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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 ..... dey, Raman Yadav, Sneha Kalita, Prasenjeet Mohapatra, Samarvir Singh, Naman Tandon, Shyam Gopal, Sharat Nambiar, Udai Khanna, Kanu Aggarwal, Chinmayee Chandra, Sumit Teterwal, Anirudh Bhat, Advs., Arvind Kumar Sharma, Amit Sharma, AORs, Dipesh Sinha, Pallavi Barua, Sakshi Upadhyaya, Aparna Singh, Kaleeswaram Raj, Thulasi K. Raj, Advs., Nishe Rajen Shonker and Mukesh Kumar Maroria, AORs JUDGMENT A. THE CASES: THE FOUR WRIT PETITIONS 1. In this clutch of writ petitions maintained Under Article 32 of the Constitution, the Court is called upon to consider the true effect of Article 324 and, in particular, Article 324(2) of the Constitution. The said sub-Article reads as follows: 324(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. 2. A Bench of two learned Judges of this Court in Writ Petition (Civil) No. 104 of 2015, passed the following Order on 23.10.2018: I.A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their office except in like manner and on the like grounds as the Chief Election Commissioner; b) direct the Central Government to take appropriate steps to provide independent secretariat to the Election Commission of India and declare its expenditure as charged on the consolidated. fund of India on the lines of the Lok Sabha/Rajya Sabha secretariat; c) direct the Central Government to take appropriate steps to confer Rule making authority on the Election Commission of India on the lines of the Rule making authority vested in the Supreme Court of India to empower it to make election related Rules and code of conduct; d) take such other steps as this Hon'ble Court may deem fit for strengthening the office of the Election Commission of India and allow the cost of petition to Petitioner. 5. In Writ Petition (Civil) No. 569 of 2021, filed by the Association for Democratic Reforms, the reliefs sought are as follows: "i. Issue an appropriate writ, order or direction declaring the practice of appointment of Chief Election Commissioner and Election Commissioner solely by the executive as being violative of Articles 324(2) and 14 of the Constitution of India. ii. Direct the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e underlying rationale for the Court intervening must be the existence of a fundamental norm or a basic feature that needs to be secured. In this regard, democracy and the concomitant imperative to hold free and fair elections are projected. It is contended that the other aspect, which must be borne in mind, is to be not oblivious to the impact of the existence of the vacuum on the rights of the members of the public, both directly and indirectly. Like the Judiciary, the Election Commission must display fearless independence. In the absence of norms regarding the appointment, a central norm, viz., institutional integrity is adversely affected. An independent appointment mechanism would guarantee eschewing of even the prospect of bias. Favouritism would be largely reduced. Right to Vote is a Constitutional Right. With reference to law prevailing in other South Asian countries and in the United Kingdom, it is contended that clear qualification, as also eligibility conditions, have been put in place. Mandatory tenures are made available. The removal process, which is uniform, is rigorous. It is contended that there has been a sudden change after 2001, in the matter of appointing Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght on par with those of the Supreme Court, the CAG and the UPSC. The expenditure must be made non-votable expenditure charged on the Consolidated Fund of India. C. SUBMISSIONS ON BEHALF OF SHRI PRASHANT BHUSHAN, Learned Counsel ON BEHALF OF Petitioner IN WRIT PETITION (CIVIL) No. 104 OF 2015. 9. An independent Election Commission is necessary for a functioning democracy as it ensures Rule of Law and free and fair elections. The existing practice of appointment is incompatible with Article 324(2) and manifestly arbitrary. This is because Article 324(2) mandates that Parliament should make a just, fair and reasonable law. The provision for making a law was rested on the hope that in due course of time, the Government would exhibit initiative to make such a law and ensure independence and integrity of the Members of the Election Commission. It is contended that there is a vacuum. No power under the constitution can be exercised contrary to Part III of the Constitution, be it the Executive or the Legislative power. The Government of India (Transaction of Business) Rules, 1961 are silent regarding the process of selection and on the eligibility criteria. The convention invoked by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to splintered and rival groups arising within already recognized parties. There is power to withdraw and suspend recognition for breach of duty to follow the model code of conduct or the instructions of the Commission (See Rule 16A of the Symbol Order). It is blessed with the power to enforce the model code of conduct. The Election Commission can, in exercise of powers Under Article 324(1), ban a candidate from campaigning. The Election Commission is also empowered to remove star campaigners. Reliance is placed on the various Reports, which we will advert to at a later stage. Still further, support is sought to be drawn from the Second Judges case in Supreme Court Advocates-on-Record Association and Ors. v. Union of India (1993) 4 SCC 441, and the judgment of this Court declaring the NJAC unconstitutional in Supreme Court Advocates-on-Record Association and Anr. v. Union of India (2016) 5 SCC 1. The learned Counsel also relies upon the judgment of this Court in Prakash Singh and Ors. v. Union of India and Ors. (2006) 8 SCC 1 relating to reforms in the Police Administration. This is besides relying on Vineet Narain and Ors. v. Union of India and Anr. (1998) 1 SCC 226, and the Third ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sri Lanka. F. SUBMISSIONS ON BEHALF OF THE LEARNED ATTORNEY GENERAL FOR THE UNION OF INDIA 12. The learned Attorney General, Shri R. Venkataramani, would address the following submissions: Accepting the Petitioners' contention would involve nothing less than an amendment to the provisions of Article 324. The case of the Petitioners is based on various Reports including that of the Central Law Commission. The premise of the Petitioners' complaint is the failure of the extant mechanism and the reluctance or failure of the Union of India to redress the complaint. A vacuum, which is not existent, is suggested as the very foundation of the Petitioners claim. There is no such vacuum. The learned Attorney General would point out that introduction of the Collegium or Body of persons to select the Chief Election Commissioner or the Election Commissioner, would necessitate the Court, trampling upon the constitutional process of aid and advise of Ministers, contemplated Under Article 74 of the Constitution of India. There cannot be merit in the contention that a tenure of six years must be inexorably guaranteed. Judicial intervention in these matters would be at the expense of caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt polling took place. The Election Commission of India, it is contended, has entered into various agreements under the auspices of the United Nations under which the Election Commission of India shares its expertise and lends its competent services for the conduct of elections in various other countries. This is not a case where the Petitioners have been able to demonstrate that the independence of the Chief Election Commissioner or the Election Commissioner is under threat. The Election Commission is regulated in the discharge of its functions by law in every manner. The matters relating to the appointment of the Chief Election Commissioner and the Election Commissioner have been settled by the decision of this Court in T.N. Seshan, Chief Election Commissioner of India v. Union of India and Ors. (1995) 4 SCC 611. It is pointed out that the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 (hereinafter referred to as, 'the 1991 Act) does not deal with the process of selection and all the details that may be connected to it. It is commended to the Court as a matter of fact that the Election Commissioners have been appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no identifiable wrong. There is no continuing wrong either. The decisions, laying down principles, empowering this Court to lay down guidelines, are inapposite. The decisions were rendered by this Court in a situation where there clearly existed a vacuum. It is further pointed out that the Court was invited and persuaded to interfere, more importantly, when a Fundamental Right was found to exist or a right vouch-saved under an International Treaty. In the present batch of cases, there is no Fundamental Right involved, which can support any interference by this Court. This is apart from Article 324(2) laying down a procedure, signalling the absence of any vacuum. The proof of the non-existence of the vacuum is sought to be established by the fact that several Chief Election Commissioners and Election Commissioners have been appointed according to need in the past. A perceived advancement in the method of appointment, based on the Reports, including the Law Commission of India, would scarcely furnish the foundation for doing violence to the provisions of the Constitution. We are reminded by the learned Attorney General that this Court is being invited to apply principles invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to interfere. ANALYSIS I. 'THE FRAMING OF INDIA'S CONSTITUTION' BY B. SHIVARAO 15. It is apposite that we understand the historical perspective including the debates in the Constituent Assembly. In the work, the 'Framing of India's Constitution' by B. Shivarao, we find the following narrative as regards the topic of Franchise and Elections. "Election Commission In the Government of India Act, 1935, and in the earlier statues the conduct of elections was left to the executive - the Central or Provincial Governments, according as election to the Central or State Legislature was concerned. In the discussions in the Constituent Assembly, there emerged almost from the beginning a consensus of opinion that the right to vote should be treated as a fundamental right of the citizen and that, in order to enable him to exercise this right freely, an independent machinery to control elections should be set up, free from local pressures and political influences. There was considerable discussion on these issues in the Fundamental Rights Sub-Committee and the Minorities Sub-Committee. K.M. Munshi's draft articles on fundamental rights included the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ote'. The Minorities Sub-Committee considered these provisions at its meeting held on April 17, and accepted these recommendations. The only point that arose at the meeting of this Sub-Committee was raised by Syama Prasad Mukerjee, who thought that the minorities should be effectively represented in these Election Commissions. On the other hand Jairamdas Daulatram did not think it practicable to provide for separate representation for minorities. He suggested that the Election Commissions should be so constituted that they would function as impartial bodies and inspire confidence among all parties and communities. Accepting this suggestion, the Minorities Sub-Committee proposed in its report that Election Commissions should be independent and quasi-judicial in character. The Advisory Committee on Fundamental Rights, Minorities, and Tribal and Excluded Areas considered this matter at its meetings of April 20 and 21. There was unanimous acceptance of the principles formulated by the Fundamental Rights Sub-Committee. Discussion centred mainly on the question whether the chapter on fundamental rights was the proper place for laying down these matters which pertained to electora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal rights. Eventually a compromise solution suggested by Govind Ballabh Pant was adopted, and it was decided that these recommendations need not go as part of the clauses on fundamental rights; but that in the letter forwarding the report of the Advisory Committee the Chairman should make it clear that the committee recommended the adoption of these proposals. In accordance with this decision the Advisory Committee recommended that, instead of being included in the chapter of fundamental rights, the provision regarding the setting up of an independent Election Commission, along with the other two proposals regarding adult franchise and free and fair elections to be held periodically, should find a place in some other part of the Constitution. In his memorandum on the principles of a model Provincial Constitution circulated on May 30, 1947, B.N. Rau, the Constitutional Adviser, included a provision that the superintendence, direction and control of elections, including the appointment of election tribunals, should be vested in the Governor acting in his discretion, subject to the approval of the Council of State. Likewise, in the memorandum on the Union Constitution, circulated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive provision for a Central Election Commission to be in charge of all Central and State elections." J. THE CONSTITUENT ASSEMBLY DEBATES 16. Draft Article 289 went on to blossom into Article 324 of the Constitution. Regarding the Draft Article 289 it is apposite that we notice the following developments and discussions. On 15th June, 1949, the following discussions are noticed. Amendment No. 99 was moved by Dr. B.R. Ambedkar to the original Article 289. The original Article 289 read as follows: "289. The superintendence, directions and control of elections to be vested in an Election Commission. (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution, including the appointment of election tribunals for the decision of doubts and disputes arising out of or in connection with elections to Parliament and to the Legislatures of States shall be vested in a Commission (referred to in his Constitution as the Election Commission) to be appointed by the President. (2) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; xxx xxx (4) The conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by Rule determine: Provided that the Chief Election Commissioner shall not be removed from the office except in like manner and on the like grounds as a judge of the Supreme Court and the conditions of the service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment: Provided further that any other Election Commissioner or a Regional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e anvil. The Committee, has steered a middle course. What the Drafting Committee proposes by Sub-clause (2) is to have permanently in office one man called the Chief Election Commissioner, so that the skeleton machinery would always be available. Election no doubt will generally take place at the end of five years; but there is this question, namely that a bye-election may take place at any time. The Assembly may be dissolved before its period of five years has expired. Consequently, the electoral rolls will have to be kept up to date all the time so that the new election may take place without any difficulty. It was therefore felt that having regard to these exigencies, it would be sufficient if there was permanently in session one officer to be called the Chief Election Commissioner, while when the elections are coming up, the President may further add to the machinery by appointing other members to the Election Commission. Now, Sir, the original proposal Under Article 289 was that there should be one Commission to deal with the elections to the Central Legislature, both the Upper and the Lower House, and that there should be a separate Election Commission for each province and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is this that even the person who is appointed originally should be such that he should be enjoying the confidence of all parties--his appointment should be confirmed not only by majority but by two-thirds majority of both the Houses. If it is only a bare majority, then the party in power could vote confidence in him but when I want 2/3rd majority it means that the other parties must also concur in the appointment so that in order that real independence of the Commission may be guaranteed, in order that everyone even in opposition may not have anything to say against the Commission, the appointments of the Commissioners and the Chief Election Commissioner must be by the President but the names proposed by him should be such as command the confidence of two-thirds majority of both the Houses of Legislatures." xxx &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court should depend on the opinion of one man. We are anxious, Sir, that the preparation of the electoral rolls and the conduct of elections should be entrusted to people who are free from political bias and whose impartially can be relied upon in all circumstances. But, by leaving a great deal of power in the hands of the President we have given room for the exercise of political influence in the appointment of the Chief Election Commissioner and the other Election Commissioners and officers by the Central Government. The Chief Election Commissioners will have to be appointed on the advice of the Prime Minister, and, if the Prime Minister suggests the appointment of a party-man the President will have no option but to accept the Prime Minister's nominee, however unsuitable he may be on public grounds. (Interruption). Somebody asked me suitable why it should be so." xxx &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendent organ of Government. It is the duty and the function of the Government of the day to hold the elections. The huge electorates which we are putting up now, the voting list which will run into several crores -- all these must necessarily require a large army of election officers, of clerks, of persons to control the booths and all the rest of them. Now all this army cannot be set up as a machinery independent of Government. It can only be provided by the Central Government, by the Provincial Government or by the local authorities as now. It is not possible nor advisable to have a kingdom within a kingdom, so that the election matters could be left to an entirely independent organ of the Government. A machinery, so independent, cannot be allowed to sit as a kind of Super-Government to decide which Government shall come into power. There will be great political danger if the Election Tribunal becomes such a political power in the country. Not only it should preserve its independence, but it must retain impartiality. Therefore, the Election Commission must remain to a large extent an ally of the Government; not only that, but it must, a considerable extent, be subsidiary to Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lised that that is a very dilatory process, a very difficult process. Parliament may not be meeting at the time when the appointment is made and the appointment must be made at once without waiting. Secondly, the American practice is likely and in fact does introduce political considerations in the making of appointments. Consequently, while I think that the provisions contained in the American Constitution is a very salutary check upon the extravagance of the President in making his appointments, it is likely to create administrative difficulties and I am therefore hesitating whether I should at a later stage recommend the adoption of the American provisions in our Constitution. The Drafting Committee had paid considerable attention to this question because as I said it is going, to be one of our greatest headaches and as a via media it was thought that if this Assembly would give or enact what is called an Instrument of Instructions to the President and provide therein some machinery which it would be obligatory on the President to consult before making any appointment, I think the difficulties which are felt as resulting from the American Constitution may be obviated and the adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was adopted: at the revision stage it was numbered as Article 324." 