Anoop Baranwal v. Union of India

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. .................................................................. 1 1 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 ANOOP BARANWAL v. UNION OF INDIA * 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 25 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 eff ect 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 C hief Election Commissioner and such number of other Elec tion 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 Petitio n (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 ma tter may require a close look and interpretation of the provis ions of Article 324 of the Constitution of India. The issue has not be en 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 o n 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, or der or direction, commanding the Respondent: to make law for ensuring ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] a fair, just and transparent process of selection by constit uting a neutral and independent collegium/ selection commit tee 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, orde r 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, o rder 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 constitut ing an independent and neutral collegiums/ selection committe e 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 Li tigation, the reliefs sought are as follows: “ a) directthe Central Government to take appropriate st eps to provide same and similar protection to both the Ele ction 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 step s 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 ste ps to confer rule making authority on the Election Commission of India on the lines of the rule making authority vested in the Supre me 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: 27 “i. Issue an appropriate writ, order or direction dec laring 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 syst em 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 line s , re commende d 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 Authori ties, it is only the Election Commission and the National Commission for Scheduled Castes, where qualifications and eligibility are not laid do wn in the Constitution or the Statute. The words ‘subject to law made’ fa lls 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 as sumes 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 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] such a law cannot be made, then, there is no vacuum. Continuing with the argument about the presence of a vacuum, it is contended tha t the underlying rationale for the Court intervening must be the existence of a fundamental norm or a basic feature that needs to be secure d. 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 rega rding the appointment, a central norm, viz., institutional integrity is adve rsely affected. An independent appointment mechanism would gu arantee 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 Chie f 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 the ir 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 elec toral 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 a re pressed for until a law is made. A Committee of five, compr ising 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 recom mend suitable candidates, is to be appointed for appointment to the Ele ction 29 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 t hat 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 C ourt. 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 f or a functioning democracy as it ensures Rule of Law and fr ee 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 ens ure 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 (Transact ion 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 Bureaucra cy, 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 i nvolved 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 India 1, is invoked. With reference to 1(2016) 5 SCC 1 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] developments said to have taken place recently, casting a shadow on the conduct of the Election Commission, the Report of Justic e Madan B. Lokur is relied upon. Several instances of inaction or omi ssion are pointed out. This is apart from various Commissions and Commi ttees which have highlighted the need for a change. This Court has stepped- in on many occasions. It is further contended that the democracy is a facet of the basic structure of the Constitution.The a ppointment 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 tha t 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 D ebates. 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 Sym bols (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 instructio ns 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 f rom 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 India 4. The learned 2(2002) 5 SCC 685 3(1993) 4 SCC 441 4 (2016) 5 SCC 1 31 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, Re 7. 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, inc luding 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 va cuum, 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 Parliame nt, 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 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] he would submit that a parallel may be drawn. It’s a glaring instance of legislative inaction. Sincedenial of free and fair e lections vitiates Fundamental Rights of the citizens, judicial intervent ion 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 inc luding 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, t rampling upon the constitutional process of aid and advise o f 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 a s 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 In dia 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. 33 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 Commissione r or the Election Commissioner. In other words, the President exercises the power under Article 324(2) andhe proceeds to appoint a person as a C hief 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 the re exists no identifiable wrong or trigger point to warrant a ny judicial interference. It is pointed out that elections have been hel d 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 vario us 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 others 8. It is pointed out that the Election Commission (Conditions of Service of Election Commissioners and Transac tion 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 Elec tion Commissioners have been appointed from the high-ranking Members of 8 (1995) 4 SCC 611 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] 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 appointee s, 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 consid ered for appointment, must be”ripe” enough ‘for being inducted into t he Election Commission’.The six-year tenure is an ideal. Howeve r, strict adherence to the same would have introduced considerable probl ems. 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 a nd as a Chief Election Commissioner. There is a database of servi ng/retired Officers of the rank of Secretary to the Government of In dia/Chief Secretaries. The appointees are selected from the said dat abase. The Minister of Law and Justice recommends a panel for the Prime Minister and the President from the database. Unless this Court consi ders 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 up on by the petitioners are based on systems enshrined in other jurisdictions . It is significant that the Constituent Assembly, though conscious of othe r mechanisms, deliberately chose to adopt the method found in Articl e 324(2). There is no identifiable wrong. There is no continuing wr ong 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 r ight 35 vouch-saved under an International Treaty. In the present batch of cases, there is no Fundamental Right involved, which can s upport 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 t he 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 Art icle 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 a nd that the Chief Election Commissioner could not claim to be equated with Supreme Court Judges. The Doctrine of Separation of Powers is emphas ised. Separation of powers, it is pointed out, is a reflection of dem ocracy 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 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] 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 Com mission unerringly points to independence, informing its functioning. Se veral 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 persp ective including the debates in the Constituent Assembly. In the wor k, 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 i n the Fundamental Rights Sub-Committee and the Minorities Su b- Committee. K.M. Munshi’s draft articles on fundamental right s 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. 37 This clause was considered by the Fundamental Rights S ub- Committee at its meeting held on March 29, 1947. The su b- committee approved that (1) universal adult suffrage must be guaranteed by the Constitution; (2) elections should be free, secret and periodic; and (3) elections should be managed by an independent commission set up under Union law. To give effect to these conclusions, the following recommendation was drafted for inclusion in the sub-committee’s report: (1) Every citizen not below 21 years of age shall have the right to vote at any election to the Legislature of the Union and of any unit thereof, or, where the Legislature is bicameral, to the lower chamber of the Legislature, subject to such disqualifications on the ground of mental incapacity, corrupt practice or crime as may be imposed, and subject to such qualifications relating to residence within the appropriate constituency as may be required by or under the law. (2) The law shall provide for free and secret voting an d for periodical elections to the Legislature. (3) The superintendence, direction and control of all elections to the Legislature, whether of the Union or of a unit, including the appointment of Election Tribunals, shall be vested in an Election Commission for the Union or the unit, as the case m ay be, appointed in all cases in accordance with the law of the Union. There was some difference of opinion about vesting so mu ch power in the Union in the matter of Election Commissions. It will be seen that, in terms of the recommendation made by the sub- committee, the appointment of all Election Commissi ons, irrespective of whether they were to function in relation to elections to the Legislature of the Union or in relation to elections to the Legislature of a unit was to be regulated by Union law. Some members of the sub-committee felt that it would be an infringement of the rights of the units if such over-riding authority was given to Union law in matters relating to elections to the Legisl atures of the units. Nevertheless the recommendation as included in the draft was adopted by the sub-committee by a majority vote’. ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] The Minorities Sub-Committee considered these provisions at its meeting held on April 17, and accepted these recommendations. The only point that arose at the meeting of this Sub-Com mittee was raised by Syama Prasad Mukerjee, who thought that the minorities should be effectively represented in these El ection Commissions. On the other hand Jairamdas Daulatram did not think it practicable to provide for separate represen tation for minorities. He suggested that the Election Commissions shoul d be so constituted that they would function as impartial bodies and inspire confidence among all parties and communities. Accepting this suggestion, the Minorities Sub-Committee proposed in its report that Election Commissions should be independent and quasi-judicial in character. The Advisory Committee on Fundamental Rights, Minorities, and Tribal and Excluded Areas considered this matter at its meetings of April 20 and 21. There was unanimous acceptance of t he principles formulated by the Fundamental Rights Sub-Committee. Discussion centred mainly on the question whether the chapter on fundamental rights was the proper place for laying down these matters which pertained to electoral law. C. Rajagopalachari was of the view that franchise would not ordinarily be a part of fundamental rights; and P.R. Thakur pointed out that the proposal not only made adult franchise compulsory, but also provided for direct elections, thereby prejudging the issue of direct elections; he expressed the view that the Advisory Committee, dealing as it did with fundamental rights, could not appropriate the jurisdiction to decide on this issue. Ambedkar, on the other hand, was clearly and emphatically of the opinion that adult franchise and all provision for its free and fair exercise should be recognized as in the nature of fundamental rights. He said: So far as this committee is concerned, my point is that we should support the proposition that the committee is in favour of adult suffrage. The second thing that we have guaranteed in this fundamental right is that the elections shall be free and the elections shall be by secret voting ... We have not said that they shall be direct or they shall be indirect. This is a ma tter that may be considered at another stage ... The third proposition which this fundamental clause enunciates is that in order that 39 elections may be free in the real sense of the world, they shall be taken out of the hands of the Government of the day, and that they should be conducted by an independent body which we may here call an Election Commission. We have also given permission in sub-clause (3) of this clause that each unit may appoint its own Commission. The only thing is that the law shall be made by the Union. The reason for this is that later on there will be a clause in the Constitution which will impose an obligation upon the Union Government to protect the Constitution framed by themselves for the units. Therefore we suggested that the Union should have the power of making a law, although the administration of that law may be left to the different units. There was unanimous support for the principles enunciated b y Ambedkar but Rajagopalachari argued that it would not be proper to deal with this issue as a fundamental right. It could not be taken for granted, he said, that the Union Legislature would be elected by the direct vote of all citizens from all India. He the refore suggested that these matters relating to franchise should be dealt with when they arose in connection with the Constitution and not be prejudged as fundamental rights. Eventually a compromise solution suggested by Govind Ballabh Pant was adopted, and it was decided that these recommendations need not go as part of the clauses on fundamental rights; but that in the letter forwarding the report of the Advisory Committee the Chairman should make it clear that the committee recommended the adoption of these proposals. In accordance with this decision the Advisory Commi ttee recommended that, instead of being included in the chapter of fundamental rights, the provision regarding the setting up of an independent Election Commission, along with the othe r two proposals regarding adult franchise and free and fair elections to be held periodically, should find a place in some other part of the Constitution. In his memorandum on the principles of a model Provinc ial Constitution circulated on May 30, 1947, B.N. Rau, the Constitutional Adviser, included a provision that t he superintendence, direction and control of elections, including the ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] appointment of election tribunals, should be vested in the Governor acting in his discretion, subject to the approval of the Council of State. Likewise, in the memorandum on the Union Constitution, circulated on the same date, he included a similarly comprehensive provision that the control of central elections, incl uding the appointment of election tribunals, should be vested in the President acting in his discretion; the intention of this provision was to make available to the President the advice of the Council of State. The Provincial Constitution Committee in its report of June 27, 1947, accepted the suggestions in the Constitutional Adviser’s memorandum but deleted the reference to the approval of the Council of State. The Union Constitution Committee deleted all the suggestions for the exercise of discretionary powers by the President and also the proposal for a Council of Sta te. The committee however took a definite step in the direction of a centralized authority in the matter of elections: according to its recommendations, all powers of supervision, direction and control in respect of the federal as well as provincial elections would be vested in a Commission to be appointed by the President. Th e Union Powers Committee expanded this proposal by the inclusion in the Federal Legislative List of the subject “All Federal elections: and Election Commission to superintend, direct and control al l Federal and Provincial elections”. The provisions suggested in the model Provincial Constitution came up for discussion in the Constituent Assembly on July 18, 1947. The Constitutional Adviser in his Draft Constitution of October, 1947 provided that the superintendence, direction and control of all elections to the Federal parliament and Provincial Legislatures (including the appointment of Election Tribunals for the decision of doubts and disputes in connection with elections to Parliament and to Provincial Legislatures) and of all elections to the offices of President, Vice-President, Governor and Presiden t. The Drafting Committee altered this scheme and in its draft the power of appointing an Election Commission for supervising elections to the office of Governor and to the State Legislature was vested in the Governor. The Drafting Committee expressed the defin ite opinion that the Election Commission for provincial elections should be appointed by the Governor. This view underwent a radical 41 change subsequently and on June 15, 1947, when the article came up for discussion in the Constituent Assembly, Ambe dkar introduced a new article which made comprehensive provision for a Central Election Commission to be in charge of all Central and State elections.” J. THE CONSTITUENT ASSEMBLY DEBATES 16. Draft Article 289 went on to blossom into Article 324 of the Constitution. Regarding the Draft Article 289 it is apposite that we notice the following developments and discussions. On 15 th June, 1949, the following discussions are noticed. Amendment No.99 was moved by Dr. B.R. Ambedkar to the original Article 289. The original Article 289 read as follows: “289. The superintendence, directions and control of elections to be vested in an Election Commission. (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all el ections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under th is Constitution, including the appointment of election tribunals for the decision of doubts and disputes arising out of or in connection with elections to Parliament and to the Legislatures of States shall be vested in a Commission (referred to in his Constitution as the Election Commission) to be appointed by the President. (2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may, from time to time appoint, and when any other Election Commissioner is so appointed, the Chief Election Commissioner shall act as the Chairman of the Commission. (3) Before each general election to the House of the People and to the Legislative Assembly of each State and before the first general election and thereafter before each biennial elect ion to the Legislative Council of each State having such Council, the President shall also appoint after consultation with the Elec tion Commission such Regional Commissioners as he may consider necessary to assist the election Commission in the perfo rmance of the functions conferred on it by clause (1) of this article. ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] (4) The conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine: Provided that the Chief Election Commissioner shall not be removed from the office except in like manner and on the like grounds as a judge of the Supreme Court and the conditions of the service of the Chief Elect ion Commissioner shall not be varied to his disadvantage after his appointment: Provided further that any other Electi on Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. (5) The President or the Governor or Ruler of a State shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1) of this article.” 17. The amendment moved contemplated substitution of th e original Article 289 inter alia as follows: “(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may, from time to time appoint, and when any other Election Commissioner is so appointed, the Chief Election Commissioner shall act as the Chairman of the Commission. Xxx xxx xxx (4) The conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine: Provided that the Chief Election Commissioner shall not be removed from the office except in like manner and on the lik e grounds as a judge of the Supreme Court and the conditions of the service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment: Provided further that any other Election Commissione r or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.” 