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TMI Blog2023 (3) TMI 1486X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. - K.M. JOSEPH, ANIRUDDHA BOSE, HRISHIKESH ROY, C.T. RAVIKUMAR AND AJAY RASTOGI, JJ. For the Appellant : Varinder Kumar Sharma, AOR, Prashant Bhushan, AOR, Alice Raj, Rahul Gupta, Neha Rathi, Ria Yadav, Advs., Gopal Shankarnarayanan, Sr. Adv., Ashwani Kumar Dubey, AOR, Ashwini Kumar Upadhyay, Janhavi Dubey, Ishita Chaudhary, Shivani Vij, Aditi Gupta, Tricha Chandran, Avinash Shukla, Sanjeev Kumar Baliyan, Saurabh Mishra, Tanya Srivastava, Shivani Vij, Ishita Choudhary, Trisha Chandran and Adi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a Constitution Bench for an authoritative pronouncement. Post the matter before the Hon'ble the Chief Justice of India on the Administrative Side for fixing a date of hearing. 3. We may notice the following prayers in the said Writ Petition (Civil) No. 104 of 2015: i) issue a writ of mandamus or an appropriate writ, order or direction, commanding the Respondent: to make law for ensuring a fair, just and transparent process of selection by constituting a neutral and independent collegium/selection committee to recommend the name for the appointment of the member to the Election Commission Under Article 324(2) of the Constitution of India; ii) issue a writ of mandamus or an appropriate writ, order or direction constituting an interim neutral and independent collegium/selection committee to recommend the names for the appointment on the vacant post of the member to the Election Commission; iii) issue a writ of mandamus or an appropriate writ, order or direction commanding the Respondent to decide the petition of the Petitioner dated 03.12.2014 for making a law for ensuring a fair, just and transparent selection process by constituting an independent and neutral collegiums/selec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orms of May 1990, formulated by the Ministry of Law and Justice, Government of India, the Report of Second Administrative Reforms Commission, Government of India of 2007 and the Report of Law Commission of India on Electoral Reforms of March 2015 and; 7. Having referred to the broad complaint, the reliefs sought, we may appropriately notice the contentions of the parties. B. THE SUBMISSIONS OF THE PetitionerS; SHRI GOPAL SANKARANARAYANAN, Learned Senior Counsel IN WRIT PETITION (C) No. 1043 OF 2017 8. In Writ Petition No. 1043 of 2017, Shri Gopal Sankaranarayanan makes the following submissions: There is a lacuna in the matter of appointment Under Article 324. Of the twelve categories of unelected Constitutional Authorities, it is only the Election Commission and the National Commission for Scheduled Castes, where qualifications and eligibility are not laid down in the Constitution or the Statute. The words 'subject to law made' falls into two broad categories. In the matter of appointments, they are represented by Articles 324, 338, 338A and 338B. The other category relates to conditions of service. Representative of this group are Articles 146, 148, 229 and 243K. In the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orthy in matters relating to affidavits on assets, criminal antecedents, time-bound election petition trials, special courts for criminal trials of M.P.s and M.L.A.s, protection from booth capturing, freebies and NOTA. The executive underreach justifies judicial oversight and activism, particularly when more than 72 years have gone by. It is contended that no mandamus is sought against Parliament or to implement the Gaikwad Law Commission Report. The following directions are pressed for until a law is made. A Committee of five, comprising the Prime Minister, the leader of the Opposition or of the single largest party in the Lok Sabha, the Chief Justice of India, the Speaker of the Lok Sabha and an eminent jurist selected by the first four to recommend suitable candidates, is to be appointed for appointment to the Election Commission. The Petitioner would have the Court declare qualifications, which include citizenship of India, and that a person should have completed between 45 years and 61 years. The further qualifications are that the person should have impeccable integrity and high moral character. The individual must have never had affiliation either directly or indirectly to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, the Report of Justice Madan B. Lokur is relied upon. Several instances of inaction or omission are pointed out. This is apart from various Commissions and Committees which have highlighted the need for a change. This Court has stepped-in on many occasions. It is further contended that the democracy is a facet of the basic structure of the Constitution. The appointment of Members of the Election Commission is being done on the whims and fancies of the Executive. The object of having an independent Election Commission is defeated. It is further contended that the Election Commission resolves various disputes between various political parties including the Ruling Government and other parties. This means that the Executive cannot be the sole participator. The practice falls foul of Article 14. Elaborate reference is made to the Constituent Assembly Debates. Elaborating on the powers of the Election Commission, it is pointed out that the power to register a political party Under Section 29A of the Representative of the People Act, 1951, has come up for our consideration. The ruling of this Court in Indian National Congress v. Institute of Social Welfare and Ors. (2002) 5 SCC 685 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dern election process, it can be abused by simply playing with the election schedule. The instrument of instructions which were sought even at the time of passage of amendments to the original Article can be filled in by judicial intervention. Appointment is reduced only to Bureaucrats, that too, majorly IAS Officers. The IAS Officers work in close alliance to their political masters. Appointment must be from a more broad-based pool of talent like Judicial Members. The Secretariat must have sufficient manpower. E. SUBMISSIONS OF SHRI KALEESWARAM RAJ, Learned Counsel FOR THE INTERVENOR in Writ Petition (Civil) No. 569 of 2021. 11. Shri Kaleeswaram Raj, learned Counsel for the intervenor in Writ Petition (Civil) No. 569 of 2021 would contend that the vacuum, which is projected must be conceded as a democratic space which the Founding Fathers of the Constitution, left open for the future Parliament to fill-up. It is contended that the Constituent Assembly not being an elected Body in the real sense, left many things to Parliament, which could claim better democratic legitimacy. Relying upon the Judges' cases, he would submit that a parallel may be drawn. It's a glaring instanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the President, it is well-settled, is to be exercised on the advice of the Council of Ministers. The President is only the formal Head of the State. The power Under Article 324(2) was always understood to be exercised by the President, acting on the aid and advise of the Council of Ministers. Article 77 provides for the conduct of the business of the Government of India. Rules have been laid down thereunder. The learned Attorney General does not dispute that under the Rules, as laid down, the appointment of the Chief Election Commissioner and the Election Commissioners is a matter which need not engage the attention of the Council of Ministers. The Rules instead provide that it is the Prime Minister, who is empowered to decide upon the person to be appointed as the Chief Election Commissioner or the Election Commissioner. In other words, the President exercises the power Under Article 324(2) and he proceeds to appoint a person as a Chief Election Commissioner or an Election Commissioner, acting on the advice of the Prime Minister. The contention is, it is this system, which has been in place for the last more than seven decades. There is no room for confusion. A long array of Chie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e who are considered for appointment, must be ripe enough 'for being inducted into the Election Commission'. The six-year tenure is an ideal. However, strict adherence to the same would have introduced considerable problems. This being the position, the concept of a composite tenure has been arrived at. In other words, the separate term of six years, contemplated in Section 4 of the 1991 Act of six years each, has been understood as been practically attained with the incumbent being selected and appointed in such a manner that the person appointed as an Election Commissioner can look forward to an approximate tenure of six years, even though not as Election Commissioner but as an Election Commissioner and as a Chief Election Commissioner. There is a database of serving/retired Officers of the rank of Secretary to the Government of India/Chief Secretaries. The appointees are selected from the said database. The Minister of Law and Justice recommends a panel for the Prime Minister and the President from the database. Unless this Court considers non-adherence to Section 4 of the 1991 Act, as constituting a subversion of the independence of the Election Commission requiring red ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y non-Executive, would involve a violation of the Doctrine of Separation of Powers. Reliance is placed on the judgment of this Court in Samsher Singh v. State of Punjab and Anr. (1974) 2 SCC 831. Article 324(2) cannot lead to a constitutional duty on the part of Parliament to legislate. Reliance is placed on T.N. Seshan (supra) to contend that the President is the appointing Authority and that the Chief Election Commissioner could not claim to be equated with Supreme Court Judges. The Doctrine of Separation of Powers is emphasised. Separation of powers, it is pointed out, is a reflection of democracy itself. The learned Solicitor General persuades the Court to exhibit judicial restraint. A causus omissus may not justify judicial interference. Matters relating to policy rightfully must remain immune from the judicial radar. What is involved in this case is essentially a political question. H. SUBMISSIONS OF SHRI BALBIR SINGH, LEARNED ADDITIONAL SOLICITOR GENERAL 14. Shri Balbir Singh forcefully contended that there is no vacuum and no trigger. Unlike the position obtaining in Vishakha, there is no dire need made out. The efficient working of the Election Commission unerringly points ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of the Union and of any unit thereof, or, where the Legislature is bicameral, to the lower chamber of the Legislature, subject to such disqualifications on the ground of mental incapacity, corrupt practice or crime as may be imposed, and subject to such qualifications relating to residence within the appropriate constituency as may be required by or under the law. (2) The law shall provide for free and secret voting and for periodical elections to the Legislature. (3) The superintendence, direction and control of all elections to the Legislature, whether of the Union or of a unit, including the appointment of Election Tribunals, shall be vested in an Election Commission for the Union or the unit, as the case may be, appointed in all cases in accordance with the law of the Union. There was some difference of opinion about vesting so much power in the Union in the matter of Election Commissions. It will be seen that, in terms of the recommendation made by the sub-committee, the appointment of all Election Commissions, irrespective of whether they were to function in relation to elections to the Legislature of the Union or in relation to elections to the Legislature of a unit was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fundamental right is that the elections shall be free and the elections shall be by secret voting... We have not said that they shall be direct or they shall be indirect. This is a matter that may be considered at another stage... The third proposition which this fundamental Clause enunciates is that in order that elections may be free in the real sense of the world, they shall be taken out of the hands of the Government of the day, and that they should be conducted by an independent body which we may here call an Election Commission. We have also given permission in Sub-clause (3) of this Clause that each unit may appoint its own Commission. The only thing is that the law shall be made by the Union. The reason for this is that later on there will be a Clause in the Constitution which will impose an obligation upon the Union Government to protect the Constitution framed by themselves for the units. Therefore we suggested that the Union should have the power of making a law, although the administration of that law may be left to the different units. There was unanimous support for the principles enunciated by Ambedkar but Rajagopalachari argued that it would not be proper to deal wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supervision, direction and control in respect of the federal as well as provincial elections would be vested in a Commission to be appointed by the President. The Union Powers Committee expanded this proposal by the inclusion in the Federal Legislative List of the subject All Federal elections: and Election Commission to superintend, direct and control all Federal and Provincial elections . The provisions suggested in the model Provincial Constitution came up for discussion in the Constituent Assembly on July 18, 1947. The Constitutional Adviser in his Draft Constitution of October, 1947 provided that the superintendence, direction and control of all elections to the Federal parliament and Provincial Legislatures (including the appointment of Election Tribunals for the decision of doubts and disputes in connection with elections to Parliament and to Provincial Legislatures) and of all elections to the offices of President, Vice-President, Governor and President. The Drafting Committee altered this scheme and in its draft the power of appointing an Election Commission for supervising elections to the office of Governor and to the State Legislature was vested in the Governor. The Dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Election Commissioners and the Regional Commissioners shall be such as the President may by Rule determine: Provided that the Chief Election Commissioner shall not be removed from the office except in like manner and on the like grounds as a judge of the Supreme Court and the conditions of the service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment: Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. (5) The President or the Governor or Ruler of a State shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by Clause (1) of this article. 17. The amendment moved contemplated substitution of the original Article 289 inter alia as follows: (2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may, from time to time appoint, and when any other El ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Parliament and the Legislatures of States to a body outside the executive to be called the Election Commission. That is the provision contained in Sub-clause (1). Sub-clause (2) says that there shall be a Chief Election Commissioner and such other Election Commissioners as the President may, from time to time appoint. There were two alternatives before the Drafting Committee, namely, either to have a permanent body consisting of four or five members of the Election Commission who would continue in office throughout without any break, or to permit the President to have an ad hoc body appointed at the time when there is an election on the anvil. The Committee, has steered a middle course. What the Drafting Committee proposes by Sub-clause (2) is to have permanently in office one man called the Chief Election Commissioner, so that the skeleton machinery would always be available. Election no doubt will generally take place at the end of five years; but there is this question, namely that a bye-election may take place at any time. The Assembly may be dissolved before its period of five years has expired. Consequently, the electoral rolls will have to be kept up to date all the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Houses. If it is only a bare majority, then the party in power could vote confidence in him but when I want 2/3rd majority it means that the other parties must also concur in the appointment so that in order that real independence of the Commission may be guaranteed, in order that everyone even in opposition may not have anything to say against the Commission, the appointments of the Commissioners and the Chief Election Commissioner must be by the President but the names proposed by him should be such as command the confidence of two-thirds majority of both the Houses of Legislatures. xxx xxx xxx I want that in future, no Prime Minister may abuse this right, and for this I want to provide that there should be two-thirds majority which should approve the nomination by the President. Of course there is danger where one party is in a huge majority. As I said just now it is quite possible that if our Prime Minister wants, he can have a man of his own party, but I am sure he will not do it. Still if he does appoint a party-man, and the appointment comes up for confirmation in a joint session, even a small opposition or even a few independent members can down the Prime Minister before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of persons who are chosen as Chief Election Commissioners or as Election Commissioners. And, as I have already pointed out, in the matter of removal, the Election Commissioners are not on the same footing as the Chief Election Commissioner. (Emphasis Supplied) 22. Shri K.M. Munshi expressed the following views: Between two elections, normally there would be a period of five years. We cannot have an Election Commission sitting all the time during those five years doing nothing. The Chief Election Commissioner will continue to be a whole-time officer performing the duties of his office and looking after the work from day to day, but when major elections take place in the country, either Provincial or Central, the Commission must be enlarged to cope with the work. More members therefore have to be added to the Commission. They are no doubt to be appointed by the President, but as the House will find, they are to be appointed from time to time. Once they are appointed for a particular period they are not removable at the will of the President. Therefore, to that extent their independence is ensured. So there is no reason to believe that these temporary Election Commissioners will not h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke of clarity, at any rate, to allay any doubts Clause (2) requires a little amendment. At the beginning of Clause (2) the following words may be added; subject to the provisions of law made in this behalf by Parliament. (Emphasis Supplied) 23. Dr. B.R. Ambedkar made the following remarks: Now with regard to the question of appointment I must confess that there is a great deal of force in what my Friend Professor Saksena said that there is no use making the tenure of the Election Commissioner a fixed and secure tenure if there is no provision in the Constitution to prevent either a fool or a knave or a person who is likely to be under the thumb of the Executive. My provision--I must admit--does not contain anything to provide against nomination of an unfit person to the post of the Chief Election Commissioner or the other Election Commissioners. I do want to confess that this is a very important question and it has given me a great deal of headache and I have no doubt about it that it is going to give this House a great deal of headache. In the U.S.A. they have solved this question by the provision contained in Article 2 Section (2) of their Constitution whereby certain appointment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I am sorry I did not have time to circulate these amendments, but when I read them the House will know what I am proposing. (Emphasis Supplied) 24. Thereafter, he proposed that an amendment which read as follows: The appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in this behalf by Parliament, be made by the President. (Emphasis Supplied) 25. We notice that the amendment which was proposed by Professor Shibban Lal Saksena which we have noticed came to be negatived and the amendment which was proposed by Dr. B.R. Ambedkar was adopted. Thus, Article 289 as amended was added to the Constitution. It is this Article which appears in the Constitution as Article 324. 