27. The Constituent Assembly of India can proximately be traced to the deliberations of the cabinet mission. The broad features were as follows. The members of the constituent assembly were to be elected not on the basis of adult suffrage. At the time, i.e., in 1946, India was still under British rule. British India broadly consisted of the Governors provinces and the Chief Commissioner's provinces. There were also a large number of princely states. An interim government, no doubt, based on elections, was put in place. There were also at the same time, provincial legislative bodies. The members of the Constituent Assembly came to be elected by the members of the provincial assemblies and they were not directly elected by the people of the country as such. Shri Kaleeswaram Raj is, therefore, correct that the Constituent Assembly was not directly elected by the people. There were changes which were necessitated by the partition. Suffice it to note that there were 238 members representing the Governors and others provinces. This is besides 89 sent by the princely states. The first meeting of the Assembly was he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... USIONS ABOUT HISTORICAL PERSPECTIVES INCLUDING THE LIGHT SHED BY THE CONSTITUENT ASSEMBLY DEBATES 30. The members of the Constituent Assembly were undoubtedly concerned over the need to ensure independence of the Election Commission. Under the Government of India Act, 1935, the earlier law, it was the Executive which was conferred the power to conduct the election. Initially, there was a consensus of opinion, in fact, that the right to vote was to be made a fundamental right. In fact, in the draft Article by Shri K.M. Munshi, he contemplated providing for right to choose for every citizen and a free secret and periodic election. The Fundamental Rights Sub-Committee also approved that there must be universal adult franchise guaranteed by the Constitution. The election was to be free, secret and periodic. Most importantly, the Fundamental Rights Sub-Committee in the meeting held on 29.03.1947 contemplated that an independent Commission must be set up under Union law. A recommendation providing for an Election Commission being appointed in all cases with the law of the Union was made. Further, it becomes clear from a perusal of the work 'Framing of India's Constitution' b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out anything more, would necessarily mean that the Prime Minister would end up appointing the Commission. He warned that it would not ensure their independence. He was clear that in future, no Prime Minister should abuse the right to appoint. Shri H.V. Pataskar felt Article 289(2) sufficed. The thought which comforted the Member was not merely some official of the Government could be appointed as Election Commissioners but people in the position of High Court Judges. Pandit Hirday Nath Kunzru clearly articulated the anxiety and the need for the preparation of the electoral roll and the conduct of the elections, being entrusted to people, who were free from political bias and whose impartiality could be relied upon 'in all circumstances'. The plight of the President, who has to act on the advice of the Prime Minister, was highlighted. It was the learned Member, who suggested the remedy for the defect, that is that the Parliament should be authorised to make provisions for these matters, by law. This was also the view of the Sub-Committee on Fundamental Rights. Shri K.M. Munshi, took the view that the Election Commission must remain to a large extent an ally of the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner solely on the advice of the Executive, which, in a sense, was understood as on the advice of the Prime Minister. The model of appointment prevailing in the United States was deliberated and not approved. Though, Shri K.M. Munshi was not in favour of giving complete independence to the Election Commission and felt that it should be an ally of the Government, it clearly did not represent the views of the predominant majority of the Members. Right to Vote was, to begin with, considered so sacrosanct that it was originally contemplated as a Fundamental Right. However, finally, as we have already noticed, it was found more appropriate that it should be contained in a separate part of the Constitution, which is the position obtaining under the Constitution. It is equally clear that the Members of the Committees, including the Constituent Assembly, wanted the appointment to the Election Commission not to be made by the Executive. The uncertain prospect of an instrument of instructions, finally led the Assembly to adopt the amendment suggested by Dr. Ambedkar, which, as we have noticed, was initially the suggestion made by Pandit Kunzru, and what is more, even seconded by Shri K.M. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave the power of review. It will be noticed that in the first place, the Supreme Court has framed rules, regulating the power to review. The absence of a law made by Parliament would have little effect. The purport of Article 137 has absolutely no comparison with Article 324(2). Article 142(2) uses the same expression, viz., 'subject to the provisions of any law made by Parliament' and it provides that the Supreme Court is to have power for ordering the attendance of any person, the discovery or protection of any document or the investigation or punishment for any contempt. Patently, the absence of any law Under Article 142 cannot produce the impact, which Article 324(2) is capable of producing and, what is more, vouchsafed by the debates in the Constituent Assembly. 38. Article 145 uses the expression 'subject to the provisions of any law made by Parliament', Supreme Court can make Rules for regulating the practice and procedure of the Court. It is self-evident that it bears no resemblance to the context, purpose and background of Article 324(2). 39. Article 146 of the Constitution of India reads as follows: "146. Officers and servants and the expenses of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule (3) The salary and other conditions of service of the Comptroller and Auditor General shall be such as may be determined by Parliament by law and, until they are so determined, shall be as specified in the Second Schedule: Provided that neither the salary of a Comptroller and Auditor General nor his rights in respect of leave of absence, pension or age of retirement shall be varied to his disadvantage after his appointment (4) The Comptroller and Auditor General shall not be eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office (5) Subject to the provisions of this Constitution and of any law made by Parliament, the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor General shall be such as may be prescribed by Rules made by the President after consultation with the Comptroller and Auditor General (6) The Administrative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Commissioner and the Election Commissioners contemplated Under Article 324(2) and the Officers and servants of the High Court. The very fact that Officers covered by Article 229(2) are not extended any protection against removal, itself not merely furnishes a significant starting point but may itself be conclusive of the dissimilarity between the persons associated with the Central Election Commission and the employees covered by Article 229(2). 44. Article 229(2) deals with the Officers, expense and servants of the High Court. Since Article 229 is pari materia with Article 146(2), we would find merit in the same rationale, which we have furnished for not comparing the employees with the persons governed by Article 324(2). 45. Article 243(k) is part of Part IX of the Constitution, which was inserted by the Constitution (Seventy Third) Amendment Act, 1992. Part IX deals with the panchayats. Article 243(k) reads as follows: "243K. Elections to the Panchayats The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t matter of a law to be made by the Legislature of the State, we would think that in keeping with the position and the subject matter of Article 243K(2), it may not be apposite to project Article 243K(2) as a premise to reject the request of the Petitioners to place the interpretation on Article 324(2), if it is otherwise justified. 47. Article 338(2) provides that subject to the provisions of any law made by Parliament, the National Commission for Scheduled Caste was to consist of a Chairman, Vice-Chairman and three other Members and the conditions of service and tenure of Office, were to be such as the President, may by Rule, determine. An identical provision is contained in Article 338A(2) as regards National Commission for Scheduled Tribes. Not unnaturally, in Article 338B(2), similar provisions are contained in regard to National Commission for Backward Classes. What is, however, pertinent to notice is Article 338(3). It provides: "The Chairperson, the Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal." Identical provisions have been made vide Article 338A and Article 338B. 48. We would notice that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d eight years and two hundred and eighty-four days. 51. The Government of India (Transaction of Business) Rules, 1961 have been referred to by the parties. Insofar as it is relevant, we may notice them. Under Rule 8, the cases to be submitted to the Prime Minister and President, are described as all cases of the nature specified in the Third Schedule. In the Third Schedule, Serial No. 22 describes appointment, resignation and removal of the Chief Election Commissioner and other Election Commissioners in Column 1 under the heading 'nature of cases'. Article 324 is referred to, under the Column 'authority to whom the matter is submitted, it is indicated 'the Prime Minister and the President'. 52. Shri S.P. Sen Verma was the third Chief Election Commissioner and he was appointed on 01.10.1967 and he continued till 30.09.1972 (his term lasted for five years). Shri Nagendra Singh, a Civil Servant and a Member of the Constituent Assembly and who, later on, became the Judge of the International Court of Justice, had a short tenure as the fourth Chief Election Commissioner from 01.10.1972 to 06.02.1973 (his term lasted for one hundred and twenty-eight days). The fifth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .10.1993. The amendment and the appointments came to be challenged by Shri T.N. Seshan, the Chief Election Commissioner and Ors. and the challenge was repelled by a Constitution Bench of this Court and the judgment is reported in T.N. Seshan, (supra). We would observe that what was essentially contemplated by founding Fathers was an Election Commission, which was to consist of a permanent figure, viz., the Chief Election Commissioner and such Election Commissioners, as may be necessary. For nearly forty years after the adoption of the Constitution of India, there were only Chief Election Commissioners. After the judgment in T.N. Seshan (supra), it will be noticed that thereafter, the Election Commission of India became a team consisting of the Chief Election Commissioner and the two Election Commissioners. With the term of Shri T.N. Seshan coming to an end 11.12.1996, the trend began of appointing the Election Commissioners as Chief Election Commissioners. Thus, Shri M.S. Gill became the Chief Election Commissioner. Shri M.S. Gill was also a Civil Servant. He served as Chief Election Commissioner for a period of four years and sixty-nine days, i.e., from 12.12.1996 till 13.06.2001. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of which, one was Shri S.S. Dhanoa, were appointed as the Election Commissioners. It was for the first time after Independence that Election Commissioners were appointed, thereby making the Election Commission of India a multi-Member Commission. In other words, till 16.10.1989, the Chief Election Commissioner constituted the Election Commission of India. The multi-Member Commission was, however, a short-lived affair. In less than three months' time, on 01.01.1990, exercising power Under Article 324(2), the President notified, with immediate effect, the rescinding of the Notification dated 07.10.1989, by which Notification, the two posts of Election Commissioner had been created. Another Notification rescinding the Notification dated 16.10.1989, by which the two Election Commissioners were appointed, came to be issued. The latter Notifications came to be challenged by Shri S.S. Dhanoa before this Court. A Bench of two learned Judges dismissed the Writ Petition. This Court took the view, inter alia, that the framers of the Constitution did not want to give same status to the Election Commissioners as was conferred on the Chief Election Commissioner. In the course of this judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Election Commissioners within the meaning of the second proviso to Article 324(5). 56. This led to certain changes in the 1991 Act. The changes were introduced through an Ordinance published in the Gazette of India on 01.10.1993. It, inter alia, provided for a new Chapter III, which contemplates that as far as possible, all business shall be transacted unanimously (Section 10(2) of the 1991 Act). Section 10(3) provides that subject to Section 10(2), in case of difference of opinion, the matter is to be decided according to the opinion of the majority. This, it must be noticed, was introduced in the context of the observations in S.S. Dhanoa (supra). By the Ordinance dated 01.10.1993, other far-reaching changes were introduced, which, inter alia, provided for bringing the Election Commissioners substantially on par with the Chief Election Commissioner. The Chief Election Commissioner, it must be noticed, under the 1991 Act, was to be paid a salary equal to the Judge of the Supreme Court. The Election Commissioner was to be paid the salary equal to the Judge of the High Court. After the amendment, they stand equated. The 1991 Act also provided that the Chief Election Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 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 permanent body, Under Article 324(1) of the Constitution. The superintendence, direction and control of the entire election process in the country has been vested under the said Clause in a commission called the Election Commission. Clause (2) of the said Article then provides for the constitution of the Election Commission by providing that it shall consist of the CEC and such number of ECs, if any, as the President may from time to time fix. It is thus obvious from the plain language of this Clause that the Election Commission is composed of the CEC and, when they have been appointed, the ECs. The o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ament, it is only in the case of the CEC that the first proviso to Clause (5) lays down that they cannot be varied to the disadvantage of the CEC after his appointment. Such a protection is not extended to the ECs. But it must be remembered that by virtue of the Ordinance the CEC and the ECs are placed on a par in the matter of salary, etc. Does the absence of such provision for ECs make the CEC superior to the ECs? The second ground relates to removability. In the case of the CEC he can be removed from office in like manner and on the like ground as a Judge of the Supreme Court whereas the ECs can be removed on the recommendation of the CEC. That, however, is not an indicia for conferring a higher status on the CEC. To so hold is to overlook the scheme of Article 324 of the Constitution. It must be remembered that the CEC is intended to be a permanent incumbent and, therefore, in order to preserve and safeguard his independence, he had to be treated differently. That is because there cannot be an Election Commission without a CEC. That is not the case with other ECs. They are not intended to be permanent incumbents. Clause (2) of Article 324 itself suggests that the number of ECs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and correctly recorded and do all that is necessary for smooth transaction of business. The nature and duties of this office may vary depending on the nature of business to be transacted but by and large these would be the functions of a Chairman. He must so conduct himself at the meetings chaired by him that he is able to win the confidence of his colleagues on the Commission and carry them with him. This a Chairman may find difficult to achieve if he thinks that others who are members of the Commission are his subordinates. The functions of the Election Commission are essentially administrative but there are certain adjudicative and legislative functions as well. The Election Commission has to lay down certain policies, decide on certain administrative matters of importance as distinguished from routine matters of administration and also adjudicate certain disputes, e.g., disputes relating to allotment of symbols. Therefore, besides administrative functions it may be called upon to perform quasi-judicial duties and undertake subordinate legislation-making functions as well. See Mohinder Singh Gill v. Chief Election Commr [(1978) 1 SCC 405: (1978) 2 SCR 272]. We need say no more o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 324(5) deals with the conditions of service and tenure of Office of the Election Commissioners and the Regional Commissioners. Till Parliament made any law with regard to the same, the founding fathers clothed the President with power to lay down the conditions of service and tenure of Office by Rule. It is to lay down the conditions of service and tenure of Office that Parliament has enacted the 1991 Act. The first proviso to sub-Article 324(5) acts as a guarantee against the removal of the Chief Election Commissioner except on like grounds and a similar manner a Judge of the Supreme Court can be removed. The conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment. This means that Parliament cannot, nor can the Government by Rule, either remove the Chief Election Commissioner, except by impeaching him in the manner provided for the removal of a Judge of Supreme Court nor can Parliament make law nor Government a Rule to vary the conditions of service of the Chief Election Commissioner to his disadvantage, after he is appointed. The first proviso to Article 324(5) operates as a singular insulation to protect the Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointment under the Government but also to any office including the office of Governor appointment to which is made by the President. 