ANOOP BARANWAL v. UNION OF INDIA

Citation: [2023] 9 S.C.R. 1, 2023 INSC 190

Court: Supreme Court of India

Bench: K.M. JOSEPH, AJAY RASTOGI, ANIRUDDHA BOSE, HRISHIKESH ROY AND C.T. RAVIKUMAR, JJ.

Judgment text

SUPREME COURT OF INDIA ANOOP BARANWAL v. UNION OF INDIA [2023] 9 S. C. R. 1: 2023 INSC 190 ANOOP BARANWAL v. UNION OF INDIA (Writ Petition (Civil) No. 104 of 2015) MARCH 02, 2023 [K. M. JOSEPH, AJAY RASTOGI, ANIRUDDHA BOSE, HRISHIKESH ROY AND C. T. RAVIKUMAR, JJ. ] Election Laws: Constitution of India - Arts. 324(2), 32 and 142 -Appointment of Chief Election Commissioner and Election Commissioners - Method of - Independence of Election Commission - Constitutional validity of the practice of Union of India to appoint the members of the Election Commission - Held: The vacuum in the case of Art.

324(2) is the absence of the law which Parliament was contemplated to enact - This Court is concerned with the devastating effect of continuing to leave appointments in the sole hands of the Executive on fundamental values and also fundamental rights - Time is ripe for the Court to lay down norms - Imperative need for the Court to step in - Vacuum exists on the basis that unlike other appointments, it was intended all throughout that appointment exclusively by the Executive was to be a mere transient or stop gap arrangement and it was to be replaced by a law made by the Parliament taking away the exclusive power of the Executive - This conclusion is clear and inevitable and the absence of law even after seven decades points to the vacuum -As far as appointment to the posts of Chief Election Commissioner and the Election Commissioners are concerned, the same shall be done by the President of India on the basis of the advice tendered by a Committee consisting of the Prime Minister of India, the Leader of the Opposition in the Lok Sabha and, in case, there is no such Leader, the Leader of the largest Party in the Opposition in the Lok Sabha having the largest numerical strength, and the Chief Justice of India - This norm will continue to hold good till a law is made by the Parliament.

Election Laws: Constitution of India - Art. 324(5) - Protection of Election Commissioner - Whether the Election Commissioner is entitled to same protection as given to Chief Election Commissioner - Held (per K. M. Joseph, J. ) (for himself, Aniruddha Bose, Hrishikesh 1 Roy and C. T. Ravikumar, JJ.

): Second proviso to Article 324(5) only enacts the protection that the Election Commissioner or Regional Commissioner shall not be removed from Office except on the recommendation of the Chief Election Commissioner - There is equality otherwise, which exists between the Chief Election Commissioner and the Election Commissioners in various matters - The argument that the Election Commissioner must be accorded the same protection as is given to the Chief Election Commissioner, appears to be untenable, on a plain reading of Article 324(5) - In the context of the said provision, the words 'provided further' cannot be perceived as an additional protection to the Election Commissioner - It is for Parliament acting in the constituent capacity to consider whether it would be advisable to extend the protection to the Election Commissioners so as to safeguard and ensure the independence of the Election Commissioners as well - Held (per Ajay Rastogi, J.

) Various reports have recommended that the protection against removal available to the Chief Election Commissioner should be made available to the other Election Commissioners to ensure the independence of the Election Commission - Keeping in view the importance of maintaining the neutrality and independence of the office of the Election Commission to hold free and fair election which is a sine qua non for upholding the democracy as enshrined in our Constitution, it becomes imperative to shield the appointment of Election Commissioners and to be insulated from the executive interference - It is the need of the hour and advisable, to extend the protection available to the Chief Election Commissioner under the first proviso to Article 324(5) to other Election Commissioners as well until any law is being framed by the Parliament - The conditions of service of the Election Commissioners shall not be varied to his disadvantage after appointment - Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.

Election Laws: Independent Permanent Secretariat for Election Commission - Expenditure on the Consolidated Fund of India - Held (per K. M. Joseph, J. ) (for himself, Aniruddha Bose, Hrishikesh Roy and C. T. Ravikumar): It is a matter of policy - 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 - The Executive can bring an otherwise independent Body to its knees, by starving it off or ANOOP BARANWAL v.

UNION OF INDIA cutting off the requisite financial wherewithal and resources required for its efficient and independent functioning - One cannot be oblivious to the need for articulation of details in regard to the expenditure, which is a matter of policy - Urgent need to provide for a permanent Secretariat and also to provide that the expenditure be charged on the Consolidated Fund of India - It is for the Union of India to seriously consider bringing in the much-needed change - Union of India /Parliament may consider bringing in the necessary changes so that the Election Commission of India becomes truly independent. Constitution of India - Art. 326 - Representation of the People Act, 1951 - s. 62 - Right to Vote - Nature of Right - Whether Statutory Right or Constitutional Right - Held (per K. M. Joseph, J. ) (for himself, Aniruddha Bose, Hrishikesh Roy and C. T. Ravikumar, JJ.

): The right to vote is not a civil right - The Right to Vote inevitably follows from the inclusion of a person in the electoral roll - According to Art. 326, where the citizen is not less than eighteen years and does not have the disqualifications, he becomes entitled to be entered in the electoral roll - Such person, as is indicated in Article 326, indeed, has a right, which can be said to be a Constitutional Right, which may be right subject to the restriction - Held (Ajay Rastogi, J. ) - By virtue of Article 326, the right to vote became a constitutional right granted to citizens-The said right was given effect by s. 62 of Representation of the People (ROP) Act, 1951 - The right to vote is not just a statutory right - The right to vote is an expression of the choice of the citizen, which is a fundamental right under Art. 19(1)(a) - The right to vote is not limited only to Art. 326, but flows through Arts.

15, 17, 19, 21 - The right to vote in direct elections is a fundamental right, subject to limitations laid down in Art. 326 - The right to vote is not merely a constitutional right, but a component of Part III of the Constitution. Election Laws: Constitution of India - Art. 14 - Rule of Law - Role of Election Commission - Held (per K. M. Joseph, J. ) (for himself, Aniruddha Bose, Hrishikesh Roy and C. T. Ravikumar, JJ. ): Rule of law is the very bedrock of a democratic form of governance - An Election Commission which does not ensure free and fair poll as per the rules of the game, guarantees the breakdown of the foundation of the rule of law - Any action or omission by the Election Commission in holding the poll which treats political parties with an uneven hand and in an unfair or arbitrary manner would be anathema to the mandate of Article 14, and therefore, cause its breach. Constitution of India - Art.

142 - Power of the Court to lay down guidelines in order to fill legislative gaps - Held (per Ajay Rastogi, J. ):The Supreme Court has plenary power under Article 142 to issue directions to do "complete justice" - The Court has created a jurisprudence, where it has exercised its power under Article 142 to fill legislative gaps - Supreme Court has laid down guidelines in order to fill the legislative gap on a number of occasions - Series of case laws authoritatively demonstrate the commitment of Supreme Court to intervene to preserve and promote the "Rule of Law", by supplementing the legislative gaps till the Legislature steps in. Partly allowing the writ petitions, the Court HELD: per K. M. JOSEPH, J. (for himself, Aniruddha Bose, Hrishikesh Roy and C. T. Ravikumar, JJ. ): 1. In regard to the use of Constituent Assembly debates, the law has not stood still.

At any rate, whatever may be the controversy, as regards its employment to discern, the purport of a provision there can be no taboo involved in its use to understand the history of a provision under the Constitution and tshe various steps leading up to and accompanying its enactment. [Para 28][51-E-F] 2. All the Members of the constituent assembly were of the clear view that election must be conducted by an independent Commission. 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. In short, what the Founding Fathers clearly contemplated and intended was, that Parliament would step-in and provide norms, which would govern the appointment to such a uniquely important post as the post of Chief Election Commissioner and the Election Commissioners. When the Founding Fathers, therefore, inserted the words 'subject to the ANOOP BARANWAL v.