18. Dr. B.R. Ambedkar had this to state inter alia: 43 “The House will remember that in a very early stage in the proceedings of the Constituent Assembly, a Committee was appointed to deal with what are called Fundamental Rights. That Committee made a report that it should be recognised tha t the independence of the elections and the avoidance of any interference by the executive in the elections to the Legi slature should be regarded as a fundamental right and provided for in the chapter dealing with Fundamental Rights. When the matter came up before the House, it was the wish of the House that whi le there was no objection to regard this matter as of fundame ntal importance, it should be provided for in some other part of the Constitution and not in the Chapter dealing with Fundamental Rights. But the House affirmed without any kind of dissent that in the interests of purity and freedom of elections to the legislative bodies, it was of the utmost importance that they should be freed from any kind of interference from the executive of the day. In pursuance of the decision of the House, the Drafting Committee removed this question from the category of Fundamental Rights and put it in a separate part containing articles 289, 290 and so on. Therefore, so far as the fundamental question is concerned that the election machinery should be outside the control o f the executive Government, there has been no dispute. What article 289 does is to carry out that part of the decision of the Constituent Assembly. It transfers the superintendence, direction and control of the preparation of the electoral rolls and of all elec tions to Parliament and the Legislatures of States to a body outsi de the executive to be called the Election Commission. That is the provision contained in sub-clause (1). Sub-clause (2) says that there shall be a Chief Ele ction Commissioner and such other Election Commissioners as t he President may, from time to time appoint. There wer e two alternatives before the Drafting Committee, namely, either to have a permanent body consisting of four or five members of the Election Commission who would continue in office throughout without any break, or to permit the President to have an ad hoc body appointed at the time when there is an election on the anvil. The Committee, has steered a middle course. What the Drafting Comm ittee proposes by sub-clause (2) is to have permanently in offi ce one man called the Chief Election Commissioner, so that the skeleton ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] machinery would always be available. Election no doubt will generally take place at the end of five years; but there is this question, namely that a bye-election may take place at any time. The Assembly may be dissolved before its period of five yea rs has expired. Consequently, the electoral rolls will have to be kept up to date all the time so that the new election may take p lace without any difficulty. It was therefore felt that having regard to these exigencies, it would be sufficient if there was permanently in session one officer to be called the Chief Election Commissioner, while when the elections are coming up, the President may further add to the machinery by appointing other members to the Election Commission. Now, Sir, the original proposal under article 289 was that t here should be one Commission to deal with the elections to the Central Legislature, both the Upper and the Lower House, and that there should be a separate Election Commission for each province and each State, to be appointed by the Governor or the Ruler of t he State. Comparing that with the present article 289, t here is undoubtedly, a radical change. This article proposes to centralize the election machinery in the hands of a single Commission to be assisted by regional Commissioners, not working unde r the provincial Government, but working under the superintendenc e and control of the central Election Commission. As I said, this is undoubtedly a radical change. But, this change has b ecome necessary because today we find that in some of the provinces of India, the population is a mixture…” (Emphasis supplied) 19. Professor Shibban Lal Saksena gave notice of an amendment to the amendment to Article 289 which, inter alia, stated that after the word ‘appoint’ in clause (2), the words “subject to confirmation by two- third majority in a joint session of both the Houses of Parl iament” be inserted. He also proposed that in clause (4), the words “Pa rliament may by law determine” be substituted for the words “President may by rule determine”. There were certain other amendments prop osed by Prof. Saksena. Prof. Saksena further went on to make the followi ng statement: “..Of course it shall be completely independent of the provincial Executives but if the President is to appoint this Commiss ion, 45 naturally it means that the Prime Minister appoints this Commission. He will appoint the other Election Commissioners on his recommendations. Now this does not ensure their independence…” Xxx xxx xxx “So what I want is this that even the person who is appointed originally should be such that he should be enjoying the confidence of all parties—his appointment should be confirmed not only by majority but by two-thirds majority of both the Houses. If it is only a bare majority, then the party in power could vote confidence in him but when I want 2/3rd majority it means that the other parties must also concur in the appointment so that in order that rea l independence of the Commission may be guaranteed, in order that everyone even in opposition may not have anything to say against the Commission, the appointments of the Commissioners and the Chief Election Commissioner must be by the Presi dent but the names proposed by him should be such as command the confidence of two-thirds majority of both the House s of Legislatures.” xxx xxx xxx “I want that in future, no Prime Minister may abuse this right, and for this I want to provide that there should be two-thirds majority which should approve the nomination by the President. Of course there is danger where one party is in a huge majority. As I said just now it is quite possible that if our Prime M inister wants, he can have a man of his own party, but I am sure he will not do it. Still if he does appoint a party-man, and the appointment comes up for confirmation in a joint session, even a small opposition or even a few independent members can down the Prime Minister before the bar of public opinion in the world. Because we are in a majority we can have anything passed only theoretically. So the need for confirmation will invariably ensure a proper choice.” (Emphasis Supplied) 20. On 16th June 1949, we notice that Shri H.V. Pataskar stated as follows: “As I said, so far as I can see, article 289(2) is quite enough for the purpose. Even under article 289(2) we can appoint not merely ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] some officials of the Government as Election Commissioners, but people of the position of High Court Judges; we can make them permanent; we can make them as Independent as we are tryi ng to make them in the case of the Central Commission.” (Emphasis Supplied) 21. Pandit Hirday Nath Kunzru addressed the following concerns and suggested as follows: “Here two things are noticeable: the first is that it is only the Chief Election Commissioner that can feel that he can discharge his duties without the slightest fear of incurring the displeasure of the executive, and the second is that the removal of the other Election Commissioners will depend on the recommendations of one man only, namely the Chief Election Commissioner. Howev er responsible he may be, it seems to me very undesirable that the removal of his colleagues who will occupy positions as responsible as those of judges of the Supreme Court should depend on the opinion of one man. We are anxious, Sir, that the preparation of the electoral rolls and the conduct of elections should be entrusted to people who are free from political bias and whose impartially can be relied upon in all circumstances. But, by leaving a great deal of power in the hands of the President we have given room for the exercise of political influence in the appointment of the Chief Election Commissioner and the other Election Commissioners and officers by the Central Government. The Chief Election Commissioners will have to be appointed on the advice of the Prime Minister, and, if the Prime Minister suggests the appointment of a party-man the President will have no option but to accept the Prime Minister’s nominee, however unsuitable he may be on public grounds. (Interruption). Somebody asked me suitable why it should be so.” xxx xxx xxx “My remedy for the defects that I have pointed out is that Parliament should be authorised to make provision for these matters by law. Again, Sir, this article does not lay down the qualifications of persons who are chosen as Chief Election Commissioners or as Election Commissioners. And, as I have already pointed out, in 47 the matter of removal, the Election Commissioners are not on the same footing as the Chief Election Commissioner.” (Emphasis Supplied) 22. Shri K.M. Munshi expressed the following views: “Between two elections, normally there would be a period of five years. We cannot have an Election Commission sitting all the time during those five years doing nothing. The Chief Ele ction Commissioner will continue to be a whole-time officer performing the duties of his office and looking after the work from day to day, but when major elections take place in the country, either Provincial or Central, the Commission must be enlarged to cope with the work. More members therefore have to be added to th e Commission. They are no doubt to be appointed by the President, but as the House will find, they are to be appointed from time to time. Once they are appointed for a particular period they are not removable at the will of the President. Therefore, to that extent their independence is ensured. So there is no reason to believe that these temporary Election Commissioners will not have the necessary measure of independence. Any way the Chief Election Commissioner an independent officer, will be the Chairman and being a permanent officer will have naturally direct ing and supervising power over the whole Commission. Therefore, it i s not correct to say that independence of the Commission is taken away to any extent. We must remember one thing, that after all an election department is not like a judiciary, a quasi-independent organ of Government. It is the duty and the function of the Government of the day to hold the elections. The huge electorates which we are putting up now, the voting list which will run into several crores—all these must necessarily require a large army of election officers, of clerks, of persons to control the booths and all the rest of them. Now all this army cannot be set up as a machinery independe nt of Government. It can only be provided by the Central Government, by the Provincial Government or by the local authorities as now. It is not possible nor advisable to have a kingdom within a kingdom, so that the election matters could be left to an entirely independent organ of the Government. A machinery, so independent, cannot ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] be allowed to sit as a kind of Super-Government to decide which Government shall come into power. There will be great political danger if the Election Tribunal becomes such a political power in the country. Not only it should preserve its independence, but it must retain impartiality. Therefore, the Election Commission must remain to a large extent an ally of the Government; not only that, but it must, a considerable extent, be subsidiary to Government except in regard to the discharge of the functions allotted to it by law. “Therefore, the Parliament as well as the State Legislat ures are free to make all provisions with regard to election, subject, of course, to this particular amendment, namely, the superintendence, direction and control of the Election tribunal. Today, for instance, the elections re controlled by officers appointed either by the Center or the Provinces as the case may be. What is now intended is that they should not be subjected to the day-to-day influence of the Government nor should they be completely independen t of Government, and therefore a sort of compromise has been made between the two positions; but I agree with my honourable Friend, Pandit Kunzru that for the sake of clarity, at any rate, to allay any doubts clause (2) requires a little amendment. At the beginning of clause (2) the following words may be added; “subject to the provisions of law made in this behalf by Parliament.” (Emphasis Supplied) 23. Dr. B.R. Ambedkar made the following remarks: “Now with regard to the question of appointment I must confess that there is a great deal of force in what my Friend Pro fessor Saksena said that there is no use making the tenure of the Election Commissioner a fixed and secure tenure if there is no provision in the Constitution to prevent either a fool or a knave or a p erson who is likely to be under the thumb of the Executive. My provision— I must admit-—does not contain anything to provide against nomination of an unfit person to the post of the Chief Elec tion Commissioner or the other Election Commissioners. I do want to confess that this is a very important question and it has given me a great deal of headache and I have no doubt about it that it is going to give this House a great deal of headache. In the U.S.A. 49 they have solved this question by the provision contained in article 2 Section (2) of their Constitution whereby certain appointments which are specified in Section (2) of article 2 cannot be made by the President without the concurrence of the Senate; so that so far as the power of appointment is concerned, although it is vested in the President it is subject to a check by the Senate so that the Senate may, at the time when any particular name is prop osed, make enquiries and satisfy itself that the person proposed is a proper person. But it must also be realised that that is a very dilatory process, a very difficult process. Parliament may not be meeting at the time when the appointment is made and the appointment must be made at once without waiting. Secondly, the American practice is likely and in fact does introduce poli tical considerations in the making of appointments. Consequently, while I think that the provisions contained in the American Constitution is a very salutary check upon the extravagance of the Preside nt in making his appointments, it is likely to create adminis trative difficulties and I am therefore hesitating whether I should at a later stage recommend the adoption of the American provisions in our Constitution. The Drafting Committee had paid considerable attention to this question because as I said it is going, to be one of our greatest headaches and as a via media it was thought that if this Assembly would give or enact what is called an Instrument of Instructions to the President and provide therein some machinery which it would be obligatory on the President to consult before making any appointment, I think the difficulties which are felt as resulting from the American Constitution may be obviated and the advantage which is contained therein may be secured. At this stage it is impossible for me to see or anticipate what attitude this House will take when the particular draft Instructions come before the House. If the House rejects the proposal of the D rafting Committee that there should be an Instrument of Instructions to the President which might include, among other things, a provision with regard to the making of appointments, this problem would then be solved by that method. But, as I said, it is quite difficult for me to anticipate what may happen. Therefore in order to meet the criticism of my honourable Friend Professor Sak sena, supported by the criticism of my honourable Friend Pandit Kunzru, I am prepared to make certain amendments in amendment No. ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] 99. I am sorry I did not have time to circulate these amendments, but when I read them the House will know what I am proposing.” (Emphasis Supplied) 24. Thereafter, he proposed that an amendment which read as follows: “The appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in this behalf by Parliament, be made by the President.” (Emphasis Supplied) 25. We notice that the amendment which was proposed by Professor Shibban Lal Saksena which we have noticed ca me to be negatived and the amendment which was proposed by D r. B.R. Ambedkar was adopted. Thus, Article 289 as amended was added t o the Constitution. It is this Article which appears in the Constitution as Article 324. 26. At this stage, we may only notice the following commen t, however, in the work by B Shiva Rao: - “By leaving a great deal of power in hands of the President , it gave room for the exercise of political influence by the Cen tral Government in the appointment of the Chief Election Commissioner and the other Election Commissioners. His remedy was that Parliament should be authorized to make provision for these matters by law. K.M. Munshi, while supporting Ambedkar’s proposal suggested in order to meet Kunzru’s critic ism an amendment requiring that the appointment of the Chief Election Commissioner and the other Election Commissioners would be subject to law made by Parliament; and that the power of the President to make rules regulating their conditions of service would likewise be subject to any law made by Parliament. With t hese modifications the article was adopted: at the revision stage it was numbered as article 324.” 27. The Constituent Assembly of India can proximately be traced to the deliberations of the cabinet mission. The broad features were as follows. The members of the constituent assembly were to be elected not on the basis of adult suffrage. At the time, i.e., in 1946, India was still under British rule. British India broadly consisted of the Gover nors 51 provinces and the Chief Commissioner’s provinces. There were also a large number of princely states. An interim government, no doubt, based on elections, was put in place. There were also at th e same time, provincial legislative bodies. The members of the Constituent Assembly came to be elected by the members of the provincial as semblies and they were not directly elected by the people of the country as such. Shri Kaleeswaram Raj is, therefore, correct that the Constituen t Assembly was not directly elected by the people. There were changes which were necessitated by the partition. Suffice it to note that t here were 238 members representing the Governors and others provinces. This is besides 89 sent by the princely states. The first meeting of the Assembly was held on 9 th December, 1946.One Shri B.N.Rau was appointed as the constitutional advisor. He made a draft constitution. A drafting committee, drawn from the members of the constituent assembly in turn wi th the help of the Secretariat as well, brought out two drafts further, which in turn, were published.Public discussion ensued. Thereaft er, the draft articles were discussed in the constituent assembly.There were further amendments. It is to be noticed also that the humongous task necessarily led to the creation of several committees. The most prominent of them can be perceived as the drafting committee, the advisory committee and various sub-committees which included the sub-commi ttee on fundamental rights. K. THE USE OF CONSTITUENT ASSEMBLY DEBATES 28. In regard to the use of Constituent Assembly debates, the law has not stood still. At any rate, whatever may be the controv ersy, as regards its employment to discern, the purport of a provision there can be no taboo involved in its use to understand the history of a provision under the Constitution and the various steps leadin g up to and accompanying its enactment. In this regard, we may refer to the following view expressed in His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Another 10: “1598. If the debates in the Constituent Assembly can be looked into to understand the legislative history of a provision of the Constitution including its derivation, that is, the various steps leading up to and attending its enactment, to ascertain the intention of the makers of the Constitution, it is difficult to see why the debates 10 (1973) 4 SCC 225 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] are inadmissible to throw light on the purpose and general intent of the provision. After all, legislative history only tends to reveal the legislative purpose in enacting the provision and thereby sheds light upon legislative intent. It would be drawing an invisible distinction if resort to debates is permitted simply to s how the legislative history and the same is not allowed to show the legislative intent …” (Emphasis supplied) 29. In fact, in a recent Judgment by Justice Ashok Bhushan, which is partly concurring and partly dissenting, reported i n Dr. Jaishri Laxmanrao Patil v. Chief Minister and others 11, has approved, after referring to the decisions of this Court on the point, ‘the use of Constituent Assembly debates’. L. CONCLUSIONS ABOUT HISTORICAL PERSPECTIVES INCLUDING THE LIGHT SHED BY THE CONSTITUENT ASSEMBLY DEBATES 30. The members of the Constituent Assembly were undoubtedly concerned over the need to ensure independence of t he Election Commission. Under the Government of India Act, 1935, the earlier law, it was the Executive which was conferred the power to conduct the election. Initially, there was a consensus of opinion, in fact, that the right to vote was to be made a fundamental right. In fact, in the draft Article by Shri K.M. Munshi, he contemplated providing for right to choose for every citizen and a free secret and periodic election.The F undamental Rights Sub-Committee also approved that there must be universal adult franchise guaranteed by the Constitution.The election was to be free, secret and periodic. Most importantly, the Fundamental Rights Sub- Committee in the meeting held on 29.03.1947 contemplated that an independent Commission must be set up under Union l aw. A recommendation providing for an Election Commission being appointed in all cases with the law of the Union was made. Further, it becomes clear from a perusal of the work ‘Framing of India’s Constitution’ by B. Shiva Rao that some disputes arose relating to so much power being conferred on the Union in the matter of elections. The dispute essentially related to clothing the Commission with power to conduct elections in regard to the State Legislatures, besides the Union Legis lature. The 11 (2021) 8 SCC 1 53 Minority Sub-Committee also made a report that the Election Commission should be independent and quasi-judicial in character.The Adviso ry Committee on Fundamental Rights, Minority, Tribal and Excluded Area also accepted the principles formulated by the Fundamental Rights Sub- Committee. However, the view was expressed by Shri C. Rajagopalachari that the right to vote should not be a part of fundamenta l right. Dr. Ambedkar, however, specifically opined that in order that election may be free in the real sense of the word, they shall be taken out of the hands of the government of the day, and be conducted by the independent body called the Election Commission. Shri C. Rajagopalachari, however, persevered with the theme that the matter relating to franchise may not find itselfamong the provisions providing for Fundamental Rights. Shri Govind Vallabh Pant suggested a compromise and the Advisory Committee thereby recommended that instead of being included in the Chapter on Fundamental Rights, the provisions relating to franchise and to an independent Election Commission should be located in another part of the Constitution. In his work, the Framing of India’sConstitution, by B. Shivarao has not minced words by commenting that by leaving a great deal of power in the hands of the President, it gave roo m for exercising political influence in the appointment o f the Election Commissioner and other election commissioners. The remedy , it was found, which was contemplated was, that the Parliament would make a law to regulate the matter. As we have noticed, there was severe criticism, particularly by Shri Kunzuru and Professor Shiben Lal Saxe na, and it was thereupon, that Shri K.M. Munshi while supporting Ambedkar’s amendment to the original article, recommended that the appointment be subject to the law made by the Parliament. It is on this fundamental basis that the amendment which was proposed by Dr. Ambedkar to the original article was adopted. 