9. The tenure of the Chief Election Commissioner and other Election Commissioners should be for a term of five years or sixty-five years of age, whichever is later and they should in no case continue in office beyond sixty-five years and for more than ten years in all. 63. In the year 1991, Parliament enacted the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. Section 3 provides, as it stands, that there shall be paid to the Chief Election Commissioner and other Election Commissioners a salary, which is equal to the salary of the Judge of the Supreme Court. Section 4 deals with the term of Office and reads as follows: "4. Term of office. -The Chief Election Commissioner or an Election Commissioner shall hold office for a term of six years from the date on which he assumes his office: Provided that where the Chief Election Commissioner or an Election Commissioner attains the age of sixty-five years before the expiry of the said term of six years, he shall vacate his office on the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat is known as the 'Vohra Committee'. It made certain recommendations in regard to the CBI and the IB. Five years thereafter, in 1998, Government of India appointed a Committee under the Chairmanship of Shri Indrajit Gupta Committee on State funding of elections. The Committee submitted its Report in December, 1998. The conclusion and summary of the recommendations are found in Chapter 9 and they include various recommendations relating to funding of political parties. 67. In the year 2002, a National Commission for reviewing the work of the Constitution, under the Chairmanship of the Former Chief Justice of India, M.N. Venkatachaliah, made 58 recommendations involving amendments to the Constitution, 86 recommendations relating to legislative measures and the rest involved Executive action. In relation to electoral processes and political parties, various recommendations were made by the Commission. One of the recommendations, which is of relevance to the cases before us is as follows: "The Chief Election Commissioner and the other Election Commissioners should be appointed on the recommendation of a Body consisting of the Prime Minister, Leader of the Opposition in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Election Commissioner. The three-member body is very effective in dealing with the complex situations that arise in the course of superintending, directing and controlling the electoral process, and allows for quick responses to developments in the field that arise from time to time and require immediate solution. Increasing the size of this body beyond the existing three-member body would, in the considered opinion of the Commission, hamper the expeditious manner in which it has necessarily to act for conducting the elections peacefully and in a free and fair manner. In order to ensure the independence of the Election Commission and to keep it insulated from external pulls and pressures, Clause (5) of Article 324 of the Constitution, inter alia, provides that the Chief Election Commissioner shall not be removed from his office except in like manner and on like grounds as a Judge of the Supreme Court. However, that Clause (5) of Article 324 does not provide similar protection to the Election Commissioners and it merely says that they cannot be removed from office except on the recommendation of the Chief Election Commissioner. The provision, in the opinion of the Election Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Lok Sabha in 1996, needs reconsideration." 70. The next milestone to be noticed is the Second Administrative Reforms Commission Report made in January, 2007. The Commission consisted of Shri Veerappa Moily, the then Law Minister, as its Chairperson and five other Members. We find the following in the summary of its recommendations, inter alia. It recommended that the Collegium headed by the Prime Minister, with the Speaker of the Lok Sabha, the leader of the Opposition in the Lok Sabha, the Law Minister and the Deputy Chairman of the Rajya Sabha, as Members, should make recommendations for consideration of the President for appointment of the Chief Election Commissioner and the Election Commissioners. In the year 2010, the Ministry of Law and Justice, Government of India, had constituted a Committee on Electoral Reforms. The Report, it made, in the year 2010 indicates the background which led to the constitution of the Committee. Reference is made to various earlier Reports as also the efforts being made by the Election Commission. It made various recommendations relating to electoral reforms. Under the head 'measures for Election Commission', an update on the Election ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction Commission of India. After referring to Article 324(2), the fact of the appointments being discussed in the Constituent Assembly, Article 324(2) leaving it to the Parliament to legislate, the recommendation of the Goswami Committee in 1990, we find the following discussion: "6.10.4 This was followed by the introduction of the Constitution (Seventieth Amendment) Bill 1990, which was introduced in the Rajya Sabha on 30th May 1990 providing that the CEC would be appointed by the President after consultation with the Chairman of the Rajya Sabha, the Speaker of the Lok Sabha, and the Leader of the Opposition (or the leader of the largest party) in the Lok Sabha. The CEC was further made a part of the consultative process in the appointment of the Election Commissioners. However, on 13th June 1994, the Government moved a motion to withdraw the Bill, which was finally withdrawn with the leave of the Rajya Sabha on the same day. 6.10.5 Consequently, in the absence of any Parliamentary law governing the appointment issue, the Election Commissioners are appointed by the government of the day, without pursuing any consultation process. This practice has been described as requiring t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lection Commissioners or the electoral officers is a consultative process involving the Executive/Legislature/other independent bodies." 74. Thereafter, under the caption 'the Recommendation', we find the following: "(iii) Recommendations 6.12.1 Given the importance of maintaining the neutrality of the ECI and to shield the CEC and Election Commissioners from executive interference, it is imperative that the appointment of Election Commissioners becomes a consultative process. 6.12.2 To this end, the Commission adapts the Goswami Committee's proposal with certain modifications. First, the appointment of all the Election Commissioners (including the CEC) should be made by the President in consultation with a three-member collegium or selection committee, consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha (or the leader of the largest opposition party in the Lok Sabha in terms of numerical strength) and the Chief Justice of India. The Commission considers the inclusion of the Prime Minister is important as a representative of the current government. 6.12.3 Second, the elevation of an Election Commissioner should be on the basis of sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Committee recommendation, the Constitution Seventieth Amendment Bill, 1990 was introduced on 30.05.1990 and that it was subsequently withdrawn in 1993 in view of the changed composition of the Election Commission of India, on it becoming a multi-Member Body pursuant to the 1991 Act and on the ground that the Bill needed some amendments. The Bill, however, the Law Commission noticed, was never introduced. Thereafter, the Law Commission referred to the recommendations of the Election Commission itself for seeking appointment of an independent Secretariat. The Law Commission, accordingly, recommended insertion of Article 324(2A), inter alia, providing for a separate, independent and permanent secretarial staff for the Election Commission. In regard to the need for equating the two Election Commissioners with the Chief Election Commissioner and noting that Election Commissioners were clearly superior to the Regional Commissioners, the Law Commission recommended changes in Article 324(5) as well. The amended Article 324, as proposed by the Law Commission of India, in its Report, reads as follows: "324. Superintendence, direction and control of elections to be vested in an Election Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by Clause (1)." 76. There is a newspaper Report of The Hindu dated 04.06.2012, which appears to project the demand of Shri L.K. Advani, that a Collegium be put in place for appointment to the Constitutional Body and taking the stand that the present system of appointment did not inspire confidence among the people. There is also a reference to the Report of the Citizens Commission of Elections. It appears to be prepared by the former Judge of this Court Shri Madan B. Lokur and Shri Wajahat Habibullah, a former Chief Information Commissioner. In the said Report, we find the Article 'Are Elections in India Free and Fair' by Shri M.G. Devasahayan. Under the head 'ECI - functioning an autonomy', we find the following criticism: * ECI has plenipotentiary powers drawn from Article 324 of the Constitution of India to conduct free and fair election. * In addition, Supreme Court has ruled: "when Parliament or any Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner. Proposed amendment The present constitutional guarantee is inadequate and requires an amendment to provide the same protection and safeguard in the matter of removability of Election Commissioners as is available to the Chief Election Commissioner." Q. SEPARATION OF POWERS AND JUDICIAL ACTIVISM 78. In I.C. Golak Nath and Ors. v. State of Punjab and Anr. AIR 1967 SC 1643, Justice Subba Rao held speaking for this Court: "It (the Constitution) demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them. No authority created under the Constitution is supreme; the Constitution is supreme and all the authorities function under the supreme law of the land." 79. What is this jurisdiction which is demarcated? Justice R.S. Pathak speaking for the Bench in Bandhua Mukti Morcha v. Union of India and Ors. (1984) 3 SCC 161 held: "It is a common place that while the Legislature enacts the law the Executive implements it and the Court interpret it and, in doing so, adjudicates on the validity of executive action and, under our Constitution, even judges the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Kerala and Anr. (1973) 4 SCC 225) and I.R. Coelho (Dead) by LRs v. State of T.N. (2007) 2 SCC 1. 83. In Indian Aluminium Co. and Ors. v. State of Kerala and Ors. (1996) 7 SCC 637, this Court, while dealing with the alleged encroachment by the Legislature of the boundaries set by the Doctrine of Separation of Powers laid down, inter alia, as follows: "(1) The adjudication of the rights of the parties is the essential judicial function. Legislature has to lay down the norms of conduct or Rules which will govern the parties and the transactions and require the court to give effect to them; (2) The Constitution delineated delicate balance in the exercise of the sovereign power by the legislature, executive and judiciary; (3) In a democracy governed by the Rule of law, the legislature exercises the power Under Articles 245 and 246 and other companion articles read with the entries in the respective lists in the Seventh Schedule to make the law which includes power to amend the law. (4) Courts in their concern and endeavour to preserve judicial power equally must be guarded to maintain the delicate balance devised by the Constitution between the three sovereign functio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y associated with governmental excesses and violations. But in today's world of positive rights and justifiable social and economic entitlements, hybrid administrative bodies, private functionaries discharging public functions, we have to perform the oversight function with more urgency and enlarge the field of checks and balances to include governmental inaction. Otherwise we envisage the country getting transformed into a state of repose. Social engineering as well as institutional engineering therefore forms part of this obligation." (Emphasis supplied) 85. Separation of powers is part of the basic structure of the Constitution of India. Equally, judicial review has been recognised as forming a part of the basic structure. Judicial review of legislation is expressly provided in Article 13 of the Constitution. A court when it declares a law made by the legislature as unconstitutional, if it be that, it is within its bounds, cannot be Accused of transgressing the principle of separation of powers. Declaring even a law made by the Parliament as unconstitutional forms a part of its powers. In view of the enunciation of the doctrine of basic structure in India unlike perhaps in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since the only restraint upon it is self-restraint.... Rigorous observance of the difference between limits of power and wise exercise of power -- between questions of authority and questions of prudence -- requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the executive branch do." 89. In the work "Judicial Activism" in India by SP Sathe, the learned author in the chapter 'Legitimacy of Judicial Activism' observes: "Legitimacy of Judicial Activism The realist school of jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess of law', 'equal protection of law', or 'freedom of speech and expression' is a legitimate judicial function, the making of an entirely new law, which the Supreme Court has been doing through directions in the above-mentioned cases, is not a legitimate judicial function. True, the Court has not supplanted but has merely supplemented the legislature through such directions. It has said in each case that it legislated through directions only because no law existed to deal with situations such as inter-country adoption or sexual harassment of working women and that its direction could be replaced by legislation of the legislature." 90. In the work, "The Nature of the Judicial Process" by Benjamin N. Cardozo, in the lecture, "The Method of Sociology - The Judge as a Legislator." Justice Cardozo observes under the following subject: "THE JUDGE AS A LEGISLATOR ...No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law. How far he may go without travelling beyond the walls of the interstices cannot be staked out for him upon a chart. He must learn it for himself as he gains the sense of fitness and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpretation that is unashamedly described as "activist", including by judges themselves. Thus in India, at least in most legal circles, the phrase "judicial activism" is not viewed as one of condemnation. So urgent and numerous are the needs of that society that anything else would be regarded by many - including many judges and lawyers - as an abdication of the final court's essential constitutional role. One instance may be cited from Indian experience: the expansion of the traditional notion of standing to sue in public interest litigation. The Indian Supreme Court has upheld the right of prisoners, the poor and other vulnerable groups to enlist its constitutional jurisdiction by simply sending a letter to the Court. This might not seem appropriate in a developed country. Yet it appears perfectly adapted to the nation to which the Indian Constitution speaks. Lord Chief Justice Woolf recently confessed to having been astounded at first by the proactive approach of the Indian Supreme Court in this and other aspects. However, he went on: ...I soon realised that if that Court was to perform its essential role in Indian society, it had no option but to adopt the course it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendent 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 India and Ors. (1996) 1 SCC 753) We are equally cognizant that the courts must not try to run a Government nor behave like emperors. We also take notice of the following words of this Court in Divisional Manager, Aravali Golf Club and Anr. v. Chander Hass and Anr., (2008) 1 SCC 683 where the merit of exercising judicial restraint has been emphasized. "33. Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the State. It accomplishes this in two ways. First, judicial restraint not only recognises the equality of the other two branches with the judiciary, it also fosters that equality by minimising inter-branch interference by the judiciary. In this analysis, judicial restraint may also be called judicial respect, that is, respect by the judiciary for the other coequal branches. In contrast, judicial activism's unpredictable results make the judiciary a moving target and thus decreases the ability to maintain equality with the co-branches. Restraint stabilises the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutional principles relating to separation of powers as follows: "126.1. Even without express provision of the separation of powers, the doctrine of separation of powers is an entrenched principle in the Constitution of India. The doctrine of separation of powers informs the Indian constitutional structure and it is an essential constituent of Rule of law. In other words, the doctrine of separation of power though not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the scheme of Indian Constitution. Constitution has made demarcation, without drawing formal lines between the three organs -- legislature, executive and judiciary. In that sense, even in the absence of express provision for separation of powers, the separation of powers between the legislature, executive and judiciary is not different from the Constitutions of the countries which contain express provision for separation of powers. 126.2. Independence of courts from the executive and legislature is fundamental to the Rule of law and one of the basic tenets of Indian Constitution. Separation of judicial power is a significant constitutional principle under the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCJ 100] and Jagan Nath v. Jaswant Singh [AIR 1954 SC 210: 1954 SCR 892: 1954 SCJ 257]. We proceed to state what we have gleaned from what has been said, so much as necessary for this case. 8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. (Emphasis supplied) 97. Mohan Lal Tripathi v. District Magistrate, Rae Bareilly and Ors. (1992) 4 SCC 80 was a case wherein the Appellant who was elected directly Under Section 43 of the U.P. Municipalities Act was removed by a no-confidence motion. It was his contention that his removal was undemocratic as it was sought to be done by a smaller and different body than the one that elected him. It is in these facts that the court inter alia held as follows: "..But electing representatives to govern is neither a 'fundamental right' nor a 'common right' but a special right created by the statutes or a 'political right' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that permitting every person in prison to vote, would lead to a resource crunch in terms of police force required to facilitate the right. The Court also went on to hold that the Right to Vote is also subject to limitations imposed by the Statute. The specific question, as to whether it constituted a Constitutional Right Under Article 326, as such, was not presented for adjudication. 101. In Shyamdeo Pd. Singh v. Nawal Kishore Yadav (2000) 8 SCC 46, a Bench of three learned judges while dealing with a case arising out of an election petition had this to say about Article 326: "9. Article 326 of the Constitution is founded on the doctrine of adult suffrage. It provides that every person who is a citizen of India and who is not less than 18 years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislature and is not otherwise disqualified under the Constitution or any law made by the appropriate legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election. This Article clearly contemplates law being enacted by an appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 which the name is included, Under Sub-section (2) of Section 16 of the 1950 Act. Even if the name is not so struck off yet the person is disqualified from exercising right to vote at the election by virtue of Sub-section (2) of Section 62 of the 1951 Act. The qualifications prescribed for enrolment in the electoral roll as provided by Clause (b) of Sub-section (5) of Section 27 of the 1950 Act are: (i) ordinary residence in a teachers' constituency, (ii) being engaged in the relevant educational institution for a total period of at least three years within the six years immediately before the qualifying date. The inquiry into availability of these eligibility qualifications, under the Scheme of the 1950 Act is to be made at the time of preparation of the electoral roll or while entering or striking out a name in or from the electoral roll. Section 62 of the 1951 Act does not provide that a person who is not qualified to be enrolled as an elector in the electoral ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed 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 nature of the right to vote, inter alia held that "the right of the voter to know the bio data of the candidate was the foundation of democracy". It was concluded by the learned judge that Section 33B of the amended Act was illegal and invalid. Justice P. Venkatarama Reddi in the same case went on hold as follows: "With great reverence to the eminent Judges, I would like to clarify that the right to vote, if not a fundamental right, is certainly a constitutional right. The right originates from the Constitution and in accordance with the constitutional mandate contained in Article 326, the right has been shaped by the statute, namely the RP Act. That, in my understanding, is the correct legal position as regards the nature of the right to vote in elections to the House of the People and Legislative Assemblies. It is not very accurate to describe it as a statutory right, pure and simple. Even with this clarification, the argument of the learned Solicitor-Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 SCC 399], therefore, was that a right to vote is a constitutional right besides that it is also a facet of fundamental right Under Article 19(1)(a) of the Constitution. 362. We do not agree with the above submission. It is clear that a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression, while reiterating the view in Jyoti Basu v. Debi Ghosal [(1982) 1 SCC 691] that a right to elect, fundamental though it is to democracy, is neither a fundamental right nor a common law right, but pure and simple, a statutory right. 363. Even otherwise, there is no basis to contend that the right to vote and elect representatives of the State in the Council of States is a constitutional right. Article 80(4) merely deals with the manner of election of the representatives in the Council of States as an aspect of the composition of the Council of States. There is nothing in the constitutional provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not overrule the other two decisions rather it only reaffirms what has already been said by the aforesaid two decisions. The said paragraphs recognise that right to vote is a statutory right and also in People's Union for Civil Liberties [(2003) 4 SCC 399] it was held that "a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression". Therefore, it cannot be said that Kuldip Nayar [(2006) 7 SCC 1] has observed anything to the contrary. In view of the whole debate of whether these two decisions were overruled or discarded because of the opening line in para 362 of Kuldip Nayar [(2006) 7 SCC 1] i.e. "We do not agree with the above submissions" we are of the opinion that this line must be read as a whole and not in isolation. The contention of the Petitioners in Kuldip Nayar [(2006) 7 SCC 1] was that majority view in People's Union for Civil Liberties [(2003) 4 SCC 399] held that right to vote is a constitutional right besides that it is also a facet of the fundamental right Under Article 19(1)(a) of the Constitution. It is this contention on which the Constitution Bench did not agree too in the opening line in para 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses." 112. We may proceed to decode Article 326. In the first part, the Constitution provides that election to the House of the People and to the Legislative Assembly of every State, shall be on the basis of adult suffrage. This is followed by the words, which is intended to expound what 'adult suffrage' means. The Founding Fathers have, in unmistakable terms, declared that elections to the two Legislative Bodies in question, shall be thrown open to participation to every person, who is: I. a) A citizen of India; b) Is not less than eighteen years of age. The condition must be fulfilled as regards the qualification with reference to 'such date'; II. 'Such date' is to be as specified in or under a law made by the appropriate Legislature. The appropriate Legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vides 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 the provisions of any law relating to corrupt practices and other offences in connection with elections. (2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included: Provided that the name of any person struck off the electoral roll of a constituency by reason of a disqualification under Clause (c) of sub-section (1) shall forthwith be re-instated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorising such removal." 115. With effect from 30.12.1958, Section 19 of the 1950 Act reads as follows: "19. Conditions of registration. -- Subject to the foregoing provisions of this Part, every person who -- (a) is not less than eighteen years of age on the qualifying date, and (b) is ordinarily resident in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations for membership of State Legislatures. Chapter III of the 1951 Act provides for disqualifications for membership of Parliament and State Legislatures. Section 8, falling in Chapter III, deals with disqualification upon conviction for certain offences. Various offences are enumerated with the conditions attached therein. Section 8A deals with disqualification for membership, for both Parliament and State Legislatures, on the ground of corrupt practices. Section 11A, as it stands, reads: "11A. Disqualification arising out of conviction and corrupt practices. - (1) If any person, after the commencement of this Act,- is convicted of an offence punishable Under Section 171E or Section 171F of the Indian Penal Code (45 of 1860), or Under Section 125 or Section 135 or Clause (a) of Sub-section (2) of Section 136 of this Act, he shall, for a period of six years from the date of the conviction or from the date on which the order takes effect, be is qualified for voting at any election. (2) Any person disqualified by a decision of the President Under Sub-section (1) of Section 8A for any period shall be disqualified for the same period for voting at any election. (3) The deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd (4) shall apply to a person who has been authorised to vote as proxy for an elector under this Act in so far as he votes as a proxy for such elector." 122. Section 62(1) of the 1951 Act means the following: A person, who is not entered in the electoral roll of a constituency, shall not be entitled to vote in that constituency. On the other hand, every person, who is, for the time being, entered in the electoral roll of any constituency, is declared entitled to vote in the constituency. Section 62(2) then proceeds to declare that no person shall vote at an election in any constituency, if he is subject to any of the disqualifications referred to in Section 16 of the 1950 Act. In our view, the meaning of the Section 62(1) read with Section 62(2) is the following: To cast the vote, a person must be included in the electoral roll of the constituency. However, even if it be that he is so included, if at the time of the election, when he casts the vote, he has incurred any of the disqualifications referred to in Section 16 of the 1950 Act, then his Right to Vote will stand eclipsed. 123. Section 62(3) forbids a person, who may find his name in the electoral roll of more than one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a constituency, it has been declared, also would not entitle him to vote more than once [See Section 62(4)]. Equally, inclusion of a person's name in the electoral roll of more than one constituency, would not entitle a person to cast his vote, in terms of such inclusion in more than one constituency [See Section 62(3)]. No doubt, we do notice that this Court has issued notice in a case, which involves a challenge to Section 62(5) of the 1951 Act. 126. Section 16(1)(b) of the 1950 Act, provides for disqualification for a person of unsound mind to be registered in an electoral roll. There is a condition, which is that, he must be so declared by a competent court. Unsoundness of mind is also to be found in Article 326 as a disqualification. Section 16(1)(c) of the 1950 Act, it is to be noticed, disqualifies a person for registration in an electoral roll, if he is for the time being disqualified from voting under any law relating to corrupt practices and other offences in connection with elections. If such a person is included in such electoral roll, his name is to be struck off from the electoral roll [See Section 16(2)]. Section 11A of the 1951 Act provides for disqualification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -third shall be elected by electorates consisting of members of municipalities, district boards and such other local authorities in the State as Parliament may by law specify; (b) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons residing in the State who have been for at least three years graduates of any university in the territory of India or have been for at least three years in possession of qualifications prescribed by or under any law made by Parliament as equivalent to that of a graduate of any such university; (c) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons who have been for at least three years engaged in teaching in such educational institutions within the State, not lower in standard than that of a secondary school, as may be prescribed by or under any law made by Parliament; (d) as nearly as may be, one-third shall be elected by the members of the Legislative Assembly of the State from amongst persons who are not members of the Assembly; (e) the remainder shall be nominated by the Governor in accordance with the provisions of Clause (5)."] respectively. In the case of election to the Rajya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State Legislatures." 130. Still further, the Court held as follows: "The right to vote at an election to the Lok Sabha or the Legislative Assembly can only be subjected to restrictions specified in Article 326. It must be remembered that Under Article 326, the authority to restrict the right to vote, can be exercised by the appropriate Legislature." 131. What are the incidents of a legal right? In Salmond on Jurisprudence, we find the following discussion about the characteristics of a legal right: "(1) It is vested in a person who may be distinguished as the owner of the right, the subject of it, the person entitled, the person of inherence. (2) It avails against a person, upon whom lies the correlative duty. He may be distinguished as the person bound, or as the subject of the duty, or as the person of incidence. (3) It obliges the person bound to an act or omission in favour of the person entitled. This may be termed the content of the right. (4) The act or omission relates to some thing (in the widest sense of that word), which may be termed the object or subject-matter of the right. (5) Every legal right has a title, that is to say, certain facts or events by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the House of the People and to the Legislative Assembly, the power to make law Under Article 327 may not be available, overcoming the limitation as regards the grounds of disqualification enumerated in Article 326. This limitation is found even in Article 328, which deals with the powers of the State Legislature. 134. Undoubtedly, the Founding Fathers contemplated conferring the right to participate in elections to the House of People and the Legislative Assemblies on all citizens, who were of a certain age. The right was, however, subject to the condition that they were not to be disqualified. The disqualifications, again, were, however, limited to what was contained in Article 326. The disqualifications, no doubt, were to be expressly provided by a law to be made by the appropriate Legislature. The disqualification or rather qualification included the aspect of residence. Section 20 of the 1950 Act elaborates upon the concept of residence. Likewise, in the matter of corrupt practices and other crimes in connection with elections, within the meaning of Section 16(c) of the 1950 Act, the matter is to be regulated by the law. 135. Having noticed all the relevant provisions an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cious 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 foul of the Constitution, as contained in Article 326? 137. Take for instance, a new corrupt practice is added by law. Would it be vulnerable on the ground that it takes away the Constitutional right Under Article 326? We would think that it may not. What would be the position if the Legislature had not provided for any corrupt practice or a crime as a disqualification. Then there would be no such disqualification. However, the appropriate Legislature is also limited in the matter of the disqualifications by Article 326. In that sense, it could be said that Article 326 provides a constitutional right, subject to restrictions which the law provides for, which must finally be traced to its shores. Section 62(1) of the 1950 Act provides the fulfilm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. B.R. Ambedkar made the following pertinent observations regarding democracy in the course of his speech in the Constituent Assembly on 25.11.1949: "What we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it a social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life. These principles -- liberty, equality and fraternity -- are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill both in reality and form and are not mere rituals calculated to generate illusion of defence to mass opinion. Free and fair elections require that the candidates and their agents should not resort to unfair means or malpractices as may impinge upon the process of free and fair elections. Even in the absence of unfair means and malpractices, some times the result of an election is materially affected because of the improper rejection of ballot papers...." 