UNION OF INDIA provisions of any law to be made by Parliament', it was intended that Parliament would make a law. While this Court would not go, so far as to hold that Parliament was under a compellable duty, which this Court can enforce by a Mandamus, to make a law, all that this Court is finding is that the Constituent Assembly clearly intended that Parliament must make a law within the meaning of Article 324(2) of the Constitution. [Paras 32 and 33][55-A, D, E- F; G-H] 3. It is clear that the founding fathers intended that the elections in the country must be under the superintendence, direction and control of an independent Body. The Body is the Election Commission of India. Under Article 324, the Chief Election Commissioner is an unalterable feature or figure. A Commission can consist of only the Chief Election Commissioner. A multi-Member Commission was also contemplated by the founding fathers. However, the post of Election Commissioner was to be need based.

For nearly four decades, there was no Election Commissioner. As noticed, it is on 16. 10. 1989 that the first two Election Commissioners were appointed. In regard to the appointment of the Chief Election Commissioner and other Election Commissioners, the Constitution does not provide for any criteria. It does not fix any qualifications. It does not prescribe any disqualifications in the matter of appointment as either Chief Election Commissioner or Election Commissioner. [Para 60][72- G-H; 73-A-B] 4. It cannot be disputed that there is no strict demarcation or separation of powers in India unlike the position obtaining in the United States of America and Australia. The doctrine of separation of powers, no doubt, has been eloquently expounded by Montesquieu in his work "The Spirit of Laws" and the basis on which it rests is the imperative need to avoid concentration of power in one or two organs.

Undoubtedly, an observance of doctrine of separation of powers has been traced to the principle of equality. Separation of powers as understood as prevailing in India constitutes a part of the basic structure of the Constitution of India. The theory of separation of powers in an ultimate analysis is meant to prevent tyranny of power flowing from the assumption of excess power in one source. Its value lies in a delicate but skilful and at the same time legitimate balance being struck by the organs of the State in the exercise of their respective powers. This means that the essential powers which are well understood in law cannot be deliberately encroached upon by any organ of the State. [Paras 81, 82 and 86][89-D-E, F-G; 92-D] 5. Judicial review has been recognized 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 most countries, even an amendment to the Constitution can be declared unconstitutional by the court. Such exercise cannot expose the court to the charge that it is not observing the limits set by the Constitution. [Para 85][91-G-H; 92-A-B] 6. The right to vote is not a civil right. 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.

The Right to Vote inevitably follows from the inclusion of a person in the electoral roll, the Right to Vote may be denied in terms of the law. In keeping with the mandate of Article 326, Parliament has made the 1950 Act and the 1951 Act. It is thereafter that the first general elections were held in the country. It may be true that the 1950 Act and the 1951 Act have been amended from time to time. At any given point of time, placing Article 326 side-by-side with the law made by Parliament or the law made by the State Legislature, if a person is a citizen of India and not below eighteen years of age, and if he does not incur the disqualifications, which cannot be more than what is provided in Article 326, but the content of which, may be provided by the law made by the competent Legislature and the citizen not less than eighteen years does not have the disqualifications, he becomes entitled to be entered in the electoral roll.

Such person, as is indicated in Article 326, indeed, has a right, which can be said to be a Constitutional Right, which ANOOP BARANWAL v. UNION OF INDIA may be right subject to the restriction. Section 62(1) of the 1951 Act, gives also the Right to Vote to such a person. Any other interpretation would whittle down the grand object of conferring adult suffrage on citizens. 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. [Paras 95, 122, 125,135 and 141][100-A; 115- F-G; 116-F; 122-B-E; 124-B-C] 7. The cardinal importance of a fiercely independent, honest, competent and fair Election Commission must be tested on the anvil of the rule of law as also the grand mandate of equality.

Rule of law is the very bedrock of a democratic form of governance. It simply means that men and their affairs are governed by pre- announced norms. It averts a democratic Government brought to power by the strength of the ballot betraying their trust and lapsing into a Government of caprice, nepotism and finally despotism. It is the promise of avoidance of these vices which persuades men to embrace the democratic form of Government. An Election Commission which does not ensure free and fair poll as per the rules of the game, guarantees the breakdown of the foundation of the rule of law. Equally, the sterling qualities must be possessed by an Election Commission is indispensable for an unquestionable adherence to the guarantee of equality in Article 14.

In the wide spectrum of powers, if the Election Commission exercises them unfairly or illegally as much as he refuses to exercise power when such exercise becomes a duty it has a telling and chilling effect on the fortunes of the political parties. Inequality in the matter of treatment of political parties who are otherwise similarly circumstanced unquestionably breaches the mandate of Article 14. The Election Commissioners including the Chief Election Commissioner blessed with nearly infinite powers and who are to abide by the fundamental rights must be chosen not by the Executive exclusively and particularly without any objective yardstick. [Para 165][138-F-H; 139-A-B, E] 8. 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 this Court finds about the method involved is, even proceeding on the basis that the Government has the right to confine the appointee to Civil Servants that it is in clear breach of the contemplated mandate that be it as an Election Commissioner or Chief Election Commissioner, the appointee should have a period of six years. The philosophy behind giving a reasonably long stint to the appointee to the post of Election Commissioner or the Chief Election Commissioner, is that it would enable the Officer to have enough time to gear himself to the needs of the Office and to be able to assert his independence. An assured term would instil in the appointee, the inspiration and the will to put in place any reforms, changes, as also the inspiration to bring out his best. A short-lived stint may drain the much needed desire besides the time to fulfill the sublime objects of the high Office of the Election Commissioner or the Chief Election Commissioner.

Any tendency towards placating the powers that be, would wax as also the power and the will to assert his independence may wane, bearing in mind, the short tenure. This apparently is the underlying philosophy of the law made by Parliament, assuring, a term of six years. The term of six years is separately assured to both the Election Commissioner and the Chief Election Commissioner. In other words, the object of the law and its command would stand defeated and the practice lends strength to the complaint of the petitioners. This Court must make it clear that the observations are not meant to be an individualised assessment of the appointee, who has excellent academic qualifications. But as this Court has noted academic excellence which members of the civil service may possess cannot be a substitute for values such as independence and freedom from bias from political affiliation.

Parliament enshrined a term of six years separately for the Chief Election Commissioner and the Election Commissioner. This is the Rule, it is found in Section 4(1). A proviso cannot arrogate itself to the status of the main provision. The exception cannot become the Rule. Yet, this what the appointments have been reduced to. It undermines the independence of the Election Commission. The policy of the law is defeated. [Para 195][156- G-H; 157-A-F] 9. The vacuum in the case of Article 324 (2) is the absence of the law which Parliament was contemplated to enact. Political ANOOP BARANWAL v. UNION OF INDIA parties undoubtedly would appear to betray a special interest in not being forthcoming with the law. The reasons are not far to seek. There is a crucially vital link between the independence of the Election Commission and the pursuit of power, its consolidation and perpetuation.

In the unique nature of the provision, this Court is concerned with and the devastating effect of continuing to leave appointments in sole hands of the Executive on fundamental values, as also the Fundamental Rights, the time is ripe for the Court to lay down norms. In other words, the vacuum exists on the basis that unlike other appointments, it was intended all throughout that appointment exclusively by the Executive was to be a mere transient or stop gap arrangement and it was to be replaced by a law made by the Parliament taking away the exclusive power of the Executive. This conclusion is clear and inevitable and the absence of law even after seven decades points to the vacuum. [Paras 220,221 and 227][173-H; 174-A-B; 175- D-E] 10.