31. Professor Saxena was emphatic that the draft amended Article 289, which contemplated appointment being made by the Presiden t, without anything more, would necessarily mean that the Prime Minister would end up appointing the Commission. He warned that it would not ensure their independence. He was clear that in future, no Prime Minister should abuse the right to appoint.Shri H.V. Pataskar felt Article 289(2) sufficed. The thought which comforted the Member was not merelysome official of the Government could be appointed as Election Commissioners but people in the position of High Court Judges. Pandit Hirda y Nath Kunzru clearly articulated the anxiety and the need for the preparation ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] of the electoral roll and the conduct of the elections, being entrusted to people, who were free from political bias and whose impartiality could be relied upon ‘in all circumstances’. The plight of the President, who has to act on the advice of the Prime Minister, was highlighted. It was the learned Member, who suggested the remedy for the defect, th atis that the Parliament should be authorised to make provisions f or these matters, by law. This was also the view of the Sub-Committee on Fundamental Rights. Shri K. M. Munshi, took the view that the Election Commission must remain to a large extent an ally of the Government. The pursuit of independence of the Election Commission, he felt, should not result in there arising ‘a kingdom within a kingdom’. It was not to be a quasi-independent organ of the Government. This is on the basis that the Election Commission would necessarily have to rely upon Officers, who would have to be provided by the Government. Finally, we find Dr. Ambedkar acknowledging the existence of a great deal of merit in the fear that guaranteeing a fixed and secured tenure, was of no us e, if there was no provision in the Constitution, which would stand in the way of either an incompetent or unfair official, becoming and r unning the Election Commission. In particular, Dr. Ambedkar foresaw the danger of the Election Commissioners, being persons who were likely to be under the control of the Executive. The provision, as proposed t o be amended by Dr. Ambedkar, it was admitted by Dr. Ambedkar himself, did not provide against an ‘unfit’ person being appointed to the Election Commission. Thereafter, he predicted that the question will emerge as one of the greatest headaches. He found solace in the prospe ct of an instrument of instructions being issued to the President, w hich would guide the President in the matter of appointment to the Election. Noticing the uncertainty about the prospect, however, it was and to al lay the apprehensions voiced by both Professor Saxena and Pandit Kunzru, that Article 324(2), as it presently obtains, came to be proposed by way of the amendment to the amendment of the original Article. In other words, before the words ‘be made by the President’, the words ‘subje ct to provisions of any law made in this behalf by Parliament’. cam e to be inserted. 32. We understand the historical perspective, and the deliberations of the Fundamental Rights Sub-Committee, the Drafting Committee and the other Sub-Committees and, finally, of the Constituent Assembly itself, to be as follows: A golden thread runs through these proceedings. 55 All the Members were of the clear view that election m ust be conducted by an independent Commission. It was a radical depart ure from the regime prevailing under the Government of India Act, 1935. The Members very well understood that providing for appointment of Members of the Election Commission by the President would mean that the President would be bound to appoint the Election Commissioner solely on the advice of the Executive, which, in a sense, was understood as on the advice of the Prime Minister. The model of appointment prevailing in the United States was deliberated and not approved. Though, Shri K. M. Munshi was not in favour of giving complete independence to the Election Commission and felt that it should be an ally of the Government, it clearly did not represent the views of the predominant majority of the Members. Right to Vote was, to begin with, considered so sacro sanct that it was originally contemplated as a Fundamental Right. However, finally, as we have already noticed, it was found more appropriate that it should be contained in a separate part of the Constitution, which is the position obtaining under the Constitution. It is equally c lear that the Members of the Committees, including the Constituent Assembly, wanted the appointment to the Election Commission not to be made by t he Executive. The uncertain prospect of an instrument of instructions, finally led the Assembly to adopt the amendment suggested by Dr. Ambedkar, which, as we have noticed, was initially the suggestion made by Pandit Kunzru, and what is more, even seconded by Shri K. M. Munshi. 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. In this regard, we notice the final words of Dr. Ambedkar in regard to the debate surrounding Article 324, was that he felt sorry that he did not have time to circulate the amendments. 33. It is important that we understand that 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 we would not go, so far as to hold that Par liament was under a compellable duty, which this Court can enf orce by a Mandamus, to make a law, all that we are finding is that the Constituent Assembly clearly intended that Parliament must make a law within the meaning of Article 324(2). Such an understanding of Article 324(2) may ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] be contrasted with similar provisions in the Constitution, wh ich also contemplated enabling the making of law by Parliament. This brings us to the question relating to an evaluation of similar provisions i n the Constitution. M. ARTICLES IN THE CONSTITUTION, WHICH EMPLOY THE WORDS ‘SUBJECT TO ANY LAW’ TO BE MADE BY PARLIAMENT ASCONTAINED IN ARTICLE 324 34. One of the contentions of the respondent-Union is that th is Court must bear in mind the snowballing effect of the interpre tation canvassed by the petitioners being accepted on other situations governed by other Articles. 35. Articles in the Constitution, which employ the words ‘subject to any law’ to be made by Parliament as contained in Article 324. 36. Article 98 provides that each House of Parliament shall have a separate Secretarial Staff. Article 98(2) provides that Parliament may, by law, regulate the recruitment and conditions of the staff. Article 98(3) empowers the President, in consultation with the Speaker of the House of People or Chairman of the Council of States, to make Rule s, till Parliament makes law. Apart from the dissimilarity, it is to be noticed that, even in the matter governed by Article 98, if not law, Rules are to govern. 37. Article 137 declares that, subject to the provisions of any law made by Parliament or Rules made under Article 145, Supreme Court shall have the power of review. It will be noticed that in the first place, the Supreme Court has framed rules, regulating the power to review. The absence of a law made by Parliament would have little effect. The purport of Article 137 has absolutely no comparison with Article 324(2). Article 142(2) uses the same expression, viz., ‘subject to the provisions of any law made by Parliament’ and it provides that the Supreme Court is to have power for ordering the attendance of any person, the discovery or protection of any document or the investigation or punishment for any contempt. Patently, the absence of any law under Article 142cann ot produce the impact, which Article 324(2) is capable of producing and, what is more, vouchsafed by the debates in the Constituent Assembly. 57 38. Article 145 uses the expression ‘subject to the provisions of any law made by Parliament’, Supreme Court can make R ules for regulating the practice and procedure of the Court. It is self-evident that it bears no resemblance to the context, purpose and background of Article 324(2). 39. Article 146 of the Constitution of India reads as follows: “146. Officers and servants and the expenses of the Suprem e Court (1) Appointments of officers and servants of the Supreme Court shall be made by the Chief Justice of India or such other Judge or officer of the Court as he may direct: Provided that the President may by rule require that in such cases as may be specified in the rule, no person not already attached to the Court shall be appointed to any office connected with the Court, save after consultat ion with the Union Public Service Commission (2) Subject to the provisions of any law made by Parliament, the conditions of service of officers and servants of the Supre me Court shall be such as may be prescribed by rules made by the Chief Justice of India or by some other Judge or officer o f the Court authorised by the Chief Justice of India to make rules for the purpose: Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the President (3) The administrative expenses of the Supreme Court, including all salaries, allowances and pensions payable to or in respect of the offices and servants of the Court, shall be charged upon the Consolidated Fund of India, and any fees or other moneys taken by the court shall form part of that Fund.” 40. Article 146(2) is essentially a matter which deals w ith the conditions of service of Officers and Servants of Supreme C ourt. In regard to the said employees, the Founding Fathers have provided for Rule-making power with the Chief Justice of India. We are clear in our minds that apart from the fact, the rule-making power is lodged with the Chief Justice of India, there cannot be any valid comparison betwe en the employees of the Supreme Court and the members of theE lection ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] Commission. There is no safeguard provided against the removal as is contemplated for the Chief Election Commissioner an d Election Commissioners. Article 148 deals with appointment of the Comptroller and Auditor General of India. It reads as follows: “148. Comptroller and Auditor General of India (1) There shall be a Comptroller and Auditor General of India who shall be appointed by the President by warrant under h is hand and seal and shall only be removed from office in like manner and on the like grounds as a Judge of the Supreme Court (2) Every person appointed to be the Comptroller and Auditor General of India shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule (3) The salary and other conditions of service of the Comptroller and Auditor General shall be such as may be determined by Parliament by law and, until they are so determined, shall be as specified in the Second Schedule: Provided that neither the salary of a Comptroller and Auditor General nor his rights in respect of leave of absence, pension or age of retirement shall be varied to his disadvantage after his appointment (4) The Comptroller and Auditor General shall not be eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office (5) Subject to the provisions of this Constitution and of any law made by Parliament, the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor General (6) The Administrative expenses of the office of the Comptroller and Auditor General, including all salaries, allowances and pensions payable to or in respect of pensions serving in that office, shall be charged upon the Consolidated Fund of India.” 59 41. As far as the appointment of the Comptroller and Auditor General is concerned, it is governed by Article 148 (1) and the Founding Fathers have provided beyond the pale of any doubt that the appointment of the Comptroller and Auditor General, vital and indispensable as he is for the affairs of the nation, his appointment is to be made by the President. The safeguard, however, considered suitable to ensure his independence has been declared by providing that the CAG can be removed only in like manner and on like grounds as a Judge of the Supreme C ourt. In stark contrast, Article 324 (2) has, while it has p rovided for the appointment of the Chief Election Commissioner and t he Election Commissioners by the President, it has been made subject to a law to be made by the Parliament.No such provision is provided in Article 148 (1). We cannot be oblivious to the fact that this is apart from providing for the safeguard in the first proviso to Article 324 (5) that the Chief Election Commissioner shall not be removed except in like manner and like grounds as a Judge of Supreme Court of India. Still further, there i s a third distinguishing feature between the Chief Election Commissioner and the CAG again located in the first proviso to Article 324 (5). It is declared that the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment. The Chief Election Commissioner and Election Commissioners stand on a far higher pedestal in the constitutional scheme of things having regard to the relationship between their powers, functions and duties and the upholding of the democratic way of life of the nation, the upkeep of Rule of Law and the very immutable infusion of life into the grand guarantee of equality under Article 14. 42. Article 187 provides for a Secretariat for the State Legislature. Except for the difference in the Legislative Body being the State Legislature and the Governor taking the place of the President, it mirrors Article 98 of the Constitution. 43. Article 229 deals with Officers, servants and expenses of High Court. There cannot be any valid comparison between the Chief Election Commissioner and the Election Commissioners contemplated under Article 324 (2) and the Officers and servants of the High Court. The very fact that Officers covered by Article 229 (2) are not extended any protection against removal, itself not merely furnishes a significant starting point but may itself be conclusive of the dissimilarity between ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] the persons associated with the Central Election Commission a nd the employees covered by Article 229 (2). 44. Article 229(2) deals with the Officers, expense and servants of the High Court. Since Article 229 is pari materia with Article 146 (2), we would find merit in the same rationale, which we have furnished for not comparing the employees with the persons governed by Article 324 (2). 45. Article 243 (k) is part of Part IX of the Constitution, which was inserted by the Constitution (Seventy Third) Amendment Act, 1992. Part IX deals with the panchayats. Article 243 (k) reads as follows: “243K. Elections to the Panchayats The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. (2) Subject to the provisions of any law made by the Legislature of a State the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine: Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like ground as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. (3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State El ection Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1). (4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats.” 46. Article 243(k)(1) contemplates the appointment of the State Election Commissioner to be made by the Governor. Article 243(k)(2) contemplates that the conditions of service and the tenure of the State Election Commissioner is to be such as may be made by the Governor 61 by Rule and this is, however, made subject to the provisions of any law made by the Legislature of a State. It is, no doubt, again t rue that the Parliament, while inserting Article 243K, has partly insulated the State Election Commissioner by providing that he shall not be removed from Office except in like manner and on like ground as a Judge of the High Court. Similarly, in the proviso to Article 243K(2), the conditions of service of the State Election Commissioner cannot be varied to his disadvantage after his appointment. It must be noticed that Parliament was aware of the mandate of Article 324(2) when it inserted Article 243. Parliament has carefully chosen not to provide for the making of any law as regards the appointment of the State Election Commissioner. In fact, this may leave no choice for a Court to step-in and provide for the matt er of appointment as regards the State Election Commissioner. However, we need not explore the matter further having regard to the sta rk contrast between Article 243K on the one hand and Article 324(2) on the other. As far as the conditions and tenure forming the subject matter of a law to be made by the Legislature of the State, we would think that in keeping with the position and the subject matter of Article 243K(2), it may not be apposite to project Article 243K(2) as a premise to reject the request of the petitioners to place the interpretation on Article 324(2), if it is otherwise justified. 47. Article 338(2) provides that subject to the provisions of any law made by Parliament, the National Commission for Scheduled Caste was to consist of a Chairman, Vice-Chairman and three other Members and the conditions of service and tenure of Office, were to be such as the President, may by Rule, determine. An identical provision is contained in Article 338A(2) as regards National Commission for Scheduled Tribes. Not unnaturally, in Article 338B(2), similar provisions are contained in regard to National Commission for Backward Classes. What is, however, pertinent to notice is Article 338(3). It provides: “The Chairperson, the Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal.” Identical provisions have been made vide Article 338A and Article 338B. 48. We would notice that pertinently, Articles 338, 338A and 338B contemplates a law to regulate the conditions of service and tenure of ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] the Members of the National Commission for Schedule d Castes, Scheduled Tribes and Backward Classes. Article 324(5) contemplates a law being made to regulate the conditions of service and the tenure of Office of the Election Commissioners. Most pertinently, Parliament has enacted the 1991 Act, as contemplated in Article 324(5). It is, when it comes to providing for the appointment of the Election Commissioners, which was clearly in the contemplation of the Founding Fathers that no law has been made. The old regime continues. In regard to the Members of the National Commissions, covered by Articles 338, 338A and 338B, the Constitution is clear that the appointment is to be made by President. 49. Article 367(3) deals with the meaning of a foreign State for the purpose of the Constitution and after declaring it to b e ‘any State’ other than India, makes it, subject to a proviso, which declares that subject to the provisions of any law made by Parliament, the President may, by order, declare any State not to be a foreign St ate for such purposes, as may be specified in the Order. The matter is governed fully by the Constitution (Declaration as to Foreign States) Order, 1950. Apart from the apparent absence of any imperative need for a law, the matter is governed by an Order, which is issued under the Constitution, which itself would be of a statutory nature and also issued under an enabling provision of the Constitution itself. No further discussion is needed to conclude that Article 324(2) is unique in its setting and purpose. N. DEVELOPMENTS AFTER 26 JANUARY 1950; THE CHIEF ELECTION COMMISSIONERS AND THE ELECTION COMMISSIONERS WHO WERE APPOINTED AND THEIR TERMS 50. In the year 1951, Shri Sukumar Sen was appointed as the first Chief Election Commissioner of India. He was a Civil Servant and a former Chief Secretary of the State of West-Bengal. Hi s term was to last for eight years and two hundred and seventy-three days. Shri Kalyan Sundaram, the second Chief Election Commissioner, again a Civil Servant, the first Law Secretary and who also chaired the Indian Law Commission for the period from 1968 to 1971, was appointed as Chief Elect ion Commissioner on 20.12.1958 and his term terminated on 30.09.1967. It is noteworthy that his term also lasted eight years and two hundred and eighty-four days. 63 51. The Government of India (Transaction of Business) Rules , 1961 have been referred to by the parties. Insofar as it is relevant, we may notice them. Under Rule 8, the cases to be submitted to the Prime Minister and President, are described as all cases of the nature specified in the Third Schedule. In the Third Schedule, Serial No.22 describe s appointment, resignation and removal of the Chief Election Commissioner and other Election Commissioners in Column 1 under the heading ‘nature of cases’. Article 324 is referred to, under the Column ‘authori ty to whom the matter is submitted, it is indicated ‘the Prime Minister and the President’. 