26. At this stage, we may only notice the following comment, however, in the work by B Shiva Rao: By leaving a great deal of power in hands of the President, it gave room for the exercise of political influence by the Central Government in the appointment of the Chief Election Commissioner and the other Election Commissioners. His remedy was that Parliament should be authorized to make provision for these matters by law. K.M. Munshi, while suppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of Constituent Assembly debates, the law has not stood still. At any rate, whatever may be the controversy, as regards its employment to discern, the purport of a provision there can be no taboo involved in its use to understand the history of a provision under the Constitution and the various steps leading up to and accompanying its enactment. In this regard, we may refer to the following view expressed in His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. (1973) 4 SCC 225: 1598. If the debates in the Constituent Assembly can be looked into to understand the legislative history of a provision of the Constitution including its derivation, that is, the various steps leading up to and attending its enactment, to ascertain the intention of the makers of the Constitution, it is difficult to see why the debates are inadmissible to throw light on the purpose and general intent of the provision. After all, legislative history only tends to reveal the legislative purpose in enacting the provision and thereby sheds light upon legislative intent. It would be drawing an invisible distinction if resort to debates is permitted simply to show the legislative history ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l sense of the word, they shall be taken out of the hands of the government of the day, and be conducted by the independent body called the Election Commission. Shri C. Rajagopalachari, however, persevered with the theme that the matter relating to franchise may not find itself among the provisions providing for Fundamental Rights. Shri Govind Vallabh Pant suggested a compromise and the Advisory Committee thereby recommended that instead of being included in the Chapter on Fundamental Rights, the provisions relating to franchise and to an independent Election Commission should be located in another part of the Constitution. In his work, the Framing of India's Constitution, by B. Shivarao has not minced words by commenting that by leaving a great deal of power in the hands of the President, it gave room for exercising political influence in the appointment of the Election Commissioner and other election commissioners. The remedy, it was found, which was contemplated was, that the Parliament would make a law to regulate the matter. As we have noticed, there was severe criticism, particularly by Shri Kunzuru and Professor Shiben Lal Saxena, and it was thereupon, that Shri K.M. Mun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... control of the Executive. The provision, as proposed to be amended by Dr. Ambedkar, it was admitted by Dr. Ambedkar himself, did not provide against an 'unfit' person being appointed to the Election Commission. Thereafter, he predicted that the question will emerge as one of the greatest headaches. He found solace in the prospect of an instrument of instructions being issued to the President, which would guide the President in the matter of appointment to the Election. Noticing the uncertainty about the prospect, however, it was and to allay the apprehensions voiced by both Professor Saxena and Pandit Kunzru, that Article 324(2), as it presently obtains, came to be proposed by way of the amendment to the amendment of the original Article. In other words, before the words 'be made by the President', the words 'subject to provisions of any law made in this behalf by Parliament'. came to be inserted. 32. We understand the historical perspective, and the deliberations of the Fundamental Rights Sub-Committee, the Drafting Committee and the other Sub-Committees and, finally, of the Constituent Assembly itself, to be as follows: A golden thread runs through these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce by a Mandamus, to make a law, all that we are finding is that the Constituent Assembly clearly intended that Parliament must make a law within the meaning of Article 324(2). Such an understanding of Article 324(2) may be contrasted with similar provisions in the Constitution, which also contemplated enabling the making of law by Parliament. This brings us to the question relating to an evaluation of similar provisions in the Constitution. M. ARTICLES IN THE CONSTITUTION, WHICH EMPLOY THE WORDS 'SUBJECT TO ANY LAW' TO BE MADE BY PARLIAMENT AS CONTAINED IN ARTICLE 324 34. One of the contentions of the Respondent-Union is that this Court must bear in mind the snowballing effect of the interpretation canvassed by the Petitioners being accepted on other situations governed by other Articles. 35. Articles in the Constitution, which employ the words 'subject to any law' to be made by Parliament as contained in Article 324. 36. Article 98 provides that each House of Parliament shall have a separate Secretarial Staff. Article 98(2) provides that Parliament may, by law, regulate the recruitment and conditions of the staff. Article 98(3) empowers the President, in consulta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de under this Clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the President (3) The administrative expenses of the Supreme Court, including all salaries, allowances and pensions payable to or in respect of the offices and servants of the Court, shall be charged upon the Consolidated Fund of India, and any fees or other moneys taken by the court shall form part of that Fund. 40. Article 146(2) is essentially a matter which deals with the conditions of service of Officers and Servants of Supreme Court. In regard to the said employees, the Founding Fathers have provided for Rule-making power with the Chief Justice of India. We are clear in our minds that apart from the fact, the rule-making power is lodged with the Chief Justice of India, there cannot be any valid comparison between the employees of the Supreme Court and the members of the Election Commission. There is no safeguard provided against the removal as is contemplated for the Chief Election Commissioner and Election Commissioners. Article 148 deals with appointment of the Comptroller and Auditor General of India. It reads as follows: 148. Comptroller and Auditor Genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has provided for the appointment of the Chief Election Commissioner and the Election Commissioners by the President, it has been made subject to a law to be made by the Parliament. No such provision is provided in Article 148(1). We cannot be oblivious to the fact that this is apart from providing for the safeguard in the first proviso to Article 324(5) that the Chief Election Commissioner shall not be removed except in like manner and like grounds as a Judge of Supreme Court of India. Still further, there is a third distinguishing feature between the Chief Election Commissioner and the CAG again located in the first proviso to Article 324(5). It is declared that the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment. The Chief Election Commissioner and Election Commissioners stand on a far higher pedestal in the constitutional scheme of things having regard to the relationship between their powers, functions and duties and the upholding of the democratic way of life of the nation, the upkeep of Rule of Law and the very immutable infusion of life into the grand guarantee of equality Under Article 14. 42. Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats. 46. Article 243(k)(1) contemplates the appointment of the State Election Commissioner to be made by the Governor. Article 243(k)(2) contemplates that the conditions of service and the tenure of the State Election Commissioner is to be such as maybe made by the Governor by Rule and this is, however, made subject to the provisions of any law made by the Legislature of a State. It is, no doubt, again true that the Parliament, while inserting Article 243K, has partly insulated the State Election Commissioner by providing that he shall not be removed from Office except in like manner and on like ground as a Judge of the High Court. Similarly, in the proviso to Article 243K(2), the conditions of service of the State Election Commissioner cannot be varied to his disadvantage after his appointment. It must be noticed that Parliament was aware of the mandate of Article 324(2) when it inserted Article 243. Parliament has carefully chosen not to provide for the making of any law as regards the appointment of the State Election Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a foreign State for the purpose of the Constitution and after declaring it to be 'any State' other than India, makes it, subject to a proviso, which declares that subject to the provisions of any law made by Parliament, the President may, by order, declare any State not to be a foreign State for such purposes, as may be specified in the Order. The matter is governed fully by the Constitution (Declaration as to Foreign States) Order, 1950. Apart from the apparent absence of any imperative need for a law, the matter is governed by an Order, which is issued under the Constitution, which itself would be of a statutory nature and also issued under an enabling provision of the Constitution itself. No further discussion is needed to conclude that Article 324(2) is unique in its setting and purpose. N. DEVELOPMENTS AFTER 26 JANUARY 1950; THE CHIEF ELECTION COMMISSIONERS AND THE ELECTION COMMISSIONERS WHO WERE APPOINTED AND THEIR TERMS 50. In the year 1951, Shri Sukumar Sen was appointed as the first Chief Election Commissioner of India. He was a Civil Servant and a former Chief Secretary of the State of West-Bengal. His term was to last for eight years and two hundred and seventy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime that Election Commissioners, two in number, viz., Shri V.S. Seigell and Shri S.S. Dhanoa came to be appointed as Election Commissioners on 16.10.1989. However, as we shall see in greater detail, the Notification dated 16.10.1989 came to be rescinded on 01.01.1990. The same came to be challenged by Shri S.S. Dhanao and it culminated in the judgment of this Court reported in S.S. Dhanoa v. Union of India and Ors. (1991) 3 SCC 567. A Committee known as the Goswami Committee, made certain recommendations. On its heels, Parliament passed an Act titled 'The Chief Election Commissioner and other Commissioners (Conditions of Service) Act, 1991 (hereinafter referred to as, 'the 1991 Act'). It is noteworthy that this is the law made by Parliament and relatable to Article 324(5), which contemplated a law made by Parliament regulating conditions of service of the Chief Election Commissioner and the Election Commissioners. Smt. V.S. Ramadevi, who had the shortest tenure as the ninth Chief Election Commissioner was drawn from the Civil Services. Her term lasted for sixteen days. The Tenth Chief Election Commissioner was none other than Shri T.N. Sheshan, who was the Eighteenth Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 - 20.04.2009 5 yrs 2 mts 13 days 4. Navin B.Chawla, EC 16.05.2005- 20.04.2009 21.04.2009 -29- 07.2010 5 yrs 2 mts 14 days 5. Shri S.Y. Quraishi, EC 30.06.2006- 29.07.2010 30.07.2010 - 10.06.2012 5 yrs 11 mts 12 days 6. Shri V.S. Sampath, EC 21.04.2009- 10.06.2012 11.06.2012 - 15.01.2015 5 yrs 8 mts 26 days 7. H.S. Brahma, EC 24.08.2010-15.01.2015 16.01.2015 - 18.04.2015 4 yrs 7 mts 26 days 8. Nasim Zaidi, EC 07.01.2012- 18.04.2015 19.04.2015- 05.07.2017 4 yrs 10 mts 29 days 9. Achal Kumar Joti, EC 07.05.2015- 08.07.2017 06.07.2017 - 22.01.2018 2 years 8 mts 16 days 10. O.P. Rawat, EC 14.08.2015- 22.01.2018 23.01.2018 - 01.12.2018 3 yrs 3 mts 18 days 11. Sunil Arora, EC 31.08.2017-01- 12.2018 02.12.2018 - 12.04.2021 3 yrs 7 mts 13 days 12. Ashok Lavasa, EC 23.01.2018- 31.08.2020 (N/A because of voluntary resignatio n) 2 yrs 7 mts 9 days 13. Sushil Chandra, EC 15.02.2019- 12.04.2021 13.04.2021 - 14.05.2022 3 yers 3 mts 14. Rajiv Kumar, EC 01.09.2020- 18.02.2025 15.05.2022 - 14.05.2022 4 yrs 8 mts 14 days (expected ) 15. Anup Chandra Pandey, EC 08.06.2021- 14.02.2024 2 yrs 8 mts 7 days (expected) O. A CLOSER LOOK AT S.S. DANOA (SUPRA), THE 1991 ACT AND T.N. SESHAN (SUPRA) 53. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e absence of such law which has yet to be made.... (Emphasis supplied) 54. We may notice paragraph 18, dealing with the manner in which a multi-Member Commission must act. Thereafter, the Court went on to find that there was really no need to have appointed the Election Commissioners and, still further made the following observations: 26. There is no doubt that two heads are better than one, and particularly when an institution like the Election Commission is entrusted with vital functions, and is armed with exclusive uncontrolled powers to execute them, it is both necessary and desirable that the powers are not exercised by one individual, however, all-wise he may be. It ill conforms the tenets of the democratic rule. It is true that the independence of an institution depends upon the persons who man it and not on their number. A single individual may sometimes prove capable of withstanding all the pulls and pressures, which many may not. However, when vast powers are exercised by an institution which is accountable to none, it is politic to entrust its affairs to more hands than one. It helps to assure judiciousness and want of arbitrariness. The fact, however, remains that where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so to Article 324(5) provides the safeguard for the Election Commissioner or a Regional Commissioner that they cannot be removed except on the recommendation of the Chief Election Commissioner. On 01.10.1993, again, in exercise of the powers Under Article 324(2), the President fixed until further orders, the number of Election Commissioners other than the Chief Election Commissioner at two. Two Election Commissioners also came to be appointed w.e.f. 01.10.1993. The Ordinance, which had been passed on 01.10.1993, became Act No. 4 of 1994 on 04.01.1994. This led to certain Writ Petitions being filed calling in question the Ordinance including at the instance of Shri T.N. Seshan, who, it must be noticed, was appointed earlier on 12.12.1990 as the Chief Election Commissioner. He challenged the Ordinance on various grounds. Matters engaged the attention of the Constitution Bench and its decision is reported in T.N. Seshan, Chief Election Commissioner of India v. Union of India and Ors. (1995) 4 SCC 611. The Constitution Bench, we may notice, made the following observations: 10. The Preamble of our Constitution proclaims that we are a Democratic Republic. Democracy being the basic featur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lable. 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. Clause (3) of the said Article makes it clear that when the Election Commission is a multi-member body the CEC shall act as its Chairman. What will be his role as a Chairman has not been specifically spelt out by the said Article and we will deal with this question hereafter. Clause (4) of the said Article further provides for the appointment of RCs to assist the Election Commission in the performance of its functions set out in Clause (1). This, in brief, is the scheme of Article 324 insofar as the constitution of the Election Commission is concerned. 57. This Court went on to disagree with certain parts of the judgment in S.S. Dhanoa (supra). The Court, inter alia, held that the Election Commission of India can be a single-Member Body or a multi-Member Body. It was further held as follows: 16. While it is tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... looking after the work from day to day but when major elections take place in the country, either Provincial or Central, the Commission must be enlarged to cope with the work. More members therefore have to be added to the Commission. They are no doubt to be appointed by the President. Therefore, to that extent their independence is ensured. So there is no reason to believe that these temporary Election Commissioners will not have the necessary measure of independence. Since the other ECs were not intended to be permanent appointees they could not be granted the irremovability protection of the CEC, a permanent incumbent, and, therefore, they were placed under the protective umbrella of an independent CEC. This aspect of the matter escaped the attention of the learned Judges who decided Dhanoa case [(1991) 3 SCC 567]. We are also of the view that the comparison with the functioning of the executive Under Articles 74 and 163 of the Constitution in paragraph 17 of the judgment, with respect, cannot be said to be apposite. (Emphasis supplied) 58. Dealing with the argument that as the Chief Election Commissioner is designated as the Chairman, it put him on a higher pedestal, this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ably because the posts are temporary in character. But even if it is not so, that feature alone cannot lead us to the conclusion that the final word in all matters lies with the CEC. Such a view would render the position of the ECs to that of mere advisers which does not emerge from the scheme of Article 324. (Emphasis supplied) 60. It is clear that the founding fathers intended that the elections in the country must be under the superintendence, direction and control of an independent Body. The Body is the Election Commission of India. Under Article 324, the Chief Election Commissioner is an unalterable feature or figure. A Commission can consist of only the Chief Election Commissioner. A multi-Member Commission was also contemplated by the founding fathers. However, the post of Election Commissioner was to be need based. For nearly four decades, there was no Election Commissioner. As we have noticed, it is on 16.10.1989 that the first two Election Commissioners were appointed. In regard to the appointment of the Chief Election Commissioner and other Election Commissioners, the Constitution does not provide for any criteria. It does not fix any qualifications. It does not prescrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation with the Chief Justice of India and the Leader of the Opposition (and in case no Leader of Opposition is available, the consultation should be with the Leader to the largest opposition group in the Lok Sabha). 3. The consultation process should have a statutory backing. 4. The appointment of other two Election Commissioners should be made in consultation with Chief Justice of India, the Leader of the Opposition (in case no Leader of Opposition is available, the consultation should be with the Leader to the largest opposition group in the Lok Sabha) and the Chief Election Commissioner. 5. The appointment of Regional Commissioners for different zones is not favoured. Such appointments should be made only as and when necessary and not on a permanent footing. 