The appointment of the Chief Election Commissioner and the Election Commissioners, shall be made by the President on the advice of a Committee consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha, and in case no leader of Opposition is available, the leader of the largest opposition Party in the Lok Sabha in terms of numerical strength, and the Chief Justice of India. This will be subject to any law to be made by Parliament. [Paras 230 and 231][177-H; 178-A-B] 11. The conditions of service and tenure of the Election Commissioners and the Regional Commissioners was to be such as made by the Rule provided. This, however, was subject to any law made by Parliament. It may be true that there is equality otherwise, which exists between the Chief Election Commissioner and the Election Commissioners in various matters dealt with under the Act. However, Article 324 is inoperable without the Chief Election Commissioner.

Even on a plain reading of Article 324(5), this Court is of the view that in regard to the prayer that the Election Commissioner must be accorded the same protection as is given to the Chief Election Commissioner, the argument appears to be untenable. The first proviso to Article 324(5) 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. 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 mentioned therein. This Court would think that no more need be said and reject the contention.

However, in the light of the fact that Election Commissioners have become part of the Election Commission, perhaps on the basis of the volume of work that justifies such an appointment and also the need to have a multi-Member team otherwise, it is for Parliament acting in the constituent capacity to consider whether it would be advisable to extend the protection to the Election Commissioners so as to safeguard and ensure the independence of the Election Commissioners as well. This goes also as regards variation of service conditions after appointment. [Para 233][179-C-D, G; 180- A-B, B-E, G-H; 181-A] 12. 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. This Court must bear in mind that to elevate it to a constitutional provision and protection thereunder, maybe a matter, which must engage the attention of the Constituent Body. This is again a matter which can also be provided by way of a law by Parliament. ANOOP BARANWAL v. UNION OF INDIA This Court has no doubt that there is considerable merit in the complaint of the petitioner, which apparently, is endorsed by the Election Commission of India itself. This Court cannot be oblivious to the need for articulation of details in regard to the expenditure, which is a matter of policy, which this Court refrains from doing.

This Court would only make an appeal on the basis that there is an urgent need to provide for a permanent Secretariat and also to provide that the expenditure be charged on the Consolidated Fund of India and it is for the Union of India to seriously consider bringing in the much-needed changes. [Paras 236 and 238][181-F-G; 182-B-D] 13. The Writ Petitions are partly allowed and they are disposed of as follows: I. As far as appointment to the posts of Chief Election Commissioner and the Election Commissioners are concerned, the same shall be done by the President of India on the basis of the advice tendered by a Committee consisting of the Prime Minister of India, the Leader of the Opposition in the Lok Sabha and, in case, there is no such Leader, the Leader of the largest Party in the Opposition in the Lok Sabha having the largest numerical strength, and the Chief Justice of India. This norm will continue to hold good till a law is made by the Parliament. II.

As regards the relief relating to putting in place a permanent Secretariat for the Election Commission of India and charging its expenditure to the Consolidated Fund of India is concerned, the Court makes a fervent appeal that the Union of India/Parliament may consider bringing in the necessary changes so that the Election Commission of India becomes truly independent. [Para 239][182-D-H] Dr. Jaishri Laxmanrao Patil v. Chief Minister and others (2021) 8 SCC 1;Union of India v. Assn. for Democratic Reforms (2002) 5 SCC 294 : [2002] 3 SCR 696 ; Supreme Court Advocates-on-Record Assn. and another v. Union of India (2016) 5 SCC 1 : [2015] 13 SCR 1; Vishaka and others v. State of Rajasthan and others (1997) 6 SCC 241:[1997] 3 Suppl. SCR 404;Special Reference No. 1 of 1998, Re 73 (1998) 7 SCC 739 relied on. Rajbala and others v. State of Haryana and others. (2016) 2 SCC 445 : [2015] 12 SCR 1106;Election Commission of India v. State of T. N and Others(1995) 3 Suppl. SCC 379,Union of India v.

Association for Democratic Reforms and Others. (2002) 5 SCC 294 : [2002] 3 SCR 696 and Election Commission of India v. Ashok Kumar(2000) 8 SCC 216 : [2000] 3 Suppl. SCR 34 - affirmed. Supreme Court Advocates-on-Record Association and Another v. Union of India(2016) 5 SCC 1:[2015] 13 SCR 1;Indian National Congress v. Institute of Social Welfare and Others(2002) 5 SCC 685 : [2002] 3 SCR 1040; Supreme Court Advocateson-Record Association and Others v. Union of India (1993) 4 SCC 441 : [1993] 2 Suppl. SCR 659;Prakash Singh and Others v. Union of India and Others(2006) 8 SCC 1 : [2006] 6 Suppl. SCR 473;Vineet Narain and Others v. Union of India and Another(1998) 1 SCC 226 : [1997] 6 Suppl. SCR 595;T. N. Seshan, Chief Election Commissioner of India v. Union of India and others (1995) 4 SCC 611 : [1995] 2 Suppl. SCR 106 ; Samsher Singh v. State of Punjab and Another(1974) 2 SCC 831 : [1975] 1 SCR 814 ;His Holiness Kesavananda Bharati Sripadagalvaru v.

State of Kerala and Another (1973) 4 SCC 225 : [1973] 0 Suppl. SCR 1;S. S. Dhanoa v. Union of India and Others(1991) 3 SCC 567 : [1991] 3 SCR 159;I. C. Golak Nath and Others v. State of Punjab and AnotherAIR 1967 SC 1643 : [1967] 2 SCR 762;Bandhua Mukti Morcha v. Union of India and Others (1984) 3 SCC 161:[1984] 2 SCR 67;In Re. Delhi Laws Act, 1912 AIR 1951 SC 332: [1951] SCR 747;Madras Bar Association v. Union of India2021 SCC OnLine SC 463;Indira Nehru Gandhi v. Raj Narain & Ors. (1975) Suppl. SCC 1 : [1976] 2 SCR 347;Indian Aluminium Co. and others v. State of Kerala and others (1996) 7 SCC 637 : [1996] 2 SCR 23 ; State of U. P. v. Jeet S. Bisht (2007) 6 SCC 586 : [2007] 7 SCR 705 ;Divisional Manager, Aravali Golf Club and Another v. Chander Hass and Another (2008) ANOOP BARANWAL v. UNION OF INDIA 1 SCC 683 : [2007] 12 SCR 1084;Asif Hameed v. State of J & K (1989) Suppl. 2 SCC 364 : [1989] 3 SCR 19; Common Cause v.

Union of India and Others (1996) 1 SCC 753 :[1996] 1 SCR 89 ;Divisional Manager, Aravali Golf Club and Another v. Chander Hass and Another (2008) 1 SCC 683 : [2007] 12 SCR 1084 ; State of T. N. v. State of Kerala and another(2014) 12 SCC 696 : [2014] 12 SCR 875 ;N. P. Ponnuswami v. Returning Officer, Namakkal AIR 1952 SC 64 : [1952] 0 SCR 218;Jyoti Basu and Others. Debi Ghosal and Others. (1982) 1 SCC 691 : [1982] 3 SCR 318 ;Mohan Lal Tripathi vs. District Magistrate, Raibraally and others (1992) 4 SCC 80 : [1992] 3 SCR 338 ;Rama Kant Pandey v. Union of India (1993) 2 SCC 438 : [1993] 1 SCR 786; Anukul Chandra Pradhan, Advocate Supreme Court v. Union of India and others (1997) 6 SCC 1 : [1997] 1 Suppl. SCR 641;Shyamdeo Pd. Singh v. Nawal Kishore Yadav (2000) 8 SCC 46 : [2000] 2 Suppl. SCR 668 ;People's Union for civil Liberties (PUCL) and Another vs. Union of India and Another (2003) 4 SCC 399 : [ 2003] 2 SCR 1136; Kuldip Nayar and Others v.

