2023 (3) TMI 1486 - SC - Indian Laws

True effect of Article 324 and, in particular, Article 324(2) of the Constitution - requirement of having a full-proof and better system of appointment of members of the Election Commission - challenge to policy's implementation by the Union of India - violations of fundamental rights guaranteed by the Constitution of India - balance between environmental conservation and individual liberties. HELD THAT - The significant legal precedents regarding the scope of governmental authority in environmental matters and the protection of individual rights within the framework of environmental regulation are established. Until the Parliament makes a law in consonance with Article 324(2) of the Constitution, the following guidelines shall be in effect (1) It is declared that the appointment of the Chief Election Commissioner and the Election Commissioners shall be made on the recommendations made by a three-member Committee comprising of the Prime Minister, Leader of the Opposition of the Lok Sabha and in case no Leader of Opposition is available, the Leader of the largest opposition party in the Lok Sabha in terms of numerical strength and the Chief Justice of India. (2) It is desirable that the grounds of removal of the Election Commissioners shall be the same as that of the Chief Election Commissioner that is on the like grounds as a Judge of the Supreme Court subject to the recommendation of the Chief Election Commissioner as provided under the second proviso to Article 324(5) of the Constitution of India. (3) The conditions of service of the Election Commissioners shall not be varied to his disadvantage after appointment.

Issues Involved:

1. Need for an independent Election Commission.
2. Right to vote as a constitutional right.
3. Free and fair elections.
4. Constitutional and statutory framework for the Election Commission.
5. Appointment process of Chief Election Commissioner (CEC) and Election Commissioners (ECs).
6. Protection and tenure of CEC and ECs.
7. Comparative framework of election bodies in other countries.
8. Process of selection for other constitutional/statutory bodies.
9. Constitutional silence and vacuum.
10. Power of the Court to lay down guidelines.

Issue-wise Detailed Analysis:

1. Need for an Independent Election Commission:
The judgment emphasizes that democracy is a government by the people, of the people, and for the people. The Election Commission of India (ECI) plays a crucial role in ensuring free and fair elections, which is fundamental to democracy. The ECI must be independent and insulated from external pressures to maintain the sanctity of the democratic process. The independence of the ECI is necessary to ensure transparency, accountability, and public trust in the electoral process.

2. Right to Vote as a Constitutional Right:
The right to vote is recognized as a fundamental human right and is intrinsic to the practice of democracy. The judgment traces the historical debates in the Constituent Assembly, which initially considered the right to vote as a fundamental right. Despite being placed in Article 326, the right to vote is declared as a constitutional right flowing through Articles 15, 17, 19, and 21. The right to vote is essential for citizens to participate in democracy and shape their destinies by choosing their government.

3. Free and Fair Elections:
Free and fair elections are essential for the functioning of democracy. The ECI's role is integral to conducting such elections. The judgment highlights that the ECI must function independently to ensure the purity of the election process and to prevent any undue influence from the executive or political parties.

4. Constitutional and Statutory Framework for the Election Commission:
Article 324 of the Constitution provides for the superintendence, direction, and control of elections by the ECI. However, the judgment notes the absence of a detailed law governing the appointment of CEC and ECs. The Act of 1991 provides for the conditions of service and tenure but does not address the appointment process, leading to a constitutional vacuum.

5. Appointment Process of Chief Election Commissioner (CEC) and Election Commissioners (ECs):
The judgment acknowledges the concerns raised during the Constituent Assembly debates about the potential for executive influence in the appointment of CEC and ECs. It emphasizes the need for a transparent and fair selection process. The judgment refers to various reports recommending a collegium system for appointments to ensure the independence of the ECI.

6. Protection and Tenure of CEC and ECs:
The judgment notes the disparity in protection between the CEC and other ECs. While the CEC enjoys protection similar to that of a Supreme Court judge, ECs can be removed only on the recommendation of the CEC. The judgment recommends extending the same protection to ECs to ensure their independence and prevent executive interference.

7. Comparative Framework of Election Bodies in Other Countries:
The judgment examines the appointment processes of election bodies in other countries, such as Pakistan, Bangladesh, Australia, Canada, Sri Lanka, the United States, Nepal, South Africa, and the United Kingdom. It highlights the trend of including members of the opposition and other constitutional functionaries in the selection committees to ensure transparency and independence.

8. Process of Selection for Other Constitutional/Statutory Bodies:
The judgment compares the selection processes of other constitutional and statutory bodies in India, such as the National Human Rights Commission, Central Vigilance Commission, and Lokpal. It notes that these bodies have independent mechanisms for appointments, involving members of the opposition and other functionaries, which ensures their neutrality and independence.

9. Constitutional Silence and Vacuum:
The judgment acknowledges the constitutional silence and legislative vacuum regarding the appointment process of CEC and ECs. It emphasizes the need for guidelines to fill this gap until Parliament enacts a law. The judgment refers to previous instances where the Court has laid down guidelines to fill legislative gaps.

10. Power of the Court to Lay Down Guidelines:
The judgment asserts the Court's power under Article 142 to lay down guidelines to ensure complete justice. It refers to previous cases where the Court has exercised this power to fill legislative gaps and ensure the proper functioning of constitutional bodies. The judgment concludes that it is necessary to lay down guidelines for the appointment of CEC and ECs to ensure their independence and the integrity of the electoral process.

Final Relief:
The judgment directs that the appointment of the CEC and ECs shall be made by the President on the advice of a committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India. This norm will continue until Parliament enacts a law. The judgment also makes a fervent appeal for the establishment of a permanent Secretariat for the ECI and for charging its expenditure to the Consolidated Fund of India to ensure its independence.

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