2. Steps for securing independence of the Commission 6. The protection of salary and other allied matters relating to the Chief Election Commissioner and the Election Commissioners should be provided for in the Constitution itself on the analogy of the provisions in respect of the Chief Justice and Judges of the Supreme Court. Pending such measures being taken, a parliamentary law should be enacted. 7. The expenditure of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income-tax on the value of such rent-free residence, conveyance facilities, sumptuary allowance, medical facilities and such other conditions of service as are, for the time being, applicable to a Judge of the Supreme Court under Chapter IV of the Supreme Court Judges (Conditions of Service) Act, 1958 (41 of 1958) and the Rules made thereunder, shall, so far as may be, apply to the Chief Election Commissioner and other Election Commissioners. 65. Under Section 9, the business of the Election Commissioner is to be transacted in accordance with the 1991 Act. Section 10 provides for disposal of business by Election Commission, it reads as follows: 10. Disposal of business by Election Commission. -- (1) The Election Commission may, by unanimous decision, regulate the procedure for transaction of its business as also allocation of its business amongst the Chief Election Commissioner and other Election Commissioners. (2) Save as provided in Sub-section (1), all business of the Election Commission shall, as far as possible, be transacted unanimously. (3) Subject to the provisions of Sub-section (2), if the Chief Election Commissioner and other Election Commissioners differ in opinion on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N Election Commission of India is an independent constitutional body created by the Constitution of India vide Article 324. Clause (I) of Article 324 has vested the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President of India in the Election Commission. Under Clause (2) of Article 324, the Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from to time fix and the appointment of the Chief Election Commissioner and Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. The President has, by Order dated 1.10.1993 under Clause (2) of Article 324, fixed the number of Election Commissioners as two until further orders. Although the Constitution permits the President to fix the number of Election Commissioners at any number without any limit, it is felt that in the interest of smooth and effective functioning of the Election Commission, the numb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Constitution (Seventieth Amendment) Bill, 1990, made a provision also to that effect. That Bill was, however, withdrawn in 1993 as the Government proposed to bring in a more comprehensive Bill. (Emphasis supplied) 69. As regards expenses of Election Commission, we find the following complaint and solution: 13. EXPENSES OF ELECTION COMMISSION TO BE TREATED AS CHARGED The Commission had sent a proposal that the expenditure of the Commission should be charged on the Consolidated Fund of India. The Government had moved in the 10th Lok Sabha The Election Commission (Charging of Expenses on the Consolidated Fund of India) Bill, 1994 with the objective of providing for the salaries, allowances and pension payable to the Chief Election Commissioner and other Election Commissioners and the administrative expenses including salaries, allowances and pension of the staff of the Election Commission to be expenditure charged upon the Consolidated Fund of India. Similar provisions already exist in respect of the Supreme Court, Comptroller Auditor General and the Union Public Service Commission, which are, like the Election Commission, independent constitutional bodies. To secure its indep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in made a similar proposal in 1997 which was placed before political parties in the all party meeting held on 22.5.1998 but no view was taken. Again, the Election Commission of India made the same proposal in May, 2003 and on the direction of the then Hon'ble Prime Minister the same was placed before the political parties in the all party meeting held on 29.1.2003. The debate on the proposal remained inconclusive. 71. In regard to appointment of Chief Election Commissioner and other Election Commissioners, we notice the following remarks: (4) Appointment of Chief Election Commissioner (CEC) and other Election Commissioners (EC) and consequential matters: One of the Chief Election Commissioners has requested the Government to have a collegium consisting of the Prime Minister and Leader of Opposition etc. who is empowered to make recommendations for appointments of the CEC and ECs. Further, it has also been suggested that there should be complete ban for ten years after retirement from the post of CEC to any political party. (Emphasis supplied) 72. In the year 2015, Law Commission of India, in its Two Hundred and Fifty Fifth Report dated 12.03.2015, dealing with the electoral ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding one judge. They are appointed by the President on the recommendations of the National Assembly, following nominations by a National Assembly inter-party committee, which receives a list of at least eight candidates. This list of (at least) eight nominees is recommended by the Selection Committee, which has four members being, the President of the Constitutional Court; a representative of the Human Rights Commission and the Commission on Gender Equality each; and the Public Prosecutor. 6.11.2 In Ghana too, the seven member Election Commission is appointed by the President on the advice of the Council of State, with the Chairman and two Deputy Chairmen having permanent tenure. 6.11.3 In Canada, the Chief Electoral Officer of Elections Canada is appointed by a House of Commons resolution for a non-renewable ten-year term, and to protect their independence from the government, he/she reports directly to Parliament. In the United States, the six Federal Election Commissioners are appointed by the President with the advise and consent of the Senate. The Commissioners can be members of a political party, although not more than three Commissioners can be members of the same party. 6.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Commissioner and Election Commissioners. 2A. Appointment of Chief Election Commissioner and Election Commissioners - (1) The Election Commissioners, including the Chief Election Commissioners, shall be appointed by the President by warrant under his hand and seal after obtaining the recommendations of a Committee consisting of: (a) the Prime Minister of India - Chairperson (b) the Leader of the Opposition in the House of the People - Member c) the Chief Justice of India - Member Provided that after the Chief Election Commissioner ceases to hold office, the senior-most Election Commissioner shall be appointed as the Chief Election Commissioner, unless the Committee mentioned in Sub-section (1) above, for reasons to be recorded in writing, finds such Election Commissioner to be unfit. Explanation: For the purposes of this Sub-section, the Leader of the Opposition in the House of the People shall, when no such Leader has been so recognised, include the Leader of the single largest group in opposition of the Government in the House of the People. 75. In regard to the aspect about the permanent and independent Secretariat of the Election Commission of India, it was noticed that to giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by Clause (1). (5): Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Regional Commissioners shall be such as the President may by Rule determine; Provided that the Chief Election Commissioner and any other Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner and any other Election Commissioner shall not be varied to his disadvantage after his appointment: Provided further that a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. (6) The Presid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same manner and on the same grounds as a Judge of the Supreme Court. The Chief Election Commissioner and the two Election Commissioners enjoy the same decision making powers which is suggestive of the fact that their powers are at par with each other. However, Clause (5) of Article 324 of the Constitution does not provide similar protection to the Election Commissioners and it merely says that they cannot be removed from office except on the recommendation of the Chief Election Commissioner. The reason for giving protection to a Chief Election Commissioner as enjoyed by a Supreme Court Judge in matters of removability from office was in order to ensure the independence of Commission from external pulls and pressure. However, the rationale behind not affording similar protection to other Election Commissioners is not explicable. The element of 'independence' sought to be achieved under the Constitution is not exclusively for an individual alone but for the whole institution. Thus, the independence of the Commission can only be strengthened if the Election Commissioners are also provided with the same protection as that of the Chief Election Commissioner. Proposed amendme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicial power. 81. It cannot be disputed that there is no strict demarcation or separation of powers in India unlike the position obtaining in the United States of America and Australia. (See In Re. Delhi Laws Act, 1912 AIR 1951 SC 332). The doctrine of separation of powers, no doubt, has been eloquently expounded by Montesquieu in his work The Spirit of Laws and the basis on which it rests is the imperative need to avoid concentration of power in one or two organs. Undoubtedly, an observance of doctrine of separation of powers has been traced to the principle of equality (See Madras Bar Association v. Union of India 2021 SCC OnLine SC 463. Justice Y.V. Chandrachud, as His Lordship then was, speaking in Indira Nehru Gandhi v. Raj Narain and Ors. (1975) Suppl. SCC 1 held inter alia as follows: But the principle of separation of powers is not a magic formula for keeping the three organs of the State within the strict confines of their functions. 82. Separation of powers as understood as prevailing in India constitutes a part of the basic structure of the Constitution of India (See His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. (1973) 4 SCC 225) and I.R. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to say that the constitutional court's role in that behalf is non-existent. The judge-made law is now well recognised throughout the world. If one is to put the doctrine of separation of power to such a rigidity, it would not have been possible for any superior court of any country, whether developed or developing, to create new rights through interpretative process. 78. Separation of powers in one sense is a limit on active jurisdiction of each organ. But it has another deeper and more relevant purpose: to act as check and balance over the activities of other organs. Thereby the active jurisdiction of the organ is not challenged; nevertheless there are methods of prodding to communicate the institution of its excesses and shortfall in duty. Constitutional mandate sets the dynamics of this communication between the organs of polity. Therefore, it is suggested to not understand separation of powers as operating in vacuum. Separation of powers doctrine has been reinvented in modern times. 83. If we notice the evolution of separation of powers doctrine, traditionally the checks and balances dimension was only associated with governmental excesses and violations. But in today' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth citizens and persons with fundamental rights besides tasking the State with the achieving of goals declared in the Directive Principles, judicial activism as opposed to a mere passive role may be the much-needed choice. Judicial activism, however, must have a sound juridical underpinning and cannot degenerate into a mere exercise of subjectivism. 88. The learned Solicitor General is right therefore that judicial restraint may be a virtue in the elevated region of constitutional law. Being the grundnorm, it is indeed a rarefied field where the court must tread wearily (See Divisional Manager, Aravali Golf Club and Anr. v. Chander Hass and Anr. (2008) 1 SCC 683). This Court indeed has admonished against the court itself running the Government. In Asif Hameed v. State of J K, (1989) Suppl. 2 SCC 364 no doubt this Court refers to the following observations of Frankfurter, J. in para 18: All power is, in Madison's phrase, of an encroaching nature . Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint.... Rigorous observance of the dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e President's action Under Article 356 or the wider meanings of the words 'life', 'liberty', and 'procedure established by law' in Article 21 of the Constitution by the Supreme Court are instances of judicial law-making in the realist sense. When, however, the Court lays down guidelines for inter-country adoption, against sexual harassment of working women at the workplace, or for abolition of child labour, it is not judicial law-making in the realist sense these are instances of judicial excessivism that fly in the face of the doctrine of separation of powers. The doctrine of separation of powers envisages that the legislature should make law, the executive should execute it, and the judiciary should settle disputes in accordance with the existing law. In reality such watertight separation exists nowhere and is impracticable. Broadly it means that one organ of the State should not perform a function that essentially belongs to another organ. While law-making through interpretation and expansion of the meanings of open-textured expressions such as 'due process of law', 'equal protection of law', or 'freedom of speech and expression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the waste spaces only, and refuse to see the acres already sown and fruitful.. ..The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains. (Emphasis Supplied) 91. Close to the aspect of separation of powers, is controversial subject of judicial activism. In the work Judicial Activism, Authority, Principles and Policy in The Judicial Method by Hon'ble Justice Michael Kirby, we find of particular interest, the following: The acute needs of the developing countries of the Commonwealth have sometimes produced an approach to constitutional interpretation that is unashamedly described as activist , including by judges themselves. Thus in India, at least in most legal circles, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Rule of law. We cannot be oblivious to the fact that the founding fathers have contemplated that not only must India aspire for a democratic form of government and life but it is their unambiguous aim that India must be a Democratic Republic. The conventional definition of a 'Republic' is that it is a Body Polity, in which, the Head of State is elected. However, the republican character of our democracy also means that the majority abides by the Constitution ensuring rights granted under it and also pursues goals enshrined in it. A brute majority generated by a democratic process must conform to constitutional safeguards and the demands of constitutional morality. A Democratic Republic contemplates that majoritarian forces which may be compatible with a democracy, must be counter balanced by protection accorded to those not in the majority. When we speak about the minority, the expression is not to be conflated with or limited to linguistic or religious minorities. These are aspects which again underly the need for an independent election commission. 93. It may be true that the resort to courts is not a remedy for all ills in a society (see Common Cause v. Union of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng words. 39. We hasten to add that it is not our opinion that judges should never be activist . Sometimes judicial activism is a useful adjunct to democracy such as in the School Segregation and Human Rights decisions of the US Supreme Court vide Brown v. Board of Education [347 US 483: 98 L Ed 873 (1954)], Miranda v. Arizona [384 US 436: 16 L Ed 2d 694 (1966)], Roe v. Wade [410 US 113: 35 L Ed 2d 147 (1973)], etc. or the decisions of our own Supreme Court which expanded the scope of Articles 14 and 21 of the Constitution. This, however, should be resorted to only in exceptional circumstances when the situation forcefully demands it in the interest of the nation or the poorer and weaker Sections of society but always keeping in mind that ordinarily the task of legislation or administrative decisions is for the legislature and the executive and not the judiciary. (Emphasis Supplied) 94. A Constitution Bench judgment reported in State of T.N. v. State of Kerala and Anr. (2014) 12 SCC 696 summarised its conclusions on the constitutional principles relating to separation of powers as follows: 126.1. Even without express provision of the separation of powers, the doctrine of separation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the preparation of, or eligibility for inclusion in, the electoral rolls, on grounds of religion, race, caste, sex or any of them; and (2) adult sufferage. The Court really was not concerned with the question as to whether Article 326 provided for a Constitutional right to vote. 96. In Jyoti Basu and Others. Debi Ghosal and Ors. 1982 (1) SCC 691, the Court was dealing with a challenge to the High court rejecting an application in an Election Petition to strike out the names of certain parties from the array of parties. The Court inter alia held that Article 326 provides for elections to be held on the basis of adult franchise. Thereafter, the Court held as follows: 7. The nature of the right to elect, the right to be elected and the right to dispute an election and the scheme of the constitutional and statutory provisions in relation to these rights have been explained by the Court in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency [(1952) 1 SCC 94: AIR 1952 SC 64: 1952 SCR 218: 1952 SCJ 100] and Jagan Nath v. Jaswant Singh [AIR 1954 SC 210: 1954 SCR 892: 1954 SCJ 257]. We proceed to state what we have gleaned from what has been said, so much as necessary for this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons. Any provision enacted with a view to promote this object must be welcomed and upheld as subserving the constitutional purpose. The elbow room available to the legislature in classification depends on the context and the object for enactment of the provision. The existing conditions in which the law has to be applied cannot be ignored in adjudging its validity because it is relatable to the object sought to be achieved by the legislation. Criminalisation of politics is the bane of society and negation of democracy. It is subversive of free and fair elections which is a basic feature of the Constitution. Thus, a provision made in the election law to promote the object of free and fair elections and facilitate maintenance of law and order which are the essence of democracy must, therefore, be so viewed. More elbow room to the legislature for classification has to be available to achieve the professed object. 