Anoop Baranwal vs Union of India

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 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 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 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, EF; 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][72G-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 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; 115F-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 preannounced 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][156G-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 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; 175D-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; 180A-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. 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 Another AIR 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 India 2021 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)

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 and others (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.

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 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-AB] 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 Another AIR 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 Development and 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.