TMI Blog1995 (7) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... C') and Election Commissioners (hereinafter called 'the ECs') appointed under Article 324 of the Constitution of India. Section 3(1) provides that the CEC shall be paid a salary which is equal to the salary of a Judge of the Supreme Court of India. Section 3(2) says that an EC shall be paid a salary which is equal to the salary of a Judge of a High Court Section 4 lays down the term of office of the CEC and ECs to be six years from the date on which the incumbent assumes charge of his office provided that the incumbent shall vacale his office on his attaining, in the case of the CEC, the age of 65 years and the EC the age of 62 years, notwithtanding the fact that the term of office is for a period of six years. Section 8 extends the benefit of travelling allowance, rent free residence, exemption from payment of income-tax on the value of such rent free residence, conveyance facility, sumptuary allowance, medical facitilies, etc., as applicable to a Judge of the Supreme Court or a Judge of the High Court to the CEC and the EC, respectively, By the Ordinance the title of the Act was sought to be amended by substituting the words and to provide for the procedure for trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in clause (b) the words or as the case may be, 62 years shall be omitted. After section 8 in the Principal Act, by the Ordinance a new Chapter came to be inserted comprising of two provisions, namely, Sections 9 and 10. The new Chapter so inserted is relevant for our purpose and may be reproduced at this stage: CHAPTER III TRANSACTION OF BUSINESS OF ELECTION COMMISSION 9. The business of the Election Commission shall be transacted in accordance with the provisions of this Act. 10(1) The Election Commission may, by unanimous decision, regulate the procedure for transaction of the business as also allocation of the 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 differ in opinion on any matter, such matter shall be decided according to the opinion of the majority. On the day of publication of the Ordinance, 1st October, 1993, the President of India, in exercise of powers conferred by clause 2 of Article 324 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l continue till further orders. iastly, it observed that since questions involved related to the interpretation of Article 324 in particular, the matters should be placed before a Constitution Bench. During the pendency of the aforesaid Writ Petitions, the Ordinance became an Act (Act No.4 of 1994) on 4th January, 1994 without any change. Before we proceed further it would be proper to notice Article 324 of the Constitution. It reads as under: 324. Superintendence, direction and control of elections to be vested in an Election Commission.-- (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Iegislature of every state and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission). (2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing party leaders/cabinet, ministers were put off for the Government's failure to deploy sufficient staff and police force for the elections and the ruling party lost the elections in Tripura on account of strict action taken by the CEC against erring officials consequent postponement of elections. The ruling party made attempts to influence the CEC but could not do so as he did not allow the emissaries of the party to meet him. The CEC also filed a writ petition in the Supreme Court for enforcing the constitutional right of the Election Commission for staff and force. The CEC declined to postpone elections for four State assemblies despite requests from the ruling party,including the Prime Minister, got irritated with such unbending attitude of the CEC. The ruling party, therefore, with a view to freeze the powers of the CEC and to prevent him from taking any action against violation of code of conduct chose to amend the law and misused the power of the President under Article 324(2) of the Constitution by issuing the notification dated 1st October, 1993 fixing the number of ECs at two and simultaneously appointing Mr. M.S. Gill Mr. G.V.G. Krishnamurthy as the other two EC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prevail is consistent with democratic principles and can never be described as arbitrary or ultravires Article 14 of the Constitution. The Union of India, has, therefore, contended that the writ petitions are wholly misconceived and deserve to be dismissed with costs. The Preamble of our Constitution proclaims that we are a Democratic Republic. Democracy being the basic feature of our constitutional set up, there can be no two opinion that free and fair elections to our legislative bodies alone would guarantee the growth of a healthy democracy in the country. In order to ensure the purity of the election process it was thought by our Constitution-makers that the responsibility to hold free and fair elections in the country should be entrusted to an independent body which would be insulated from political and/or executive interference. It is inherent in a democratic set up that the agency which is entrusted the task of holding elections to the legislatures should be fully insulated so that it can function as an independent agency free from external pressures from the party in power or executive of the day. This objective is achieved by the setting up of an Election Commission, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in clause (1). This, in brief, is the scheme of Article 324 insofar as the constitution of the Election Commission is concerned. We may now briefly notice the position of each functionary of the Election Commission. In the first place, clause (2) states that the appointment of the CEC and other ECs shall, subject to any law