144. Aharon Barak, President of Supreme Court of Israel in his book 'The Judge in a Democracy' articulates concepts about democracy succinctly. He says the following while answering the difficult question as to what is democracy: "What is democracy? According to my approach, democracy is a rich and complex normative concept. It rests on two bases. The first is the sovereignty of the people. This sovereignty is exercised in free elections, held on a regular basis, in which the people choose their representatives, who in turn represent their views. This aspect of democracy is manifested in majority rule and in the centrality of the legislative body through which the people's representatives act. This is a formal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 degeneration. Change without stability is anarchy. The role of a judge is to help bridge the gap between the needs of society and the law without allowing the legal system to degenerate or collapse into anarchy. The judge must ensure stability with change, and change with stability. Like the eagle in the sky, which maintains its stability only when it is moving, so too is the law stable only when it is moving. Achieving this goal is very difficult. The life of the law is complex. It is not mere logic. It is not mere experience. It is both logic and experience together. The progress of case law throughout history must be cautious. The decision is not between stability or change. It is a question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 meaning, has to be appreciated considering the true context in which the same are used and the purpose which they seek to achieve. Debates in the Constituent Assembly referred to in an earlier part of this judgment clearly indicate that a non-member's inclusion in the Cabinet was considered to be a "privilege" that extends only for six months, during which period the member must get elected, otherwise he would cease to be a Minister. It is a settled position that debates in the Constituent Assembly may be relied upon as an aid to interpret a constitutional provision because it is the function of the court to find out the intention of the framers of the Constitution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; xxx xxx Many important Rules of constitutional behaviour, which are observed by the Prime Minister and Ministers, members of the Legislature, Judges and civil servants are contained neither in Acts nor in judicial decisions. But such Rules have been nomenclatured by the constitution-writers to be the Rule of "the positive morality of the constitution" and sometimes the authors provide the name to be "the unwritten maxims of the constitution" -- Rules of constitutional behaviour, which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in matters not covered by legislation. Being a high functionary who is expected to function fairly and legally if he does otherwise, the courts can veto the illegal action (See Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi and Ors. (1978) 1 SCC 405)). 151. The Election Commission Under Article 324 can postpone an election on the basis of the opinion that there existed disturbed conditions in the State or some area of the State thus making of holding free and fair elections not possible. The court followed the views in the Mohinder Singh Gill case (supra) that democracy depends on the man as much as on the Constitution [See Digvijay Mote v. Union of India and Ors. (1993) 4 SCC 175]. The Election Commission is endowed with the power to recognise political parties and to decide disputes arising among them. It can also adjudicate controversies between splinter groups within a political party. The Commission has been found to have the power to issue the symbols order. This right has been traced to Article 324 [(See All Party Hill Leaders Conference Shillong v. Captain W.A. Sangma and Ors. (1977) 4 SCC 161, and Kanhiya Lal Omar v. R.K. Trivedi and Ors. (1985) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 174(1) mandated that there shall not be more than six months in between the last session of the assembly and the first meeting of the next session. After finding that Article 174 did not apply to a dissolved assembly as was indeed the case, this Court reiterated that the words 'superintendence, control, direction as also 'the conduct of all elections' were the broadest terms. This Court also found that if there is no free and fair periodic election, it is the end of democracy. [See (2000) 8 SCC 237]. The said judgment was rendered while answering a reference made to this Court Under Article 143 of the Constitution. 158. The Election Commission has the power to lay down a certain benchmark to be achieved by a party in State politics before it could be recognised as a political party [See Desiya Murpokku Dravida Kazhagam (DMDK) v. Election Commission of India and Ors. (2012) 7 SCC 340]. Justice J. Chelameswar wrote a dissenting opinion. 159. While dealing with the aspect of jurisdiction of the Election Commission Under Section 10A of the 1951 Act to ascertain whether there has been a failure to lodge true, correct and genuine accounts of bona fide election expenditure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature." 162. Regarding the impact of Article 329(b), a Bench of three learned judges after an exhaustive review of the earlier case law has set down the following summary of conclusions in the case of Election Commission of India v. Ashok Kumar (2000) 8 SCC 216: "31. The founding fathers of the Constitution have consciously employed use of the words "no election shall be called in question" in the body of Section 329(b) and these words provide the determinative test for attracting applicability of Article 329(b). If the petition presented to the Court "calls in question an election" the bar of Article 329(b) is attracted. Else it is not. 32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove: (1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read along with the earlier part of our judgment wherein the conclusions have been elaborately stated with reasons." 163. We would, therefore, find that the Election Commission of India has been charged with the duty and blessed with extraordinary powers to hold elections to both Parliament and state legislatures from time to time. This is an enormous task. The power it possesses Under Article 324 is plenary. It is only subject to any law which may be made by Parliament or by the State Legislature. Undoubtedly, the Election Commission is duty bound to act in a fair and legal manner. It must observe the provisions of the Constitution and abide by the directions of the Court. The same being done, it can draw upon a nearly infinite reservoir of power. Once the poll is notified, [which again is a call to be taken by the Election Commission itself, and indeed capable of being misused and the subject of considerable controversy, if bias or subservience to the powers that be, is betrayed], it assumes unusual powers. Its writ lies across Governments over the length and breadth of the country. Officers of the Government who come under its charge become subject to the superintendence of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es cannot achieve their goals. Power becomes, therefore, a means to an end. The goal can only be to govern so that the lofty aims enshrined in the directive principles are achieved while observing the fundamental rights as also the mandate of all the laws. What is contemplated is a lawful Government. So far so good. What, however, is disturbing and forms as we understand the substratum of the complaints of the Petitioner is the pollution of the stream or the sullying of the electoral process which precedes the gaining of power. Can ends justify the means? There can be no doubt that the strength of a democracy and its credibility, and therefore, its enduring nature must depend upon the means employed to gain power being as fair as the conduct of the Government after the assumption of power by it. The assumption of power itself through the electoral process in the democracy cannot and should not be perceived as an end. The end at any rate cannot justify the means. The means to gain power in a democracy must remain wholly pure and abide by the Constitution and the laws. An unrelenting abuse of the electoral process over a period of time is the surest way to the grave of the democracy. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larly circumstanced unquestionably breaches the mandate of Article 14. Political parties must be viewed as organisations representing the hopes and aspirations of its constituents, who are citizens. The electorate are ordinarily, supporters or adherents of one or the other political parties. We may note that the recognition of NOTA, by this Court enabling a voter to express his distrust for all the candidates exposes the disenchantment with the electoral process which hardly augurs well for a democracy. Therefore, any action or omission by the Election Commission in holding the poll which treats political parties with an uneven hand, and what is more, in an unfair or arbitrary manner would be anathema to the mandate of Article 14, and therefore, cause its breach. There is an aspect of a citizen's right to vote being imbued with the fundamental freedom Under Article 19(1)(a). The right of the citizen to seek and receive information about the candidates who should be chosen by him as his representative has been recognised as a fundamental right [See Public Interest Foundation (supra)]. The Election Commissioners including the Chief Election Commissioner blessed with nearly infini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; xxx xxx 3. There shall be no appeal to caste or communal feelings for securing votes. Mosques, Churches, Temples or other places of worship shall not be used as forum for election propaganda. 4. All parties and candidates shall avoid scrupulously all activities which are "corrupt practices" and offences under the election law, such as bribing of voters, intimidation of voters, impersonation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grounds of religion and caste, would constitute a corrupt practice. Dr. T.S. Thakur, C.J., wrote a concurring judgment and we find it apposite to notice the following passage from his judgment on the importance of India being a secular country and about according any particular religion, special privileges, being a violation of the basic principles of democracy: "35. At the outset, we may mention that while considering the mischief sought to be suppressed by Clauses (2), (3) and (3-A) of Section 123 of the Act, this Court observed in Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra [Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17, decided by a Bench of three learned Judges.] that the historical, political and constitutional background of our democratic set-up needed adverting to. In this context, it was said that our Constitution-makers intended a secular democratic republic where 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olute but to a considerable extent, that the power would not be misused but would be exercised in a fair and reasonable manner." 174. It is further found that when the Commission issues directions, it does so on its own behalf and not as a 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 exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and could exercise the same to ensure free and fair elections. Clause 18 of the Symbols Order predicates the facet of such plenary power to be exercised by the Election Commission. Clause 18 reads thus: "18. Power of Commission to issue instructions and directions.--The Commission, may issue instructions and directions-- (a) for the clarification of any of the provisions of this Order; (b) for the removal of any difficulty which may arise in relation to the implementation of any such provisions; and (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a result of the outcry, a commission was constituted to study the problem of criminalisation of politics and the nexus among criminals, politicians and bureaucrats in India. The report of the Committee, Vohra Committee Report, submitted by Union Home Secretary, N.N. Vohra, in October 1993, referred to several observations made by official agencies, including Central Bureau of Investigation, Intelligence Bureau, Research and Analysis Wing, who unanimously expressed their opinion on the criminal network which was virtually running a parallel government. The Committee also took note of the criminal gangs who carried out their activities under the aegis of various political parties and government functionaries. The Committee further expressed great concern regarding the fact that over the past few years, several criminals had been elected to local bodies, State Assemblies and Parliament. The Report observed: "3.2.... In the bigger cities, the main source of income relates to real estate -- forcibly occupying lands/buildings, procuring such properties at cheap rates by forcing out the existing occupants/tenants etc. Over time, the money power thus acquired is used for building up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion and the form must contain all the particulars as required therein. 116.2. It shall state, in bold letters, with regard to the criminal cases pending against the candidate. 116.3. If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her. 116.4. The political party concerned shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents. 116.5. The candidate as well as the political party concerned shall issue a declaration in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tues that a person should possess. The competence of a man is not to be conflated with fierce independence. A person may be excellent, i.e., at his chosen vocation. He may be an excellent Administrator. He may be honest but the quality of independence transcends the contours of the qualities of professional excellence, as also the dictates of honesty. We may, no doubt, clarify that, ordinarily, honesty would embrace the quality of courage of conviction, flowing from the perception of what is right and what is wrong. Irrespective of consequences to the individual, an honest person would, ordinarily, unrelentingly take on the high and mighty and persevere in the righteous path. An Election Commissioner is answerable to the Nation. The people of the country look forward to him so that democracy is always preserved and fostered. We may qualify the above observations by stating that true independence of a Body of persons is not to be confused with sheer unilateralism. This means that the Election Commission must act within the Constitutional framework and the laws. It cannot transgress the mandate of either and still claim to be independent. Riding on the horse of independence, it canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the favour." It is important that the appointment must not be overshadowed by even a perception, that a 'yes man' will decide the fate of democracy and all that it promises. Certainty, the darkest apprehensions of the founding fathers as buttressed by the reports and other materials, unerringly point to the imperative need to act. AA. THE APPOINTMENT OF SHRI ARUN GOEL: A TRIGGER OR A MERE ASIDE? 187. An application was filed by the Petitioner in W.P. No. 569 of 2021 to seek interim relief to provide for appointment to fill a vacancy of Election Commissioner which had arisen on 15.05.2022 by a Committee. The Bench commenced hearing of these cases on 17.11.2022. The matter stood posted to 22.11.2022. It would appear that on 18.11.2022, the vacancy of Election Commissioner came to be filled up by the appointment of one Shri Arun Goel. This appointment was attacked by Shri Prashant Bhushan, learned Counsel appearing for the Petitioner, by contending that when the Petitioner had moved an application, seeking interim relief relating to appointment, it was not open to the Respondent-Union to make the appointment. This Court thereupon called upon the Respondent to produce the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be considered. On the very same day again, the Prime Minister recommended the name of the present appointee. We notice further that, on the same day again, an application is seen made by the appointee in regard to voluntary retirement and accepting the same, again, w.e.f., 18.11.2022, and waiving the three months period required for acting on the request of voluntary retirement, the Officer's request for voluntary retirement came to be accepted by the Competent Authority. Not coming as a surprise, on the same day, his appointment as Election Commissioner was also notified. We are a little mystified as to how the officer had applied for voluntary retirement on 18.11.2022, if he was not in the know about the proposal to appoint him. Whether that be, we notice that 18.11.2022 was a Friday and very next day, after the Court had directed the case to be listed to 22.11.2022, for considering the matter. 188. In regard to this appointment, the salient features may be noticed. The vacancy was subsisting from 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 consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner, as per Section 4 of the 1991 Act, are to be appointed for a term of six years. 190. This brought up the question of Section 4, declaring a fixed term of six years from the date of assumption of Office, for a Chief Election Commissioner and an Election Commissioner, being observed in its breach. The learned Attorney General would respond as follows. He pointed out that since the time, when the Election Commission became a multi-Member team, a convention has grown up of making appointments of persons, initially as Election Commissioners and the senior-most Election Commissioner, unless considered unfit, is appointed as the Chief Election Commissioner. As far as Section 4, declaring that the Chief Election Commissioner and the Election Commissioner are to be appointed for a term of six years and the appointments falling foul of the said mandate, the learned Attorney 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies to the Government of India, both serving and retired, and drawn up by the Ministry of Law and Justice. When it was further queried as to why the Respondent did not appear to exhibit any anxiety to ascertain whether there were Officers, who could be appointed who would be assured the full term of six years, in keeping with the mandate of law, it was submitted that there is a dearth of such Officers. 193. Thereupon, it was the contention of both Shri Prashant Bhushan and Shri Gopal Shankaranarayan that this may not be the case. It is pointed out by Shri Prashant Bhushan that there are 160 Officers, who belonged to the 1985 Batch and some of them are younger than Shri Arun Goel. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appointment of the Chief Election Commissioner and the other Election Commissioners shall, subject to the provisions of any law, made in that behalf by Parliament, be made by the President, in view of Article 74, it would, undoubtedly, mean that the President is bound to make appointments in accordance with the advice of the Council of Ministers. Taking into consideration Article 77 also and, in view of the Rules of Business made, 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 author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i v. Union of India [(1991) 3 SCC 655: 1991 SCC (Cri.) 734], Union Carbide Corpn. v. Union of India [(1991) 4 SCC 584], Delhi Judicial Service Assn. v. State of Gujarat [(1991) 4 SCC 406] (Nadiad case), Delhi Development Authority v. Skipper Construction Co. (P) Ltd. [(1996) 4 SCC 622] and Dinesh Trivedi, M.P. v. Union of India [(1997) 4 SCC 306] guidelines were laid down having the effect of law, requiring rigid compliance. In Supreme Court Advocates-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 legislatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were to be observed in the matter of giving a child in adoption to foreign parents. 200. In Union Carbide Corporation and Ors. v. Union of India and Ors. (1991) 4 SCC 584, one of the questions, which fell for consideration was whether the Supreme Court had the power Under Article 142 to withdraw to itself, Original Suits pending in the District Court at Bhopal and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n fell for consideration. This Court wished to provide against the recurrence of such instances. The Court directed the State Government to take immediate steps for review and revision of the Police Regulations. In the light of the Commission appointed, the Court held, inter alia, as follows: "49. Learned Counsel, appearing on behalf of the State of Gujarat and the police officers, urged that in the present proceedings this Court has no jurisdiction or power to quash the criminal proceedings pending against N.L. Patel, CJM. Elaborating his contention, learned Counsel submitted that once a criminal case is registered against a person the law requires that the court should allow the case to proceed to its normal conclusion and there should be no interference with the process of trial. He further urged that this Court has no power to quash a trial pending before the criminal court either under the Code of Criminal Procedure or under the Constitution, therefore, the criminal proceedings pending against Patel should be permitted to continue. Learned Attorney General submitted that since this Court has taken cognizance of the contempt matter arising out of the incident which is the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under Articles 32 and 136 embraces power to quash criminal proceedings pending before any court to do complete justice in the matter before this Court. If the court is satisfied that the proceedings in a criminal case are being utilised for oblique purposes or if the same are continued on manufactured and false evidence or if no case is made out on the admitted facts, it would be in the ends of justice to set aside or quash the criminal proceedings. It is idle to suggest that in such a situation this Court should be a helpless spectator. 51. Mr. Nariman urged that Article 142(1) does not contemplate any order contrary to statutory provisions. He placed reliance on the Court's observations in Prem Chand Garg v. Excise Commissioner, U.P., Allahabad [1963 Supp 1 SCR 885, 899: AIR 1963 SC 996] and A.R. Antulay v. R.S. Nayak [(1988) 2 SCC 602: 1988 SCC (Cri) 372], where the Court observed that though the powers conferred on this Court Under Article 142(1) are very wide, but in exercise of that power the Court cannot make any order plainly inconsistent with the express statutory provisions of substantive law. It may be noticed that in Prem Chand Garg [1963 Supp 1 SCR 885, 899: AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsistent view of this Court as would appear from the decisions of this Court in State of U.P. v. Poosu [(1976) 3 SCC 1: 1976 SCC (Cri) 368: (1976) 3 SCR 1005]; Ganga Bishan v. Jai Narain [(1986) 1 SCC 75]; Navnit R. Kamani v. R.R. Kamani [(1988) 4 SCC 387]; B.N. Nagarajan v. State of Mysore [(1966) 3 SCR 682: AIR 1966 SC 1942: (1967) 1 LLJ 698]; Special Reference No. 1 of 1964 [(1965) 1 SCR 413, 499: AIR 1965 SC 745] and Harbans Singh v. State of U.P. [(1982) 2 SCC 101: 1982 SCC (Cri) 361: (1982) 3 SCR 235, 243] Since the foundation of the criminal trial of N.L. Patel is based on the facts which have already been found to be false, it would be in the ends of justice and also to do complete justice in the cause to quash the criminal proceedings. We accordingly quash the criminal proceedings pending before the Chief Judicial Magistrate, Nadiad in Criminal Cases Nos. 1998 of 1990 and 1999 of 1990." 202. It issued various guidelines also for the protection of the Members of the Subordinate Judiciary. The decision in Supreme Court Advocates-on-Record Association and Ors. v. Union of India (1993) 4 SCC 441 related to the appointment of Judges to the Supreme Court and High Court and tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical considerations in making the appointment. Article 124(2) dealing with appointments to the Supreme Court and Article 217(1) which deals with appointments to the High Courts, was to be made based on what was described as 'consultations' in these Articles. It will be again noticed that Article 324(2), does not provide for consultation with any one and it appears to place the power to make appointments, exclusively with the Executive as the President is bound by the advice of the Prime Minister. However, it is precisely to guard against the abuse by the exclusive power being vested with the Executive that instead of a consultative process being provided, Parliament was to make a law. This clearly was the contemplation of the Founding Fathers. This Court proceeded to lay down norms in the absence of any specific guidelines. We may, in this regard, notice paragraph-477: "477. The absence of specific guidelines in the enacted provisions appears to be deliberate, since the power is vested in high constitutional functionaries and it was expected of them to develop requisite norms by convention in actual working as envisaged in the concluding speech of the President of the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against women. Finally, on the basis of the Principle that when there is no inconsistency between a Convention and a Domestic Law and there is a void in the Domestic Law, and bearing in mind the meaning and content of the Fundamental Rights, the Court went on to lay down elaborate guidelines and norms. The norms included as to what constituted sexual harassment, inter alia. This Court went on to even provide for disciplinary action to be initiated and a complaint mechanism. The guidelines were, however, made binding and enforceable in law, until suitable legislation was enacted. The norms enunciated by this Court, which may have been legislative in nature, interestingly, held the field for more than fifteen years, when Parliament came out with a law. 208. In Special Reference No. 1 of 1998, Re (1998) 7 SCC 739 (The Third Judges case), which no doubt, was a judgment rendered in a Reference made Under Article 143(1) of the Constitution, one of the contentions was, whether the expression, both in Articles 217(1) and 222(1), viz., (consultation with the Chief Justice of India required consultation with the plurality of Judges or the sole opinion of the Chief Justice sufficed), this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be achieved and inertia of the Legislative Department producing a clear situation, where there exist veritable gaps or a vacuum, the Court may not shy away from what essentially would be part of its judicial function. 211. A Writ Petition was filed Under Article 32 of the Constitution assailing the appointment of certain Ministers despite their involvement in serious and heinous crimes. The Constitution Bench of this Court in Manoj Narula v. Union of India (2014) 9 SCC 1 went on to refer to the criminalisation of politics as being an anathema for the sanctity of democracy. Of immediate interest to this Court, are the following observations: "Principle of constitutional silence or abeyance 65. The next principle that can be thought of is constitutional silence or silence of the Constitution or constitutional abeyance. The said principle is a progressive one and is applied as a recognised advanced constitutional practice. It has been recognised by the Court to fill up the gaps in respect of certain areas in the interest of justice and larger public interest. Liberalisation of the concept of locus standi for the purpose of development of public interest litigation to establish t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn experience over time, the international treaties and covenants but also keep the doctrine of flexibility in mind. It has been so stated in Union of India v. Naveen Jindal [Union of India v. Naveen Jindal, (2004) 2 SCC 510]. xxx xxx xxx 53. Recently, in K.S. Puttaswamy v. Union of India [K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1], ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament' were, undoubtedly, incorporated. 216. No law, however, came to be enacted by Parliament. We have elaborately referred to the noises and voices eloquently and without a discordant note being struck, which points to an overpowering symphony, which calls for the immediate need to fulfil the intention of the Founding Fathers, starting with the Goswami Committee in the year 1990, more than three decades ago, the Two Hundred and Fifty-Fifth Central Law Commission Report in 2015 and the Reports, both in the Press and other materials. 217. It may be true that Election Commission of India provide its services to certain countries. That, however, cannot deflect this Court from providing for what the Founding Fathers contemplated also and advocated by in various reports. 218. It may be true only Chief Election Commissioners were appointed for the first four decades of the Republic and, thereafter, since the year 1993, the Election Commission has become a team, which consists of the Chief Election Commissioner and the two Election Commissioners. It may be true that in the sense that the President, acting on the advice of the Prime Minister, in accordance with the concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st to continue in the saddle. A pliable Election Commission, an unfair and biased overseer of the foundational exercise of adult franchise, which lies at the heart of democracy, who obliges the powers that be, perhaps offers the surest gateway to acquisition and retention of power. 223. The values that animated the freedom struggle had to be brought home to a new generation through the insertion of the provision relating to fundamental duties. Criminalisation of politics, a huge surge in the influence of money power, the role of certain Sections of the media where they appear to have forgotten their invaluable role and have turned unashamedly partisan, call for the unavoidable and unpostponable filling up of the vacuum. Even as it is said that justice must not only be done but seen to be done, the outpouring of demands for an impartial mode of appointment of the Members require, at the least, the banishing of the impression, that the Election Commission is appointed by less than fair means. 224. We bear in mind the fact that the demand for putting in place safeguards to end the pernicious effects of the exclusive power being vested with the Executive to make appointment to the El ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transient or stop gap arrangement and it was to be replaced by a law made by the Parliament taking away the exclusive power of the Executive. This conclusion is clear and inevitable and the absence of law even after seven decades points to the vacuum. 228. Article 148 of the Constitution, dealing with appointment of the Comptroller and Auditor General of India, provides that it is to be made by the President. This is to be contrasted with the appointment of the Members of the Election Commission in Article 324(2). On a comparison of both the Articles, the difference is stark and would justify the Petitioners contention that in regard to the appointment of the Members of the Election Commission, having regard to the overwhelming importance and the nearly infinite plenary powers, they have in regard to the most important aspect of democracy itself, viz., the holding of free and fair elections, the Founding Fathers have provided for the unique method of appointment suited to the requirements of the posts in question. The refusal of Parliament, despite what was contemplated by the Founding Fathers, and what is more, the availability of a large number of Reports, all speaking in one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the President--Member. (2) No appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy in the Selection Committee. (3) The Selection Committee shall for the purposes of selecting the Chairperson and Members of the Lokpal and for preparing a panel of persons to be considered for appointment as such, constitute a Search Committee consisting of at least seven persons of standing and having special knowledge and expertise in the matters relating to anti-corruption policy, public administration, vigilance, policy making, finance including insurance and banking, law and management or in any other matter which, in the opinion of the Selection Committee, may be useful in making the selection of the Chairperson and Members of the Lokpal: Provided that not less than fifty per cent. of the members of the Search Committee shall be from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities and women: Provided further that the Selection Committee may also consider any person other than the persons recommended by the Search Committee. (4) The Selection Committee shall regulate its own procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a Regional Commissioner. Thus, it is pointed out, the Court must adopt the following interpretation. An Election Commissioner or Regional Commissioner can be removed only in the like manner and on like grounds as a Judge of the Supreme Court of India. A further safeguard is, however, provided to the Election Commissioner, viz., that he can be removed from Office only on the recommendation of the Chief Election Commissioner. To appreciate the argument, we recapture Article 324(5). It reads as follows: "324(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by Rule determine; Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment: Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Seshan (supra). It is clear as day light that the first proviso protects the Chief Election Commissioner alone from removal by providing for protection as is accorded to a Judge of the Supreme Court of India. It is still further more important to notice that the first proviso interdicts varying of the conditions of service of the Chief Election Commissioner to his disadvantage after the appointment. It is, thereafter, that the second proviso appears. The second proviso exclusively deals with any other Election Commissioner, inter alia. The word 'any other Election Commissioner' has been provided to distinguish him from the Chief Election Commissioner. Therefore, for the Election Commissioners other than the Chief Election Commissioner, the protection which is clearly envisaged, as against his removal is only that it can be effected only with the recommendation of the Chief Election Commissioner. We are of the view that in the context of the provision, the words 'provided further' cannot be perceived as an additional protection to the Election Commissioner. It is intended only to be a standalone provision, specifically meant to deal with the categories of persons men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n independent Secretariat as also charging of the expenditure on the Consolidated Fund of India by letter dated 13.04.2012, as also in December, 2016. It has also laid store by the recommendation of the Law Commission, which inter alia, recommended the insertion of Article 324(2A), which contemplated the Election Commission being provided with an independent and permanent secretarial staff. 236. There cannot be any doubt that the Election Commission of India is to perform the arduous and unenviable task of remaining aloof from all forms of subjugation by and interference from the Executive. One of the ways, in which, the Executive can bring an otherwise independent Body to its knees, is by starving it off or cutting off the requisite financial wherewithal and resources required for its efficient and independent functioning. It would not be unnatural if faced with the prospect of it not being supplied enough funds and facilities, a vulnerable Commission may cave in to the pressure from the Executive and, thus, it would result in an insidious but veritable conquest of an otherwise defiant and independent Commission. This is apart from the fact that cutting off the much-needed funds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w lines and express my views not because the judgment requires any further elaboration but looking for the question of law that emerge of considerable importance. 241. For the purpose of analysis, the judgment has been divided into following sections: I. Reference II. Election Commission of India III. Why an independent Election Commission is necessary A. Working a Democratic Constitution B. Right to vote C. Free and fair elections IV. Constitutional and statutory framework: The Constitutional Vacuum V. The judgment in TN Seshan VI. Reports of various Commissions on Manner of Appointment of Chief Election Commissioner and Election Commissioners VII. Comparative framework - Foundational parameters VIII. Process of selection of other constitutional/statutory bodies IX. Constitutional silence and vacuum-power of the Court to lay down guidelines X. Independence of Election Commissioners XI. Directions I. Reference 242. This case arises out of a batch of writ petitions, with the initial petition filed as a public interest litigation by Anoop Baranwal in January 2015. The Petitioner raised the issue of the constitutional validity of the practice of the Unio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthoritative pronouncement. Post the matter before the Hon'ble the Chief Justice of India on the Administrative Side for fixing a date of hearing." 