100. The Court also found other reasons to justify the provision. It was noted that permitting every person in prison to vote, would lead to a resource crunch in terms of police force required to facilitate the right. The Court also went on to hold that the Right to Vote is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. The two Articles, i.e., Article 326 and Article 327 contemplate such qualifications and disqualifications being provided for, amongst other things, by the appropriate legislature. The fountain source of the 1950 Act and the 1951 Act enacting provisions on such subject are the said two Articles of the Constitution. The provisions of Section 16 of the 1950 Act and Section 62 of the 1951 Act read in juxtaposition go to show that while Section 16 of the 1950 Act provides for disqualifications for registration in an electoral roll, (qualifications having been prescribed by Section 27 thereof), Sections 62 of the 1951 Act speaks of right to vote which right is to be determined by reference to the electoral roll of the constituency prepared under the 1950 Act. The eligibility for registration of those enrolled having been tested by reference to Section 16 or Section 27 of the Act, as the case may be, and the electoral roll having been prepared, under the 1950 Act if a person is or becomes subject to any of the disqualifications provided in Clauses (a), (b) and (c) of Sub-section (1) of Section 16, two consequences may follow. His name may forthwith be struck off the electoral roll, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e context of these facts, the Court, inter alia, held as follows: 46 (7). Under our Constitution, Article 19(1)(a) provides for freedom of speech and expression. Voter's speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Voter's (little man -- citizen's) right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law-breakers as law-makers. 104. The directions led to the insertion of Sections 33A and 33B. Under Section 33B, it was inter alia provided that notwithstanding any judgment, no candidate was liable to disclose or furnish any such information in respect of his election which is not required to be disclosed or furnished under the Representation of the People Act, 1951 or the Rules made thereunder. In People's Union for civil Liberties (PUCL) and Anr. v. Union of India and Anr. (2003) 4 SCC 399 Justice M.B. Shah while dealing with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen a citizen entitled to vote casts his vote in favour of one or the other candidate. (Emphasis supplied) Justice D.M. Dharmadhikari also agreed with the following conclusion No. 2 at para 123 which contains the judgment of Justice P. Venkatarama Reddi: (2) The right to vote at the elections to the House of the People or Legislatives Assembly is a constitutional right but not merely a statutory right; freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a). the casting of vote in favour of one or the other candidate marks the accomplishment of freedom of expression of the voter. 105. In Kuldip Nayar and Ors. v. Union of India and Ors. (2006) 7 SCC 1, the question which actually fell for consideration was the validity of a certain amendment which came into force on 28.08.2003. By the Amendment, the requirement of domicile in the State concerned for being elected to the Council of States was deleted. The Constitution Bench in the course of its judgment referred to PUCL (supra) and the court observed as follows: 361. The argument of the Petitioners is that the majority view in People's Union for Civil Liberties [(2003) 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r therein to reconsider the precedent wherein the right of political participation was categorised as statutory right was turned down. No doubt, this case was not dealing with elections to the House of the People or the State Legislature. 109. In People's Union for Civil Liberties v. Union of India (2013) 10 SCC 1, [the second PUCL case], a Bench of three learned Judges recognised the right of the person to express his disapproval of the candidates who stood for election by pressing a button which would indicate 'none of the above' (NOTA). In the course of this judgment dealing with the first PUCL judgment (supra), the Court held as follows: After a careful perusal of the verdicts of this Court in Kuldip Nayar [(2006) 7 SCC 1], Assn. for Democratic Reforms [(2002) 5 SCC 294] and People's Union for Civil Liberties [(2003) 4 SCC 399], we are of the considered view that Kuldip Nayar [(2006) 7 SCC 1] does not overrule the other two decisions rather it only reaffirms what has already been said by the aforesaid two decisions. The said paragraphs recognise that right to vote is a statutory right and also in People's Union for Civil Liberties [(2003) 4 SCC 399] it was h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islature 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. 111. It is necessary to notice Articles 327 and 328: 327. Power of Parliament to make provision with respect to elections to Legislatures. -- Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses. 328. Power of Legislature of a State to make provision with respect to elections to such Legislature.--Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from time to time by law make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the prepar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s we have referred to with reference to Article 326, the person becomes entitled to be registered as a voter. 113. Accordingly, it is that Parliament enacted in 1950, The Representation of Peoples Act, 1950 (hereinafter referred to as 'the 1950 Act'). Part III provides for electoral rolls for Assembly Constituencies. Section 14(b), as substituted w.e.f. 01.03.1956, defines 'qualifying date': Qualifying date , in relation to the preparation or revision of every electoral roll under this Part, means the 1st day of January of the year in which it is so prepared or revised: 114. We are omitting reference to the proviso as it related only to the year 1989. Section 15 of the 1950 Act declares that for every constituency, there must be an electoral roll prepared under the said Act under the supervision, direction and control of the Election. Section 16 provides as follows: 16. Disqualifications for registration in an electoral roll.--(1) A person shall be disqualified for registration in an electoral roll if he-- (a) is not a citizen of India; or (b) is of unsound mind and stands so declared by a competent court; or (c) is for the time being disqualified from voting under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other offence in connection with elections. 118. In 1951, Parliament enacted The Representation of the People Act, 1951 (hereinafter referred to as, 'the 1951 Act'). 119. Thereunder, the word 'election' has been defined in Section 2(d) to mean 'an election to fill a seat or seats in either House of Parliament or in the House or either House of the Legislature of a State. Section 2(e) defines the word 'elector' to mean 'in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in Section 16 of the Representation of the People Act, 1950 (43 of 1950)'. Under Part II, Chapter I deals with qualifications for membership of Parliament. Chapter II deals with qualifications for membership of State Legislatures. Chapter III of the 1951 Act provides for disqualifications for membership of Parliament and State Legislatures. Section 8, falling in Chapter III, deals with disqualification upon conviction for certain offences. Various offences are enumerated with the conditions attached therein. Section 8A deals with di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void. (4) No person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for the constituency more than once, and if he does so vote, all his votes in that constituency shall be void. (5) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police: Provided that nothing in this Sub-section shall apply to a person subjected to preventive detention under any law for the time being in force. (6) Nothing contained in Sub-sections (3) and (4) shall apply to a person who has been authorised to vote as proxy for an elector under this Act in so far as he votes as a proxy for such elector. 122. Section 62(1) of the 1951 Act means the following: A person, who is not entered in the electoral roll of a constituency, shall not be entitled to vote in that constituency. On the other hand, every person, who is, for the tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name entered in the electoral roll. It does not expressly say that he shall have the right to cast his vote. The right to cast the vote, as such, is expressly conferred Under Section 62(1), undoubtedly, on a person, whose name is entered in the electoral roll. We have already noticed the interplay of Section 62(1) and Section 62(2). Equally, we may notice that even if a person is included in the electoral roll, if he is in confinement in a prison, it would not entitle him or rather it would disentitle him to cast his vote. In other words, while ordinarily, the Right to Vote inevitably follows from the inclusion of a person in the electoral roll, the Right to Vote may be denied in terms of the law as we have noticed. The mere inclusion of a person's name more than once in an electoral roll in a constituency, it has been declared, also would not entitle him to vote more than once [See Section 62(4)]. Equally, inclusion of a person's name in the electoral roll of more than one constituency, would not entitle a person to cast his vote, in terms of such inclusion in more than one constituency [See Section 62(3)]. No doubt, we do notice that this Court has issued notice in a cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncapable of contesting elections. One such category was persons who did not possess specified educational qualifications. Justice Chelameswar speaking for the Bench, held as follows: 31. The right to vote of every citizen at an election either to the Lok Sabha or to the Legislative Assembly is recognised Under Articles 325 and 326 subject to limitations (qualifications and disqualifications) prescribed by or under the Constitution. On the other hand, the right to vote at an election either to the Rajya Sabha or to the Legislative Council of a State is confined only to Members of the electoral colleges specified Under Articles 80(4) and (5) and Articles 171(3)(a), (b), (c) and (d) [ 171. (3) Of the total number of members of the Legislative Council of a State--(a) as nearly as may be, one-third shall be elected by electorates consisting of members of municipalities, district boards and such other local authorities in the State as Parliament may by law specify; (b) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons residing in the State who have been for at least three years graduates of any university in the territory of India or have been for at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions quoted above, in the judgment under appeal itself, militate with the conclusions reached there. All that we can infer from our constitutional provisions is that additional representation or weightage was given to persons possessing special types of knowledge and experience by enabling them to elect their special representatives also for Legislative Councils. The concept of such representation does not carry with it, as a necessary consequence, the further notion that the representative must also possess the very qualifications of those he represents. ] 129. Thereafter the Court also held as follows: 38. We, therefore, proceed on the basis that, subject to restrictions mentioned above, every citizen has a constitutional right to elect and to be elected to either Parliament or the State Legislatures. 130. Still further, the Court held as follows: The right to vote at an election to the Lok Sabha or the Legislative Assembly can only be subjected to restrictions specified in Article 326. It must be remembered that Under Article 326, the authority to restrict the right to vote, can be exercised by the appropriate Legislature. 131. What are the incidents of a legal right? In Salmond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Legislature of the State. Therefore, Article 326 deals with the House of the People, and the Legislative Assembly. It does not deal with Legislative Councils. As far as Article 327 is concerned, it deals with power of Parliament to make law with respect to all matters or relating to election in connection to either House of Parliament. Equally, Parliament can make law in regard to either House of the Legislature of a State, including the preparation of electoral roll. However, there is a caveat. Article 327 begins with the words 'subject to the provisions of this Constitution'. This would mean that Article 327 is subject to Article 326. Therefore, since Article 326 provides for the specific heads of disqualification in regard to election to the House of the People and to the Legislative Assembly, the power to make law Under Article 327 may not be available, overcoming the limitation as regards the grounds of disqualification enumerated in Article 326. This limitation is found even in Article 328, which deals with the powers of the State Legislature. 134. Undoubtedly, the Founding Fathers contemplated conferring the right to participate in elections to the House of Peopl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the restriction. Section 62(1) of the 1951 Act, as we have noticed, gives also the Right to Vote to such a person. Any other interpretation would whittle down the grand object of conferring adult suffrage on citizens. 136. The mere fact that for the creation of a Right, one needs to lean on certain facts, which may consist of a law, which, in turn, is in the main respects dictated to by the constitutional provision, may not detract from the existence of a Right. Article 19 confers fundamental freedoms, which are understood as Fundamental Rights. The Fundamental Rights can be regulated by law made Under Article 19(2) to Article 19(6). Could it be said that, in view of the power to regulate the Fundamental Right, no right exists? We are conscious that in the case of Fundamental Rights Under Article 19, it could be said that the Right exists and it is only made subject to a law, which may be made. However, could it be said that whenever a law is made by Parliament, acting even within the boundaries of Article 326, by amending or adding to the disqualifications, even if it be limited by the disqualifications declared in Article 326, that such a law could be described as falling fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the law Under Article 326. The conferment of a legislative power Under Article 245 read with Article 246 is the essential legislative powers in terms of the separation of power envisaged broadly under the Constitution. 139. We have noticed that we cannot and we need not finally pronounce on this aspect, in view of the fact that a Constitution Bench of this Court, which we have noticed in Kuldip Nayar (supra) has proceeded to hold that there is no Constitutional Right. 140. What is important is that the Court noted in Anukul (supra) that holding of free and fair elections constitute a basic feature of the Constitution and approved of the view apparently that the Right to Elect is fundamental to democracy [See Jyoti Basu (supra)]. 141. Even if it is treated as a statutory right, which, at any rate, cannot be divorced or separated from the mandate of Article 326, the right is of the greatest importance and forms the foundation for a free and fair election, which, in turn, constitutes the right of the people to elect their representatives. We would for the purpose of the lis in question rest content to proceed on the said basis. T. DEMOCRACY AND THE IMPORTANCE OF ELECTIONS 142. Dr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 143. In Indira Nehru Gandhi Smt. v. Raj Narain and Anr. 1975 Supp SCC 1, this Court adverted to the importance of elections in a democracy as follows: 198.... Democracy postulates that there should be periodical elections, so that people may be in a position either to re-elect the old representatives or, if they so choose, to change the representatives and elect in their place other representatives. Democracy further contemplates that the elections should be free and fair, so that the voters may be in a position to vote for candidates of their choice. Democracy can indeed function only upon the faith that elections are free and fair and not rigged and manipulated, that they are effective instruments of ascertaining popular will both in reality and form and are not mere rituals calculated to generate illusion of defence to mass opinion. Free and fair elections require that the candidates and their agents should not resort to unfair means or malpractices as may impinge upon the process of free and fair elections. Even in the absence of unfair means and malpractices, some times the result of an election is materially affected because of the improper rejection of ballot papers.... 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciples as separation of powers, the Rule of law, and independence of the judiciary. They are based on such fundamental values as tolerance, good faith, justice, reasonableness, and public order. Above all, democracy cannot exist without the protection of individual human rights - rights so essential that they must be insulated from the power of the majority. Democracy is not just the law of Rules and legislative supremacy; it is a multidimensional concept. It requires recognition of both the power of the majority and the limitations on that power. (Emphasis Supplied) 146. On the topic of Change and Stability and elaborating on 'The Dilemma of Change', the learned Judge writes: The Dilemma of Change The need for change presents the judge with a difficult dilemma, because change sometimes harms security, certainty, and stability. The judge must balance the need for change with the need for stability. Professor Roscoe Pound expressed this well more than eighty years ago: Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and of the need of change. Law must be stable and yet it cannot stand still. Stability without change is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule. A Bench of three Learned Judges of this Court disapproving of the resort to repeated appointments without the Minister getting elected held as follows: 21. Parliamentary democracy generally envisages (i) representation of the people, (ii) responsible government, and (iii) accountability of the Council of Ministers to the Legislature. The essence of this is to draw a direct line of authority from the people through the Legislature to the executive. The character and content of parliamentary democracy in the ultimate analysis depends upon the quality of persons who man the Legislature as representatives of the people. It is said that elections are the barometer of democracy and the contestants the lifeline of the parliamentary system and its set-up . 33. Constitutional provisions are required to be understood and interpreted with an object-oriented approach. A Constitution must not be construed in a narrow and pedantic sense. The words used may be general in terms but, their full import and true ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution and sometimes the authors provide the name to be the unwritten maxims of the constitution -- Rules of constitutional behaviour, which are considered to be binding by and upon those who operate the Constitution but which are not enforced by the law courts nor by the presiding officers in the House of Parliament. (Emphasis supplied) 149. In B.P. Singhal v. Union of India and Anr. (2010) 6 SCC 331, dealing with Article 156(1) which declares that a Governor shall hold office during the pleasure of the President. This Court held after declaring that the Governor is not an agent of the ruling party at the Centre, as follows: 71. When a Governor holds office during the pleasure of the Government and the power to remove at the pleasure of the President is not circumscribed by any conditions or restrictions, it follows that the power is exercisable at any time, without assigning any cause. However, there is a distinction between the need for a cause for the removal, and the need to disclose the cause for removal. While the President need not disclose or inform the cause for his removal to the Governor, it is imperative that a cause must exist. As regards the Limitations/Restricti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers Conference Shillong v. Captain W.A. Sangma and Ors. (1977) 4 SCC 161, and Kanhiya Lal Omar v. R.K. Trivedi and Ors. (1985) 4 SCC 628)]. 