made in that behalf by Parliament, be made by the President. Thus the President shall be the appointing authority. Clause (5) provides that subject to any law made by Parliament, The conditions of service and the lenure of office of the RCs shall be such as may be determined by rule made by the president. of course the RCs do not form part of the Election Commission but. are appointed merely to help the commission, that is to say, the CEC and the ECs if any. As we have pointed out earlier the lenure, salaries, allowances and other perquisites of the CEC and ECs had been fixed under the Act as equivalent to a Judge of the Supreme Court and the High Court, respectively. This has undergone a change after the ordinance which has so amended the Act as to place them on par. However,the proviso to clause (4) of Article 324 says (i) the CEC shall not be removed from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24, clause (2) whereof clearly envisages a multi- member Election Commission comprising the CEC and one or more ECs. Visualising such a situation, clause (3) provides that in the case of a multi-member body the CEC will be its Chairman. If a multi-member Election Commission was not contemplated where was the need to provide in clause (3) for the CEC to act as its Chairman? There is, therefore, no room for doubt that the Election Commission could be a multi- member body. If Article 324 does contemplate a multi-member body, the impugned notifications providing for the other two ECs cannot be faulted solely on that ground. We may here quote, with approval, the observations of a two-Judge Bench of this Court in S.S.Dhanoa v. Union of India and Others (1991) 3 SCC 567, vide paragraph 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation appointed the petitioner and one another as ECs. By yet another notification issued under clause (5) of Article 324 the President made rules to regulate their lenure and conditions of service. After watching the functioning of the multi-member body for about a couple of months, the President issued two notifications rescinding with immediate effect the notification by which the two posts of ECs were created and the notification by which the petitioner and one another were appointed thereto. The petitioner S.S. Dhanoa challenged the notifications rescinding the earlier notification firstly on the ground that once appointed an EC continues in office for the full term determined by rules made under clause (5) of Article 324 and, in any event, the petitioner could not be removed except on the recommendation of the CEC. At the same time it was also contended that the notifications were issued malafide under the advise of the CEC to get rid of the petitioner and his colleague because the CEC was from the very begining ill-disposed or opposed to the ceration of the posts of ECs. According to the petitioner, there were differences of opinion between the CEC on the one hand and the EC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CEC vis-a-vis the ECs, the procedure to be followed by a multi-member body in decision making in the absence of rules in that behalf etc., on which considerable reliance was placed by counsel for the petitioners. We have already highlighted the salient features regarding the composition of the Election Commission. We have pointed out the provisions regarding the tenure, conditions of service, salary, allowances, removability, etc., of the CEC the ECs and the RCs. The CEC and the ECs alone constitute the Election Commission whereas the RCs are appointed merely to assist the Commission. The appointment of the RCs can be made after consulting the Election Commission since they are supposed to assist that body in the performance of the functions assigned to it by clause (1) of Article 324. If that be so there can be no doubt that they would rank next to the CEC and the ECs. That brings us to the question regarding the status of the CEC vis-a-vis the ECs. It was contended by the learned counsel for the petitioners that the CEC enjoyed a status superior to the ECs for the obvious reason that (i) the CEC has been granted conditions of service on par with a Judge of the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e framers of the Constitution desired to give the same status to the Election Commissioners as that of the Chief Election Commissioner. The Chief Election Commissioner does not, therefore, appear to be primus inter partes, i.e., first among the equals, but is intended to be placed in a distinctly higher position. The conditions that the President may increase or decrease the number of Election Commissioners according to the needs of the time, that their service conditions may be varied to their disadvantage and that they may be removed on the recommendation of the Chief Election Commissioner militate against their being of the same status as that of the Chief Election Commissioner. While it is true that under the scheme of Article 324 the conditions of service and tenure of office of all the functionaries of the Election Commission have to be determined by the President unless determined by law made by Parliament, it is only in the case of the CEC that the first proviso to clause (5) lays down that they cannot be varied to the disadvantage of the CEC after his appointment. Such a protection is not extended to the ECs. But it must be remembered that by virtue of the Ordinance th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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's case. 