52. Shri S.P. Sen Verma was the third Chief Election Commissioner and he was appointed on 01.10.1967 and he continued till 30.09.1972 (his term lasted for five years). Shri Nagendra Singh, a Ci vil Servant and a Member of the Constituent Assembly and who, later on, became the Judge of the International Court of Justice, had a short tenure as the fourth Chief Election Commissioner from 01.10.1972 to 06.02.1973 (his term lasted for one hundred and twenty-eight days). The fifth Chief Election Commissioner was Shri T. Swaminathan, who was also a Civil Servant, having become a Cabinet Secretary as well and his stint as Chief Election Commissioner was from 07.02.1973 to 17.06.1977 (his term lasted for four years and ten days). Shri S.L. S hakdher was appointed as the Sixth Chief Election Commissioner. He was also a Civil Servant and Secretary General of the Lok Sabha. His term commenced on 18.06.1977 and expired on 17.06.1982 (his term lasted for four years and three hundred and sixty-four days). Shri R. K. Trivedi, the Seventh Chief Election Commissioner, was also a Civil Servant, an d he had a term of three years and one hundred and ninety-six days. Shri R.V .S. Perishastri was the Eighth Chief Election Commissioner. He was the Secretary to Government and his term lasted from 01.0 1.1986 till 25.11.1990. It was for the first time that Election Commissioners, two in number, viz., Shri V. S. Seigell and Shri S. S. Dhanoa came to be appointed as Election Commissioners on 16.10.1989. However, as we shall see in greater detail, the Notification dated 16.10.1989 came to be rescinded on 01.01.1990. The same came to be challenged by Shri S.S. D hanao and it culminated in the Judgment of this Court reported in S.S. Dhanoa v. Union of India and Others 12. A Committee known as the Goswami Committee, made certain recommendations. On its heels, Parl iament 12 (1991) 3 SCC 567 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] passed an Act titled ‘The Chief Election Commissione r and other Commissioners (Conditions of Service) Act, 1991 (hereinafter referred to as, ‘the 1991 Act’). It is noteworthy that this is the law made by Parliament and relatable to Article 324(5), which contemplated a law made by Parliament regulating conditions of service of the Chief Election Commissioner and the Election Commissioners. Smt. V.S. Ramadevi, who had the shortest tenure as the ninth Chief Election Commissioner was drawn from the Civil Services. Her term lasted for sixteen days. The Tenth Chief Election Commissioner was none other than Shri T. N. Sheshan, who was the Eighteenth Cabinet Secretary of India and had a term of six years commencing from 12.12.1990 till 11.12.1996. The 1991 Act came to be amended, initially, by an Ordinance, and later, by a law made by Parliament, the Ordinance being published on 01.10.1993. Shri M.S. Gill and Shri G.V.G. Krishnamurthy were appointed as Election Commissioners, w.e.f., 01.10.1993. The amendment and the appointments came to be challenged by Shri T. N. Seshan, the Chi ef Election Commissioner and others and the challenge was repelled by a Constitution Bench of this Court and the Judgment is reported in T.N. Seshan,(supra). We would observe that what was essentially contemplated by founding Fathers was an Election Commission, which was to consist of a permanent figure, viz., the Chief Election Commissioner and s uch Election Commissioners, as may be necessary. For nearly forty years after the adoption of the Constitution of India, there were only Chief El ection Commissioners. After the Judgment in T.N.Seshan (supra), it will be noticed that thereafter, the Election Commission of India became a team consisting of the Chief Election Commissioner and the two El ection Commissioners. With the term ofShri T. N. Seshan coming to a n end 11.12.1996, the trend began of appointing the Election Commissioners as Chief Election Commissioners. Thus, Shri M.S. Gill became the Chief Election Commissioner. Shri M.S. Gill was also a Civil Servant. He served as Chief Election Commissioner for a period of four years and s ixty- nine days, i.e., from 12.12.1996 till 13.06.2001. Shri G.V.G. Krishnamurthy continued till 30.09.1999 (nearly six years) as Election Commissioner. Shri James Michael Lyngdoh became an Election Commissioner in the year 1997 and was made the Chief Election Commissioner on 14.06.2001, on the expiry of the term of Shri M.S. Gill, and he continued till 07.02.2004 (the term lasted two years and two hundred and sixty- nine days). Thereafter, we may notice, for the period 2000 to 2022, the details of the Election Commissioners and the Chief Election Commissioners and the length of the tenure, which is as follows: 65 O. A CLOSER LOOK AT S.S. DANOA (SUPRA), THE 1991 ACT AND T .N. SESHAN (SUPRA) 53. It was on 07.10.1989 that the President, in exercise of his powers under Clause 2 of Article 324 of the Constitution, fixed the number of Election Commissioners as two. This was to continue until further orders. Later on, on 16.10.1989, two persons of which, one was S hri S.S. Dhanoa, were appointed as the Election Commissioners. It was for the first time after Independence that Election Commissio ners were appointed, thereby making the Election Commission of India a multi- Member Commission. In other words, till 16.10.1989, the Chief Election Commissioner constituted the Election Commission of India. The multi- Member Commission was, however, a short-lived affair. In le ss than three months’ time, on 01.01.1990, exercising power under Article 324(2), the President notified, with immediate effect, the rescind ing of the Notification dated 07.10.1989, by which Notification, the two posts of ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] Election Commissioner had been created. Another Notification rescinding the Notification dated 16.10.1989, by which the two Election Commissioners were appointed, came to be issued. Th e latter Notifications came to be challenged by Shri S.S. Dhanoa before this Court. A Bench of two learned Judges dismissed the Writ Petition. This Court took the view, inter alia, that the framers of the Constitution did not want to give same status to the Election Commissioners as was conferred on the Chief Election Commissioner. In the course of this Judgment in S.S. Dhanoa v. Union of India and others 13, this Court, inter alia, observed as follows: “17. … There is no doubt that there is an important dis tinction between the Council of Ministers and the Election Commission in that whereas the Prime Minister or the Chief Minister is appointed by the President or the Governor and the other Ministers are appointed by the President or the Governor on the advice of the Prime Minister or the Chief Minister, the appointment of both the Chief Election Commissioner and the other Election Commissioners as the law stands today, is made by the President under Article 324(2) of the Constitution. It has, however, to be noted that the provisions of the said article have left the matter of appointment of the Chief Election Commissioner and the oth er Election Commissioners to be regulated by a law to be made by the Parliament, and the President exercises the power of appointing them today because of the absence of such law which has yet to be made. …” (Emphasis supplied) 54. We may notice paragraph 18, dealing with the manner in which a multi-Member Commission must act. Thereafter, the Court went on to find that there was really no need to have appointed t he Election Commissioners and, still further made the following observations: “26. There is no doubt that two heads are better than one, an d particularly when an institution like the Election Commission is entrusted with vital functions, and is armed with e xclusive uncontrolled powers to execute them, it is both necessary and desirable that the powers are not exercised by one indi vidual, however, all-wise he may be. It ill conforms the tenets o f the 13 (1991) 3 SCC 567 67 democratic rule. It is true that the independence of an institution depends upon the persons who man it and not on their number. A single individual may sometimes prove capable of withstanding all the pulls and pressures, which many may not. However, when vast powers are exercised by an institution which is accountable to none, it is politic to entrust its affairs to more hands than one. It helps to assure judiciousness and want of arbitrariness. The fact, however, remains that where more individuals than one, man an institution, their roles have to be clearly defined, if the functioning of the institution is not to come to a naught.” (Emphasis supplied) 55. The Court found that it was not a case of removal of the Election Commissioners within the meaning of the second proviso to Article 324(5). 56. This led to certain changes in the 1991 Act. The changes were introduced through an Ordinance published in the Gazette of India on 01.10.1993. It, inter alia, provided for a new Chapter II I, which contemplates that as far as possible, all business shall be transacted unanimously (Section 10(2) of the 1991 Act). Section 10(3) provi des that subject to Section 10(2), in case of difference of opinion, the matter is to be decided according to the opinion of the majority. This, it must be noticed, was introduced in the context of the observations in S.S. Dhanoa (supra). By the Ordinance dated 01.10.1993, other far-reaching changes were introduced, which, inter alia, provided for bringing the Ele ction Commissioners substantially on par with the Chief Election Commissioner. The Chief Election Commissioner, it must be noticed, under the 1991 Act, was to be paid a salary equal to the Judge of the Sup reme Court. The Election Commissioner was to be paid the salary equal to the Judge of the High Court. After the amendment, they stand equated. The 1991 Act also provided that the Chief Election Commissioner would be entitled to continue in Office till the age of 65 years whereas t he Election Commissioner was to continue in Office till he attains the a ge of 62 years. The age of superannuation of the Chief Election Commissioner and the Election Commissioner was brought on par by the O rdinance insofar as both were entitled to continue for a period of six years subject to their liability to vacate Office should they attain the age of 65 years before the expiry of six years from the date on which they assumed Office. However, under the first proviso to Article 324(5), the Chief ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] Election Commissioner can be removed from his Office only i n the manner and on the like grounds as the Judge of the Supreme Court of India. The first proviso also prohibits the conditions of s ervice of the Chief Election Commissioner being varied to his disadvantage after his appointment. In the matter of the removal of the Election Commissioner or a Regional Commissioner the second proviso to Article 324(5) provides the safeguard for the Election Commissioner or a Regional Commissioner that they cannot be removed except on the recommendation of the Chief Election Commissioner. On 01.10.1993, again, in exercise of the powers under Article 324(2), the President fixed until further orders, the number of Election Commissioners other than the Chief Election Commissioner at two. Two Election Commissioners also came to be appointed w.e.f. 01.10.1993. The Ordinance, which had been passed on 01.10.1993, became Act No. 4 of 1994 on 04.01.1994. This led to certain Writ Petitions being filed calling in question the Ordinance including at the instance of Shri T.N. Seshan, who, it must be noticed, was appointed earlie r on 12.12.1990 as the Chief Election Commissioner. He challenge d the Ordinance on various grounds. Matters engaged the attention of the Constitution Bench and its decision is reported in T.N. Seshan, Chief Election Commissioner of India v. Union of India and others 14. The Constitution Bench, we may notice, made the following observations: “10. The Preamble of our Constitution proclaims that we ar e a Democratic Republic. Democracy being the basic feature of our constitutional set-up, there can be no two opinions that free and fair elections to our legislative bodies alone would guarantee the growth of a healthy democracy in the country. In order to ensure the purity of the election process it was thought by our Constitution- makers that the responsibility to hold free and fair elections in the country should be entrusted to an independent body which would be insulated from political and/or executive interference. It is inherent in a democratic set-up that the agency which is entrusted the task of holding elections to the legislatures should be f ully insulated so that it can function as an independent agency free from external pressures from the party in power or executive of the day. This objective is achieved by the setting up of an Election Commission, a permanent body, under Article 324(1) o f the Constitution. The superintendence, direction and control of the entire election process in the country has been vested under the 14 (1995) 4 SCC 611 69 said clause in a commission called the Election Commission. Clause (2) of the said article then provides for the constitution of the Election Commission by providing that it shall consist of the CEC and such number of ECs, if any, as the President may from time to time fix. It is thus obvious from the plain language of this clause that the Election Commission is composed of the CEC and, when they have been appointed, the ECs. The office of the CEC is envisaged to be a permanent fixture but that cannot be said of the ECs as is made manifest from the use of the words “if any”. Dr Ambedkar while explaining the purport of this clause during the debate in the Constituent Assembly said: “Sub-clause (2) says that there shall be a Chief El ection Commissioner and such other Election Commissioners as t he President may, from time to time appoint. There wer e two alternatives before the Drafting Committee, namely, either to have a permanent body consisting of four or five members of the Election Commission who would continue in office throughout without any break, or to permit the President to have an ad hoc body appointed at the time when there is an election on the anvil. The Committee has steered a middle course. What the Drafting Comm ittee proposes by sub-clause (2) is to have permanently in office one man called the Chief Election Commissioner, so that the skeleton machinery would always be available.” It is crystal clear from the plain language of the said cl ause (2) that our Constitution-makers realised the need to se t up an independent body or commission which would be permanently in session with at least one officer, namely, the CEC, and left it to the President to further add to the Commission such number of ECs as he may consider appropriate from time to time. Cl ause (3) of the said article makes it clear that when the Election Commission is a multi-member body the CEC shall act as its Chairman. What will be his role as a Chairman has not bee n specifically spelt out by the said article and we will deal with this question hereafter. Clause (4) of the said article further provides for the appointment of RCs to assist the Election Commission in the performance of its functions set out in clause (1). This , in brief, is the scheme of Article 324 insofar as the constitution of the Election Commission is concerned.” ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] 57. This Court went on to disagree with certain parts of the Judgment in S.S. Dhanoa (supra). The Court, inter alia, held that the Election Commission of India can be a single-Member Body or a multi- Member Body. It was further held as follows: “16. While it is true that under the scheme of Article 324 the conditions of service and tenure of office of all the functionaries of the Election Commission have to be determined by the President unless determined by law made by Parliament, it is only i n the case of the CEC that the first proviso to clause (5) lays down that they cannot be varied to the disadvantage of the CEC after hi s appointment. Such a protection is not extended to the ECs. But it must be remembered that by virtue of the Ordinance the CEC and the ECs are placed on a par in the matter of salary, etc. Does the absence of such provision for ECs make the CEC superior to the ECs? The second ground relates to removability. In the case of the CEC he can be removed from office in like manner and on the like ground as a Judge of the Supreme Court whereas the ECs can be removed on the recommendation of the CEC. That, however, is not an indicia for conferring a higher status on th e CEC. To so hold is to overlook the scheme of Article 324 of the Constitution. It must be remembered that the CEC is intended to be a permanent incumbent and, therefore, in order to preserve and safeguard his independence, he had to be treated differently. That is because there cannot be an Election Commission without a CEC. That is not the case with other ECs. They are not intended to be permanent incumbents. Clause (2) of Article 324 itself suggests that the number of ECs can vary from time to ti me. In the very nature of things, therefore, they could not be conferred the type of irremovability that is bestowed on the CEC. If that were to be done, the entire scheme of Article 324 would have to undergo a change. In the scheme of things, therefore, the power to remove in certain cases had to be retained. Having insulat ed the CEC from external political or executive pressures, confidence was reposed in this independent functionary to safeguard th e independence of his ECs and even RCs by enjoining that they cannot be removed except on the recommendation of the CEC. This is evident from the following statement found in the speech of Shri K.M. Munshi in the Constituent Assembly whe n he supported the amended draft submitted by Dr Ambedkar: 71 “We cannot have an Election Commission sitting all the time during those five years doing nothing. The Chief Election Commissioner will continue to be a whole-time officer performing the duties of his office and looking after the work from day to day but when major elections take place in the country, either Provinci al or Central, the Commission must be enlarged to cope with the work. More members therefore have to be added to the Commission. They are no doubt to be appointed by the President. Therefore, to that extent their independence is ensured. So there is no reason to believe that these temporary Election Commissioners will not have the necessary measure of independence.” Since the other ECs were not intended to be permanent appointees they could not be granted the irremovability protection of the CEC, a permanent incumbent, and, therefore, they were placed unde r the protective umbrella of an independent CEC. This aspect of the matter escaped the attention of the learned Judg es who decided Dhanoa case [(1991) 3 SCC 567] . We are also of the view that the comparison with the functioning of the executive under Articles 74 and 163 of the Constitution in paragraph 17 of the judgment, with respect, cannot be said to be apposite.” (Emphasis supplied) 58. Dealing with the argument that as the Chief Ele ction Commissioner is designated as the Chairman, it put him o n a higher pedestal, this Court, inter alia, held as follows: “19. … The function of the Chairman would, therefore, be to preside over meetings, preserve order, conduct the business of the day, ensure that precise decisions are taken and corre ctly recorded and do all that is necessary for smooth transaction of business. The nature and duties of this office may vary depending on the nature of business to be transacted but by and large these would be the functions of a Chairman. He must so conduct himself at the meetings chaired by him that he is able to win the confidence of his colleagues on the Commission and carry them with him. This a Chairman may find difficult to achieve if he thinks t hat others who are members of the Commission are his subordinates. The functions of the Election Commission are essent ially administrative but there are certain adjudicative and l egislative functions as well. The Election Commission has to lay down certain ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] policies, decide on certain administrative matters of importance as distinguished from routine matters of administration and also adjudicate certain disputes, e.g., disputes relating to allotment of symbols. Therefore, besides administrative functions it may be called upon to perform quasi-judicial duties and un dertake subordinate legislation-making functions as well. See Mohinder Singh Gill v. Chief Election Commr [(1978) 1 SCC 405 : (1978) 2 SCR 272] . We need say no more on this aspect of the matter.” 59. Still further, we may notice the following discussion, which brings out the rationale for treating the Chief Election C ommissioner differently from the Elections Commissioners: “21. We have pointed out the distinguishing features from Article 324 between the position of the CEC and the ECs. It is essentially on account of their tenure in the Election Commission that certain differences exist. We have explained why in the case of ECs the removability clause had to be different. The variation in the salary, etc., cannot be a determinative factor otherwise that would oscillate having regard to the fact that the executive or the legislature has to fix the conditions of service under clause (5) of Article 324. The only distinguishing feature that survives for consideration is that in the case of the CEC his conditions of service cannot b e varied to his disadvantage after his appointment whereas there is no such safeguard in the case of ECs. That is presumably because the posts are temporary in character. But even if it is not so, that feature alone cannot lead us to the conclusion that the final word in all matters lies with the CEC. Such a view would render the position of the ECs to that of mere advisers which does not emerge from the scheme of Article 324.” (Emphasis supplied) 60. It is clear that the founding fathers intended that the elections in the country must be under the superintendence, direction and control of an independent Body. The Body is the Election Commission of India. Under Article 324, the Chief Election Commissioner is an unalterable feature or figure. A Commission can consist of only the Chief Election Commissioner. A multi-Member Commission was also contemplated by the founding fathers. However, the post of Election Commissioner was to be need based. For nearly four decades, there was n o Election 73 Commissioner. As we have noticed, it is on 16.10.1989 that the first two Election Commissioners were appointed. In regard to the appointment of the Chief Election Commissioner and other Election Commissioners, the Constitution does not provide for any criteria. It does not fix any qualifications. It does not prescribe any disqualifications in the matter of appointment as either Chief Election Commissioner o r Election Commissioner. 