152. Recognising the magnitude of the exercise involved in ensuring free and fair elections, this Court declared that in case of conflict of opinion between the Election Commission and the Government, as to the adequacy of the machinery to deal with the state of law and order, the assessment of the Election Commission was to prima facie prevail. This Court, no doubt, also observed that a mutually acceptable coordinating machinery may be put in place (see Election Commission of India v. State of T.N. and Ors. (1995) Suppl. 3 SCC 379). 153. While dealing with the power of the Election Commission to requisition such staff for election duty and disagreeing with the Commission that it could requisition the service of the employees of the State Bank of India, this Court declared that the election commission did not have untrammelled power. The power must be traced to the Constitution or a law (see Election Commission of India v. State Bank of India Staff Association Local Head Office Unit, Patna and Ors. (1995) Suppl. 2 SCC 13). 154. The Election Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain whether there has been a failure to lodge true, correct and genuine accounts of bona fide election expenditure and that it did not exceed the maximum limit, the Election Commission has been found to have overarching powers and it has been described as a 'guardian of democracy'. In this regard, we notice the following words of this Court in Ashok Shankarrao Chavan v. Madhavrao Kinhalkar (2014) 7 SCC 99: 67. In this context, we also keep in mind the Preamble to the Constitution which in liberal words states that the People of India having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all citizens justice, liberty, equality and fraternity. In such a large democratic country such as ours, if purity in elections is not maintained, and for that purpose when the Constitution makers in their wisdom thought it fit to create an authority, namely, the Election Commission and invested with it the power of superintendence, control and also to issue directions, it must be stated that such power invested with the said constitutional authority should not be a mere empty formality but an effective and stable one, in whom th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpreted 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 have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. (2) Any decision sought and rendered will not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. (3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. (4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment who come under its charge become subject to the superintendence of the Commission. The fate of the political parties and its candidates, and therefore, of democracy itself to a great measure is allowed to rest in the hands of the Election Commission. While there may be officers who assist the Commission, vitally important decisions have to be taken by those at the helm of the affairs. It is the Chief Election Commissioner and the Election Commissioners at whose table the buck must stop. It is in this scenario, we bear in mind that when a decision is taken in the process of the holding of the poll, that subject to proceedings which are initiated in courts which conduce to the effective holding of the poll, any proceeding which seeks to bring the election process under a shadow is tabooed. The significance of this aspect is that it adds to the enormity of the powers and responsibilities of the Election Commission. Awaiting the outcome of the poll to question the election before the tribunal may result in many illegal, unfair and mala fide decisions by the Election Commission passing muster for the day. Once the election results are out, the matter is largely reduced to a fait ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess over a period of time is the surest way to the grave of the democracy. Democracy can succeed only in so far as all stakeholders uncompromisingly work at it and the most important aspect of democracy is the very process, the electoral process, the purity of which alone will truly reflect the will of the people so that the fruits of democracy are truly reaped. The essential hallmark of a genuine democracy is the transformation of the 'Ruled' into a citizenry clothed with rights which in the case of the Indian Constitution also consist of Fundamental Rights, which are also being freely exercised and the concomitant and radical change of the ruler from an 'Emperor' to a public servant. With the accumulation of wealth and emergence of near monopolies or duopolies and the rise of certain Sections in the Media, the propensity for the electoral process to be afflicted with the vice of wholly unfair means being overlooked by those who are the guardians of the rights of the citizenry as declared by this Court would spell disastrous consequences. X. RULE OF LAW; FUNDAMENTAL RIGHTS AND AN INDEPENDENT ELECTION COMMISSION 165. The cardinal importance of a fiercely independen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners including the Chief Election Commissioner blessed with nearly infinite powers and who are to abide by the fundamental rights must be chosen not by the Executive exclusively and particularly without any objective yardstick. Y. THE SYMBOLS ORDER; THE MODEL CODE OF CONDUCT 166. Apart from the 1950 and 1951 Acts, the Code of Election Rules, 1961 came to be made. In the year 1968, The Election Symbols (Reservation and Allotment) Order, 1968 [hereinafter referred to as, 'the Symbols Order'] came to be made by Notification dated 31.08.1968, in exercise of powers conferred Under Article 324 of the Constitution read with Section 29A of the 1951 Act and Rules 5 and 10 of the Conduct of Elections Rules. The Symbols Order deals with allotment and classification of symbols. Political parties are broadly divided into recognised political parties or unrecognised political parties. A recognised party may be a national party or a state party. Conditions for recognition of a party as national party and state party are separately laid down. Paragraph-15 of the Symbols Order reads as follows: 15. Power of Commission in relation to splinter groups or rival Sections of a recognised politica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... air-crafts, vehicles, machinery and personnel shall not be used for furtherance of the interest of the party in power; xxx xxx xxx 3. Rest houses, dak bungalows or other Government accommodation shall not be monopolized by the party in power or its candidates and such accommodation shall be allowed to be used by other parties and candidates in a fair manner but no party or candidate shall use or be allowed to use such accommodation (including premises appertaining thereto) as a campaign office or for holding any public meeting for the purposes of election propaganda; 4. Issue of advertisement at the cost of public exchequer in the newspapers and other media and the misuse of official mass media during the election period for partisan coverage of political news and publicity regarding achievements with a view to furthering the prospects of the party in power shall be scrupulously avoided. 5. Ministers and other authorities shall not sanction grants/payments out of discretionary funds from the time elections are announced by the Commission; and There are other aspects relating to Election Manifestos. There is a clear need for a fearless and independent Election Commission of India to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it apposite to notice the following passage from his judgment on the importance of India being a secular country and about according any particular religion, special privileges, being a violation of the basic principles of democracy: 35. At the outset, we may mention that while considering the mischief sought to be suppressed by Clauses (2), (3) and (3-A) of Section 123 of the Act, this Court observed in Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra [Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17, decided by a Bench of three learned Judges.] that the historical, political and constitutional background of our democratic set-up needed adverting to. In this context, it was said that our Constitution-makers intended a secular democratic republic where differences should not be permitted to be exploited.... 62.... Dr. Radhakrishnan, the noted statesman/philosopher had to say about India being a secular State in the following passage: When India is said to be a secular State, it does not mean that we reject reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It does not mean that secularism itself becomes a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that when the Commission issues directions, it does so on its own behalf and not as a delegate of some other Authority. This was on the construction of Article 324(1). 175. This Court upheld the power of the Election Commission of India to rescind its Order according recognition to a political party, even without elections having been held in all the States in the country [See Janata Dal (Samajwadi) v. Election Commission of India (1996 (1) SCC 235]. 176. In Indian National Congress (I) v. Institute of Social Welfare and Ors. (2002) 5 SCC 685, no doubt, this Court took the view that the Election Commission has not been conferred with the express power to deregister a political party registered Under Section 29A, on the ground that it violated the Constitution or any undertaking given to the Election Commission at the time of its registration. This Court went on to hold also that while exercising its power to register a political party Under Section 29A, the Commission acts quasi-judicially. The Court also set out the three exceptional cases where the Commission could review its Order for registering a political party. It includes obtaining registration by practicing fraud or forge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission. Clause 18 reads thus: 18. Power of Commission to issue instructions and directions.--The Commission, may issue instructions and directions-- (a) for the clarification of any of the provisions of this Order; (b) for the removal of any difficulty which may arise in relation to the implementation of any such provisions; and (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. 25. The Election Commission in the past has exercised plenary powers under Para 18 for issuing interim directions regarding allocation of common symbols to the two factions, when the dispute under the Symbols Order was still pending before it. It was argued that the Election Commission cannot do so once it had finally decided the dispute. There is no difficulty in agreeing with the proposition that once the dispute had been finally decided by ECI, the question of invoking powers under Para 18 by it (ECI) would not arise. However, if the dispute is pendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Committee, Vohra Committee Report, submitted by Union Home Secretary, N.N. Vohra, in October 1993, referred to several observations made by official agencies, including Central Bureau of Investigation, Intelligence Bureau, Research and Analysis Wing, who unanimously expressed their opinion on the criminal network which was virtually running a parallel government. The Committee also took note of the criminal gangs who carried out their activities under the aegis of various political parties and government functionaries. The Committee further expressed great concern regarding the fact that over the past few years, several criminals had been elected to local bodies, State Assemblies and Parliament. The Report observed: 3.2.... In the bigger cities, the main source of income relates to real estate -- forcibly occupying lands/buildings, procuring such properties at cheap rates by forcing out the existing occupants/tenants etc. Over time, the money power thus acquired is used for building up contacts with bureaucrats and politicians and expansion of activities with impunity. The money power is used to develop a network of muscle-power which is also used by the politicians during electio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her. 116.4. The political party concerned shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents. 116.5. The candidate as well as the political party concerned shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. When we say wide publicity, we mean that the same shall be done at least thrice after filing of the nomination papers. 117. These directions ought to be implemented in true spirit and right earnestness in a bid to strengthen the democratic set-up. There may be certain gaps or lacunae in a law or legislative enactment which can definitely be addressed by the legislature if it is backed by the proper intent, strong resolve and determined will of right-thinking minds to ameliorate the situation. It must also be borne in mind that the law cannot always be found fault with for the lack of its stringent implementation by the authorities concerned. Therefore, it is the solemn r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendence transcends the contours of the qualities of professional excellence, as also the dictates of honesty. We may, no doubt, clarify that, ordinarily, honesty would embrace the quality of courage of conviction, flowing from the perception of what is right and what is wrong. Irrespective of consequences to the individual, an honest person would, ordinarily, unrelentingly take on the high and mighty and persevere in the righteous path. An Election Commissioner is answerable to the Nation. The people of the country look forward to him so that democracy is always preserved and fostered. We may qualify the above observations by stating that true independence of a Body of persons is not to be confused with sheer unilateralism. This means that the Election Commission must act within the Constitutional framework and the laws. It cannot transgress the mandate of either and still claim to be independent. Riding on the horse of independence, it cannot act in an unfair manner either. Independence must be related, finally, to the question of 'what is right and what is wrong'. A person, who is weak kneed before the powers that be, cannot be appointed as an Election Commissioner. A pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the reports and other materials, unerringly point to the imperative need to act. AA. THE APPOINTMENT OF SHRI ARUN GOEL: A TRIGGER OR A MERE ASIDE? 187. An application was filed by the Petitioner in W.P. No. 569 of 2021 to seek interim relief to provide for appointment to fill a vacancy of Election Commissioner which had arisen on 15.05.2022 by a Committee. The Bench commenced hearing of these cases on 17.11.2022. The matter stood posted to 22.11.2022. It would appear that on 18.11.2022, the vacancy of Election Commissioner came to be filled up by the appointment of one Shri Arun Goel. This appointment was attacked by Shri Prashant Bhushan, learned Counsel appearing for the Petitioner, by contending that when the Petitioner had moved an application, seeking interim relief relating to appointment, it was not open to the Respondent-Union to make the appointment. This Court thereupon called upon the Respondent to produce the files relating to the appointment. We perused the note as also the file. It is therein, inter alia, stated that a vacancy in the post of Election Commissioner arose upon the appointment of Shri Rajiv Kumar as the Chief Election Commissioner w.e.f. 15.05.202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame, again, w.e.f., 18.11.2022, and waiving the three months period required for acting on the request of voluntary retirement, the Officer's request for voluntary retirement came to be accepted by the Competent Authority. Not coming as a surprise, on the same day, his appointment as Election Commissioner was also notified. We are a little mystified as to how the officer had applied for voluntary retirement on 18.11.2022, if he was not in the know about the proposal to appoint him. Whether that be, we notice that 18.11.2022 was a Friday and very next day, after the Court had directed the case to be listed to 22.11.2022, for considering the matter. 188. In regard to this appointment, the salient features may be noticed. The vacancy was subsisting from 15.05.2022. The Constitution Bench held a preliminary hearing on 17.11.2022. It was while so on the next day, i.e., 18.11.2022, when an interim application was also pending consideration, all the procedures commencing with the proposal, processing of the same at the hands of the Minister for Law, the further recommendations of the concerned Officers, the recommendation of the Prime Minister, the acceptance of the application of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Commissioner, being observed in its breach. The learned Attorney General would respond as follows. He pointed out that since the time, when the Election Commission became a multi-Member team, a convention has grown up of making appointments of persons, initially as Election Commissioners and the senior-most Election Commissioner, unless considered unfit, is appointed as the Chief Election Commissioner. As far as Section 4, declaring that the Chief Election Commissioner and the Election Commissioner are to be appointed for a term of six years and the appointments falling foul of the said mandate, the learned Attorney General would point out that the term of the Election Commissioner and the term as Chief Election Commissioner, for those who are appointed as the Chief Election Commissioner, is aggregated. In view of the first proviso to Section 4 of the 1991 Act, a shortfall, in terms of the six years stint, may occur. But it is pointed out that as far as possible, appointments are being made so as to fulfil the requirements of the law. In view of the operation of the proviso, resulting in a compulsory and premature vacating of the Office by the incumbent on attaining the age of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d who would be assured the full term of six years, in keeping with the mandate of law, it was submitted that there is a dearth of such Officers. 193. Thereupon, it was the contention of both Shri Prashant Bhushan and Shri Gopal Shankaranarayan that this may not be the case. It is pointed out by Shri Prashant Bhushan that there are 160 Officers, who belonged to the 1985 Batch and some of them are younger than Shri Arun Goel. 194. We have noted that the three Officers in the panel were described and edged out, noting the factum of superannuation. On the said basis, it was found that the appointee was the youngest. Thereafter on the basis of his experience, age and suitability, the appointee was recommended and finally appointed. 