Union of India and Others (2006) 7 SCC 1 : [2006] 5 Suppl. SCR 1;K. Krishna Murthy v. Union of India (2010) 7 SCC 202 : [2010] 6 SCR 972 ;Chief Election Commissioner and Others v. Jan Chaukidar (Peoples Watch) and Others [2013] 10 SCR 641; Desiya Murpokku Dravida Kazhagam (DMDK) and another v. Election Commission of India (2012) 7 SCC 340 : [2012] 3 SCR 1084 ; S. R. Chaudhuri v. State of Punjab and Others (2001) 7 SCC 126 : [2001] 1 Suppl. SCR 621;B. R. Kapur v. State of T. N. and Another (2001) 7 SCC 231:[2001] 3 Suppl. SCR 191;B. P. Singhal v. Union of India and Another (2010) 6 SCC 331;Mohinder Singh Gill and Another v. Chief Election Commissioner, New Delhi and Others (1978) 1 SCC 405 : [1978] 2 SCR 272 ;Digvijay Mote v. Union of India and Others (1993) 4 SCC 175 : [1993] 1 Suppl. SCR 553;All Party Hill Leaders Conference Shillong v. Captain W. A. Sangma and Others (1977) 4 SCC 161 : [1978] 1 SCR 393 ;Kanhiya Lal Omar v. R. K. Trivedi and Others (1985) 4 SCC 628 : [1985] 3 Suppl.

SCR 1;Election Commission of India v. State Bank of India Staff Association Local Head Office Unit, Patna and Others (1995) suppl. 2 SCC 13 : [1995] 1 SCR 935;Common Cause (A Registered Society) v. Union of India and Others (1996) 2 SCC 752:[1996] 3 SCR 1208 ;Election Commission of India v. Ashok Kumar and Others (2000) 8 SCC 216 : [2000] 3 Suppl. SCR 34; Ashok Shankarrao Chavan v. Madhavrao Kinhalkar(2014) 7 SCC 99 : [2014] 14 SCR 1227; Abhiram Singh v. C. D. Commachen (DEAD) by Legal Representatives and others (2017) 2 SCC 629: [2017] 1 SCR 158;Shri Sadiq Ali and another v. Election Commission of India, New Delhi and others(1972) 4 SCC 664 : [1972] 2 SCR 318; Janata Dal (Samajwadi) v. Election Commission of India (1996) 1 SCC 235: [1995] 5 Suppl. SCR 592 ;Indian National Congress (I) v. Institute of Social Welfare and others(2002) 5 SCC 685 : [2002] 3 SCR 1040 ;Subramanian Swamy v. Election Commission of India through its Secretary (2008) 14 SCC 318 : [2008] 13 SCR 846;Edapaddi K.

Palaniswami v. T. T. V. Dhinakaran and others [2019] 3 SCR 200;Public Interest Foundation and others v. Union of India and others (2018) 3 SCC 224 : [2018] 10 SCR 141;Lakshmi Kant Pandey v. Union of India (1984) 2 SCC 244 : [1984] 2 SCR 795;Union Carbide Corporation and others. v. Union of India and others (1991) 4 SCC 584 : [1991] 1 Suppl. SCR 251;Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat andothers (1991) 4 SCC 406:[1991] 3 SCR 936;Manoj Narula v. Union of India(2014) 9 SCC 1 : [2014] 9 SCR 965 ;Bhanumati and others v. State of U. P. through its Principal Secretary and others (2010) 12 SCC 1 : [2010] 7 SCR 585;Kalpana Mehta and others v. Union of India and others(2018) 7 SCC 1 : [2018] 4 SCR 1 - referred to. ANOOP BARANWAL v. UNION OF INDIA per AJAY RASTOGI, J. 1. 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, which can only be fulfilled if the people who are running these institutions are responsible. The people who run these institutions need to be accountable to the people, and therefore the process of selecting them has to ensure the independence of the institution. To strengthen the democratic processes, the institution of the Election Commission needs to be independent and demonstrate transparency and accountability. This reason is enough in itself to call this Court to examine the institutional structure of the Election Commission of India. [Paras 25 and 28][191-B, E-F] 2. By virtue of Article 326, the right to vote became a constitutional right granted to citizens. The said right was given effect by Section 62 of Representation of the People (ROP) Act, 1951.

Section 62(1) of ROP Act provides: "No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency. " The legal position is that the relevant provision of the ROP Act is derived from the text of the Constitution, which in this case, is Article 326. The right to take part in the conduct of public affairs as a voter is the core of the democratic form of government, which is a basic feature of the Constitution. The right to vote is an expression of the choice of the citizen, which is a fundamental right under Article 19(1)(a). The right to vote is a part of a citizen's life as it is their indispensable tool to shape their own destinies by choosing the government they want. In that sense, it is a reflection of Article 21. In history, the right to vote was denied to women and those were socially oppressed.

Our Constitution took a visionary step by extending franchise to everyone. 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. It is declare the right to vote in direct elections as a fundamental right, subject to limitations laid down in Article 326. [Paras 46 and 68][197-D-F; 205-G-H; 206-A-B] 3. 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, this Court needs to ensure that the working of the Election Commission under Article 324 facilitates the protection of people's voting rights. [Para 69][206-C-E] 4.

Both Article 324 of the Constitution and the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 are silent on the selection process of the Chief Election Commissioner and the Election Commissioner. [Para 90][211-F] 5. This Court has plenary power under Article 142 to issue directions to do "complete justice". An analysis of the judgments of this Court shows that the Court has created jurisprudence, where it has exercised its power under Article 142 to fill legislative gaps. The series of case laws authoritatively demonstrate the commitment of this Court to intervene to preserve and promote the "Rule of Law", by supplementing the legislative gaps till the Legislature steps in. This has been done in exercise of the plenary power of this Court under Article 142 of the Constitution. In order to fill the legislative vacuum, i. e.

the absence of any law made by the Parliament for the appointment of members of the Election Commission and in the light of the views expressed in various reports of the Law Commission, Election Commission, etc. , this Court is of the considered view that the instant case thus aptly calls for the exercise of the power of this Court under Article 142 to lay down guidelines to govern the process of selection and removal of Chief Election Commissioner and Election Commissioners, till the Legislature steps in. [Paras 109,113 and 118][237-A-B; 238-G; 241-E-F] 6. In order to allow independence in the functioning of the Election Commission as a Constitutional body, the office of Chief Election Commissioners as well as the Election Commissioners have to be insulated from the executive interference. The protection available to the Chief Election Commissioners is not available to other Election Commissioners. Various reports have ANOOP BARANWAL v.

UNION OF INDIA recommended that the protection against removal available to the Chief Election Commissioner should be made available to the other Election Commissioners to ensure the independence of the Election Commission. 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 which is a sine qua non for upholding the democracy as enshrined in our Constitution, it becomes imperative to shield the appointment of Election Commissioners and to be insulated from the executive interference. It is the need of the hour and advisable, to extend the protection available to the Chief Election Commissioner under the first proviso to Article 324(5) to other Election Commissioners as well until any law is being framed by the Parliament. [Paras 119,120 and 125][241-G; 242-C-D; 244-D-F] 7.

Until the Parliament makes a law in consonance with Article 324(2) of the Constitution, the following guidelines shall be in effect: (1) It is declared that the appointment of the Chief Election Commissioner and the Election Commissioners shall be made on the recommendations made by a three-member Committee comprising of the Prime Minister, Leader of the Opposition of the Lok Sabha and in case no Leader of Opposition is available, the Leader of the largest opposition party in the Lok Sabha in terms of numerical strength and the Chief Justice of India. (2) It is desirable that the grounds of removal of the Election Commissioners shall be the same as that of the Chief Election Commissioner that is on the like grounds as a Judge of the Supreme Court subject to the "recommendation of the Chief Election Commissioner" as provided under the second proviso to Article 324(5) of the Constitution of India.

