions of the Commission- Notwithstanding 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 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.” (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 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. 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. 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. 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. 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 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 (c) in relation to any matter with respect to 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. Indeed, allotment of an election symbol cannot be claimed as a fundamental right as much as contesting election is not, as observed (2019) 18 SCC 219 219 in Jyoti Basu v. 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.
Union of India and others, 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. 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 222 bureaucrats in India. 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 Court, in Public Interest Foundation (supra), elaborately quoted from the Two Hundred and Forty- Fourth Report of the Law Commission of India on Electoral Disqualifications. Disclosure of antecedents makes the election a fair one and the exercise of the right of voting by the electorate also gets sanctified. 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.
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. A time has come that Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream. A person may be excellent, i.e., at his chosen vocation. 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. 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. 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. 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. 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.
One of the Officers was from Andhra Pradesh and belonged to the 1983 Batch. The present appointee belonged to the Punjab Cadre and was of the 1985 Batch. 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. 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 voluntary appointee seeking 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. Learned Attorney General would contend that the appointment is made from a panel of Officers. 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. 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. 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. 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 60 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. 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.
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. We draw the following conclusions: Parliament enshrined a term of six years separately for the Chief Election Commissioner and the Election Commissioner. 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. 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 in- depth study of the problem in order to implement them by suitable executive (1998) 1 SCC 226 244 directions till proper legislation is enacted.
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. Union of India [(1984) 2 SCC 244] (In re, Foreign Adoption), guidelines for adoption of minor children by foreigners were 245 laid down. Union of India [(1991) 3 SCC 655 : 1991 SCC (Cri) 734], Union Carbide Corpn. 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. The objectives of the judiciary mentioned in the Beijing Statement are: “ Objectives of the Judiciary : 10. 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. Union of India and others, 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 (1991) 4 SCC 584 248 dispose of the same in accordance with the settlement.
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. 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. 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. 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 purposes. 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. 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. 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.
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. [(1982) 2 SCC 101 : 1982 SCC (Cri) 361 : (1982) 3 SCR 235, 243] Since the foundation of the criminal trial of N.L.
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 (1993) 4 SCC 441 255 appointments, if left to the absolute discretion of the executive as the appointing authority. 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). 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. 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. State of Rajasthan and others, a Writ Petition was filed for enforcement of Fundamental Rights of working women under Articles 14, 19 and 21. 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; (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 ( c ) to administer the law impartially among persons and between persons and the State.” 207. In Special Reference No 1 of 1998, Re (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. 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.
The next principle that can be thought of is constitutional silence or silence of the Constitution or constitutional abeyance.
[(1997) 1 SCC 416 : 1997 SCC (Cri) 92 : AIR 1997 SC 610] or directions issued in Vishaka v. The basic structure doctrine vis– vis Article 368 of the Constitution emerged out of this concept of silence in the Constitution. It has been so stated in Union of India v. Naveen Jindal [ Union of India v. Equally, we may notice what this Court, in Manoj Narula (supra), held as regards constitutional morality: “74. Democracy in India is only a top- dressing on an Indian soil, which is essentially undemocratic.” [ Constituent Assembly Debates, 1948, Vol. 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.
This is despite a chorus of voices even cutting across the political divide urging divesting of the exclusive power of appointment from the Executive. In the context of Article 326, making of law as contemplated in Article 326, was an unavoidable necessity. 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. 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. 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.
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. 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. 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.
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. (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. 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. 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.
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. 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. 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. 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. 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 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. We would only make an appeal on the basis that there is an urgent need to provide 288 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. 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. 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION(CIVIL) NO(S). I have had the advantage of going through the judgment penned by my brother K.M. Constitutional and statutory framework: The Constitutional Vacuum V. 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. 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 4 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.
Article 145 (3) of the Constitution of India would, therefore, require the Court to refer the matter to a Constitution Bench. 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 also 6 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.
Points were also debated regarding the term of the Chief Election Commissioner/Election Commissioners, and the process of removal of Election Commissioners. 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. 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.
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. 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.” Democracy is thus linked with the realization of the aspirations of the people. The Preamble to the Indian Constitution begins with the phrase “We, the People of India”. 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.