195. If the drawing up of the panel itself results in a fate accompli, then, the whole exercise would be reduced to a foregone conclusion as to who would be finally appointed. What we find about the method involved is, even proceeding on the basis that the Government has the right to confine the appointee to Civil Servants, that it is in clear breach of the contemplated mandate that be it as an Election Commissioner or Chief Election Commissioner, the appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is bound to make appointments in accordance with the advice of the Council of Ministers. Taking into consideration Article 77 also and, in view of the Rules of Business made, which we have referred to in paragraph 51 of this Judgment, the appointment, till a law is made by Parliament, would be made by the President in accordance with advice of the Prime Minister. It was precisely such an appointment, which was the cause of unanimous concern to the Members of the Constituent Assembly, which we have already adverted to. 197. The Petitioners placed considerable reliance on the judgment of this Court rendered in Vineet Narain and Ors. v. Union of India and Anr. (1998) 1 SCC 226. No doubt, it is a case where the Court, inter alia, held as follows: 49. There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders of this Court as provided in Article 144 of the Constitution. In a catena of decisions of this Court, this power has been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legisla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 SCC 622] and Dinesh Trivedi, M.P. v. Union of India [(1997) 4 SCC 306] guidelines were laid down having the effect of law, requiring rigid compliance. In Supreme Court Advocates-on-Record Assn. v. Union of India [(1993) 4 SCC 441] (IInd Judges case) a nine-Judge Bench laid down guidelines and norms for the appointment and transfer of Judges which are being rigidly followed in the matter of appointments of High Court and Supreme Court Judges and transfer of High Court Judges. More recently in Vishaka v. State of Rajasthan [(1997) 6 SCC 241: 1997 SCC (Cri) 932] elaborate guidelines have been laid down for observance in workplaces relating to sexual harassment of working women. In Vishaka [(1997) 6 SCC 241: 1997 SCC (Cri) 932] it was said: (SCC pp. 249-50, para 11) 11. The obligation of this Court Under Article 32 of the Constitution for the enforcement of these fundamental rights in the absence of legislation must be viewed along with the role of judiciary envisaged in the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region. These principles were accepted by the Chief Justices of Asia and the Pacific at Beijing in 1995 (*) (As amended at Manil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w to itself, Original Suits pending in the District Court at Bhopal and dispose of the same in accordance with the settlement. Similarly, the Court had to deal with the contention that it had no jurisdiction to withdraw the criminal proceedings. This is what, inter alia, the Court held: 58. This Court had occasion to point out that Article 136 is worded in the widest terms possible. It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing of appeals by granting special leave against any kind of judgment or order made by a Court or Tribunal in any cause or matter and the powers can be exercised in spite of the limitations under the specific provisions for appeal contained in the Constitution or other laws. The powers given by Article 136 are, however, in the nature of special or residuary powers which are exercisable outside the purview of the ordinary laws in cases where the needs of justice demand interference by the Supreme Court. (See Durga Shankar Mehta v. Thakur Raghuraj Singh [(1955) 1 SCR 267: AIR 1954 SC 520: 9 ELR 494]). xxx xxx xxx 61. To the extent power of withdrawal and transfer of cases to the apex Court is, in the opinion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g out of the incident which is the subject matter of trial before the criminal court, this Court has ample power Under Article 142 of the Constitution to pass any order necessary to do justice and to prevent abuse of process of the court. The learned Attorney General elaborated that there is no limitation on the power of this Court Under Article 142 in quashing a criminal proceeding pending before a subordinate court. Before we proceed to consider the width and amplitude of this Court's power Under Article 142 of the Constitution it is necessary to remind ourselves that though there is no provision like Section 482 of the Code of Criminal Procedure conferring express power on this Court to quash or set aside any criminal proceedings pending before a criminal court to prevent abuse of process of the court, but this Court has power to quash any such proceedings in exercise of its plenary and residuary power Under Article 136 of the Constitution, if on the admitted facts no charge is made out against the Accused or if the proceedings are initiated on concocted facts, or if the proceedings are initiated for oblique purposes. Once this Court is satisfied that the criminal proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arg [1963 Supp 1 SCR 885, 899: AIR 1963 SC 996] and Antulay case [(1988) 2 SCC 602: 1988 SCC (Cri) 372] observations with regard to the extent of this Court's power Under Article 142(1) were made in the context of fundamental rights. Those observations have no bearing on the question in issue as there is no provision in any substantive law restricting this Court's power to quash proceedings pending before subordinate court. This Court's power Under Article 142(1) to do complete justice is entirely of different level and of a different quality. Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional power of this Court. Once this Court has seisin of a cause or matter before it, it has power to issue any order or direction to do complete justice in the matter. This constitutional power of the Apex Court cannot be limited or restricted by provisions contained in statutory law. In Harbans Singh v. State of U.P. [(1982) 2 SCC 101: 1982 SCC (Cri) 361: (1982) 3 SCR 235, 243], A.N. Sen, J. in his concurring opinion observed: (SCC pp. 107-08, para 20) Very wide powers have been conferred on this Court for due and proper administ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d High Court and transfer of Judges and Chief Justices. In the majority opinion of Justice J.S. Verma, we may notice the following: 447. When the Constitution was being drafted, there was general agreement that the appointments of Judges in the superior judiciary should not be left to the absolute discretion of the executive, and this was the reason for the provision made in the Constitution imposing the obligation to consult the Chief Justice of India and the Chief Justice of the High Court. This was done to achieve independence of the Judges of the superior judiciary even at the time of their appointment, instead of confining it only to the provision of security of tenure and other conditions of service after the appointment was made. It was realised that the independence of the judiciary had to be safeguarded not merely by providing security of tenure and other conditions of service after the appointment, but also by preventing the influence of political considerations in making the appointments, if left to the absolute discretion of the executive as the appointing authority. It is this reason which impelled the incorporation of the obligation of consultation with the Chief Just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constituent Assembly. The hereinafter mentioned norms emerging from the actual practice and crystallized into conventions -- not exhaustive -- are expected to be observed by the functionaries to regulate the exercise of their discretionary power in the matters of appointments and transfers. 204. We may also indicate that this judgment provides a situation where this Court has laid down norms, even in the constitutional realm. 205. It is further of the greatest moment that this Court noted that it was realised that independence of the Judiciary had to be protected not merely after appointment but by the process of appointment. The Chief Election Commissioner can also be removed only in the same fashion as a Judge of the Supreme Court. His conditions of service cannot be varied to his disadvantage. But unlike the Comptroller and Auditor General, who also enjoys protection after appointment, the Founding Fathers clearly intended to also provide for an independent Election Commission regulating by law, the appointment itself. This is in place of consultation provided for Judges. 206. In Vishaka and Ors. v. State of Rajasthan and Ors. (1997) 6 SCC 241, a Writ Petition was filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on to answer the question that the sole individual opinion of the Chief Justice would not constitute 'consultation'. It was also laid down that the Chief Justice of India must consult four senior-most puisne Judges before making appointment to the Supreme Court and High Courts. No doubt, it could be said that the decisions [the Judges cases] could be said to have sprouted from the construction of the words used in the relevant Articles and, in particular, the word 'consult'. Also, it is true that Article 124(2) as it stood then, read as follows: 124(2). Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted: Provided further that - (a) A Judge may, by writing under his hand addressed to the President, resign his office; (b) A judge may be removed from his office in the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to prevent damages and protect environment is one such feature. Similarly, laying down guidelines as procedural safeguards in the matter of adoption of Indian children by foreigners in Laxmi Kant Pandey v. Union of India [(1987) 1 SCC 66: 1987 SCC (Cri) 33: AIR 1987 SC 232] or issuance of guidelines pertaining to arrest in D.K. Basu v. State of W.B. [(1997) 1 SCC 416: 1997 SCC (Cri) 92: AIR 1997 SC 610] or directions issued in Vishaka v. State of Rajasthan [(1997) 6 SCC 241: 1997 SCC (Cri) 932] are some of the instances. 212. In Bhanumati and Ors. v. State of U.P. through its Principal Secretary and Ors. (2010) 12 SCC 1, pronouncing a State Law providing for No Confidence Motion as valid, a Bench of this Court, inter alia, held as follows: 50. The learned author elaborated this concept further by saying, Despite the absence of any documentary or material form, these abeyances are real and are an integral part of any Constitution. What remains unwritten and indeterminate can be just as much responsible for the operational character and restraining quality of a Constitution as its more tangible and codified components. (P. 82) 51. Many issues in our constitutional jurisprudence evo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt by subsequent developments, including objective reports. 214. Equally, we may notice what this Court, in Manoj Narula (supra), held as regards constitutional morality: 74. The Constitution of India is a living instrument with capabilities of enormous dynamism. It is a Constitution made for a progressive society. Working of such a Constitution depends upon the prevalent atmosphere and conditions. Dr. Ambedkar had, throughout the debate, felt that the Constitution can live and grow on the bedrock of constitutional morality. Speaking on the same, he said: Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic. [Constituent Assembly Debates, 1948, Vol. VII, 38.] 215. We have set down the legislative history of Article 324, which includes reference to what transpired, which, in turn, includes the views formed by the members of Sub-Committees, and Members of the Constituent Assembly. They unerringly point to one conclusion. The power of appointment of the Members of the Election Commission, which was charged with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a law is ordinarily a power with the legislative branch and being a power, it cannot be compelled by a Court, the making of law may be a constitutional imperative. In the context of Article 326, making of law as contemplated in Article 326, was an unavoidable necessity. Realising that the statutory framework was necessary to breathe life into Article 326 and which was not to be incongruous with this command, Parliament enacted the 1950 Act and the 1951 Act. The first General Election followed. Making of law by Parliament as provided for in Article 146 and Article 229 dealing with conditions of service of employees of the Supreme Court and the High Court respectively, was and is a sheer power and enabling provision. The context and the purpose signals no imperative need. No intention to indeed peremptorily provide for a law as is discernible in the case of appointment of the members of the Election Commission of India pervades the Articles. The vacuum in the case of Article 324 (2) is the absence of the law which Parliament was contemplated to enact. 221. Political parties undoubtedly would appear to betray a special interest in not being forthcoming with the law. The reasons are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declared by this Court to be the guardian of the citizenry and its Fundamental Rights, becomes a matter, which cannot be postponed further. 226. While this Court is neither invited nor if it is invited, would issue a Mandamus to the Legislature to make a law, as contemplated in Article 324(2), it may not be the end of the duty of this Court in the context of the provision in question. We have already elaborated and found that core values of the Constitution, including democracy, and Rule of Law, are being undermined. It is also intricately interlinked with the transgression of Articles 14 and 19. Each time, on account of a 'knave', in the words of Dr. Ambedkar, or again in his words, 'a person under the thumb of the Executive', calls the shots in the matter of holding the elections, which constitutes the very heart of democracy, even formal democracy, which is indispensable for a Body Polity to answer the description of the word 'democracy', is not realised. 227. In the unique nature of the provision, we are concerned with and the devastating effect of continuing to leave appointments in sole hands of the Executive on fundamental values, as also the Fundame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Opposition, then, the Leader of the Single Largest Opposition Party in the House and the Chief Justice of India or a Judge of the Supreme Court nominated by him. Similarly, we find, in regard to the appointment of the Chairperson and Members of the Lokpal, under the Lokpal and Lokayuktas Act, 2013, the Chief Justice is one of the five Members of a Selection Committee, in the matter of appointment. We deem it appropriate to notice Section 4 of the Lokpal and Lokayuktas Act, 2013, which reads as follows: 4. (1) The Chairperson and Members shall be appointed by the President after obtaining the recommendations of a Selection Committee consisting of-- (a) the Prime Minister--Chairperson; (b) the Speaker of the House of the People-- Member; (c) the Leader of Oppositi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ED TO SAME PROTECTION AS GIVEN TO CHIEF ELECTION COMMISSIONER? 232. One of the contentions raised by the Petitioners is this Court must provide for the same protection to the Election Commissioners as is available to the Chief Election Commissioners. Even the Report of the Election Commission itself would appear to endorse the said view and complaint. We expatiate. It is the contention of the Petitioners that when the Constitution was framed, the Founding Fathers contemplated that appointment of Election Commissioners was to be need based and not a full-time affair. Contrary to the said view, however, a multi-Member team, is what the Election Commission of India has become, in fact, since 1993. It is here to stay. The distinction between the Chief Election Commissioner and the Election Commissioners have been whittled down considerably by the amendments brought to the 1991 Act. However, when it comes to the constitutional protection, it is pointed out that the second proviso to Article 324(5) only enacts the protection that the Election Commissioner or Regional Commissioner shall not be removed from Office except on the recommendation of the Chief Election Commissioner. An attempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he inevitable differences of opinion was contemplated and Section 10(3) has declared that in such an eventuality, it is the opinion of the majority of the Members, which would prevail. We have already noticed how in T.N. Seshan (supra), this has been found to not militate against the Chief Election Commissioner being given the power to act as the Chairman of the Commission. It may be true that there is equality otherwise, which exists between the Chief Election Commissioner and the Election Commissioners in various matters dealt with under the Act. However, we must bear in mind, in law, Article 324 is inoperable without the Chief Election Commissioner [See T.N. Seshan (supra)]. In law, there may not be an insuperable obstacle for Parliament to decide to do away with the post of Election Commissioner. In fact, it happened, as can be seen in the judgment in Dhanoa (supra) wherein it was found that the termination of service of the Election Commissioners following the abolition of the posts did not constitute removal of the Election Commissioner within the meaning of the second proviso to Article 324(5). More importantly, even on a plain reading of Article 324(5), we are of the view t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 independence of the Election Commissioners as well. This goes also as regards variation of service conditions after appointment. DD. REGARDING INDEPENDENT SECRETARIAT/CHARGING EXPENDITURE ON THE CONSOLIDATED FUND OF INDIA 234. One of the contentions and, therefore, relief sought is, that there must be an independent Secretariat to the Election Commission of India and the its expenditure must be charged on the Consolidated Fund of India on the lines of the Lok Sabha/Rajya Sabha Secretariat. 235. In this regard, the second Respondent (the Election Commission of India) has filed a counter affidavit in Writ Petition (C) No. 1043 of 2017, in which Writ Petition, the contention and the prayer have been incorporated. In the Counter Affidavit of the Election Commission itself, the stand of the Election Commission can be stated in a nutshell as follows: It has sent a proposal that the expenditure of the Commission should be charged on the Consolidated Fund of India. It refers to the E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Union of India to seriously consider bringing in the much-needed changes. EE. THE FINAL RELIEF 239. The Writ Petitions are partly allowed and they are disposed of as follows: I. We declare that as far as appointment to the posts of Chief Election Commissioner and the Election Commissioners are concerned, the same shall be done by the President of India on the basis of the advice tendered by a Committee consisting of the Prime Minister of India, the Leader of the Opposition in the Lok Sabha and, in case, there is no such Leader, the Leader of the largest Party in the Opposition in the Lok Sabha having the largest numerical strength, and the Chief Justice of India. This norm will continue to hold good till a law is made by the Parliament. II. As regards the relief relating to putting in place a permanent Secretariat for the Election Commission of India and charging its expenditure to the Consolidated Fund of India is concerned, the Court makes a fervent appeal that the Union of India/Parliament may consider bringing in the necessary changes so that the Election Commission of India becomes truly independent. AJAY RASTOGI, J. 240. I have had the advantage of going through the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Members of the Human Rights Commission, Chief Vigilance Commissioner, Director of Central Bureau of Investigation, Lokpal, Members of the Press Council of India. The writ petition made a prayer for issuing of mandamus to the Union Government to make law for ensuring a transparent process of selection by constituting a neutral and independent committee to recommend the names of Chief Election Commissioner/Election Commissioners. Vide order dated 23 October, 2018, a two Judge Bench of this Court emphasized on the importance of the matter, and referred the matter Under Article 145(3) of the Constitution to the Constitutional Bench. The order is reproduced as follows: The matter relates to what the Petitioner perceives to be a requirement of having a full-proof and better system of appointment of members of the Election Commission. Having heard the learned Counsel for the Petitioner and the learned Attorney General for India we are of the view that the matter may require a close look and interpretation of the provisions of Article 324 of the Constitution of India. The issue has not been debated and answered by this Court earlier. Article 145 (3) of the Constitution of India would, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Election Commission that since the right to vote is a statutory right and not a fundamental right, so it does not call any interference for violation of fundamental rights. 