61. The appointees have been bureaucrats drawn from the Civil Services. Article 324(5) deals with the conditions of service and tenure of Office of the Election Commissioners and the Reg ional Commissioners. Till Parliament made any law with regard to the same, the founding fathers clothed the President with power to lay down the conditions of service and tenure of Office by Rule. It is to lay down the conditions of service and tenure of Office that Parliament has enacted the 1991 Act. The first proviso to sub-Article 324(5) acts as a guarantee against the removal of the Chief Election Commissioner except on like grounds and a similar manner a Judge of the Supreme Court c an be removed. The conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment. This means that Parliament cannot, nor can the Government by Rule, either remove the Chief Election Commissioner, except by impeaching him in the manner provided for the removal of a Judge of Supreme Court nor can Parliament make law nor Government a Rule to vary the conditions of service of the Chief Election Commissioner to his disadvantage, after he is appointed. The first proviso to Article 324(5) operates as a sing ular insulation to protect the Chief Election Commissioner from either being arbitrarily removed or his conditions of service being varied to his disadvantage. But as contemplated by the founding fathers, protection against arbitrary removal or protection againstvarying of conditions of the appointment were not the sole safeguards.Far more vital was the appointment of the ‘right man’ and the need to take it out of the exclusive hands of the executive. P. THE CLAMOUR FOR REFORMS 62. In the year 1990, the Government of India constitute d a Committee under the Chairmanship of the then Law Minister, Shri Dinesh Goswami and it is hereinafter referred to as the ‘Goswami Committee’. It made several recommendations relating to electoral ref orms. The Committee, inter alia, recommended as follows: ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] “CHAPTER II Electoral Machinery 1.Set up of multi-member Commission 1. The Election Commission should be a multi-member body with three members. 2. The Chief Election Commissioner should be appointed by the President in consultation with the Chief Justice of India and the Leader of the Opposition (and in case no Leader of Opposition is available, the consultation should be with the Leader to the largest opposition group in the Lok Sabha). 3. The consultation process should have a statutory backing. 4. The appointment of other two Election Commissioners should be made in consultation with Chief Justice of India, the Leader of the Opposition (in case no Leader of Opposition is available, the consultation should be with the Leader to the largest opposition group in the Lok Sabha) and the Chief Election Commissioner. 5. The appointment of Regional Commissioners for different zones is not favoured. Such appointments should be made only as and when necessary and not on a permanent footing. 2. Steps for securing independence of the Commission 6. The protection of salary and other allied matters relating to the Chief Election Commissioner and the Election Commissioner s should be provided for in the Constitution itself on the analogy of the provisions in respect of the Chief Justice and Judges of the Supreme Court. Pending such measures being taken, a parliamentary law should be enacted. 7. The expenditure of the Commission should continue to be ‘voted’ as of now. 8. The Chief Election Commissioner and the Election Commissioners should be made ineligible not only fo r any appointment under the Government but also to any office including the office of Governor appointment to which is made by the President. 9. The tenure of the Chief Election Commissioner and oth er Election Commissioners should be for a term of five years or sixty-five years of age, whichever is later and they should in no 75 case continue in office beyond sixty-five years and for more than ten years in all.” 63. In the year 1991, Parliament enacted the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. Section 3 provides, as it stands, that there shall be paid to the Chief Election Commissioner and other E lection Commissioners a salary, which is equal to the salary of the Judge of the Supreme Court. Section 4 deals with the term of Office a nd reads as follows: “4. Term of office. —The Chief Election Commissioner or an Election Commissioner shall hold office for a term of six y ears from the date on which he assumes his office: Provided that where the Chief Election Commissioner o r an Election Commissioner attains the age of sixty-five years before the expiry of the said term of six years, he shall vacate his office on the date on which he attains the said age: Provided further that the Chief Election Commissioner or an Election Commissioner may, at any time, by writing under his hand addressed to the President, resign his office. Explanation.—For the purpose of this section, the term of six years in respect of the Chief Election Commissioner or an Elect ion Commissioner holding office immediately before the commencement of this Act, shall be computed from the date on which he had assumed office.” 64. Section 5 deals with the leave available to both the Chi ef Election Commissioner or an Election Commissioner. The power to grant relief or refuse leave to them vests with the President. Section 6 deals with their right to pension. Section 7 deals with the right to subscribe to the general provident fund. Section 8 provides for other condition s of service: “8. Other conditions of service.—Save as otherwise provided in this Act, the conditions of service relating to travelling allowance, provision of rent-free residence and exemption from payment of income-tax on the value of such rent-free residence, conveyance facilities, sumptuary allowance, medical facilities and such other conditions of service as are, for the time being, applic able to a ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] Judge of the Supreme Court under Chapter IV of the Supr eme Court Judges (Conditions of Service) Act, 1958 (41 of 1958) and the rules made thereunder, shall, so far as may be, apply to the Chief Election Commissioner and other Election Commissioners.” 65. Under Section 9, the business of the Election Commissioner is to be transacted in accordance with the 1991 Act. Section 10 provides for disposal of business by Election Commission, it reads as follows: “10. Disposal of business by Election Commission. — (1) The Election Commission may, by unanimous decision, regulate the procedure for transaction of its business as also allocation of its business amongst the Chief Election Commissioner and other Election Commissioners. (2) Save as provided in sub-section (1), all business of the Election Commission shall, as far as possible, be transacted unanimously. (3) Subject to the provisions of sub-section (2), if the Chief Election Commissioner and other Election Commissioners differ in opinion on any matter, such matter shall be decided according to the opinion of the majority.” 66. In the year 1993, the Government of India constituted, what is known as the ‘Vohra Committee’. It made certain recommendations in regard to the CBI and the IB. Five years thereafter, in 1998, Government of India appointed a Committee under the Chairmanship of Shri Indrajit Gupta Committee on State funding of elections. The Committee submitted its Report in December, 1998. The conclusion and summary of th e recommendations are found in Chapter 9 and they include various recommendations relating to funding of political parties. 67. In the year 2002, a National Commission for reviewing the work of the Constitution, under the Chairmanship of the Former Chief Justice of India, M.N. Venkatachaliah, made 58 recom mendations involving amendments to the Constitution, 86 recommendations relating to legislative measures and the rest involved Executive action. In relation to electoral processes and political parties, various r ecommendations were made by the Commission. One of the recommendations, which is of relevance to the cases before us is as follows: “The Chief Election Commissioner and the other Elec tion Commissioners should be appointed on the recommendation of a 77 Body consisting of the Prime Minister, Leader of the Opposition in the Lok Sabha, the Leader of the Opposition in the Rajya Sabha, the Speaker of the Lok Sabha and the Deputy Chairman of t he Rajya Sabha. It was further recommended that similar procedure should be adopted in the case of appointment of the State Election Commissioners.” 68. In the year 2004, the Election Commission of India , on 02.08.2004 made certain proposal on electoral reforms to the Government of India. The proposals included affidavits to be filed by candidates on criminal antecedents, their assets, etc. The aspect about criminalisation of politics is noted as an issue being raised by the Commi ssion from 1998 onwards. The Commission was of the opinion that keeping a person accused of a serious criminal charge and where the Court had f ramed charges, out of the electoral arena, would be a reasonable restriction in greater public interest. Among the various reforms it proposed, we notice the following: “12. COMPOSITION OF ELECTION COMMISSION AND CONSTITUTIONAL PROTECTION OF ALL MEMBERS OF THE COMMISSION AND INDEPENDENT SECRETARIAT FOR THE COMMISSION Election Commission of India is an independent constitutional body created by the Constitution of India vide Article 324. Clause (I) of Article 324 has vested the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President of India in the Election Commission. Under Clause (2) of Article 324, the Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from to time fix and the appointment of the Chief Election Commissioner and Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. The President has, by Order dated 1.10.1993 under Clause (2) of Article 324, fixed the number of Election Commissioners as two until further orders. ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] Although the Constitution permits the President to fix the number of Election Commissioners at any number without any limit, it is felt that in the interest of smooth and effective functioning of the Election Commission, the number of Election Commissioners should not be unduly large and should remain as two as presently fixed, in addition to the Chief Election Commissioner. The three- member body is very effective in dealing with the comp lex situations that arise in the course of superintending, directing and controlling the electoral process, and allows for quick responses to developments in the field that arise from time to time and require immediate solution. Increasing the size of this body beyond the existing three-member body would, in the considered opinion of the Commission, hamper the expeditious manner in which it has necessarily to act for conducting the elections peacefully and in a free and fair manner. In order to ensure the independence of the Election Commission and to keep it insulated from external pulls and pressures, Clause (5) of Article 324 of the Constitution, inter alia, provides that the Chief Election Commissioner shall not be removed from his office except in like manner and on like grounds as a Judge of the Supreme Court. However, that Clause (5) of Article 324 does not provide similar protection to the Election Commissioners and it merely says that they cannot be removed from office except on the recommendation of the Chief Election Commissioner. The provision, in the opinion of the Election Commission, is inadequate and requires an amendment to provide the very same protection and safeguard in the matter of removability of Elec tion Commissioners from office as is available to the Chief Election Commissioner. The independence of the Election Commission upon which the Constitution makers laid so much stress in the Constitution would be further strengthened if the Secretariat of the E lection Commission consisting of officers and staff at various levels is also insulated from the interference of the Executive in the matter of their appointments, promotions, etc., and all such functions are exclusively vested in the Election Commission on the lines of the Secretariats of the Lok Sabha, and Rajya Sabha, Registries of the Supreme Court and High Courts, etc. Independent Secretariat is 79 vital to the functioning of the Election Commission as an independent constitutional authority. In fact, the provis ion of independent Secretariat to the Election Commission has already been accepted in principle by the Goswami Committee on Electoral Reforms and the Government had, in the Constitution (Seventieth Amendment) Bill, 1990, made a provision also to that effect. That Bill was, however, withdrawn in 1993 as the Government proposed to bring in a more comprehensive Bill.” (Emphasis supplied) 69. As regards expenses of Election Commission, we find the following complaint and solution: “13. EXPENSES OF ELECTION COMMISSION TO BE TREATED AS CHARGED The Commission had sent a proposal that the expenditure of the Commission should be charged on the Consolidated Fund of India. The Government had moved in the 10th Lok Sabha “The Election Commission (Charging of Expenses on the Consolidated Fund of India) Bill, 1994” with the objective of providing for the salaries, allowances and pension payable to the Chief Electio n Commissioner and other Election Commissioners and t he administrative expenses including salaries, allowances and pension of the staff of the Election Commission to be expenditure charged upon the Consolidated Fund of India. Similar provisions already exist in respect of the Supreme Court, Comptroller & Auditor General and the Union Public Service Commission, which are, like the Election Commission, independent constitutional bodies. To secure its independent functioning the Commission is of t he opinion that the Bill, which lapsed with the dissolution of the 10th Lok Sabha in 1996, needs reconsideration.” 70. The next milestone to be noticed is the Second Administrative Reforms Commission Report made in January, 2007. The Commission consisted of Shri Veerappa Moily, the then Law Mini ster, as its Chairperson and five other Members.We find the follo wing in the summary of its recommendations, inter alia. It recommended that the Collegium headed by the Prime Minister, with the Speaker of the Lok Sabha, the leader of the Opposition in the Lok Sabha, the Law Minister and the Deputy Chairman of the Rajya Sabha, as Members, should make ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] recommendations for consideration of the President for appointment of the Chief Election Commissioner and the Election Commissioners . In the year 2010, the Ministry of Law and Justice, Government o f India, had constituted a Committee on Electoral Reforms. The Report, it made, in the year 2010 indicates the background which led to the constitution of the Committee. Reference is made to various earlier Reports as also the efforts being made by the Election Commission. It made various recommendations relating to electoral reforms. Unde r the head ‘measures for Election Commission’, an update on th e Election Commission’s recommendations, includes the following: “ 81 71. In regard to appointment of Chief Election Commissioner and other Election Commissioners, we notice the following remarks: “ (Emphasis supplied)” 72. In the year 2015, Law Commission of India, in its Two Hundred and Fifty Fifth Report dated 12.03.2015, dealing with the electoral reforms in India, made various recommendations in regard to strengthening the Office of the Election Commission of India. After referring t o Article 324(2), the fact of the appointments being discussed in the Constituent Assembly, Article 324(2) leaving it to the Parliament to leg islate, the recommendation of the Goswami Committee in 1990, we find the following discussion: “6.10.4 This was followed by the introduction of the Constitution (Seventieth Amendment) Bill 1990, which was introduced in the Rajya Sabha on 30th May 1990 providing that the CEC would be appointed by the President after consultation with the Chairman of the Rajya Sabha, the Speaker of the Lok Sabha, and the Leader of the Opposition (or the leader of the largest party) in the Lok Sabha. The CEC was further made a part of the consultative process in the appointment of the Election Commissio ners. However, on 13th June 1994, the Government moved a motion to withdraw the Bill, which was finally withdrawn with the leave of the Rajya Sabha on the same day. 6.10.5 Consequently, in the absence of any Parliamentary law governing the appointment issue, the Election Commissioners are appointed by the government of the day, without pursuing any ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] consultation process. This practice has been described as requiring the Law Ministry to get the file approved by the Prime Minister, who then recommends a name to the President. Thus, there is no concept of collegium and no involvement of the opposition. 6.10.6 The Commissioners are appointed for a six year period, or up to the age of 65 years, whichever is earlier. Further, there are no prescribed qualifications for their appointment, although convention dictates that only senior (serving or retired) c ivil servants, of the rank of the Cabinet Secretary or Secretary to the Government of India or an equivalent rank, will be appointed. The Supreme Court in Bhagwati Prashad Dixit Ghorewala v Rajiv Gandhi rejected the contention that the CEC should poss ess qualifications similar to that of a Supreme Court judge , despite being placed on par with them in terms of the removal process.” 73. We find that under the caption ‘Comparative Practices’, the Report contains the following discussion: “(ii) Comparative practices 6.11.1 An examination of comparative practices is instructive. In South Africa, the Independent Electoral Commission comprises of five members, including one judge. They are appointed by the President on the recommendations of the National Assembly, following nominations by a National Assembly inter- party committee, which receives a list of at least eight candidates. This list of (at least) eight nominees is recommended by the Selection Committee, which has four members being, the President of the Constitutional Court; a representative of the Human R ights Commission and the Commission on Gender Equality each; and the Public Prosecutor. 6.11.2 In Ghana too, the seven member Election Commission is appointed by the President on the advice of the Council of State, with the Chairman and two Deputy Chairmen having permanent tenure. 6.11.3 In Canada, the Chief Electoral Officer of “E lections Canada” is appointed by a House of Commons resolution for a non-renewable ten-year term, and to protect their independe nce from the government, he/she reports directly to Parliament.In the United States, the six Federal Election Commissione rs are 83 appointed by the President with the advise and consent of the Senate. The Commissioners can be members of a political party, although not more than three Commissioners can be members of the same party. 6.11.4 In all these cases thus, it is clear that the appoi ntment of the Election Commissioners or the electoral officer s is a consultative process involving the Executive/Legislature/other independent bodies.” 74. Thereafter, under the caption ‘the Recommendation’, we find the following: “(iii) Recommendations 6.12.1 Given the importance of maintaining the neutrality of the ECI and to shield the CEC and Election Commissioners from executive interference, it is imperative that the appointme nt of Election Commissioners becomes a consultative process. 6.12.2 To this end, the Commission adapts the Goswa mi Committee’s proposal with certain modifications. Fi rst, the appointment of all the Election Commissioners (including the CEC) should be made by the President in consultation with a three- member collegium or selection committee, consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha (or the leader of the largest opposition party in the Lok Sabha in terms of numerical strength) and the Chief Justice of India. The Commission considers the inclusion of the Prime Minister is important as a representative of the current government. 6.12.3 Second, the elevation of an Election Commissioner should be on the basis of seniority, unless the three member collegium/ committee, for reasons to be recorded in writing, fi nds such Commissioner unfit. 6.12.4 Such amendments are in consonance with the appointment process in Lokpal and Lokayuktas Act, 2013, the Rig ht to Information Act, 2005 and the Central Vigilance Commission Act, 2003. 6.12.5 Pursuant to Article 324(2), an amendment can be brought to the existing Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] to amend the title and insert a new Chapter 1A on the appointment of Election Commissioners and the CEC as follows: • Act and Short Title: The Act should be renamed the “Election Commission (Appointment and Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991”. • The short title should state, “An Act to determine the appointment and conditions of service of the Chief Election Commissioner and other Election Commissioners and to provide for the procedure for transaction of business by the Election Commission and for matters connected therewith or incidental thereto.” • Chapter I-A – Appointment of Chief Election Commissioner and Election Commissioners. 