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. Under clause (3) of Article 324, in the case of a multi-member Election Commission, the CEC 'shall act' as the Chairman of the Commission. As we have pointed out earlier, Article 324 envisages a permanent body to be headed by a permanent incumbent, namely, the CEC. The fact that the CEC is a permanent incumbent cannot confer on him a higher status than the ECs for the simple reason that the latter are not intended to be permanent appointees. Since the Election Commission would have a staff of its own dealing with matters concerning the superintendence, direction and control of the preparation of electoral rolls, etc., that staff would have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Dhanoa's case. From the discussion upto this point what emerges is that by clause (1) of Article 324, the Constitution-makers entrusted the task of conducting all elections in the country to a Commission referred to as the Election Commission and not to an individual. It may be that if it is a single-member body the decisions may have to be taken by the CEC but still they will be the decisions of the Election Commission. They will go down as respondents of the Election Commission and not the individual. It would be wrong to project the individual and eclipse the Election Commission. Nobody can be above the institution which he is supposed to serve. He is merely the creature of the institution, he can exist only if the institution exists. To project the individual as mightier than the institution would be a grave mistake. Therefore, even if the Election Commission is a single-member body, the CEC is merely a functionary of that body; to put it differently, the alter ego of the Commission and no more. And if it is a multi-member body the CEC is obliged to act as its Chairman. 'Chairman' according to the Concise Oxford Dictionary means a person chosen to preside ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. If they form part of the Commission it stands to reason to hold that they must have a say in decision-making. If the CEC is considered to be a superior in the sense that his word is final, he would render the ECs non-functional or ornamental. Such an intention is difficult to cull out from Article 324 nor can we attribute it to the Constitution-makers. We must reject the argument that the ECs' function is only to tender advise to the CEC. We have pointed out the distinguishing features from Article 324 between the position of the CEC and the ECs. It is essentially on account of their tenure in the Election Commission that certain differences exist. We have explained why in the case of ECs the removability clause had to be different. The variation in the salary, etc., cannot be a determinative factor otherwise that would oscillate having regard to the fact that the executive or the legislature has to fix the conditions of service under clause (5) of Article 324. The only distinguishing feature that survives for consideration is that in the case of the CEC his conditions of service cannot be varied to his disadvantage after his appointment whereas there is no such safeguard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e able to take decisions with one voice. But just in case that hope is belied the rule of majority must come into play. That is the purport of section 10 of the Act. The submission that the said two sections are inconsistent with the scheme of Article 324 inasmuch as they virtually destroy the two safeguards, namely (i) the irremovability of the CEC and (ii) prohibition against variation in service conditions to his disadvantage after his appointment, does not cut ice. In the first place, the submission proceeds on the basis that the other two ECs will join hands to render the CEC non-functional, a premise which is not warranted. It betrays the CEC's lack of confidence in himself to carry his colleagues with him. In every multi- member commission it is the quality of leadership of the person heading the body that matters. Secondly the argument necessarily implies that the CEC alone should have the power to take decisions which, as pointed out earlier, cannot be accepted because that renders the ECs' existence ornamental. Besides, there is no valid nexus between the two safeguards and Section 9 and 10; in fact the submission is a repetition of the argument that a multi-membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficult to accept the broad contention that a multi-member Commission is unworkable. It all depends on the attitude of the Chairman and its members. If they work in co-operation, appreciate and respect each other's point of view, there would be no difficulty, but if they decide from the outset to pull in opposite directions, they would by their conduct make the Commission unworkable and thus fail the system. That takes us to the question of mala fides. It is in two parts. The first part relates to events which preceded the Ordinance and the second part to post-Ordinance and notification events. On the first part the CEC contends that since, after his appointment, he had taken various steps with a view to ensuring free and fair elections and was constrained to postpone certain elections which were to decide the fale of certain leaders belonging to the ruling party at the Centre, i.e., the National Congress (i), he had caused considerable discomfiture to them. His insistence on strict observance of the model Code of Conduct had also disturbed the calculations of the ruling party. According to him, he had postponed the elections in Kalka Assembly constituency, Haryana, because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese, in brief, are the broad counts on the basis whereof he contends that the ruling party at the Centre was keen to dislodge him. On behalf of the union of India it is contended that the allegation that the power to issue an Ordinance was misused for collateral purpose, namely, to impinge on the independence of the Election Commission, is wholly misconceived since it is a known fact that the demand for a multi-member