(3) The conditions of service of the Election Commissioners shall not be varied to his disadvantage after appointment. [Para 126][244-F-H; 245-A- B] K. S. Puttaswamy and Another v. Union of India and Others(2017) 10 SCC 1 : [2017] 10 SCR 569 followed. People's Union for Civil Liberties (PUCL) and Another v. Union of India and Another(2003) 4 SCC 399: [2003] 2 SCR 1136 ; People's Union for Civil Liberties v. Union of India (2013) 10 SCC 1 : [2013] 12 SCR 283; Raj Bala v. State of Haryana and Others (2016) 1 SCC 463 : [2015] 9 SCR 113; Unnikrishnan J. P. and Others v. State of Andhra Pradesh and Others [1993] 1 SCR 594 : (1993) 1 SCC 645;T. N. Seshan, Chief Election Commissioner of India v. Union of India and Others (1995) 4 SCC 611 : [1995] 2 Suppl. SCR 106 - relied on. N. P. Ponnuswami v. Returning Officer, Namakkal Constituency and Others[1952] SCR 218 : 1952 AIR 64; Mohindhr Singh Gill and Another v. Chief Election Commissioner, New Delhi and Others.

(1978) 1 SCC 405 : [1978] 2 SCR 272 ; Jyoti Basu and Others v. Debi Ghosal and Others(1982) 1 SCC 691 : [1982] 3 SCR 318;Union of India v. Association for Democratic Reforms and Another (2002) 5 SCC 294 : [2002] 3 SCR 696;Kuldip Nayar and Others v. Union of India and Others (2006) 7 SCC 1 : [2006] 5 Suppl. SCR 1; Desiya Murpokku Dravida Kazhagam (DMDK) and another v. Election Commission of India(2012) 7 SCC 340 : [2012] 3 SCR 1084;Vishakha v. State of Rajasthan AIR 1997 SC 3011 : [1997] 3 Suppl. SCR 404; Indira Nehru Gandhi Smt v. Shri Raj Narain and AnotherAIR 1975 SC 2299 : [1976] 2 SCR 347;Manoj Narula v. Union of India (2014) 9 SCC 1 : [2014] 9 SCR 965;Lakshmi Kant Pandey v Union of India AIR 1984 SC 469 : [1984] 2 SCR 795;Kumari Madhuri Patil and Another v Addl. Commissioner, Tribal Developmentand Others (1994) 6 SCC 241 : [1994] 3 Suppl. SCR 50;Vineet Narain and Others v Union of India and Another. (1998) 1 SCC 226 : [1997] 6 Suppl.

SCR 595 ; Vishwa Jagriti Mission Through President v Central Govt. Through Cabinet Secretary and Others (2001) 6 SCC 577 : [2001] 3 SCR 540;Prakash Singh and Others v Union of India and Others (2006) 8 SCC 1 : [2006] 6 Suppl. SCR 473; Laxmi v Union of India and Others(2014) 4 SCC 427; Shakti Vahini v Union of India and Others (2018) 7 SCC 192 : [2018] 3 SCR 770 - referred to. ANOOP BARANWAL v. UNION OF INDIA Case Law Reference In the judgment of K. M. Joseph, J. [2015] 13 SCR 1 referred to Para 9 [2002] 3 SCR 1040 referred to Para 9 [1993] 2 Suppl. SCR 659 referred to Para 9 [2015] 13 SCR 1 referred to Para 9 [2006] 6 Suppl. SCR 473 referred to Para 9 [1997] 6 Suppl. SCR 595 referred to Para 9 [1995] 2 Suppl. SCR 106 referred to Para 12 [1975] 1 SCR 814 referred to Para 13 [1973] Suppl. SCR 1 referred to Para 28 (2021) 8 SCC 1 relied on Para 29 [1991] 3 SCR 159 referred to Para 52 [1995] 2 Suppl.

SCR 106 referred to Para 56 [1967] 2 SCR 762 referred to Para 78 [1984] 2 SCR 67 referred to Para 79 [1951] SCR 747 referred to Para 81 [1976] 2 SCR 347 referred to Para 81 [1996] 2 SCR 23 referred to Para 83 [2007] 7 SCR 705 referred to Para 84 [2007] 12 SCR 1084 referred to Para 88 [1989] 3 SCR 19 referred to Para 88 [1996] 1 SCR 89 referred to Para 93 [2007] 12 SCR 1084 referred to Para 93 [2014] 12 SCR 875 referred to Para 93 [1952] SCR 218 referred to Para 95 [1982] 3 SCR 318 referred to Para 96 [1992] 3 SCR 338 referred to Para 97 [1993] 1 SCR 786 referred to Para 98 [1997] 1 Suppl. SCR 641 referred to Para 99 [2000] 2 Suppl. SCR 668 referred to Para 101 [2002] 3 SCR 696 relied on Para 103 [ 2003] 2 SCR 1136 referred to Para 104 [2006] 5 Suppl. SCR 1 referred to Para 105 [2010] 6 SCR 972 referred to Para 107 (2013) 7 SCC 507 referred to Para 125 [2012] 3 SCR 1084 referred to Para 127 [2015] 12 SCR 1106 affirmed Para 128 [1975] Suppl. SCC 1 referred to Para 143 [2001] 1 Suppl.

SCR 621 referred to Para 147 [2001] 3 Suppl. SCR 191 referred to Para 148 (2010) 6 SCC 331 referred to Para 149 [1978] 2 SCR 272 referred to Para 150 [1993] 1 Suppl. SCR 553 referred to Para 151 [1978] 1 SCR 393 referred to Para 151 [1985] 3 Suppl. SCR 1 referred to Para 151 (1995) 3 Suppl SCC 379 935affirmed Para 152 [1995] 1 SCR 935 referred to Para 153 [1996] 3 SCR 1208 referred to Para 154 [2000] 3 Suppl. SCR 34 referred to Para 155 [2002] 3 SCR 696 affirmed Para 156 [2012] 3 SCR 1084 referred to Para 158 [2014] 14 SCR 1227 referred to Para 159 [2000] 3 Suppl. SCR 34 affirmed Para 162 [2017] 1 SCR 158 referred to Para 171 [1972] 2 SCR 318 referred to Para 173 [1995] 5 Suppl. SCR 592 referred to Para 175 [2002] 3 SCR 1040 referred to Para 176 [2008] 13 SCR 846 referred to Para 177 ANOOP BARANWAL v. UNION OF INDIA [2019] 3 SCR 200 referred to Para 179 [2018] 10 SCR 141 relied on Para 181 [2015] 13 SCR 1 relied on Para 186 [1997] 6 Suppl.

SCR 595 referred to Para 197 [1984] 2 SCR 795 referred to Para 199 [1991] 1 Suppl. SCR 251 referred to Para 200 [1991] 3 SCR 936 referred to Para 201 [1993] 2 Suppl. SCR 659 referred to Para 202 [1997] 3 Suppl. SCR 404 relied on Para 206 (1998) 7 SCC 739 relied on Para 208 [2014] 9 SCR 965 referred to Para 211 [2010] 7 SCR 585 referred to Para 212 [2018] 4 SCR 1 referred to Para 213 In the judgment of Rastogi, J. [2017] 10 SCR 569 followed Para 24 [1952] SCR 218 referred to Para 47 [1978] 2 SCR 272 referred to Para 48 [1982] 3 SCR 318 referred to Para 49 [2002] 3 SCR 696 referred to Para 51 [2003] 2 SCR 1136 relied on Para 52 [2006] 5 Suppl. SCR 1 referred to Para 58 [2012] 3 SCR 1084 referred to Para 60 [2013] 12 SCR 283 relied on Para 63 [2015] 9 SCR 113 relied on Para 65 [1993] 1 SCR 594 relied on Para 68 [1997] 3 Suppl. SCR 404 referred to Para 73 [1976] 2 SCR 347 referred to Para 74 [2014] 9 SCR 965 referred to Para 79 [1995] 2 Suppl.