2A. Appointment of Chief Election Commissioner and Election Commissioners – (1) The Election Commissioners, including the Chief Election Commissioners, shall be appointed by the President by warrant under his hand and seal after obtaining the recommendations of a Committee consisting of: (a) the Prime Minister of India – Chairperson (b) the Leader of the Opposition in the House of the People – Member c) the Chief Justice of India – Member Provided that after the Chief Election Commissioner ceas es to hold office, the senior-most Election Commissioner sha ll be appointed as the Chief Election Commissioner, unles s the Committee mentioned in sub-section (1) above, for reasons to be recorded in writing, finds such Election Commissioner to be unfit. Explanation: For the purposes of this sub-section, “the Leader of the Opposition in the House of the People” shall, when no s uch Leader has been so recognised, include the Leader of the single largest group in opposition of the Government in the House of the People.” 75. In regard to the aspect about the permanent and independent Secretariat of the Election Commission of India, it was noticed that to give effect to the Goswami Committee recommendation, the Constitution Seventieth Amendment Bill, 1990 was introduced on 30.05.1990 and 85 that it was subsequently withdrawn in 1993 in view of the changed composition of the Election Commission of India, on it becoming a multi- Member Body pursuant to the 1991 Act and on the ground that the Bill needed some amendments. The Bill, however, the Law Commission noticed, was never introduced. Thereafter, the Law Commission referred to the recommendations of the Election Commission itself for seeking appointment of an independent Secretariat. The Law Commission, accordingly, recommended insertion of Article 324(2A), inter alia , providing for a separate, independent and permanent secretaria l staff for the Election Commission. In regard to the need for equating the two Election Commissioners with the Chief Election Commissioner and noting that Election Commissioners were clearly superior to the R egional Commissioners, the Law Commission recommended changes in Article 324(5) as well. The amended Article 324, as proposed by the Law Commission of India, in its Report, reads as follows: “324. Superintendence, direction and control of elections to be vested in an Election Commission. -(1) The superintende nce, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of Preside nt and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Ele ction Commission) (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. (2A) (1): The Election Commission shall have a sepa rate independent and permanent secretarial staff. (2) The Election Commission may, by rules prescribed by it , regulate the recruitment, and the conditions of service of persons appointed, to its permanent secretarial staff. (3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission. ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] (4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the f irst general election and thereafter before each biennial elect ion to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Ele ction Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1). (5): Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the R egional Commissioners shall be such as the President may by rule determine; Provided that the Chief Election Commissioner and any other Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court andthe conditions of service of the Chief Ele ction Commissioner and any other Election Commissioner shall not be varied to his disadvantage after his appointment: Provided further that a Regional Commissioner shall n ot be removed from office except on the recommendation of the Chief Election Commissioner. (6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1).” 76. There is a newspaper Report of The Hindu dated 04.06.2012, which appears to project the demand of Shri L.K. Advani, that a Collegium be put in place for appointment to the Constitutional Body and taking the stand that the present system of appointment did not inspire confidence among the people. There is also a reference to the Report of the Citizens Commission of Elections. It appears to be prepared by the former Judge of this Court Shri Madan B. Lokur and Shri Wajahat Habibullah, a former Chief Information Commissioner. In the said Report, we find the Article ‘Are Elections in India Free and Fair’ by Shri M.G. Devasahayan. Under the head ‘ECI – functioning an autonomy’, we find the following criticism: 87 “
ECI has plenipotentiary powers drawn from Article 324 of the Constitution of India to conduct free and fair election.
In addition, Supreme Court has ruled: “when Parliament or any State Legislature made valid law relating to, or in connection to elections, the Commission, shall act in conformity with, not in violation of such provisions, but where such law is silent, Article 324 is a reservoir of power to act for the avowed purpose of pushing forward a free and fair election with expedition…”.
But ECI is just not using such powers, because ECs are the appointees of the Government of the day and not through an independent process of collegium. The case of one dissenting EC, who was side-lined and then eased out has caused irretrievable damage to ECI’s independence and integrity!
This compromises the autonomy of the ECI and creates doubts about the neutrality of the CEC and the ECs, and consequently, the neutrality of the Commission itself. This poses serious danger to the fairness and integrity of not only the elections, but democracy itself…” (Emphasis supplied) 77. In the year 2016, we find the following proposed elect oral reforms essentially related to Article 324(5), being proposals made by the Election Commission itself. “Clause (5) of Article 324 of the Constitution provides tha t the Chief Election Commissioner shall notbe removed from his office except in the same manner and on the same grounds as a Judge of theSupreme Court. The Chief Election Commissioner and the two Election Commissioners enjoy thesame decision making powers which is suggestive of the fact that their powe rs are at par with eachother. However, Clause (5) of Article 324 of the Constitution does not provide similar protection to theElection Commissioners and it merely says that they cannot be rem oved from office except on therecommendation of the Chief Election Commissioner. The reason for giving protection to a Chief Election Commissioner as enjoyed by a Supreme Court Judge in matters of removability ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] from office was in order to ensure the independence of Commissionfrom external pulls and pressure. However , the rationale behind not affording similar protection toother Election Commissioners is not explicable. The element of ‘independence’ sought to be achieved under the Constitution is not exclusively for an individual alone but for the whole institution. Th us, the independence of the Commission can only be strengthened if the Election Commissioners are also provided with the same protection as that of the Chief ElectionCommissioner. Proposed amendment The present constitutional guarantee is inadequate and require s an amendment to provide the sameprotection and safeguard in the matter of removability of Election Commissioners as is available tothe Chief Election Commissioner.” Q. SEPARATION OF POWERS AND JUDICIAL ACTIVISM 78. In I. C. Golak Nath and Others v. State of Punjab and Another,15 Justice Subba Rao held speaking for this Court: “It (the Constitution) demarcates their jurisdiction minutely and expects them to exercise their respective powers wi thout overstepping their limits. They should function within the spheres allotted to them. No authority created under the Constitut ion is supreme; the Constitution is supreme and all the authorities function under the supreme law of the land.” 79. What is this jurisdiction which is demarcated? Justice R.S.Pathak speaking for the Bench in Bandhua Mukti Morcha v. Union of India and Others 16 held: “It is a common place that while the Legislature enacts t he law the Executive implements it and the Court interpret it and, in doing so, adjudicates on the validity of executive action and, under our Constitution, even judges the validity of the legislation itself.” The question would arise as to whether the powers/functions are cast in stone or whether the aforesaid powers/functions can legitimately be exercised/discharged by the other organs. We may in this re gard again advert to what this Court held in the aforesaid case (supra): 15AIR 1967 SC 1643 16 (1984) 3 SCC 161 89 “And yet it is well recognized that in a certain sphere the Legislature is possessed of judicial power, the executive possesses a measure of both legislative and judicial functions, and the court, in its duty of interpreting the law, accomplishes in its perfect actio n in a marginal degree of legislative exercise. Nonetheless a f ine and delicate balance is envisaged under our Constitution between these primary institutions of the State.” 80. The High Courts and this Court make Rules under the power granted to them. No doubt, they will be acting as dele gates of the Legislature but the exercise of power in such cases would be legislative in nature. When an Ordinance is made under Article 123 by the Executive, that is, the Union of India, it is a case of the Executive exercising legislative power.When Parliament adjudges a man guilty of contempt of itself and punishes him, the proceedings are informed by the attribute of judicial power. 81. It cannot be disputed that there is no strict demarcati on or separation of powers in India unlike the position obtaining in the United States of America and Australia.(See In Re. Delhi Laws Act, 191217).The doctrine of separation of powers, no doubt, has been eloquently expounded by Montesquieu in his work “The Spirit of Laws” and the basis on which it rests is the imperative need to avoid concentration of power in one or two organs. Undoubtedly, an observance of doctrine of separation of powers has been traced to the principle of equality (See Madras Bar Association v. Union of India18. Justice Y.V.Chandrachud, as His Lordship then was, speaking in Indira Nehru Gandhi v. Raj Narain & Ors.19 held inter alia as follows: “But the principle of separation of powers is not a magic formula for keeping the three organs of the State within the strict confines of their functions.” 82. Separation of powers as understood as prevailing in Ind ia constitutes a part of the basic structure of the Constitution of India (See His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Another 20) and I.R. Coelho (Dead) by LRs v. State of T.N.21 17 AIR 1951 SC 332 18 2021 SCC OnLine SC 463 19 (1975) Suppl. SCC 1 20 (1973) 4 SCC 225 21 (2007) 2 SCC 1 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] 83. In Indian Aluminium Co. and others v. State of Kerala and others22, this Court, while dealing with the alleged encroachment by the Legislature of the boundaries set by the Doctrine of Separation of Powers laid down, inter alia, as follows: “(1) The adjudication of the rights of the parties is the essenti al judicial function. Legislature has to lay down the norms of conduct or rules which will govern the parties and the transactions a nd require the court to give effect to them; (2) The Constitution delineated delicate balance in the exe rcise of the sovereign power by the legislature, executive and judiciary; (3) In a democracy governed by the rule of law, the legislature exercises the power under Articles 245 and 246 and other companion articles read with the entries in the respective lists in the Seventh Schedule to make the law which includes power to amend the law. (4) Courts in their concern and endeavour to preserve judicial power equally must be guarded to maintain the delicate balance devised by the Constitution between the three sover eign functionaries. In order that the rule of law permeates to fulfil constitutional objectives of establishing an egalitarian social order, the respective sovereign functionaries need free play in their joints so that the march of social progress and order remains unimpeded. The smooth balance built with delicacy must always be maintained;” 84. Apart from the power to make subordinate legislation as a delegate of the Legislature, do the superior courts make l aw or is it entirely tabooed? In other words, when the court decides a lis , is the function of the court merely to apply law to the facts as fo und or do courts also make law? The theory that the courts cannot or do not make laws is a myth which has been exploded a long while ago. We may only in this regard refer to what Justice S.B. Sinha opined on b ehalf of this Court in the decision reported in State of U.P. v. Jeet S. Bisht23: “77. Separation of powers is a favourite topic for some of us. Each organ of the State in terms of the constitutional sche me performs one or the other functions which have been assigned to 22 (1996) 7 SCC 637 23 (2007) 6 SCC 586 91 the other organ. Although drafting of legislation a nd its implementation by and large are functions of the legislature and the executive respectively, it is too late in the day to say that the constitutional court’s role in that behalf is non-existent. The judge- made law is now well recognised throughout the world. If one is to put the doctrine of separation of power to such a rigidit y, it would not have been possible for any superior court of any country, whether developed or developing, to create new rights through interpretative process. 78. Separation of powers in one sense is a limit on active jurisdiction of each organ. But it has another deeper and more relevant purpose: to act as check and balance over the activities of other organs. Thereby the active jurisdiction of the organ is not challenged; nevertheless there are methods of prodding to communicate the institution of its excesses and shortfall in duty. Constitutional mandate sets the dynamics of this communication between the organs of polity. Therefore, it is suggested to not understand separation of powers as operating in vac uum. Separation of powers doctrine has been reinvented in modern times. 83. If we notice the evolution of separation of powers doctrin e, traditionally the checks and balances dimension was only associated with governmental excesses and violations. But in today’s world of positive rights and justifiable socialand economic entitlements, hybrid administrative bodies, private functionaries discharging public functions, we have to pe rform the oversight function with more urgency and enlarge the field of checks and balances to include governmental inaction. Otherwise we envisage the country getting transformed into a state of repose. Social engineering as well as institutional engineering therefore forms part of this obligation.” (Emphasis supplied) 85. Separation of powers is part of the basic structure of the Constitution of India. Equally, judicial review has been recogni sed as forming a part of the basic structure. Judicial review of legislation is expressly provided in Article 13 of the Constitution. A cour t when it declares a law made by the legislature as unconstitutional, if it be that, it ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] 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. 86. While it may be true that the Constitution is supreme and all disputes must finally attain repose under the aegis of the Constitution, in one sense the final arbiter of what is the law must be the court. While it may be true that by removing the text forming the premise for a judicial verdict, the lawgiver may revisit the judgment, it is not op en to the legislature to don the robes of a Judge and arrogate to itself the judicial function. 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 ski lful and at the same time legitimate balance being struck by the organs of the State in the exercise of their respective powers. This means tha t the essential powers which are well understood in law cannot be d eliberately encroached upon by any organ of the State. 87. Creative judicial activism has been a subject o f both controversy reaching brickbats as also bouquets to the cour ts. Under the Constitution which clothes both citizens and persons with fundamental rights besides tasking the State with the achieving of goals declared in the Directive Principles, judicial activism as opposed to a mere passive role may be the much-needed choice. Judicial activism, however, must have a sound juridical underpinning and cannot degenerate into a mere exercise of subjectivism. 88. The learned Solicitor General is right therefore that judic ial restraint may be a virtue in the elevated region of const itutional law. Being the grundnorm, it is indeed a rarefied field where the court must tread wearily (See Divisional Manager, Aravali Golf Club and Another v. Chander Hass and Another 24). This Court indeed has admonished against the court itself running the Government. I n Asif Hameed v. State of J & K,25 no doubt this court refers to the following observations of Frankfurter, J. in para 18: 24 (2008) 1 SCC 683 25 (1989) Suppl.2 SCC 364 93 “All power is, in Madison’s phrase, “of an encroaching nature”. Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self- restraint.... Rigorous observance of the difference between limits of p ower and wise exercise of power — between questions of authority and questions of prudence — requires the most alert appreciation of this decisive but subtle relationship of two concepts th at too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail to disregard one’s own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the court’s giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of th e judicial oath, for the Constitution has not authorized the judges to sit i n judgment on the wisdom of what Congress and the executive branch do.” 89. In the work “Judicial Activism” in India by SP Sathe, the learned author in the chapter ‘Legitimacy of Judicial Activism’ observes: - “Legitimacy of Judicial Activism The realist school of jurisprudence exploded the myth tha t the judges merely declared the pre-existing law or interpreted it and asserted that the judges made the law. It stated that the law was what the courts said it was. This is known as legal scepticism and was really a reaction to Austin’s definition of law as a command of the political sovereign. According to analytical jurisprudence a court merely found the law or merely interpreted the law. T he American realist school or jurisprudence asserted that the judges made law, though interstitially. Jerome Frank, Justice Holmes, Cardozo, and Llewellyn were the chief exponents of this school. The Indian Supreme Court not only makes law, as understood in the sense of the realist jurisprudence, but actually has sta rted ‘legislating’ exactly in the way in which a legislature legislates. Judicial law-making in the realist sense in what the Court does ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] when it expands the meanings of the words ‘personal liberty’ or ‘due process of law’ or ‘freedom of speech and expression’. When the Court held that a commercial speech (advertisement ) was entitled to the protection of freedom of speech and expression, it was judicial law-making in the realist sense. Similarly, the basic structure doctrine or the parameters for reviewing the President’s action under article 356 or the wider meanings of the words ‘life’, ‘liberty’, and ‘procedure established by law’ in article 21 of th e Constitution by the Supreme Court are instances of judicial law- making in the realist sense. When, however, the Court lays down guidelines for inter-country adoption, against sexual harassment of working women at the workplace, or for abolition of child labour, it is not judicial law- making in the realist sense these are instances of judicial excessivism that fly in the face of the doctrine of separa tion of powers. The doctrine of separation of powers envisages that the legislature should make law, the executive should execute it, and the judiciary should settle disputes in accordance with the existing law. In reality such watertight separation exists nowhere a nd is impracticable. Broadly it means that one organ of the State should not perform a function that essentially belongs to another organ. While law-making through interpretation and expansion of the meanings of open-textured expressions such as ‘due process o f law’, ‘equal protection of law’, or ‘freedom of spe ech and expression’ is a legitimate judicial function, the making of an entirely new law, which the Supreme Court has been doing throug h directions in the above-mentioned cases, is not a legitimate judicial function. True, the Court has not supplanted but has mere ly supplemented the legislature through such directions. It has said in each case that it legislated through directions only because no law existed to deal with situations such as inter-country adoption or sexual harassment of working women and that its direction could be replaced by legislation of the legislature.” 