243. A couple of similar writ petitions were tagged with the above petition. On 29 September 2022, this Constitution Bench started the hearing of the case. The Bench sat for several days hearing the arguments of the Petitioner side and of the Union government and Election Commission of India on the Respondents' side. 244. The Union Government has opposed this group of petitions on the premise that the Court must respect the principle of separation of power between different organs of the State and should refrain from interfering in the selection process of the Election Commission Under Article 324. It was argued by the Union that Article 324 of the Constitution conferred the power to appoint Election Commissioners solely upon the Parliament. He made a reference to the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 (hereinafter being referred to as the "Act 1991") to emphasize his point that the Parliament being cautious of its responsibility protected the condition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssues raised for our consideration. All these points are indeed sacrosanct for democracy and for maintaining the independence of the Election Commission. II. Election Commission of India 249. Article 324 (1) provides that the power of superintendence, direction, and control of the preparation of the electoral rolls for, and the conduct of, elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under the Constitution is vested in the Election Commission. 250. As to the composition of the Election Commission, Article 324(2) provides that the Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix, and the appointment of the Chief Election Commissioner and other Election Commissioners, subject to the provisions of any law made in that behalf by the Parliament, be made by the President. 251. By an order dated 1st October 1993, the President has fixed the number of Election Commissioners as two, until further orders. The current composition of the Election Commission is that of Chief Election Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves. The establishment of democracy has been linked with the idea of welfare of the people. Dr. BR Ambedkar had once noted that democracy means "a form and a method of government whereby revolutionary changes in the economic and social life of the people are brought about without bloodshed." Babasaheb Ambedkar: Writings and Speeches, Vol. 17 Part III, page 475 Democracy is thus linked with the realization of the aspirations of the people. 258. According to the celebrated philosopher John Dewey, "Democracy is not simply and solely a form of government, but a social and personal ideal", in other words, it is not only a property of political institutions but of a wide range of social relationships. https://plato.stanford.edu/entries/dewey-political/ Democracy is thus about collective decision-making. The principles of democracy have been held as a part of the basic structure of the Constitution. His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. (1973) 4 SCC 225 259. The Indian Constitution establishes a constitutional democracy. The Preamble to the Constitution clearly lays down the vision and creates an outline of the structure of democracy that India envi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in India does not come to a standstill. The task conferred on the Election Commission is enormous. It has to ensure that periodical elections keep on happening. 261. India has chosen a system of direct elections. This means that elections are supposed to happen at regular intervals where the people of India directly participate by exercising their right to vote. The Constitution also provides for elections where the representatives of the people are chosen by an indirect method. These include the elections for the post of President and Vice-President and the members of State Legislative Councils. The task to maintain the sanctity of the elections is supposed to be carried out by the Election Commission in a fair, transparent and impartial manner, and without any bias or favour. The Election Commission has been given a wide range of powers towards "superintendence, direction, and control" over the conduct of all elections to Parliament and the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution. The three words "superintendence", "direction", and "control" have not been defined in the Constitution but were used i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atic institutions. The country gained and adopted democracy after decades of struggle and sacrifices, and the gains received by us cannot be given away because the institutions still continue to operate in an opaque manner. 263. A nine-judge bench of this Court in the case of K.S. Puttaswamy and Anr. v. Union of India and Ors. (2017) 10 SCC 1 held: "Opacity enures to the benefit of those who monopolize scarce economic resources. On the other hand, conditions where civil and political freedoms flourish ensure that governmental policies are subjected to critique and assessment. It is this scrutiny which subserves the purpose of ensuring that socio-economic benefits actually permeate to the underprivileged for whom they are meant. Conditions of freedom and a vibrant assertion of civil and political rights promote a constant review of the justness of socio-economic programmes and of their effectiveness in addressing deprivation and want. Scrutiny of public affairs is founded upon the existence of freedom." 264. Indian democracy will work only when the institutions which have the responsibility to preserve democracy work. Each institution in our Constitution has its demarcated role, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to question those who govern, about the discharge of their constitutional duties including in the provision of socio-economic welfare benefits. The power to scrutinize and to reason enables the citizens of a democratic polity to make informed decisions on basic issues which govern their rights." 269. The right to vote is now widely recognized as a fundamental human right. https://www.ohchr.org/en/elections However, this was not always the case. The history of the adult franchise tells us that it was limited to the privileged in society. BR Ambedkar, "Evidence before the Southborough Committee", in Babasaheb Ambedkar: Writings and Speeches, published by Government of India, Vol. 1, pages 243-278 It took several decades of struggles by marginalized communities to gain the right to vote. The right to vote is so intrinsic to the practice of democracy. 270. It has been argued by the counsel for the Election Commission of India, that the right to vote is merely a statutory right, and since no fundamental right is violated, it does not call the attention of this Court. This Court does not agree with the view argued by the Election Commission. Furthermore, it becomes necessary t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a of a centralized Election Commission. He argued that, "if adopted, would be a serious infringement of the rights of Provincial Autonomy; and as such, I think it ought to be either dropped or reworded, so as not to prejudice the rights of the Provincial Legislature to legislate on such subjects." ibid, page 155 The Clause on right to vote and the creation of the Election Commission as part of the fundamental rights was then accepted by a majority vote by the Fundamental Rights Sub-Committee. Ibid, page 164 The Clause was then forwarded to the Advisory Committee in the "Report of the Sub-Committee on Fundamental Rights" dated April 16, 1947. Ibid, p. 173. Furthermore, the ground for contrary views was only that the right was being extended the States/units. See "Minutes Of Dissent To The Report" dated April 17-20, 1947 by KM Panikkar, page 187 274. The draft prepared by the Fundamental Rights Sub-Committee was examined by the Minorities Sub-Committee to see if any rights proposed needed to be "amplified or amended" to protect minority rights. ibid, page 199 In the Minutes of the Meeting of the Minorities Sub-Committee dated April 17, 1947, there were two suggestions on the fundam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be a Federation Constitution. It may be indirectly elected. The Government of the Union may be formed indirectly, so that we cannot assume that every adult or any one whatever the description may be, shall have a direct vote to the Legislature. We cannot lay down a proposition here without going into those details. We cannot therefore deal with the subject at all now. Whether there is going to be direct election or indirect election, that must be settled first." ibid, page 250 (sic) 277. Dr. Ambedkar tried to resolve the opposition to this Clause by arguing that: "My reply is that this document or report will go before the Constituent Assembly. There will be representatives of the States; there will be representatives of the Muslim League. We shall hear from them what objection they have to adult suffrage. If the whole Constituent Assembly is convinced that while it may be advisable to have adult suffrage for British India, for reasons of some special character, the Indian States cannot have adult suffrage, and there must be some sort of a restricted suffrage, it will be still open to the Constituent Assembly to modify our proposals." ibid, page 250 278. Govind Ballabh Pan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee to the Union Constitution if that Clause is retained, as India was going through a historical period of unification where negotiations were being made with the princely states to become part of a united India. Despite this, the Founders retained the right to vote as a constitutional right by recommending that it should find a place in the text of the constitution. 283. On 16 June 1949, Dr. B.R. Ambedkar moved the following clause, providing for the adult franchise: "289-B: Elections to the House of the People and to the Legislative Assemblies of states to be on the basis of adult suffrage: The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every citizen, who is not less than twenty-one years of age on such date as may be fixed in this behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of nonresidence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election." CONSTITUENT ASSEMBLY OF INDI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusion is that every Indian has a right to elect and be elected and this is constitutional as distinguished from a common law right and is entitled to cognizance by Courts, subject to statutory Regulations." 288. However, a subsequent decision of a two-judge bench in Jyoti Basu and Ors. v. Debi Ghosal and Ors. (1982) 1 SCC 691 (hereinafter "Jyoti Basu") relied upon the position taken by N.P. Ponnuswami (Supra). The two-judge bench was dealing with the specific question who may be joined as a party to an election petition, but went to observe: "A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute and election. Statutory creations they are, and therefore, subject to statutory limitation." 289. While the above three decisions made statements of the right to vote, the issue of interpretation of Article 326, dealing with adult franchise, had not arisen in these cases. Therefore, the statements made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to vote is a statutory right or not does not have any implication on the right to know antecedents, which is a part of fundamental right Under Article 19(1)(a). He however also held that democracy based on adult franchise is part of the basic structure of the Constitution, and that the right of adults to take part in the election process either as a voter or a candidate could only be restricted by a valid law which does not offend constitutional provisions. 293. Justice Venkatarama Reddi emphasized on the right to vote, and held: "The right to vote for the candidate of one's choice is of the essence of democratic polity. This right is recognized by our Constitution and it is given effect to in specific form by the Representation of the People Act. The Constituent Assembly debates reveal that the idea to treat the voting right as a fundamental right was dropped; nevertheless, it was decided to provide for it elsewhere in the Constitution. This move found its expression in Article 326..." 294. He disagreed with the views expressed in N.P. Ponnuswami and Jyoti Basu, and held: "the right to vote, if not a fundamental right, is certainly a constitutional right. The right ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding that the right to vote is a constitutional right. Even Justice Shah had held that the right of adults to take part in the election process as a voter could only be restricted by a valid law which does not offend constitutional provisions. 297. An argument based on the majority view in PUCL 2003 was put forth before a Constitution Bench of this Court in Kuldip Nayar and Ors. v. Union of India and Ors. (2006) 7 SCC 1 (hereinafter "Kuldip Nayar"). It was argued that a right to vote is a constitutional right besides that it is also a facet of fundamental right Under Article 19(1)(a) of the Constitution. The Constitution bench rejected the argument. It was held: "The argument of the Petitioners is that the majority view in the case of People's Union for Civil Liberties, therefore, was that a right to vote is a constitutional right besides that it is also a facet of fundamental right Under Article 19(1)(a) of the Constitution. We do not agree with the above submission. It is clear that a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression, while reiterating the view in Jyoti Basu v. Debi Ghosal (supra) that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there shall be one general electoral roll for every territorial constituency. It further declares that no person shall be ineligible for inclusion in such electoral roll on the grounds only of religion, race, caste, sex, etc. Articles 81 and 170 mandate that the members of the Lok Sabha and Legislative Assembly are required to be Chosen by Direct Election from the territorial constituencies in the States. The States are mandated to be divided into territorial constituencies Under Articles 81(2) (b) and 170(2)17. The cumulative effect of all the above mentioned provisions is that the Lok Sabha and the Legislative Assemblies are to consist of members, who are to be elected by all the citizens, who are of 18 years of age and are not otherwise disqualified, by a valid law, to be voters. Thus, a Constitutional right is created in all citizens, who are 18 years of age to choose (participate in the electoral process) the members of the Lok Sabha or the Legislative Assemblies. Such a right can be restricted by the appropriate Legislature only on four grounds specified Under Article 326." 300. Justice Chelameswar also clarified that the question whether the right to vote or contest a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the right to vote is a statutory right but it is equally vital to recollect that this statutory right is the essence of democracy. Without this, democracy will fail to thrive. Therefore, even if the right to vote is statutory, the significance attached with the right is massive. Thus, it is necessary to keep in mind these facets while deciding the issue at hand." 304. A clarity on the status of the right to vote was given in the judgment in Raj Bala v. State of Haryana and Ors. (2016) 1 SCC 463 Justice Chelameswar and Justice Sapre gave separate concurring opinions. After analysing the previous decisions of this Court, Justice Chelameswar came to the conclusion that "every citizen has a constitutional right to elect and to be elected to either Parliament or the State legislatures." Justice Sapre reiterated the view taken in PUCL 2003 that the "right to vote" is a constitutional right but not merely a statutory right. 305. What emerges from this detailed discussion is that there has been a conflicting view on the status of the right to vote. This gives an opportunity for us to authoritatively hold that the right to vote is not just a statutory right. In our view, we must look be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oppressed. Our Constitution took a visionary step by extending franchise to everyone. https://journals.library.brandeis.edu/index.php/caste/article/view/282/63 In that way, the right to vote enshrines the protection guaranteed Under Article 15 and 17. Therefore, the right to vote is not limited only to Article 326, but flows through Article 15, 17, 19, 21. Article 326 has to be read along with these provisions. We therefore declare the right to vote in direct elections as a fundamental right, subject to limitations laid down in Article 326. This Court has precedents to support its reasoning. In Unnikrishnan J.P. and Ors. v. State of Andhra Pradesh and Ors. (1993) 1 SCR 594 this Court read Article 45 and 46 along with Article 21 to hold that the right to education is a fundamental right for children between the age group of 6-14. 308. Now that we have held that the right to vote is not merely a constitutional right, but a component of Part III of the Constitution as well, it raises the level of scrutiny on the working of the Election Commission of India, which is responsible for conducting free and fair elections. As it is a question of constitutional as well as fundamental rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1975 SC 2299 Justice H.R. Khanna held in his opinion: "All the seven Judges [in Kesavananda Bharti case] who constituted the majority were also agreed that democratic set-up was part of the basic structure of the Constitution. Democracy postulates that there should be periodical election, so that people may be in a position either to re-elect the old representatives or, if they so choose, to change the representatives and elect in their place other representative. Democracy further contemplates that the elections should be free and fair, so that the voters may be in a position to vote for candidates of their choice. Democracy can indeed function only upon the faith that elections are free and fair and not rigged and manipulated, that they are effective instruments of ascertaining popular will both in reality and form and are not mere rituals calculated to generate illusion of deference to mass opinion. Free and fail elections require that the candidates and their agents should not resort to unfair means or malpractices as may impinge upon the process of free and fair elections." 