SCR 106 relied on Para 101 [1984] 2 SCR 795 referred to Para 110 [1994] 3 Suppl. SCR 50 referred to Para 110 [1997] 6 Suppl. SCR 595 referred to Para 110 [1997] 3 Suppl. SCR 404 referred to Para 110 [2001] 3 SCR 540 referred to Para 110 [2006] 6 Suppl. SCR 473 referred to Para 111 (2014) 4 SCC 427 referred to Para 112 [2018] 3 SCR 770 referred to Para 114 CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 104 of 2015. (Under Article 32 of The Constitution of India) With Writ Petition (Civil) Nos. 1043 Of 2017, 569 Of 2021 And 998 of 2022. Gopal Sankaranarayanan, Sr. Adv. , Prashant Bhushan, Ms. Alice Raj, Rahul Gupta, Ms. Ria Yadav, Varinder Kumar Sharma, Varun Thakur, Syed Imtiyaz, Shantanu Sharma, Ali Safeer Farooqi, Sayeer Agarwal, Ms. Sharddha Saran, Aftab Ali Khan, Brajesh Pandey, Shashank Ratnoo, Ashwini Kumar Upadhyay, Ashwani Kumar Dubey, Ms. Tanya Srivastva, Ms. Aditi Gupta, Ms. Jhanvi Dubey, Ms. Shivani Vij, Ms. Ishita Chowdhary, Ms. Trisha Chandran, Advs.

for the Petitioner. R. Venkataramani, AG, Tushar Mehta, SG, Balbir Singh, K. M. Nataraj, ASGs, Prasenjeet Mohapatra, Samarvir Singh, Naman Tandon, Ms. Anu Sura, Prahlad Singh, Sharath Nambiar, Vinayak Sharma, Rajat Nair, Ms. Priyanka Das, Manan Popli, Ms. Niranjana Singh, Ms. Shraddha Deshmukh, Ankur Talwar, Sumit Teterwal, Chinmayee Chandra, Mayank Pandey, Udai Khanna, Anirudh Bhat, Nakul chengappa K. K. , Ms. Akriti A. Manubarwala, Ms. Niranjana Singh, Shyam Gopal, Ms. Vijayalakshmi Venkataramani, Anandh Venkataraman, Vinayak Mehrotara, Chitvan Singhal, Praveen Vignesh, Ms. Sonali Jain, Ms. Mansi Sood, Abhishek Kumar Pandey, Arvind Kumar Sharma, Mukesh Kumar Maroria, Amit Sharma, Kaleeswaram Raj, Nishe Rajen Shonker, Ms. Anu K. Joy, Alim Anvar, Ms. Thulasi K. Raj, Advs. for the Respondent. ANOOP BARANWAL v. UNION OF INDIA The Judgments of the Court were delivered by K. M. JOSEPH, J. INDEX* A. THE CASES: THE FOUR WRIT PETITIONS ..................... 3 B.

THE SUBMISSIONS OF THE PETITIONERS; SHRI GOPAL SANKARANARAYANAN, LEARNED SENIOR COUNSEL IN WRIT PETITION (C) NO. 1043 OF 2017 .................................................................................... 7 C. SUBMISSIONS ON BEHALF OF SHRI PRASHANT BHUSHAN, LEARNED COUNSEL ON BEHALF OF PETITIONER IN WRIT PETITION (CIVIL) NO. 104 OF 2015. .................................................................. 11 D. SUBMISSIONS BY SHRI JAYA THAKUR, PETITIONER IN WRIT PETITION (CIVIL) NO. 998 OF 2022............... 16 E. SUBMISSIONS OF SHRI KALEESWARAM RAJ, LEARNED COUNSEL FOR THE INTERVENOR in Writ Petition (Civil) No. 569 of 2021...................................... 17 F. SUBMISSIONS ON BEHALF OF THE LEARNED ATTORNEY GENERAL FOR THE UNION OF INDIA ... 18 G. SUBMISSIONS OF SHRI TUSHAR MEHTA, LEARNED SOLICITOR GENERAL OF INDIA ................................... 25 H. SUBMISSIONS OF SHRI BALBIR SINGH, LEARNED ADDITIONAL SOLICITOR GENERAL ............................

27 ANALYSIS ............................................................................ 27 I. 'THE FRAMING OF INDIA'S CONSTITUTION' BY B. SHIVARAO ...................................................................... 27 J. THE CONSTITUENT ASSEMBLY DEBATES.................. 34 K. THE USE OF CONSTITUENT ASSEMBLY DEBATES ... 49 L. CONCLUSIONS ABOUT HISTORICAL PERSPECTIVES INCLUDING THE LIGHT SHED BY THE CONSTITUENT ASSEMBLY DEBATES....................................................... 51 M. ARTICLES IN THE CONSTITUTION, WHICH EMPLOY THE WORDS 'SUBJECT TO ANY LAW' TO BE MADE * Ed. Note: Pagination in the Index is as per the original judgment. BY PARLIAMENT AS CONTAINED IN ARTICLE 324 .. 59 N. DEVELOPMENTS AFTER 26 JANUARY 1950; THE CHIEF ELECTION COMMISSIONERS AND THE ELECTION COMMISSIONERS WHO WERE APPOINTED AND THEIR TERMS ........................................................... 72 O. A CLOSER LOOK AT S. S. DANOA (SUPRA), THE 1991 ACT AND T. N.

SESHAN (SUPRA) ..................................... 78 P. THE CLAMOUR FOR REFORMS..................................... 93 Q. SEPARATION OF POWERS AND JUDICIAL ACTIVISM.......................................................................... 116 R. IS THE RIGHT TO VOTE A STATUTORY RIGHT OR A CONSTITUTIONAL RIGHT? ................................. 135 S. ARTICLE 326 DEMYSTIFIED .......................................... 151 T. DEMOCRACY AND THE IMPORTANCE OF ELECTIONS ........................................................................ 180 U. POWERS, FUNCTIONS AND JURISDICTION OF THE ELECTION COMMISSION OF INDIA ................... 191 V. THE IMPACT OF ARTICLE 329(b) .................................. 197 W. PURSUIT OF POWER; A MEANS TO AN END OR AN END IN ITSELF? ................................................................ 203 X. RULE OF LAW; FUNDAMENTAL RIGHTS AND AN INDEPENDENT ELECTION COMMISSION .......... 205 Y.

THE SYMBOLS ORDER; THE MODEL CODE OF CONDUCT .......................................................................... 208 Z. INDEPENDENCE; A STERLING AND INDISPENSABLE ATTRIBUTE ........................................................................ 226 THE CONCEPT OF LEGITIMATE POWER OF RECIPROCITY ................................................................... 226 AA. THE APPOINTMENT OF SHRI ARUN GOEL: A TRIGGER OR A MERE ASIDE?........................................................ 230 BB. IS THERE A VACUUM IN ARTICLE 324? SHOULD THE COURT INTERFERE, IF THERE IS ONE?............ 242 CC. AN ELECTION COMMISSIONER ENTITLED TO SAME PROTECTION AS GIVEN TO CHIEF ELECTION COMMISSIONER? ........................................ 278 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J. ] DD. REGARDING INDEPENDENT SECRETERIAT/ CHARGING EXPENDITURE ON THE CONSOLIDATED FUND OF INDIA............................... 285 EE.

THE FINAL RELIEF .......................................................... 288 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. No. 2 for amendment of writ petition; raising additional facts, grounds and prayer is allowed.

The matter relates to what the petitioner perceives to be a requirement of having a full-proof and better system of appointment of members of the Election Commission. Having heard the learned counsel for the petitioner and the learned Attorney General for India we are of the view that the matter may require a close look and interpretation of the provisions of Article 324 of the Constitution of India. The issue has not been debated and answered by this Court earlier. Article 145 (3) of the Constitution of India would, therefore, require the Court to refer the matter to a Constitution Bench. We, accordingly, refer the question arising in the present proceedings to a Constitution Bench for an authoritative pronouncement. Post the matter before the Hon'ble the Chief Justice of India on the Administrative Side for fixing a date of hearing. " 3. We may notice the following prayers in the said Writ Petition (Civil) No.