247. It was raised by the Petitioners that the issue of appointment of Election Commission is linked not just with the right to vote but with the conception of free and fair elections. Reference was also made to the selection processes in other jurisdictions to emphasize on the point that a larger set of parameters or factors play an important role in appointment of Commissioners. Points were also debated regarding the term of the Chief Election Commissioner/Election Commissioners, and the process of removal of Election Commissioners. The Petitioners further argued that there must be constitutional safeguards in the term and tenure of the Election Commissioners, so that they can function independently. 248. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Election Commissioner or a Regional Commissioner, according to the second proviso to Article 324(5), shall not be removed from office except on the recommendation of the Chief Election Commissioner. 255. The facility of support staffs of the Election Commission has been covered Under Article 324(6), which provides that the President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission. 256. The question that emerges for consideration is what interpretation needs to be afforded to the above-discussed provisions, so that the independence of the Election Commission is ensured. Before dealing with that, we shall deal with the necessity of the independence which is imperative of the Election Commission. III. Why an independent Election Commission is Necessary A. Working a Democratic Constitution Borrowed from the title of the classic book - Granville Austin, Working a Democratic Constitution: A History of the Indian Experience, Oxford University Press. 257. The basic perception of democ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EIGN , SOCIALIST , SECULAR , REPUBLIC . The Preamble also provides that the people of India are securing for its citizens JUSTICE social, economic and political . The word JUSTICE manifests the vision of undoing hundreds of years of injustice that was prevalent on Indian soil. Justice was to be based on three components: social, economic, and political. 260. Democracy was established in India to fulfill the goals which have been significantly encapsulated in the terms of the Preamble. The institutions which were set up were given a role and duty to fulfill the task as enshrined in the Preamble and the Constitution. While the three main pillars of the State rest on the legislature, executive, and judiciary have their designated roles, the Constitution framers were also visionary in the sense that they envisaged the creation of other institutions, which would be independent in nature and would facilitate the working of the three pillars by either demanding accountability or by taking on roles which would maintain the faith of the people in the three pillars of democracy. The Election Commission of India is one such institution that has been created through the text of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the people so that the sanctity of the democratic process is maintained. If the Election Commission starts showing any arbitrary decision-making, then the resulting situation would not just create doubt on the members of the Election Commission of being biased but would create fear in the minds of the common citizens that the democratic process is being compromised. Therefore, the Election Commission needs to be independent and fully insulated from any external or internal disrupting environment. The working of the Commission has to generate confidence in the minds of the people. In a country like India, where millions of people still struggle to fulfill their basic needs, it is their right to vote which gives them hope that they would elect a government that would help them in crossing the boundaries of deprivation. If this power is compromised or taken away even by one slight bad decision or biases of the members of the Election Commission, it would undoubtedly attack the very basic structure of Indian democracy. The Indian democracy has succeeded because of the people's faith and participation in the electoral process as well as the everyday work of the institution. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sparency. 267. To strengthen the democratic processes, the institution of the Election Commission needs to be independent and demonstrate transparency and accountability. This reason is enough in itself to call this Court to examine the institutional structure of the Election Commission of India. B. Right to Vote 268. The working of democracy depends on whether the people can decide the fate of the elected form of government. It depends on the choices which people make in different ways. This choice of people cannot be compromised, as their mandate in elections changes the destinies of government. India is democratic because the people govern themselves. It is a republic because the government's power is derived from its people. Through the electoral process and voting, citizens participate in democracy. By voting, citizens take part in the public affairs of the country. Thus, citizens by voting enjoy their right to choose the composition of their government. It is their choice, and their ability to participate. A nine-judge bench in the case of K.S. Puttaswamy (Supra) held: ... it must be realised that it is the right to question, the right to scrutinize and the right to disse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or, where the Legislature is bicameral, to the lower chamber of the Legislature, subject to such disqualifications on the ground of mental incapacity, corrupt practice or crime as may be imposed, and subject to such qualifications relating to residence within the appropriate constituency, as may be required by or under the law. 2. The law shall provide for free and secret voting and for periodical elections to the Legislature. 3. The superintendence, direction and control of all elections to the Legislature whether of the Union or the unit, including the appointment of Election Tribunals shall be vested in an Election Commission for the Union or the unit, as the case may be, appointed in all cases, in accordance with the law of the Union. 272. This shows that the Framers envisaged that the right to vote must be accompanied by a provision establishing the Election Commission. Constitutional Adviser B.N. Rau's note on the draft provision explains the inclusion of the right to vote as a fundamental right: Clause 12. This secures that the right to vote is not refused to any citizen who satisfies certain conditions. The idea of an Election Commission to supervise, direct and control ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing we have guaranteed in this fundamental right is that the elections shall be free and the elections shall be by secret voting. It shall be by periodical elections... The third proposition which this fundamental Clause enunciates is that in order that elections may be free in the real sense of the word, they shall be taken out of the hands of the Government of the day, and that they should be conducted by an independent body which we may here call an Election Commission. ibid, page 249-250 276. But this view was disagreed with by several members of the Advisory Committee. They had an apprehension that such a Clause may be objected to in the Constituent Assembly by the representatives of the Princely States. Statement of Sardar Patel, p. 249 C. Rajagopalachari expressed that the future method of elections was not clear, and hence it was not right to keep a detailed Clause on the franchise in the fundamental rights. He said: My only point is whether it is proper to deal with this as a fundamental right or whether we should leave it, or a greater part of it, for the consideration of the whole Assembly. I submit we cannot take it for granted that the Union Legislature shall be elect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the Meetings of the Advisory Committee dated April 21, 1947, it was noted: Clause 13 to be deleted from the fundamental rights, but it should be recommended by the Chairman in his report to the Constituent Assembly on behalf of the committee, that it be made a part of the Union Constitution. ibid, page 288 In his letter addressed to the President of the Constituent Assembly, Sardar Patel presented the interim report of the Advisory Committee, while also noting that: While agreeing in principle with this clause, we recommend that instead of being included in the list of fundamental rights, it should find a place in some other part of the Constitution. ibid, page 296 282. What emerges from this discussion is that there was an initial agreement among the members of the fundamental rights subcommittee and the minority rights sub-committee that there needs to be a Clause in the fundamental rights chapter which should provide for the right to vote; and the task to conduct free and fair elections, there shall be an independent body called the Election Commission. However, the Clause was not retained by the Advisory Committee as a fundamental right because it was apprehended that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to interfere with the order of the Returning Officer by reason of the provisions of Article 329(b) of the Constitution. While the Court was examining the contours of Article 329(b), it also made the following observation: The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. 287. A different view was adopted by a Constitution Bench of this Court in the case of Mohindhr Singh Gill and Anr. v. Chief Election Commissioner, New Delhi and Ors. (1978) 1 SCC 405 (hereinafter Mohindhr Singh Gill ). The Bench was called on to interpret Articles 324 and 329(b) of the Constitution. It noted: The most valuable right in a democratic polity is the 'little man's' little pencil-marking, accenting and dissenting, called his vote.... Likewise, the little man's right, in a representative system of Government to rise to Prime Ministership or Presidentship by use of the right to be candidate cannot be wished away by calling it of no civil moment. If civics mean anything to self-governing citizenry, if participatory democracy is not to be scuttled by law.... The str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal right to know the antecedents/assets of a candidate contesting the election Under Article 19(1)(a). An argument was made before this Court that a voter does not have such a right, as there is no fundamental right to vote from which the right to know the antecedents of a candidate arises. While the three judges (M.B. Shah, Venkatarama Reddi, D.M. Dharmadhikari, JJ.) unanimously agreed that the voters have a right Under Article 19(1)(a) to know the antecedents of a candidate, there was a difference on whether the scope of the right to vote. 292. Referring to N.P. Ponnuswami and Jyoti Basu judgments, Justice MB Shah held that there cannot be any dispute that the right to vote or stand as a candidate for election and decision with regard to violation of election law is not a civil right but is a creature of statute or special law and would be subject to the limitations envisaged therein. He held that, Merely because a citizen is a voter or has a right to elect his representative as per the [ROP] Act, his fundamental rights could not be abridged, controlled or restricted by statutory provisions except as permissible under the Constitution. He stated that whether the right to vote is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 19(1)(a) is attracted. Freedom of voting as distinct from right to vote is thus a species of freedom of expression and therefore carries with it the auxiliary and complementary rights such as right to secure information about the candidate which are conducive to the freedom. None of the decisions of this Court wherein the proposition that the right to vote is a pure and simple statutory right was declared and reiterated, considered the question whether the citizen's freedom of expression is or is not involved when a citizen entitled to vote casts his vote in favour of one or the other candidate... In his conclusions, he noted: The right to vote at the elections to the House of people or Legislative Assembly is a constitutional right but not merely a statutory right; freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a). The casting of vote in favour of one or the other candidate marks the accomplishment of freedom of expression of the voter. 296. Justice DM Dharmadhikari expressed his agreement with the view taken by Justice Venkatarama Reddi, thus making it a majority decision holding that the right to vote is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment) Order, 1968, which mandated that in order to be recognized as a State party in the State, a political party would have to secure not less than 6% of the total valid votes polled in the State and should also have returned at least 2 members to the Legislative Assembly of the State. The counsel for the Election Commission of India in the case had argued that since the right to vote was a statutory right, it could not be questioned by way of a writ petition. The majority by 2:1 upheld the amendment. However, Justice Chelameswar wrote a dissenting opinion. The dissenting judge also addressed the counsel for the Election Commission of India that the right to vote is merely a statutory right. He held: The right to elect flows from the language of Articles 81 and 170 r/w Articles 325 and 326. Article 326 mandates that the election to the Lok Sabha and legislative Assemblies shall be on the basis of Adult Suffrage, i.e., every citizen, who is of 18 years of age and is not otherwise disqualified either under the Constitution or Law on the ground specified in the Article Shall Be entitled to be registered as a voter. Article 325 mandates that there shall be one general electoral roll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Constitution bench judgment in Kuldip Nayar created a doubt on ADR and PUCL 2003. The three-judge bench in PUCL 2013 held that Kuldip Nayar does not overrule the other two decisions rather it only reaffirms what has already been said by the two aforesaid decisions . However, the three-judge bench went on to note that: ... there is no contradiction as to the fact that right to vote is neither a fundamental right nor a Constitutional right but a pure and simple statutory right. The same has been settled in a catena of cases and it is clearly not an issue in dispute in the present case. 303. While the scope of the right to vote was not before PUCL 2013, but it went on to observe that the right to vote is only a statutory right. But, the three-judge bench in PUCL 2013 followed ADR and PUCL 2003 to reiterate that [t]he casting of the vote is a facet of the right of expression of an individual and the said right is provided Under Article 19(1)(a) of the Constitution of India , and therefore, a prima facie case existed for the exercise of jurisdiction of this Court Under Article 32. The bench concluded that: No doubt, the right to vote is a statutory right but it is equally vital t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rwise, they had stressed the importance of the right to vote and universal adult franchise. Seventy-five years after Independence, we have the opportunity to realize their absolute vision by recognizing what they could not due to socio-political circumstances of their time. When the Constitution came into force, what were known as Princely States became a part of India, and accepted direct elections as a method of choosing the government. These areas have now been included in different states. Therefore, there has been no objection to the right to vote. 307. The right to take part in the conduct of public affairs as a voter is the core of the democratic form of government, which is a basic feature of the Constitution. The right to vote is an expression of the choice of the citizen, which is a fundamental right Under Article 19(1)(a). The right to vote is a part of a citizen's life as it is their indispensable tool to shape their own destinies by choosing the government they want. In that sense, it is a reflection of Article 21. In history, the right to vote was denied to women and those were socially oppressed. Our Constitution took a visionary step by extending franchise to ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. 312. India is committed to these international frameworks. This Court has previously read India's obligation to international frameworks to recognise new areas of constitutional discourse, which are explicitly not covered by the provisions of the Constitution or where there is a constitutional vacuum. Vishakha v. State of Rajasthan, AIR 1997 SC 3011 But free and fair elections have been recognised as an essential feature of the democratic apparatus by the judgments of this Court as well. 313. In Indira Nehru Gandhi Smt. v. Shri Raj Narain and Anr., AIR 1975 SC 2299 Justice H.R. Khanna held in his opinion: All the seven Judges [in Kesavananda Bharti ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right or liabilities the more necessary the need to hear. 316. Justice PK Goswami in his concurring opinion (for himself PN Singhal) held: Elections supply the visa viva to a democracy. It was, therefore, deliberately and advisedly thought to be of paramount importance that the high and independent office of the Election Commission should be created under the Constitution to be in complete charge of the entire electoral process commencing with the issue of the notification, by the President to the final declaration of the result. 317. 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. 318. The importance of periodical elections was also emphasized in the Constitution Bench decision in Manoj Narula v. Union of India, (2014) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. 324. What comes out of this provision is that the Office of the Chief Election Commissioner stands on a higher constitutional pedestal, as he is given equivalence to a Judge of the Supreme Court in matters of removal. The other thing which comes out is that the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment. That is to say, the independence cannot be indirectly diluted by creating unwarranted conditions of service. Lastly, a wide discretion has been vested with the Chief Election Commissioner to seek removal of any other Election Commissioner or a Regional Commissioner. 