314. For conducting free and fair elections, an independent body in the form of Election Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he importance of periodical elections was also emphasized in the Constitution Bench decision in Manoj Narula v. Union of India, (2014) 9 SCC 1 which held: "In the beginning, we have emphasized on the concept of democracy which is the corner stone of the Constitution. There are certain features absence of which can erode the fundamental values of democracy. One of them is holding of free and fair election by adult franchise in a periodical manner... for it is the heart and soul of the parliamentary system." 319. Thus, the role of the Election Commission is integral to conducting free and fair elections towards the working of democracy. It is the duty and constitutional obligation of this Court to protect and nurture the independence of the Election Commission. IV. Constitutional and statutory framework: The Constitutional Vacuum 320. Article 324 of the Constitution provides that superintendence, direction and control of elections shall be vested in an Election Commission. Clause 1 of Article 324 provides: "The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner and other Election Commissioners, and nothing has been provided Under Article 324. It has been argued that as the Executive (through President) is making these appointments, it reduces the independence of the Election Commission. Furthermore, it was pointed out that the term and tenure of the Election Commissioners also need to be streamlined in order to ensure absolute independence of the Election Commission and to prevent any arbitrary or biased decision to be taken by the Chief Election Commissioner. 326. It has been argued by the learned Attorney General that the conditions of service and tenure of the Chief Election Commissioner and Election Commissioners is already governed by the Act, 1991. 327. The Act provides "the conditions of service of the Chief Election Commissioner and other Election Commissioners to provide for the procedure and for transaction of business by the Election Commission and for matters] connected therewith or incidental thereto". The Act deals with salary (Section 3), tenure/term of office (Section 4), leave (Section 5), pension (Section 6), and other conditions of service (Section 8). 328. The term of office provided Under Section 4 for the Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... batefiles/C15061949.html 331. The reason behind having a permanent office of Chief Election Commissioner was explained by Dr. Ambedkar as follows: "What the Drafting Committee proposes by Sub-clause (2) is to have permanently in office one man called the Chief Election Commissioner, so that the skeleton machinery would always be available. Elections no doubt will generally take place at the end of five years; but there is this question, namely that a bye-election may take place at any time. The Assembly may be dissolved before its period of five years has expired. Consequently, the electoral rolls will have to be kept up to date all the time so that the new election may take place without any difficulty. It was therefore felt that having regard to these exigencies, it would be sufficient if there was permanently in session one officer to be called the Chief Election Commissioner, while when the elections are coming up, the President may further add to the machinery by appointing other members to the Election Commission." 332. The above statement suggests that the office of the Chief Election Commissioner requires a kind of permanency, which may be fulfilled by having someone wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority but by two-thirds majority of both the Houses...Of course, there is a danger when one party is in huge majority. Still, if he does appoint a party-man, and the appointment comes up for confirmation in a joint session, even a small opposition or even a few independent members can down the Prime Minister before the bar of public opinion in the world." 335. On 16 June 1949, Hirday Nath Kunzru echoed a similar sentiment, and also highlighted the issues regarding the removal of the Election Commissioners. He said: "Here two things are noticeable: the first is that it is only the Chief Election Commissioner that can feel that he can discharge his duties without the slightest fear of incurring the displeasure of the executive, and the second is that the removal of the other Election Commissioners will depend on the recommendations of one man only, namely the Chief Election Commissioner. However responsible he may be it seems to me very undesirable that the removal of his colleagues who will occupy positions as responsible as those of judges of the Supreme Court should depend on the opinion of one man. We are anxious, Sir, that the preparation of the electoral rolls and the conduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d provide therein some machinery which it would be obligatory on the President to consult before making any appointment, I think the difficulties which are felt as resulting... may be obviated and the advantage which is contained therein may be secured." 339. He, however, added that since he was unsure whether the Assembly would adopt his suggestion of Instrument of Instructions, he suggested an amendment to the effect that "The appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the Provisions of any law made in this behalf by Parliament, be made by the President." This is incorporated currently in Article 324(2). The idea behind this amendment was that the "law made in this behalf by Parliament" would address the concerns and fear raised by members of the Constituent Assembly that the Executive should not have the exclusive say in the appointment of the Chief Election Commissioner and the Election Commissioners. However, we find that the Act, 1991 does not cover any aspect highlighted in the Constituent Assembly. It is for this reason that this Court needs to lay down certain broader parameters to fill the constitutional/legislative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CEC must exercise this power only when there exist valid reasons which are conducive to efficient functioning of the Election Commission." Held further: "15. We have already highlighted the salient features regarding the composition of the Election Commission. We have pointed out the provisions regarding the tenure, conditions of service, salary, allowances, removability, etc., of the CEC, the ECs and the RCs. The CEC and the ECs alone constitute the Election Commission whereas the RCs are appointed merely to assist the Commission..." Furthermore: "17. Under Clause (3) of Article 324, in the case of a multi-member Election Commission, the CEC "shall act" as the Chairman of the Commission. As we have pointed out earlier, Article 324 envisages a permanent body to be headed by a permanent incumbent, namely, the CEC. The fact that the CEC is a permanent incumbent cannot confer on him a higher status than the ECs for the simple reason that the latter are not intended to be permanent appointees. Since the Election Commission would have a staff of its own dealing with matters concerning the superintendence, direction and control of the preparation of electoral rolls, etc., that sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The consultation process should have a statutory backing. 3. The appointment of the other two Election Commissioners should be made in consultation with the Chief Justice of India, Leader of the Opposition (in case the Leader of the opposition is not available, the consultation should be with the leader of the largest opposition group in the Lok Sabha) and the Chief Election Commissioner." B. National Commission to Review the Working of Constitution-Report (2002) National Commission to Review the Working of Constitution-Report (2002) Para 4.22, pg. 14 , Available at: https://www.thehinducentre.com/multimedia/archive/03091/ncrwc_3091109a.pdf "(62) The Chief Election Commissioner and the other Election Commissioners should be appointed on the recommendation of a body consisting of the Prime Minister, Leader of the Opposition in the Lok Sabha, Leader of the Opposition in the Rajya Sabha, the Speaker of the Lok Sabha and the Deputy Chairman of the Rajya Sabha. Similar procedure should be adopted in the case of appointment of State Election Commissioners. [Para 4.22]" C. Election Commission of India Proposed Reforms (2004) Election Commission of India Proposed Reforms (2004), 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice except in like manner and on like grounds as a Judge of the Supreme Court. However, Clause (5) of Article 324 does not provide similar protection to the Election Commissioners and it only says that they cannot be removed from office except on the recommendation of the Chief Election Commissioner. The provision, in the opinion of the Election Commission, is inadequate and requires an amendment to provide the very same protection and safeguard in the matter of removability of Election Commissioners from office as is provided to the Chief Election Commissioner. The Election Commission recommends that constitutional protection be extended to all members of the Election Commission. The Election Commission also recommends that the Secretariat of the Election Commission, consisting of officers and staff at various levels is also insulated from the interference of the Executive in the matter of their appointments, promotions, etc., and all such functions are exclusively vested in the Election Commission on the lines of the Secretariats of the Lok Sabha, and Rajya Sabha, Registries of the Supreme Court and High Courts etc. The third recommendation of the Election Commission is tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amework - 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, involving members/nominees of both the ruling party and the opposition party. The presence of opposition in various critical decision-making processes of governance is a sine qua non for a healthy democracy. It not only provides a system of accountability of the ruling party but also ensures a much-crucial deliberative process. This, in turn, plays a pivotal role in preserving the true essence of democracy by raising the concerns of the people of the country. In addition, some jurisdictions also have Constitutional functionaries such as Speakers of the house of Parliament/Legislature, and Judges of the Highest Court in the country in a multi-member Committee. Relevant details of electoral bodies of some countries are as follows: S. NO COUNTRY Composition of Election Body Composition of Selection Committee Appointing Authority Eligibility/Tenure Removal method/ measures to ensure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ralian 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 Chairperson, who must be an active or retired judge of the Federal Court of Australia. The other members are the Electoral Commissioner and a non-judicial member. eligible for reappointment. misbehaviour or physical or mental incapacity by GovernorGeneral. [Art.25(1)] 4 Canada Canada Election Act, available at: https://laws-lois.justice.gc.ca/eng/acts/E-2.01/page-2.html#docCont Chief Electoral Officer (S.13 of Canada Elections Act - Appointed by resolution of the House of commons 10 years [S.13(1)] Not eligible for reappointment to that office. He/She may be removed for cause by the Governor General on address of the Senate and House of Commons. [S.13(1)] 5 Sri Lanka Constitution of Sri Lankahttps://drive.google.com/file/d/1W5j3D_8CUiYjox8t8eUSlg7SFifjmebK/view?usp=sharing Chairman and Four Members [Art. 103(1)] In making such appointments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouse 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 Years [Art. 245(3)] Removal by the President on recommendation of the Constitutional Council on grounds of his or her inability to hold office and discharge the functions due to physical or mental illness. [Art. 245(4)(d)] 8 South Africa Electoral Commission Act 51 of 1996, available at: https://www.gov.za/sites/default/files/gcis_document/201409/act51of1996.pdf The Commission shall consist of five members, one of whom shall be a judge, appointed by the President. [S.6(1)] Panel shall consist of: (a) President of the constitutional court Chair-person (b) Representative of the human rights court. (c) representative of the commission on gender equality (d) public prosecutor established. [Section 6(3)] President on nomination by committee of national assembly proportional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 President (Section 4) Chairman - retired Judge of the Supreme Court Member 1- One who has been judge of the SC Member 2- One who has been CJ of the HC 3 - Members out of which at least on shall be a woman among candidate with the knowledge or practical experience in the matter of Human Rights. 3 years or until the age of 70 years (Section 6. Term of office of Chairperson and Members) The President can remove the chairman or any member from the office under some circumstances 2 State Human Rights Commission (The Protection of Human Rights Act, 1993) Chairperson and 2 members (Section 22 Appointment of Chairper son and Members of State Commission) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Sabha ● Minister of Home Affairs President on the recommendation of the committee For CVC - Persons who are or have been in All India Service or Civil Service with experience in matters related to vigilance, policymaking, and administration including police administration. Or -held or holding office in a corporation established under Central Government and having expertise and experience in finance including insurance and banking, law, vigilance and investigations 4 years from the date he enters office or 65 years, whichever is earlier. - Shall be ineligible for reappointme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it 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 (Chairman & other Members) PROVISO - Chairman to continue to hold office until the Council is reconstituted in accordance with Section 5 or for a period of 6 months , whichever is earlier Retiring member eligible for only one term. (Section 6 Term of office and retirement of members) Press Council Act, 1978 - IX. Constitutional Silence and Vacuum: Power of the Court to lay guidelines 348. This Court has plenary power Under Article 142 to issue directions to do "complete justice". An analysis of the judgments o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 obligations having regard to the aforenoted position, we issue the following directions to the Central Government, State Governments and Union Territories for compliance till framing of the appropriate legislations." 351. This Court has also laid down guidelines to streamline and facilitate the institutional apparatus and procedural system. In the case of Laxmi v. Union of India and Ors. (2014) 4 SCC 427 this Court intervened to prevent cases of acid violence, and laid down guidelines on sale of acid an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recommendation-making process....Acknowledging this, this Court looked at the appointment of the Central Vigilance Commissioner not as a merit review of the integrity of the selected person, but as a judicial review of the recommendation-making process relating to the integrity of the institution. It was made clear that while the personal integrity of the candidate cannot be discounted, institutional integrity is the primary consideration to be kept in mind while recommending a candidate. It was observed that while this Court cannot sit in appeal over the opinion of HPC, it can certainly see whether relevant material and vital aspects having nexus with the objects of the Act are taken into account when a recommendation is made. This Court emphasised the overarching need to act for the good of the institution and in the public interest. Reference in this context was made to N. Kannadasan [N. Kannadasan v. Ajoy Khose, (2009) 7 SCC 1: (2009) 3 SCC (Civ) 1]." (emphasis added) 355. It was also held that the selection process of a constitutional post cannot be equated with the selection process of a bureaucratic functionary. If the Executive is left with the exclusive discretion to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of a person to the position of Chairperson or Member of the Punjab Public Service Commission, does not imply that this Court cannot direct the executive to frame guidelines and set the parameters. This Court can certainly issue appropriate directions in this regard, and in the light of the experience gained over the last several decades coupled with the views expressed by the Law Commission, the Second Administrative Reform Commission and the views expressed by this Court from time to time, it is imperative for good governance and better administration to issue directions to the executive to frame appropriate guidelines and parameters based on the indicators mentioned by this Court. These guidelines can and should be binding on the State of Punjab till the State Legislature exercises its power. (emphasis added) 357. That Article 324(2) refers to the appointment of the Chief Election Commissioner and other Election Commissioners which shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. It contemplates that the Parliament makes a law laying down the procedure of selection for appointment of the Chief Election Commissioner an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "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 protection to the Election Commissioners and it merely says that they cannot be removed from office except on the recommendation of the Chief Election Commissioner. The provision, in the opinion of the Election Commission, is inadequate and requires an amendment to provide the very same protection and safeguard in the matter of removability of Election Commissioners from office as is available to the Chief Election Commissioner. (emphasis added) 361. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime 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 provided for other Election Commissioners under second proviso to Article 324(5) of the Constitution. The other conditions of the service of Chief Election Commissioner/other Election Commissioners have been protected by the Legislature by the Act 1991. 364. In the facts and circumstances, keeping in view the importance of maintaining the neutrality and independence of the office of the Election Commission to hold free and fair election whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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