104 of 2015: " i) issue a writ of mandamus or an appropriate writ, order or direction, commanding the Respondent: to make law for ensuring a fair, just and transparent process of selection by constituting a neutral and independent collegium/ selection committee to recommend the name for the appointment of the member to the Election Commission under Article 324(2) of the Constitution of India; ii) issue a writ of mandamus or an appropriate writ, order or direction constituting an interim neutral and independent collegium/ selection committee to recommend the names for the appointment on the vacant post of the member to the Election Commission; iii) issue a writ of mandamus or an appropriate writ, order or direction commanding the Respondent to decide the petition of the petitioner dated 03. 12.

2014 for making a law for ensuring a fair, just and transparent selection process by constituting an independent and neutral collegiums/ selection committee for recommending the names for members to the Election Commission;" 4. In Writ Petition (Civil) No. 1043 of 2017, filed by one Shri Ashwani Kumar Upadhyay, which is also a Public Interest Litigation, the reliefs sought are as follows: " a) directthe Central Government to take appropriate steps to provide same and similar protection to both the Election Commissioners so that they shall not be removed from 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: ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J. ] "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 Respondent to implement an independent system for appointment of members of the Election Commission on the lines of recommendation of Law Commission in its 255th report of March 2015; Second Administrative Reform Commission in its fourth Report of January 2007; by the Dr. Dinesh Goswami Committee in its Report of May 1990; and by the Justice Tarkunde Committee in its Report of 1975. ;" 6. In the latest and the last Writ Petition (Civil) No. 998 of 2022, Writ Petitioner is one Dr. Jaya Thakur. The relief sought is as follows: "(a). issue a writ order or directions in the nature of Mandamus to the Respondents to implement an independent and transparent system for appointment of members of the.

election Commission on the lines, recommended by the Report of the Committee on Electoral Reforms of May 1990, formulated by the Ministry of Law and Justice, Government of India, the Report of Second Administrative Reforms Commission, Government of India of 2007 and the Report of Law Commission of India on Electoral Reforms of March 2015 and;" 7. Having referred to the broad complaint, the reliefs sought, we may appropriately notice the contentions of the parties. B. THE SUBMISSIONS OF THE PETITIONERS; SHRI GOPAL SANKARANARAYANAN, LEARNED SENIOR COUNSEL IN WRIT PETITION (C) NO. 1043 OF 2017 8. In Writ Petition No. 1043 of 2017, Shri Gopal Sankaranarayanan makes the following submissions: There is a lacuna in the matter of appointment under Article 324.

Of the twelve categories of unelected Constitutional Authorities, it is only the Election Commission and the National Commission for Scheduled Castes, where qualifications and eligibility are not laid down in the Constitution or the Statute. The words 'subject to law made' falls into two broad categories. In the matter of appointments, they are represented by Articles 324, 338, 338A and 338B. The other category relates to conditions of service. Representative of this group are Articles 146, 148, 229 and 243K. In the first category, Article 324 assumes critical importance. Shri Gopal Sankaranarayanan put forward the test that if a law could be made under Article 324, providing for a committee to select CECs and ECs and also for their qualifications, then, there is a void. If such a law cannot be made, then, there is no vacuum.

Continuing with the argument about the presence of a vacuum, it is contended that the 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 Election Commissioners. Successive Governments have decided to select increasingly older candidates. This has resulted in casting a shadow on the much-needed independence, apart from curtailing their tenure. Inaction on the part of the Election Commission even in the face of alarming increase of criminals in public life, must guide this Court. With reference to the Article, which we have adverted to, it is pointed out that the Election Commission has indulged in the alleged misconduct and favouritism.

A vigorous appeal is made to the Court to listen to the constitutional silence and understand the dire need for the Court to step- in. In this regard, we are reminded that this Court has played a very proactive role in matters relating to elections and electoral reforms. Interference was noteworthy in matters relating to affidavits on assets, criminal antecedents, time-bound election petition trials, special courts for criminal trials of M. P. s and M. L. A. s, protection from booth capturing, freebies and NOTA. The executive underreach justifies judicial oversight and activism, particularly when more than 72 years have gone by. It is contended that no mandamus is soughtagainst Parliament or toimplement the Gaikwad Law Commission Report. The following directions are pressed for until a law is made.

A Committee of five, comprising the Prime Minister, the leader of the Opposition or of the single largest party in the Lok Sabha, the Chief Justice of India, the Speaker of the Lok Sabha and an eminent jurist selected by the first four to recommend suitable candidates, is to be appointed for appointment to the Election ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J. ] Commission. The petitioner would have the Court declare qualifications, which include citizenship of India, and that a personshould have completed between 45 years and 61 years. The further qualifications are that the person should have impeccable integrity and high moral character. The individual must have never had affiliation either directly or indirectly to any political party. It is also prayed that the person appointed must have been a Member of the IAS or the IPS or a Judge of the High Court.

In terms of the two provisos in Article 324(5), the Election Commissioners must be irremovable except after following the procedure in the first proviso. An independent Secretariat must be established. The expenditure of the Election Commission should be brought 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 Union of India of appointments being made from Members of the Bureaucracy, is criticised as being not a healthy convention. It is for the reason that it is bereft of transparency, objectivity and neutrality. This system is inaccessible to public. The Executive alone being involved in the appointment, ensures that the Commission becomes and remains a partisan Body and a branch of the Executive.

The independence of the Commission is intimately interlinked with the process of appointment. The concepts of power of reciprocity and loyalty to the appointing Body, referred to in Supreme Court Advocates-on-Record Association and Another vs. Union of India1, is invoked. With reference to 1(2016) 5 SCC 1 developments said to have taken place recently, casting a shadow on the conduct of the Election Commission, the Report of Justice Madan B. Lokur is relied upon. Several instances of inaction or omission are pointed out. This is apart from various Commissions and Committees which have highlighted the need for a change. This Court has steppedin on many occasions. It is further contended that the democracy is a facet of the basic structure of the Constitution. The appointment of Members of the Election Commission is being done on the whims and fancies of the Executive. The object of having an independent Election Commission is defeated.

It is further contended that the Election Commission resolves various disputes between various political parties including the Ruling Government and other parties. This means that the Executive cannot be the sole participator. The practice falls foul of Article 14. Elaborate reference is made to the Constituent Assembly Debates. Elaborating on the powers of the Election Commission, it is pointed out that the power to register a political party under Section 29A of the Representative of the People Act, 1951, has come up for our consideration. The ruling of this Court in Indian National Congress v. Institute of Social Welfare and Others,2 that the Election Commission acts in a quasi-judicial capacity under Section 29A is relied upon. The Election Commission is clothed under Rules 6 and 8 of the Election Symbols (Reservation and Allotment) Order, 1968 to recognise political parties and allot symbols.

Rule 15 of the said Order is pressed into service to highlight that Election Commission is empowered to take a decision with reference 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 Others vs.

Union of India,3and the Judgment of this Court declaring the NJAC unconstitutional in Supreme Court Advocates- on-Record Association and Another vs. Union of India4. The learned 2(2002) 5 SCC 685 3(1993) 4 SCC 441 4 (2016) 5 SCC 1 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J. ] Counsel also relies upon the Judgment of this Court in Prakash Singh and Others vs. Union of India and Others,5relating to reforms in the Police Administration. This is besides relying on Vineet Narain and Others vs. Union of India and Another,6 and the Third Judges Case in Special Reference No. 1 of 1998, Re7. It is contended that the Court may, apart from declaring appointment by the Executive of Members as unconstitutional, direct the constitution of a Committee to recommend the names for appointment on the basis of the Reports, including the recommendations of the Law Commission of India in its Two-Hundred and Fifty Fifth Report. D.