The institutions which were set up were given a role and duty to fulfill the task as enshrined in the Preamble and the Constitution. The Election Commission has been given a wide range of powers towards “s uperintendence, 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. Ambedkar once said “Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.” 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. 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.
As a constitutional court of the world’s largest 16 democracy, we cannot allow the dilution of people’s faith in democratic institutions. The success of democracy, thus, depends on the working of institutions that support the pillars of the structure of democracy. To strengthen the democratic processes, the institution of the Election Commission needs to be independent and demonstrate transparency and accountability. The working of democracy depends on whether the people can decide the fate of the elected form of government. 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.” 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. 1, pages 243-278 BR Ambedkar, “States & Minorities”, in Babasaheb Ambedkar: Writings and Speeches, published by Government of India, Vol. 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.” This shows that the Framers envisaged that the right to vote must be accompanied by a provision establishing the 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.” 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 Sub- Committee. See “Minutes Of Dissent To The Report” dated April 17-20, 1947 by KM Panikkar, page 187 ibid, page 199 22 Committee dated April 17, 1947, there were two suggestions on the fundamental right to vote and Election Commission.
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.” 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. 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.” Govind Ballabh Pant explained the reason why there was a concern regarding inclusion of the right to vote in the fundamental rights chapter. We will have what we desire.” 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.” 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 ibid, page 250 251 ibid, page 251 25 effect that we recommend to the Constituent Assembly the following principles in regard to the framing of the Constitution.” While Dr.
What emerges from this discussion is that there was an initial agreement among the members of the fundamental rights sub- committee 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. 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.
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.” A different view was adopted by a Constitution Bench of this Court in the case of Mohindhr Singh Gill and Another v. 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. 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. 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). 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). 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. 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. 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 33 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). 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 (2006) 7 SCC 1 34 Constitution. 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. 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. The dissenting judge also addressed the counsel for the Election Commission of India that the right to vote is merely a statutory right. 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. Union of India and Another (PUCL (2013) 10 SCC 1 37 2013). 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. 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.
(2016) 1 SCC 463 39 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. When the Constitution came into force, 40 what were known as Princely States became a part of India, and accepted direct elections as a method of choosing the government. Therefore, the right to vote is not limited only to Article 326, but flows through Article 15, 17, 19, 21. State of Andhra Pradesh and Others, 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. 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.
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; (c) To have access, on general terms of equality, to public service in his country.” 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. 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.” Vishakha v. 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.” 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.”
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. 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.” Thus, the role of the Election Commission is integral to conducting free and fair elections towards the working of democracy. 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. 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. 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. 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”. 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. That is the provision contained in sub-clause (1).” 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. 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.
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 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.
But, by leaving a great deal of power in the hands 53 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. He said: 54 “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.” 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. 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.
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. 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. 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. 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. 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.”
Election Commission of India Proposed Reforms (2004) “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 National Commission to Review the Working of Constitution-Report (2002) 14, 15, available at: https://prsindia.org/files/bills_acts/bills_parliament/2008/bill200_20081202200_Election_Commission_P roposed_Electoral_Reforms.pdf 59 Supreme Court and High Courts, etc. 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 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. 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 255 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 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 df 61 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 unfit.
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In most jurisdictions, such appointments are a consultative process, involving members/ nominees of both the ruling party and the 62 opposition party. Various state institutions supporting constitutional democracy have an independent mechanism for the appointment of its heads and members. Constitutional Silence and Vacuum: Power of the Court to lay guidelines 109. An analysis of the judgments of 77 this Court shows that the Court has created a jurisprudence, where it has exercised its power under Article 142 to fill legislative gaps. In Lakshmi Kant Pandey v Union of India, 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. In the case of Vishaka and Others v State of Rajasthan and Others, this Court laid down guidelines to ensure prevention of sexual harassment of women at workplace. 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.” In the case of Laxmi v Union of India and Others, 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. 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.
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. 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. I am, therefore, unable to accept the 82 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… 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. 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. 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.
Case Title: ANOOP BARANWAL Vs. UNION OF INDIA MINISTRY OF LAW AND JUSTICE SECRETARY (2023 INSC 190)
Case Number: W.P.(C) No.-000104-000104 / 2015