90. In the work, “The Nature of the Judicial Process” by Benjamin N. Cardozo, in the lecture, “The Method of Sociology - The Judge as a Legislator.” Justice Cardozo observes under the following subject: - “THE JUDGE AS A LEGISLATOR 95 …No doubt the limits for the judge are narrower. He legislate s only between gaps. He fills the open spaces in the law. How far he may go without travelling beyond the walls of the interstices cannot be staked out for him upon a chart. He must learn it for himself as he gains the sense of fitness and proportion that comes with years of habitude in the practice of an art. Even within t he gaps, restrictions not easy to define, but felt, however impalpable they may be, by every judge and lawyer, hedge and circumscribe his action. They are established by the traditions of the centuries, by the example of other judges, his predecessors and his colleagues, by the collective judgment of the profession, and by the duty of adherence to the pervading spirit of the law. …The process, being legislative, demands the legislator’s wisdom. …Customs, no matter how firmly established, are not law, they say, until adopted by the courts. Even statues are not law because the courts must fix their meaning. That is the view of Gray in his “Nature and Sources of the Law.” “The true view, as I submi t,” he says, “is that the Law is what the Judges declare; that statues, precedents, the opinions of learned experts, customs and morality are the sources of the Law.” So, Jethro Brown in a paper on “Law and Evolution,” tells us that a statue, till construed, is not real law. It is only “ostensible” law, Real law, he says, is not found anywhere except in the judgment of a court… ..They have the right to legislate within gaps, but often there are no gaps. We shall have a false view of the landscape if we look at the waste spaces only, and refuse to see the acres alrea dy sown and fruitful.. ..The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of order in the social life.” Wide enough in all conscience is the field of discretion that remains.” (Emphasis Supplied) ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] 91. Close to the aspect of separation of powers, is controversial subject of judicial activism. In the work “Judicial Activism, Authority, Principles and Policy in The Judicial Method” by Hon’ble Justice Michael Kirby, we find of particular interest, the following: “The acute needs of the developing countries of the Commonwealth have sometimes produced an approach to constitutional interpretation that is unashamedly describ ed as “activist”, including by judges themselves. Thus in India, at least in most legal circles, the phrase “judicial activism” is not viewed as one of condemnation. So urgent and numerous are the needs of that society that anything else would be regarded by ma ny – including many judges and lawyers – as an abdication of the final court’s essential constitutional role. One instance may be cited from Indian experience: the expansion of the traditional notion of standing to sue in public interest litigation. The Indian Supreme Court has upheld the right of prisoners, the poor and other vulnerable groups to enlist its constit utional jurisdiction by simply sending a letter to the Court. This might not seem appropriate in a developed country. Yet it appears perfectly adapted to the nation to which the Indian Constitution speaks . Lord Chief Justice Woolf recently confessed to having been astounded at first by the proactive approach of the Indian Supreme Court in this and other aspects. However, he went on: “…I soon realised that if that Court was to perform its essent ial role in Indian society, it had no option but to adopt the course it did and I congratulate it for the courage it has shown.”” (Emphasis Supplied) 92. Unlike demands of a formal democracy, the hallmark of a substantive democracy and if we may say so, a liberal democracy must be borne in mind. Democracy is inextricably intertwined with power to the people. The ballot, is more potent than the most powerf ul gun. Democracy facilitates a peaceful revolution at the hands of the common man if elections are held in a free and fair manner. Elec tions can be conflated with a non-violent coup capable of unseating the most seemingly powerful governing parties, if they do not perform to fulfil the aspirations of the governed. Democracy is meaningful only if the sublime goa ls enshrined in the preamble to the Constitution receive the un divided 97 attention of the rulers, namely, social, political and economic justice. The concepts of liberty, equality and fraternity must not be strange bedfellows to the ruling class. Secularism, a basic feature of the Constitution must inform all actions of the State, and therefore, cannot be s purned but must be observed in letter and spirit. Democracy can be achieved only when the governing dispensation sincerely endeavours to observe the fundamental rights in letter and spirit. Democracy also, needless to say, would become fragile and may collapse, if only lip service is paid to the rule of law. We cannot be oblivious to the fact that the founding fathers have contemplated that not only must India aspire for a democratic form of government and life but it is their unambiguous aim that India must be a Democratic Republic.The conventional definition of a ‘Rep ublic’ is that it is a Body Polity, in which, the Head of State is elected. However, the republican character of our democracy also means that the majority abides by the Constitution ensuring rights granted under it and also pursues goals enshrined in it. A brute majority generated by a democratic process must conform to constitutional safeguards and the d emands of constitutional morality. A Democratic Republic cont emplates that majoritarian forces which may be compatible with a democracy, must be counter balanced by protection accorded to those not in the majority. When we speak about the minority, the expression is not to be conflated with or limited to linguistic or religious minorities. These are aspects which again underly the need for an independent election commission. 93. It may be true that the resort to courts is not a remedy for all ills in a society (see Common Cause v. Union of India and Others 26) We are equally cognizant that the courts must not try to run aGovernment nor behave like emperors. We also take notice of the following words of this Court in Divisional Manager, Aravali Golf Club and Another v. Chander Hass and Another ,27 where the merit of exercising judicial restraint has been emphasized. “33. Judicial restraint is consistent with and complementary t o the balance of power among the three independent branches of the State. It accomplishes this in two ways. First, judicial restraint not only recognises the equality of the other two branches with the judiciary, it also fosters that equality by minimising inter-branch 26 (1996) 1 SCC 753 27 (2008) 1 SCC 683 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] interference by the judiciary. In this analysis, judicial restraint may also be called judicial respect, that is, respect by the judiciary for the other coequal branches. In contrast, judicial a ctivism’s unpredictable results make the judiciary a moving target and thus decreases the ability to maintain equality with the co-b ranches. Restraint stabilises the judiciary so that it may better function in a system of inter-branch equality.” “34. Second, judicial restraint tends to protect the independence of the judiciary. When courts encroach into the legislative or administrative fields almost inevitably voters, legislators and other elected officials will conclude that the activities of judges should be closely monitored. If judges act like legislators or administrators it follows that judges should be elected like legislators or selected and trained like administrators. This would be counterproductive. The touchstone of an independent judiciary has been its removal from the political or administrative process. Even if this removal has sometimes been less than complete, it is an ideal w orthy of support and one that has had valuable effects.” “38. The moral of this story is that if the judiciary does not exercise restraint and overstretches its limits there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the powers, or even the independence, of the judiciary (in fact the mere threat may do, as the above example demonstrates). The judiciary should, therefore, confine itself to its proper sphere, realising that in a democracy many matters and controversies are best resolved in non-judicial setting.” However, we may also listen to the following words. “39. We hasten to add that it is not our opinion that judges should never be “activist”. Sometimes judicial activism is a useful adjunct to democracy such as in the School Segregation and Human Rights decisions of the US Supreme Court vide Brown v. Board of Education [347 US 483 : 98 L Ed 873 (1954)], Miranda v. Arizona [384 US 436 : 16 L Ed 2d 694 (1966)], Roe v. Wade [410 US 113 : 35 L Ed 2d 147 (1973)] , etc. or the decisions of our own Supreme Court which expanded the scope of Articles 14 and 21 of the Constitution. This, however, should be resorted to only in exceptional circumstances when the situation 99 forcefully demands it in the interest of the nation or the poorer and weaker sections of society but always keeping in mind t hat ordinarily the task of legislation or administrative decisions is for the legislature and the executive and not the judiciary.” (Emphasis Supplied) 94. A Constitution Bench Judgment reported in State of T.N. v. State of Kerala and another 28 summarised its conclusions on the constitutional principles relating to separation of powers as follows: “126.1. Even without express provision of the separati on of powers, the doctrine of separation of powers is an entrenched principle in the Constitution of India. The doctrine of separation of powers informs the Indian constitutional structure and it is an essential constituent of rule of law. In other words, the doctrine of separation of power though not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the scheme of Indian Constitution. Constitution has made demarcation, without drawing formal lines between the th ree organs—legislature, executive and judiciary. In that sense, even in the absence of express provision for separation of powers, the separation of powers between the legislature, executi ve and judiciary is not different from the Constitutions of the countries which contain express provision for separation of powers. 126.2. Independence of courts from the executive and legislature is fundamental to the rule of law and one of the basic ten ets of Indian Constitution. Separation of judicial power is a significant constitutional principle under the Constitution of India. 126.3. Separation of powers between three organs—th e legislature, executive and judiciary—is also nothin g but a consequence of principles of equality enshrined in Article 14 of the Constitution of India. Accordingly, breach of separation of judicial power may amount to negation of equality under Article 14. Stated thus, a legislation can be invalidated on the basi s of breach of the separation of powers since such breach is negation of equality under Article 14 of the Constitution.” R. IS THE RIGHT TO VOTE A STATUTORY RIGHT OR A CONSTITUTIONAL RIGHT? ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] 28 (2014) 12 SCC 696 95. The right to vote is not a civil right. A Bench of six le arned Judges in N.P. Ponnuswami v. Returning_Officer, Namakkal,29 in the context of Article 329(b) held that the right to vote was a creature of a statute or a special law and must be subject to limitations imposed by it. The matter arose from a challenge to the rejection of the nomination maintained in a writ petition and the question which substantially arose was the impact of Article 329(b). No doubt, the court exam ined Part XV of the Constitution and about Articles 325 and 326, the Court held as follows: “The other two Articles in Part XV i.e. Article 325 and 326 deal with two matters of principle to which the Constitution fr amers have attached much importance. They are (1) Prohibition against dis crimination in the preparation of, or eligibility for inclusion in, the electoral rolls, on grounds of religion, race, caste, sex or any of them; and (2) adult sufferage.” The Court really was not concerned with the question as to whether Article 326 provided for a Constitutional right to vote. 96. In Jyoti Basu and Others. Debi Ghosal and Others 30, the Court was dealing with a challenge to the High court r ejecting an application in an Election Petition to strike out the names of certain parties from the array of parties. The Court inter alia held that A rticle 326 provides for elections to be held on the basis of adult franchise. Thereafter, the Court held as follows: “7. The nature of the right to elect, the right to be elected and the right to dispute an election and the scheme of the constitutiona l and statutory provisions in relation to these rights have been explained by the Court in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency [(1952) 1 SCC 94 : AIR 1952 SC 64 : 1952 SCR 218 : 1952 SCJ 100] and Jagan Nath v. Jaswant Singh [AIR 1954 SC 210 : 1954 SCR 892 : 1954 SCJ 257] . We proceed to state what we have gleaned from what has been said, so much as necessary for this case. 8. A right to elect, fundamental though it is to democracy, is , anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to 29AIR 1952 SC 64 301982 (1) SCC 691 101 be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election.” (Emphasis supplied) 97. Mohan Lal Tripathi vs. District Magistrate, Raibraally and others31 was a case wherein the appellant who was elected dir ectly under Section 43 of the U.P. Municipalities Act was removed by a no- confidence motion. It was his contention that his r emoval was undemocratic as it was sought to be done by a smaller and different body than the one that elected him. It is in these facts that the court inter alia held as follows: “..But electing representatives to govern is neither a ‘fundamental right’ nor a ‘common right’ but a special right created by the statutes or a ‘political right’ or ‘privilege’ and not a ‘ natural[‘, absolute’ or ‘vested right’. This Court was not dealing with the impact of Article 3 26. It followed the judgement in N.P. Ponnuswamy (supra). 98. In Rama Kant Pandey v. Union of India 32, a Bench of three learned judges was dealing with a petition challenging the validity of the Representation of the People (Amendment Ordinance) Act, 1992 on the ground of violation of Articles 14, 19 and 21. Section 52 providing for countermanding of polls was amended. It was in the context of the said challenge, the Court noted that the right to vote or to stand as a candidate for election was neither a fundamental nor civil right. It p urported to follow the views which originated in Ponnuswamy case (supra). 99. In Anukul Chandra Pradhan, Advocate Supreme Court v. Union of India and others 33, a Bench of three learned Judges, while dealing with a challenge to Section 62(5) of the 1951 Act, on the ground that it violated Article 14 and 21 of the Constitution, upheld Section 62(5). We may only notice the following views expressed by the Court: “5. There are provisions made in the election law which exclude persons with criminal background of the kind specified therein, from the election scene as candidates and voters. The object is to 31(1992) 4 SCC 80 32 (1993) 2 SCC 438 33 (1997) 6 SCC 1 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] prevent criminalisation of politics and maintain probity in elections. Any provision enacted with a view to promote this object must be welcomed and upheld as subserving the constitutional purpose . The elbow room available to the legislature in classification depends on the context and the object for enactment of the provision. The existing conditions in which the law has to be applied cannot be ignored in adjudging its validity because it is relatable to the object sought to be achieved by the legislation. Criminalisation of politics is the bane of society and negation of democracy. It is subversive of free and fair elections which is a basic feature of the Constitution. Thus, a provision made in the election law to promote the object of free and fair elections and facilitate maintenance of law and order which are the essence of democracy must, therefore, be so viewed. More elbow room to the legislature for classification has to be available to achieve the professed object.” 100. The Court also found other reasons to justify the provision. It was noted that permitting every person in prison to vote, would lead to a resource crunch in terms of police force required to facilitate the right. The Court also went on to hold that the Right to Vote is also subject to limitations imposed by the Statute. The specific question, as to whether it constituted a Constitutional Right under Article 326, as such, was not presented for adjudication. 101. In Shyamdeo Pd. Singh v. Nawal Kishore Yadav34, a Bench of three learned judges while dealing with a case arising out of an election petition had this to say about Article 326: “9. Article 326 of the Constitution is founded on the doctrine of adult suffrage. It provides that every person who is a citi zen of India and who is not less than 18 years of age on such date a s may be fixed in that behalf by or under any law made by the appropriate legislature and is not otherwise disqualified under the Constitution or any law made by the appropriate legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election. This Article clearly contemplates law being enacted by an appropriate legislature providing for qualifications and disqualifications subject to which a citizen of India not less than 18 years of age shall be entitled to be registered as a voter 34(2000) 8 SCC 46 103 and exercise his right to franchise. Article 327 provides for law being made by Parliament subject to the provisions of the Constitution with respect to all matters relating to or in connection with elections to either House of Parliament or to the H ouse or either House of the Legislature of a State which law may include provisions for the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses. 102. The Court, inter alia, after referring to Section 62 of the 1951 Act, held as follows: “… A person who is not entered in the electoral roll o f any constituency is not entitled to vote in that constituency thoughhe may be qualified under the Constitution and the law to exercise the right to franchise. To be entitled to cast a ballot the p erson should be entered in the electoral roll…” It was further held: “15. A perusal of the abovesaid provisions leads to certain irresistible inferences. Article 326 of the Constitution having recognised the doctrine of adult suffrage has laid down constitutional parameters determinative of the qualifications and disqualifications relating to registration as a voter at any election. The two Articles, i.e., Article 326 and Article 327 contemplate such qualifications and disqualifications being provided for, amongst other things, by the appropriate legislature. The fountain source of the 1950 Act and the 1951 Act enacting provisions on such subject are the said two Articles of the Constitution. The provisions of Section 16 of the 1950 Act and Section 62 of the 1951 Act read in juxtaposition go to show that while Section 16 of the 1950 Act provides for “disqualifications for registration” in an electoral roll, (qualifications having been prescribed by Section 27 ther eof), Sections 62 of the 1951 Act speaks of “right to vote” which right is to be determined by reference to the electoral ro ll of the constituency prepared under the 1950 Act. The eligibility for registration of those enrolled having been tested by reference to Section 16 or Section 27 of the Act, as the case may be, and the electoral roll having been prepared, under the 1950 Act if a person is or becomes subject to any of the disqualifications provided in ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] clauses (a), (b) and (c) of sub-section (1) of Section 16, two consequences may follow. His name may forthwith be struck off the electoral roll, in which the name is included, under sub-section (2) of Section 16 of the 1950 Act. Even if the name is not s o struck off yet the person is disqualified from exercising right to vote at the election by virtue of sub-section (2) of Section 62 of the 1951 Act. The qualifications prescribed for enrolment in the electoral roll as provided by clause (b) of sub-section (5) of Section 27 of the 1950 Act are: ( i) ordinary residence in a teachers’ constituency, (ii) being engaged in the relevant educational institution for a total period of at least three years within the six years immediately before the qualifying date. The inquiry i nto availability of these eligibility qualifications, under the Scheme of the 1950 Act is to be made at the time of preparation of the electoral roll or while entering or striking out a name in or from the electoral roll. Section 62 of the 1951 Act does not provide that a person who is not qualified to be enrolled as an elector in the electoral roll shall not be entitled to vote at the election. To put it b riefly a disqualification under Section 16 of the 1950 Act has a relevance for and a bearing on the right to vote under Section 62 of the 1951 Act but being not qualified for enrolment in the electoral roll under Section 27 of the 1950 Act has no relevance for or bearing on the right to vote at an election under Section 62 of the 1951 Act. That is the distinction between a “disqualification” and “not being qualified”. It is, however, relevant to notice that the case arose from a challenge to the result of an election held to a legislative c ouncil and Section 27 referred to dealt with legislative councils and not legislative assemblies. 103. In Union of India v. Assn. for Democratic Reforms 35, the High Court gave certain directions to the Election Commission on t he basis that the right of the voter to make the right choice depended upon the availability of information about the past of the candidat es and it must be disclosed to the voters. This Court found that for the health of democracy and fair elections and for ensuring the purity of elections and having regard to the width of the jurisdiction of the Election Commission under Article 324 (1) of the Constitution, the directions giv en by the 35(2002) 5 SCC 294 105 High court was justified. This Court however issued certain directions which modified the directions of the High Court. It is in the context of these facts, the Court,inter alia, held as follows: “46 (7). Under our Constitution, Article 19(1)(a) provides for freedom of speech and expression. Voter’s speech or expression in case of election would include casting of votes, that i s to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Voter’s (little man — citizen’s) right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law-breakers as law-makers.” 