SUBMISSIONS BY SHRI JAYA THAKUR, PETITIONER IN WRIT PETITION (CIVIL) NO. 998 OF 2022 10. Shri Anup G. Choudary, learned Senior Counsel assisted by Virender K. Sharma, appeared on behalf of the petitioner. It is pointed out that there is ad-hocism flowing from the legislative vacuum. Regional Commissioners have never been appointed since 1951. The role of the Election Commission is such that in a modern election process, it can be abused by simply playing with the election schedule. The instrument of instructions which were sought even at the time of passage of amendments to the original Articlecan be filled in by judicial intervention. Appointment is reduced only to Bureaucrats, that too, majorly IAS Officers. The IAS Officers work in close alliance to their political masters. Appointment must be from a more broad-based pool of talent like Judicial Members. The Secretariat must have sufficient manpower. E.

SUBMISSIONS OF SHRI KALEESWARAM RAJ, LEARNED COUNSEL FOR THE INTERVENOR in Writ Petition (Civil) No. 569 of 2021. 11. Shri Kaleeswaram Raj, learned Counsel for the intervenor in Writ Petition (Civil) No. 569 of 2021 would contend that the vacuum, which is projected must be conceded as a democratic space which the Founding Fathers of the Constitution, left open for the future Parliament to fill-up. It is contended that the Constituent Assembly not being an elected Body in the real sense, left many things to Parliament, which could claim better democratic legitimacy. Relying upon the Judges' cases, 5(2006) 8 SCC 1 6(1998) 1 SCC 226 7(1998) 7 SCC 739 he would submit that a parallel may be drawn. It's a glaring instance of legislative inaction. Sincedenial of free and fair elections vitiates Fundamental Rights of the citizens, judicial intervention is highly necessary. The Right to Vote is now a part of the Fundamental Right.

It is contended that, in fact, the Right to Vote is a Constitutional Right. He invites our attention to instances in other jurisdictions including from neighbouring countries like 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 causing violence to the delicate separation of powers between the Legislature, the Executive and the Judiciary. The cases at hand appear to be supported with reference to an aspirational ideal as against any vacuum which is disclosed. A debatably better model of selection of the Commissioner cannot form the foundation for this Court to make a foray into the working of constitutional provisions.

Article 324(2) contemplates clear procedure for appointment of a Chief Election Commissioner and the Election Commissioners. Till a law is made, providing otherwise,the Founding Fathers have laid down that the appointment of the Chief Election Commissioner and other Election Commissioners shall be by the President. Indisputably, the Constitution of India follows the Westminster model of Government. The powers of the President, it is well-settled, is to be exercised on the advice of the Council of Ministers. ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J. ] The President is only the formal Head of the State. The power under Article 324(2) was always understood to be exercised by the President, acting on the aid and advise of the Council of Ministers. Article 77 provides for the conduct of the business of the Government of India. Rules have been laid down thereunder.

The learned Attorney General does not dispute that under the Rules, as laid down, the appointment of the Chief Election Commissioner and the Election Commissioners is a matter which need not engage the attention of the Council of Ministers. The Rules instead provide that it is the Prime Minister, who is empowered to decide upon the person to be appointed as the Chief Election Commissioner or the Election Commissioner. In other words, the President exercises the power under Article 324(2) andhe proceeds to appoint a person as a Chief Election Commissioner or an Election Commissioner, acting on the advice of the Prime Minister. The contention is, it is this system, which has been in place for the last more than seven decades. There is no room for confusion. A long array of Chief Election Commissioners and the Election Commissioners have been appointed by resorting to the legitimate method contemplated under Article 324(2).

It is further contended that there exists no identifiable wrong or trigger point to warrant any judicial interference. It is pointed out that elections have been held and voting rights ensured to millions of eligible voters. Nearly 68 per cent 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 others8. 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 appointed from the high-ranking Members of 8 (1995) 4 SCC 611 the Civil Services since no Government so far has thought it fit to provide for any other source other than the Civil Services for making appointment and the Parliament has also not intervened. The system has worked well under Article 324(2). Any aberrations or illegalities in the matter of appointment or acts or omissions on the part of the appointees, lend themselves to the correctional jurisdiction of the superior courts under its powers of judicial review.

Section 4 of the 1991 Act does contemplate a six-year tenure for both the Election Commissioners' and the Chief Election Commissioner. Based on the observations made in T. N. Seshan (supra), Government has followed a sound practice of appointing Officers from the Civil Services. It is contended that those who are considered for appointment, must be"ripe" enough 'for being inducted into the Election Commission'. The six-year tenure is an ideal. However, strict adherence to the same would have introduced considerable problems. This being the position, the concept of a composite tenure has been arrived at.

In other words, the separate term of six years, contemplated in Section 4 of the 1991 Act of six years each, has been understood as been practically attained with the incumbent being selected and appointed in such a manner that the person appointed as an Election Commissioner can look forward to an approximate tenure of six years, even though not as Election Commissioner but as an Election Commissioner and as a Chief Election Commissioner. There is a database of serving/retired Officers of the rank of Secretary to the Government of India/Chief Secretaries. The appointees are selected from the said database. The Minister of Law and Justice recommends a panel for the Prime Minister and the President from the database.

Unless this Court considers non- adherence to Section 4 of the 1991 Act, as constituting a subversion of the independence of the Election Commission requiring redress thereof, this Court need not consider the 'aspirational propositions' as a principle to occupy an 'imagined vacuum'. The Reports relied upon by the petitioners are based on systems enshrined in other jurisdictions. It is significant that the Constituent Assembly, though conscious of other mechanisms, deliberately chose to adopt the method found in Article 324(2). There 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 ANOOP BARANWAL v. UNION OF INDIA [K. M.

JOSEPH, J. ] 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 involved in the context of ordinary Statutes to the interpretation of the Constitution itself. The same is impermissible. G. SUBMISSIONS OF SHRI TUSHAR MEHTA, LEARNED SOLICITOR GENERAL OF INDIA 13.

Relying upon Article 53, which deals with the Executive power of the Union, it is contended that the law contemplated under Article 324(2) is the law contemplated under Article 53(3)(b). In the absence of such a law, the President has the constitutional power. The constitutional validity of Article 324 cannot be considered as it is a part of the original Constitution. The Constitution provides for a complete machinery to deal with the appointments to the Commission. The Vineet Narain Judgment was dealing with a lack of statutory enactment and not a constitutional provision. Any potential direction to include any non-Executive, would involve a violation of the Doctrine of Separation of Powers. Reliance is placed on the judgment of this Court inSamsher Singh v. State of Punjab and Another9. Article 324(2) cannot lead to a constitutional duty on the part of Parliament to legislate. Reliance is placed on T. N.

Seshan (supra) to contend that the President is the appointing Authority and that the Chief Election Commissioner could not claim to be equated with Supreme Court Judges. The Doctrine of Separation of Powers is emphasised. Separation of powers, it is pointed out, is a reflection of democracy itself. The learned Solicitor General persuades the Court to exhibit judicial restraint. A causus omissus may not justify judicial interference. Matters relating to policy rightfully must remain immune from the judicial radar. What is involved in this case is essentially a political question. H. SUBMISSIONS OF SHRI BALBIR SINGH, LEARNED ADDITIONAL SOLICITOR GENERAL 9(1974) 2 SCC 831 14. Shri Balbir Singh forcefully contended that there is no vacuum and no trigger. Unlike the position obtaining in Vishakha, there is no dire need made out. The efficient working of the Election Commission unerringly points to independence, informing its functioning.

Several elections have been conducted under its aegis. The Election Commission of India is recognised all over the world. A utopian model cannot be the premise for inserting guidelines, when the existing provisions are working well. The extent of neutrality and transparency invoked by the petitioners cannot be a sound basis for the Court 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 clause: Every citizen has the right to choose the Government and the legislators of the Union and his State on the footing of equality in accordance with the law of the Union or the unit, as the case may be, in free, secret and periodic elections. ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J. ] This clause was considered by the