Commission had been raised from time to time by different political parties. The Joint Committee of both Houses of Parliament had submitted a report in 1972 recommending a multi-member body and the Tarkunde Committee appointed on behalf of the Citizens for Democracy also favoured a multi-member Election Commission in its report submitted in August 1974. Similarly, the Committee on electoral reforms appointed by the Janata Dal Government, in its report in May, 1990, favoured a three member Election Commission. Various Members of Parliament belonging to different political shades had also raised a similar demand from time to time. The Advocates General of various States in their meeting held on 26th September, 1993 at New Delhi had made a similar demand. It was, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (v) the Election Commission be exempted from the purview of the UPSC so far as its staff was concerned, etc. The learned Allorney General pointed out that no mala fides can be attributed to the exercise of legislative power by the President of India under Article 123 of the Constitution. He further pointed out. that having regard to the express language of Article 324(2) of the Constitution, it was perfectly proper to expand the Election Commission by making appropriate changes in the extant law. The question whether it is necessary to appoint other ECs besides the CEC is for the Government to decide and that is not a justiciable matter. The demand for a multi-member Commission was being voiced for the last several years and merely because it was decided to make an amendment in the statute through an Ordinance, it is not permissible to infer that the decision was actuated by malice. It was lastly contended that Article 324 nowhere stipulates that before ECs are appointed, the CEC will be consulted. In the absence of an express provision in that behalf, it cannot be said that the failure to consult the CEC before the appointments of the two ECs viliates the appointment. One of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions not palatable to the ruling party at the Centre as alleged by him, it is not permissible to jump to the conclusion that that was cause for the Ordinance and the appointments of the ECs. If such a nexus is to weigh, the CEC would continue to act against the ruling party to keep the move for a multi-member Commission at bay. We find it difficult to hold that the decision to constitute a multi- member Commission was actuated by malice. Therefore, even though it is not permissible to plead malice, we have examined the contention and see no merit in it. It is wrong to think that the two ECs were pliable persons who were being appointed with the sole object of eroding the independence of the CEC. We may incidentally mention that the decisions taken by the CEC from time to time postponing elections at the last moment, of which he has made mention in his petition, have evoked mixed reactions. This we say because the CEC uses them to lay the foundation for his contention that the entire exercise was mala fide. Some of his other decisions were so unsustainable that he could not support them when tested in court. His public utterances at times were so abrasive that this court had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmission is unassailable, provisions incidental thereto cannot be challenged. It was urged that the legislation squarely fell within Entry 72 of list I of the Seventh Schedule. That entry refers to Elections to Parliament, to legislatures of States and to the Offices of President and Vice-President; the Election Commission . If, as argued, the scope of this entry is relatable and confined to clauses (2) and (5) of Article 324 and Articles 327 and 328 only, it would be mere tautology. If the contention that the CEC alone has decisive power is not accepted, and we have not accepted it, and even if it is assumed that the normal rule is of unanimily, sub-sections (1) and (2) of Section 10 provide for unanimity. It is only if there is no unanimily that the rule of majority comes into play under sub-section (3). Therefore, even if we were to assume that the Commission alone was competent to lay down how it would transact its business, it would be required to follow the same pattern as is set out in Section 10. We, therefore, see no merit in this contention also. We would here like to make it clear that we should not be understood to approve of the ratin of Dhanoa's case in its en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to them not realising the distinction between constitutional and statutory functionaries. We would like to impress on the Government that it should not confer equivalence or interfere with the Warrant of Precedence, if it is likely to affect the position of High Court and Supreme Court Judges, however pressing the demand may be, without first seeking the views of the Chief Justice of India. We may add that Mr. G. Ramaswamy, learned counsel for the CEC, frankly conceded that the CEC could not legitimately claim to be equated with Supreme Court Judges. We do hope that the Government will take note of this and do the needful. We have deliberately avoided going into the unpleasant exchanges that look place in the chamber of the CEC on 11th October, 1993, to which reference has been made by the CEC in paragraph 18 (c to f and g) of his petition. These allegations have been denied by Shri Krishnamurthy and Shri Gill does not support the CEC when he says he was abused. Although these allegations and counter allegations found their way into the press, we do not think any useful purpose will be served by washing dirty linen in public except showing both the CEC and Shri Krishnamurthy i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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