325. It has been argued before us that there exists a constitutional vacuum in the method of selection of the Chief Election Commissioner and other Election Commissioners, and nothing has been provided Under Article 324. It has been argued that as the Executive (through President) is making t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edkar explained the vision behind the provision was independence from the executive in conducting elections. Dr. Ambedkar said: ... the House affirmed without any kind of dissent that in the interests of purity and freedom of elections to the legislative bodies, it was of the utmost importance that they should be freed from any kind of interference from the executive of the day... Therefore, so far as the fundamental question is concerned that the election machinery should be outside the control of the executive Government, there has been no dispute. What Article 289 does is to carry out that part of the decision of the Constituent Assembly. It transfers the superintendence, direction and control of the preparation of the electoral rolls and of all elections to Parliament and the Legislatures of States to a body outside the executive to be called the Election Commission. That is the provision contained in Sub-clause (1). Constituent Assembly Debates, 15 June 1949, http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C15061949.html 331. The reason behind having a permanent office of Chief Election Commissioner was explained by Dr. Ambedkar as follows: What the Drafting Committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the appointment of the Chief Election Commissioner and the Election Commissioners, and therefore appealed for a change in the provision. He argued: If the President is to appoint this Commission, naturally it means that the Prime Minister appoints this Commission. He will appoint the other Election Commissioners on his recommendations. Now, this does not ensure their independence. Of course once he is appointed, he shall not be removable except by 2/3rd majority of both Houses. That is certainly something which can instill independence in him, but it is quite possible that some party in power who wants to win the next election may appoint a staunch party-man as the Chief Election Commissioner. He is removable only by 2/3rd majority of both Houses on grave charges, which means he is almost irremovable. So what I want is this that even the person who is appointed originally should be such that he should be enjoying the confidence of all parties his appointment should be confirmed not only by majority but by two-thirds majority of both the Houses...Of course, there is a danger when one party is in huge majority. Still, if he does appoint a party-man, and the appointment comes up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat my Friend Professor Saksena said that there is no use making the tenure of the Election Commissioner a fixed and secure tenure if there is no provision in the Constitution to prevent either a fool or a knave or a person who is likely to be under the thumb of the Executive. My provision--I must admit--does not contain anything to provide against nomination of an unfit person to the post of the Chief Election Commissioner or the other Election Commissioners... 338. The solution which Dr. Ambedkar gave was that the Constituent Assembly should adopt as Instrument of Instructions to the President , which may consist of the guidelines according to which the President has to make the appointments. He said: The Drafting Committee had paid considerable attention to this question because as I said it is going, to be one of our greatest headaches and as a via media it was thought that if this Assembly would give or enact what is called an Instrument of Instructions to the President and provide therein some machinery which it would be obligatory on the President to consult before making any appointment, I think the difficulties which are felt as resulting... may be obviated and the advanta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commission being a multi member body and the relation between CEC and other ECs. Some important points highlighted were as follows: The ECs and the RCs have been assured independence of functioning by providing that they cannot be removed except on the recommendation of the CEC. Of course, the recommendation for removal must be based on intelligible, and cogent considerations which would have relation to efficient functioning of the Election Commission. That is so because this privilege has been conferred on the CEC to ensure that the ECs as well as the RCs are not at the mercy of political or executive bosses of the day.... If, therefore, the power were to be exercisable by the CEC as per his whim and caprice, the CEC himself would become an instrument of oppression and would destroy the independence of the ECs and the RCs if they are required to function under the threat of the CEC recommending their removal. It is, therefore, needless to emphasise that the CEC must exercise this power only when there exist valid reasons which are conducive to efficient functioning of the Election Commission. Held further: 15. We have already highlighted the salient features regarding the compos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s added) 342. The judgment in T.N. Seshan did not directly consider the issues which are before this Bench. Furthermore, the observations made in T.N. Seshan indicate that the Election Commissioners were not mere advisors, but have a crucial constitutional role. VI. Reports of Various Commissions on Manner of Appointment of Chief Election Commissioner and Election Commissioners: A. Dinesh Goswami Commission, 1990 Dinesh Goswami Commission (1990), Chapter II, Electoral Machinery, pg. 9, 10, Available at: https://adrindia.org/sites/default/files/Dinesh%20Goswami%20Report%20on%20Electoral%20Reforms.p df Appointment of CEC 1. The appointment of the Chief Election Commissioner should be made by the President in consultation with the Chief Justice of India and the Leader of the Opposition (and in case no Leader of the opposition is available, the consultation should be with the leader of the largest opposition group in the Lok Sabha). 2. The consultation process should have a statutory backing. 3. The appointment of the other two Election Commissioners should be made in consultation with the Chief Justice of India, Leader of the Opposition (in case the Leader of the opposition is not ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve Reform Commission (2009), Pg. 79, Available at: https://darpg.gov.in/en/arc-reports In recent times, for statutory bodies such as the National Human Rights Commission (NHRC) and the Central Vigilance Commission (CVC), appointment of Chairperson and Members are made on the recommendations of a broad based Committee. Given the far reaching importance and critical role of the Election Commission in the working of our democracy, it would certainly be appropriate if a similar collegium is constituted for selection of the Chief Election Commissioner and the Election Commissioners. E. Background Paper on Electoral Reform, Ministry of Law Justice (2010) 6.3 Measures for Election Commission, pg. 19, Available at: https://lawmin.gov.in/sites/default/files/bgp_0.doc Recommendation Clause (5) of Article 324 of the Constitution, inter alia, provides that the Chief Election Commissioner shall not be removed from his office except in like manner and on like grounds as a Judge of the Supreme Court. However, Clause (5) of Article 324 does not provide similar protection to the Election Commissioners and it only says that they cannot be removed from office except on the recommendation of the Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Explanation: For the purposes of this Sub-section, the Leader of the Opposition in the House of the People shall, when no such Leader has been so recognised, include the Leader of the single largest group in opposition of the Government in the House of the People. 344. The Law Commission also recommended the formation of an independent and permanent Secretariat staff for Election Commission and suggested that: The Election Commission shall have a separate independent and permanent secretarial staff. The Election Commission may, by Rules prescribed by it, regulate the recruitment, and the conditions of service of persons appointed, to its permanent secretarial staff. 345. These reports clearly indicate the need for reforms in the working of the Election Commission, in particular in the process of selection and removal of the members of the Election Commission. VII. Comparative framework - Foundational parameters 346. An examination of practice for appointment of the head of election-conducting bodies across the world shows some trends that include amongst others, the inclusion of members of the opposition. In most jurisdictions, such appointments are a consultative process, invol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to act as its chairman. [Art 118 (1)] -CEC -Not more than four election Commissioner [Art 118 (1)] President Five years. [Art 118(3)] Not eligible for appointment in the service of the Republic. Any other Election Commissioner is, on ceasing to hold such office, eligible for appointment as Chief Election Commissioner, but is not eligible for appointment in the service of the Republic. [Art 118 (3)(b)] that an Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court. An Election Commissioner may resign his office by writing under his hand addressed to the President. [Art 118(5)] 3 Australia Commonwealth Electoral Act,1918 available at: https://www.legislation.gov.au/Details/C2022C00074 Section 6 of the Commonwealth Electoral Act 1918 (Electoral Act) establishes the Australian Electoral Commission (the Commission) a three person body which holds responsibilities outlined under section 7 of the Electoral Act. -Chairperson -Electoral Commissioner - one other member [S.6(2)] Chairperson and nonjudicial appointee are appointed by Governor General. -7 years [S.8(1)] The Commission is headed by a Chairperso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical party. [S.306(a)(1)] The Commission is appointed by the President and confirmed by the Senate. President and confirmed by the Senate -Each commissioner is appointed for a six-year term -Two commissioners are appointed every two years. -The Chair of Commission changes every year. [S.306(2)(a)] 7 Nepal Constitution of Nepal, Available at: https://lawcommission.gov.np/en/wpcontent/uploads/2021/01/Constitution-of-Nepal.pdf Chief Election Commissioner and four other Election Commissioners [Art 245(1)] The President shall, on the recommendation of the Constitutional Council (Art.284) Comprising of: a. Prime Minister - Chairperson b. Chief Justice Member c. Speaker of the House of Representatives - Member d. Chairperson of National Assembly - Member e. Leader from the Opposition Party in House of Representative Member f. Deputy Speaker of House of Representatives Member), appoint the Chief Election Commissioner and the Election Commissioners. President a. holds a Bachelor's Degree from a recognized university, b. is not a member of any political party immediately before the appointment; c. has attained the age of forty-five and d. possesses high moral character. [Art. 245(6)] Six ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Address to appoint the recommended candidates. If the House agrees the motion, the King appoints the commissioners by Royal Warrant - - VIII. Process of Selection of other Constitutional/Statutory Bodies 347. Various state institutions supporting constitutional democracy have an independent mechanism for the appointment of its heads and members. The same is carried out with an object to keep them insulated from any external influence that allows them to remain neutral to carry on the assigned functions. Table showing the position of various authorities is as follows: S. No. Authorities Composition of Body Composition of Selection Committee Appointing Authority Eligibility Tenure Conditions ensuring Independence 1 National Human Rights Commission (The Protection of Human Rights Act, 1993 NHRC composed of Chairperson and 12 other members . (5 full time members and 7 deemed members) (Section 3- Constitution of NHRC) The Protection of Human Rights Act, 1993 The Selection Committee includes: ● Prime Minister (Chairman) , ●Speaker of Lok Sabha, ●Union Home Minister, ●Deputy Chairman of Rajya Sabha, ●Leaders of the Opposition in both Houses of the Parliament ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in public life with wide knowledge and experience in law, science, and technology ,social service, management, journalism, mass media or administration and governance. Shall not be a member of parliament or legislature of any state or UT and should not hold any officer of profit under state. as may be prescribed by Central Government or 65, whichever is earlier - Shall be ineligible for reappointment Information Commissioners can be appointed as CIC, provided the collective tenure of both posts does not exceed 5 years. (Section 13 Term of office and conditions of service) Removal By President on ground of proven misbehaviour or incapacity (After SC s inquiry that such officer shall be removable on such grounds) Other grounds: - insolvency - conviction of offense involving moral turpitude - unfit due to infirmity of mind. - acquired financial interests inconsistent with his official position. 5 Central Vigilance Commission (CVC Act, 2003) - Central Vigilance Commissioner - Vigilance Commissioners (not more than 2) (Section 3 Constitution of Central Vigilance Commission) Central Vigilance Commission Act, 2003 ● Prime Minister (Chairman) ● Leader of Opposition in the Lok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Lokpal. - other appointment required to be made by President - other office of profit under the government. - contesting election within a period of 5 years from relinquishing the post. : Member can be appointed as Chairm an, provided aggregate term does not exceed 5 years. (Section 6 Term of office of Chairperson and Members) Lokpal and Lokayuktas Act, 2013. By President on ground of proved misbehaviour or incapacity After SC s inquiry that such officer shall be removable on such grounds) Other grounds: - insolvency - unfit due to infirmity of mind. - engages in employme nt outside his office. 7 Press Council of India (Press Council of India Act, 1978) - Chairman - 28 other members (Section 5 Composition of the Council) Press Council Act, 1978 ● Chairman of the Council of States (Rajya Sabha) ● Speaker of the House of the People (Lok Sabha) ● A person elected by the members of the Council Different set of members are appointed according to the requirement of their roles. For chairman, a committee is formed. No working journalist who owns, or carries on the business of management of, any newspaper shall eligible for nomination (Proviso to Sec 5(3)) 3 years ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rassment of women at workplace. Another judgment in this regard is Vishwa Jagriti Mission Through President v. Central Govt. Through Cabinet Secretary and Ors. (2001) 6 SCC 577 where a two-judge bench of this Court laid down guidelines for educational institutes to prevent the menace of ragging. 350. This Court in the case of Prakash Singh and Ors. v. Union of India and Ors. (2006) 8 SCC 1 after studying various committee reports on police reforms, laid down certain directions in the nature of police reforms to be operative until the new Police Act is to be framed. It is necessary to quote the following excerpt from the judgment: It is not possible or proper to leave this matter only with an expression of this hope and to await developments further. It is essential to lay down guidelines to be operative till the new legislation is enacted by the State Governments. Article 32 read with Article 142 of the Constitution empowers this Court to issue such directions, as may be necessary for doing complete justice in any cause or matter. All authorities are mandated by Article 144 to act in aid of the orders passed by this Court....In the discharge of our constitutional duties and obligat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ificant ramifications. 354. Justice Lokur also analysed the previous judgments of this Court on judicial review of the selection process, and noted: 115. In Centre for PIL [Centre for PIL v. Union of India, (2011) 4 SCC 1: (2011) 1 SCC (L S) 609] this Court struck down the appointment of the Central Vigilance Commissioner while reaffirming the distinction between merit review pertaining to the eligibility or suitability of a selected candidate and judicial review pertaining to the recommendation-making process....Acknowledging this, this Court looked at the appointment of the Central Vigilance Commissioner not as a merit review of the integrity of the selected person, but as a judicial review of the recommendation-making process relating to the integrity of the institution. It was made clear that while the personal integrity of the candidate cannot be discounted, institutional integrity is the primary consideration to be kept in mind while recommending a candidate. It was observed that while this Court cannot sit in appeal over the opinion of HPC, it can certainly see whether relevant material and vital aspects having nexus with the objects of the Act are taken into account when a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment frames guidelines or parameters for the appointment of the Chairperson and Members of the Punjab Public Service Commission. That it has failed to do so does not preclude this Court or any superior court from giving a direction to the State Government to conduct the necessary exercise within a specified period. Only because it is left to the State Legislature to consider the desirability or otherwise of specifying the qualifications or experience for the appointment of a person to the position of Chairperson or Member of the Punjab Public Service Commission, does not imply that this Court cannot direct the executive to frame guidelines and set the parameters. This Court can certainly issue appropriate directions in this regard, and in the light of the experience gained over the last several decades coupled with the views expressed by the Law Commission, the Second Administrative Reform Commission and the views expressed by this Court from time to time, it is imperative for good governance and better administration to issue directions to the executive to frame appropriate guidelines and parameters based on the indicators mentioned by this Court. These guidelines can and shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Election Commissioners could be made only on the recommendation of the Chief Election Commissioner. The protection available to the Chief Election Commissioners is not available to other Election Commissioners. Various reports have recommended that the protection against removal available to the Chief Election Commissioner should be made available to the other Election Commissioners to ensure the independence of the Election Commission. 360. A note titled Proposed Electoral Reforms (2004) Election Commission of India Proposed Reforms (2004), Pg. 14, 15, available at: https://prsindia.org/files/bills_acts/bills_parliament/2008/bill200_20081202200_Election_Commission_P roposed_Electoral_Reforms.pdf prepared and published by the Election Commission of India itself recommended that: In order to ensure the independence of the Election Commission and to keep it insulated from external pulls and pressures, Clause (5) of Article 324 of the Constitution, inter alia, provides that the Chief Election Commissioner shall not be removed from his office except in like manner and on like grounds as a Judge of the Supreme Court. However, that Clause (5) of Article 324 does not provide similar pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence, direction and control of the preparation of electoral rolls and the conduct of all parliamentary and State Legislatures' elections and that of the office of President and Vice-President in terms of Article 324(1) of the Constitution. In terms of Article 324(2), the office of Election Commission comprises of Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and by an Order dated 01 October, 1993, the President has fixed the number of Election Commissioners to two until further orders. Since 1993, it is a multi-member Commission with equal participation in transacting the business of the Election Commission as provided under Chapter III of the Act, 1991 to ensure the smooth and effective functioning of the Election Commission. 363. Article 324(5) of the Constitution is intended to ensure the independence of the Election Commission free from all external political interference and, thus, expressly provides that the removal of the Chief Election Commission from office shall be in like manner as on the grounds as of a Judge of the Supreme Court. Nevertheless, a similar procedure has not been provide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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