104. The directions led to the insertion of Sections 33A and 33B. Under Section 33B, it was inter alia provided thatnotwithstanding any judgment, no candidate was liable to disclose or fu rnish any such information in respect of his election which is not required to be disclosed or furnished under the Representation of the People Act, 1951 or t he rules made thereunder. In People’s Union for civil Liberties (PUCL) and Another vs. Union of India and Another 36 Justice M.B. Shah while dealing with the nature of the right to vote, inter alia held that “the right of the voter to know the bio data of the candidate was the foundation of democracy”. It was concluded by the learned judge that Section 33B of the amended Act was illegal and invalid. Justice P. Venkatarama Reddi in the same case went on hold as follows: “With great reverence to the eminent Judges, I would like to clarify that the right to vote, if not a fundamental right, is certa inly a constitutional right. The right originates from the Constitution and in accordance with the constitutional mandate contained in Article 326, the right has been shaped by the statute, namely the RP Act. That, in my understanding, is the correct legal position as regards the nature of the right to vote in elections to the House of the People and Legislative Assemblies. It is not very accurate to describe it as a statutory right, pure and simple. Even wi th this clarification, the argument of the learned Solicitor-General that the right to vote not being a fundamental right, the inform ation 36(2003) 4 SCC 399 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] which at best facilitates meaningful exercise of that right cannot be read as an integral part of any fundamental right, remains to be squarely met. Here, a distinction has to be drawn between t he conferment of the right to vote on fulfilment of requisite criteria and the culmination of that right in the final act of expre ssing choice towards a particular candidate by means of ballot. Though the initial right cannot be placed on the pedestal of a fundamental right, but, at the stage when the voter goes to the polling boot h and casts his vote, his freedom to express arises. The casti ng of vote in favour of one or the other candidate tantamoun ts to expression of his opinion and preference and that final stag e in the exercise of voting right marks the accomplishment of freedom of expression of the voter. That is where Article 19 (1)(a) is attracted. Freedom of voting as distinct from right to vote is thus a species of freedom of expression and therefore carries wi th it the auxiliary and complementary rights such as right to secur e information about the candidate which are conducive to the freedom. None of the decisions of this Court wherein the proposition that the right to vote is a pure and simple statutory r ight was declared and reiterated, considered the question whet her the citizen’s freedom of expression is or is not involved when a citizen entitled to vote casts his vote in favour of one or the other candidate.” (Emphasis supplied) Justice D.M. Dharmadhikari also agreed with the follow ing conclusion No.2 at para 123 which contains the judgment of Justice P. Venkatarama Reddi: “(2) The right to vote at the elections to the House of the People or Legislatives Assembly is a constitutional right but not merely a statutory right; freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a). the casting of vote in favour of one or the other candidate marks the accomplishment of freedom of expression of the voter.” 105. In Kuldip Nayar and Others v. Union of India and Others37, the question which actually fell for consideration was the validity of a certain amendment which came into force on 28.08.2003. By t he 37(2006) 7 SCC 1 107 Amendment, the requirement of domicile in the State concerned f or being elected to the Council of States was deleted. The Cons titution Bench in the course of its judgment referred to PUCL (supra) and the court observed as follows: “361. The argument of the petitioners is that the majority vi ew in People’s Union for Civil Liberties [(2003) 4 SCC 399] , therefore, was that a right to vote is a constitutional right besides that it is also a facet of fundamental right under Article 19(1)(a) of the Constitution. 362. We do not agree with the above submission. It is clear that a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression, whil e reiterating the view in Jyoti Basu v. Debi Ghosal [(1982) 1 SCC 691] that a right to elect, fundamental though it is to democracy, is neither a fundamental right nor a common law right, but pure and simple, a statutory right. 363. Even otherwise, there is no basis to contend that the right to vote and elect representatives of the State in the Council of States is a constitutional right. Article 80(4) merely deals with the manner of election of the representatives in the Council of States as an aspect of the composition of the Council of States. There is nothing in the constitutional provisions declaring the right to vote in such election as an absolute right under the Constitution.” 106. It will be noticed that the Council of States is not the same as the House of the People within the meaning of Article 326. We cannot overlook the following observations: “448. It shows that the right to vote in “free and fair elections” is always in terms of an electoral system prescribed by nation al legislation. The right to vote derives its colour from the right to “free and fair elections”; that the right to vote is empty without the right to “free and fair elections”. It is the concept of “free and fair elections” in terms of an electoral system which prov ides content and meaning to the “right to vote”. In other words, “right to vote” is not (sic) an ingredient of the free and fair elections. It is essential but not the necessary ingredient.” 107. In K. Krishna Murthy v. Union of India 38, a Constitution Bench was dealing with the constitutional validity of certain aspects of 38(2010) 7 SCC 202 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] the reservation policy in regard to the composition of elected local self- government institutions. The Bench relied upon M.M. Tripathi case (supra) and observed as follows: “..It is a well-settled principle in Indian Law, that the right to vote and contest elections does not have the status of fundamental rights. Instead, they are in the nature of legal rights which can be controlled though legislative means…” 108. The request of the petitioner therein to recon sider the precedent wherein the right of political participation was categorised as statutory right was turned down. No doubt, this case was not dealing with elections to the House of the People or the State Legislature. 109. In People’s Union for Civil Liberties v. Union of India 39, [the second PUCL case], a Bench of three learned Judges recog nised the right of the person to express his disapproval of the candidates who stood for election by pressing a button which would indicate ‘none of the above’ (NOTA). In the course of this judgment dealing with the first PUCL judgment (supra), the Court held as follows: “After a careful perusal of the verdicts of this Court in Kuldip Nayar [(2006) 7 SCC 1], Assn. for Democratic Reforms [(2002) 5 SCC 294] and People’s Union for Civil Liberties [(2003) 4 SCC 399] , we are of the considered view that Kuldip Nayar [(2006) 7 SCC 1] does not overrule the other two decisions rather it only reaffirms what has already been said by the aforesaid two decisions. The said paragraphs recognise that right to vote is a statutory right and also in People’s Union for Civil Liberties [(2003) 4 SCC 399] it was held that “a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression”. Therefore, it can not be said that Kuldip Nayar [(2006) 7 SCC 1] has observed anything to the contrary. In view of the whole debate of whether these two decisions were overruled or discarded because of the opening line in para 362 of Kuldip Nayar [(2006) 7 SCC 1] i.e. “We do not agree with the above submissions” we are of the opinion that this line must be read as a whole and not in isolation. The contention of the petitioners in Kuldip Nayar [(2006) 7 SCC 1] was that majority view in People’s Union for Civil Liberties [(2003) 4 39(2013) 10 SCC 1 109 SCC 399] held that right to vote is a constitutional right besides that it is also a facet of the fundamental right under Article 19(1)(a) of the Constitution. It is this contention on which the Constitution Bench did not agree too in the opening line in para 362 and thereafter went on to clarify that in fact in People’s Union for Civil Liberties [(2003) 4 SCC 399], a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression. Thus, there is no contradiction as to the fact that right to vote is neither a fundamental ri ght nor a constitutional right but a pure and simple statutory right. The same has been settled in a catena of cases and it is clearly not an issue in dispute in the present case. With the above observation, we hold that there is no doubt or confusion persisting in the Constitution Bench judgment of this Court in Kuldip Nayar [(2006) 7 SCC 1] and the decisions in Assn. for Democratic Reforms [(2002) 5 SCC 294] and People’s Union for Civil Liberties [(2003) 4 SCC 399] do not stand impliedly overruled.” (Emphasis supplied) S. ARTICLE 326 DEMYSTIFIED 110. Article 326 reads as follows: “326. Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage .—The elections to the House of the People and to the Legi slative Assembly of every State shall be on the basis of adult suf frage; that is to say, every person who is a citizen of India and who is not less than 2 [eighteen years] of age on such date as may be fixed in that behalf by or under any law made by the appropr iate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter a t any such election.” 111. It is necessary to notice Articles 327 and 328: “327. Power of Parliament to make provision with respect to elections to Legislatures.—Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.” “328. Power of Legislature of a State to make provision w ith respect to elections to such Legislature.—Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from time to time by law make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses.” 112. We may proceed to decode Article 326. In the first part, the Constitution provides that election to the House of the People and to the Legislative Assembly of every State, shall be on the basis of adult suffrage. This is followed by the words, which is intended to expound what ‘adult suffrage’ means. The Founding Fathers have, in unmistakable terms, declared that elections to the two Legislative Bodies in question, shall be thrown open to participation to every person, who is: I. a) A citizen of India; b) Is not less than eighteen years of age. The condition must be fulfilled as regards the qualification with reference to ‘such date’; II. ‘Such date’ is to be as specified in or under a law ma de by the appropriate Legislature. The appropriate Legisla ture would mean, Parliament in the case of elections to the House of People and the Legislative Assembly of the concerned State, in the case of the Legislative Assembly; III. The person, who is a citizen and not less than eighteen years as on the date as indicated in the law, as aforesaid, Article 326 continues to declare must not be disqualified under the Constitution or any law made by the appropriate Legislature. IV. The appropriate Legislature can make a law providing f or a disqualification, however, only as provided in Article 326 itself. In other words, Article 326 has limited the power of 111 the Legislature concerned in the matter of stipulat ing disqualifications. What are those disqualifications, which can be stipulated by a law? V. The disqualifications, which can be provided by a law are as follows: a. Non-residence; b. Unsoundness of mind; c. Crime; d. Corrupt practice; e. Illegal practice; VI. Moving forward, and proceeding on the basis that a person is a citizen and is not less than eighteen years on the relevant date and is not disqualified in terms of what we have indicated just herein before, viz., under any of the grounds indicated as ‘a’ to ‘e’, then Article 326 declares that such person shall be entitled to be registered as a voter at any s uch election. The words ‘any such election’ would mean elections either to the House of the People or the House of the Legislative Assembly. We again reiterate that a ll conditions being present, as we have referred to with reference to Article 326, the person becomes entitled to be registered as a voter. 113. Accordingly, it is that Parliament enacted in 195 0, The Representation of Peoples Act, 1950 (hereinafter referred to a s ‘the 1950 Act’). Part III provides for electoral rolls f or Assembly Constituencies. Section 14(b), as substituted w.e.f. 01.03.1956, defines ‘qualifying date’: “”Qualifying date”, in relation to the preparation or revisi on of every electoral roll under this Part, means the 1st day of January of the year in which it is so prepared or revised:” 114. We are omitting reference to the proviso as it related only to the year 1989. Section 15 of the 1950 Act declares th at for every constituency, there must be an electoral roll prepared under the said Act under the supervision, direction and control of the Election. Section 16 provides as follows: ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] “16. Disqualifications for registration in an electoral roll.—(1) A person shall be disqualified for registration in an electoral roll if he— (a) is not a citizen of India; or (b) is of unsound mind and stands so declared by a competent court; or (c) is for the time being disqualified from voting underthe provisions of any law relating to corrupt practices and other offences in connection with elections. (2) The name of any person who becomes so disqualifiedafter registration shall forthwith be struck off the electoral roll in which it is included: Provided that the name of any person struck off the electoral roll of a constituency by reason of a disqualification under clause (c) of sub-section (1) shall forthwith be re-instated in that r oll if suchdisqualification is, during the period such roll is in for ce, removed under any law authorising such removal.” 115. With effect from 30.12.1958, Section 19 of the 1950 Act reads as follows: “19. Conditions of registration. — Subject to the fo regoing provisions of this Part, every person who — (a) is not less than eighteen years of age on the qualifying date, and (b) is ordinarily resident in a constituency, shall be entitled to be registered in the electoral roll f or that constituency.” 116. It will be clear, therefore, that the requirement of minimum age of eighteen years, as provided in Article 326, is to be determ ined with reference to such date, as may be fixed by or under any law, is to be understood as the qualifying date and it is to be understood as the 1st day of January of the year, in which the electoral roll is prepared or revised. 117. Section 20 deals with the meaning of ‘ordinarily resident’. It provides for various circumstances in which a person shall not be deemed 113 to be ordinarily resident as also circumstances in which he is deemed to be ordinarily resident. Article 326 read with the provisions in the 1950 Act, which we have indicated, together provide the disqualifications for a person to be not included in an electoral roll. Before the deletion of the words ‘and illegal’ in Section 16(c), it provided for corrupt and illegal practices, which were relatable to the last part of Article 326. However, the words ‘illegal practices’ have been omitted by Act 58 of 1960 w.e.f. 26.12.1960. Apparently, being relatable to ‘crime’, to be found in Article 326, Section 16(c) declares that a person may be dis qualified for registration in the electoral roll on the basis of other offences in connection with elections.This means that a person would be disqu alified for registration in the electoral roll, if he is disqualified under any law relating to corrupt practices or any other offence in connection with elections. 118. In 1951, Parliament enacted The Representation of the People Act, 1951 (hereinafter referred to as, ‘the 1951 Act’). 119. Thereunder, the word ‘election’ has been defined in Section 2(d) to mean ‘an election to fill a seat or seats in e ither House of Parliament or in the House or either House of the Legislature of a State. Section 2(e) defines the word ‘elector’ to mean ‘ in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force a nd who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1 950)’. Under Part II, Chapter I deals with qualifications for membership of Parliament. Chapter II deals with qualifications for membership of State Legislatures. Chapter III of the 1951 Act provides for disqualifications for membership of Parliament and State Legislatures. Section 8, falling i n Chapter III, deals with disqualification upon conviction for certain offences. Various offences are enumerated with the conditions attached therein . Section 8A deals with disqualification for membership, for both Parliament and State Legislatures, on the ground of corrupt practices. Section 11A, as it stands, reads: “11A. Disqualification arising out of conviction and cor rupt practices.— (1) If any person, after the commencement of t his Act,— is convicted of an offence punishable under section 171E or section 171F of the Indian Penal Code (45 of 1860), or under section 125 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] or section 135 or clause (a) of sub-section (2) of section 136 of this Act, he shall, for a period of six years from the date of the conviction or from the date on which the order takes effect, be is qua lified for voting at any election. (2) Any person disqualified by a decision of the President under sub-section (1) of section 8A for any period shall be disqualified for the same period for voting at any election. (3) The decision of the President on a petition submitted by any person under sub-section (2) of section 8A in respect of any disqualification for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assemb ly or Legislative Council of a State shall, so far as may be, app ly in respect of the disqualification for voting at any election incurred by him under clause (b) of sub-section (1) of section 11A of this Act as it stood immediately before the commencement of the Election Laws (Amendment) Act, 1975 (40 of 1975), as if such decision were a decision in respect of the said disqualification for voting also.” 120. It is to be noted that Section 11A falls in Chapter IV, which deals with disqualifications for voting. Chapter IXA of the Indian Penal Code, 45 of 1860 deals with offences relating to elect ions. Undue influence at elections, personation at elections and bribery , are made punishable offences and are offences relating to elections. 121. In the 1951 Act, Chapter IV deals with ‘The poll’. Section 62 deals with the Right to Vote. It reads as follows: “62. Right to vote.— (1) 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. (2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in section 16 of the Representation of the People Act, 1950 (43 of 1950). (3) No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than 115 one such constituency, his votes in all such constituencies shall be void. (4) No person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for the constituency more than once, and if he does so vote, all his votes in that constituency shall be void. (5) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police: Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force. (6) Nothing contained in sub-sections (3) and (4) shall apply to a person who has been authorised to vote as proxy for an elector under this Act in so far as he votes as a proxy for such elec tor.” 122. Section 62(1) of the 1951 Act means the following: A person, who is not entered in the electoral roll of a constituency, shall not be entitled to vote in that constituency. On the ot her hand, every person, who is, for the time being, entered in the electoral roll of any constituency, is declared entitled to vote in the constituency. Section 62(2) then proceeds to declare that no person shall vote at an election in any constituency, if he is subject to any of the disqualifications referred to in Section 16 of the 1950 Act. In our view, the meaning of the Section 62(1) read with Section 62(2) is the following: To cast the vote, a person must be included in the electoral roll of the constituency. However, even if it be that he is so included, if at the time of the election, when he casts the vote, he has incurred any of the disqualifications referred to in Section 16 of the 1950 Act, then his Right to Vote will stand eclipsed. 123. Section 62(3) forbids a person, who may find his name in the electoral roll of more than one constituency of the same class, from casting his vote in more than one constituency. In such an eventuality, notwithstanding the fact that his name is so included, if he votes in more than one constituency, his ballot will be void in re gard to all the constituencies in which he casts his vote. ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] 124. Equally, under Section 62(4), if his name is included more than once in the electoral roll of the same constituency and s hould he cast his vote more than once, all the votes in regard to the said constituency are declared void. 125. Section 62(5) enacts a prohibition against the person casting his vote, if he is confined to a prison. This would mean tha t while a person’s name may be included in an electoral roll, which would entitle him, ordinarily, to cast his vote, however, Section 62(5) deprives him of his right to cast his vote, when he is so confined. We have noticed that the validity of this provision has been upheld in Anukul (supra). Also, we find the same view taken in Chief Election Commissioner and Others v. Jan Chaukidar (Peoples Watch) and Others 40, wherein this Court has upheld the validity of Section 62(5). A person may be so confined, if he is under a sentence of imprisonment or transportation or otherwise or if he is in the custody of police. We may, at this juncture, notice one feature. Article 326, undoubtedly, provides for adult suffrage. It declares that if a person is a citizen and is above eighteen years of age and he is not disqualified as provided in Article 326 by or under any law, then, such person shall be entitled to have his name entered in the electoral roll. It does not expressly say that he shall have the right to cast his vote. The right to cast the vote, as such, is expressly conferred under Section 62(1), undoubtedly, on a person, whose name is entered in the electoral roll. We have already noticed the interplay of Section 62(1) and Section 62(2). Equally, we may notice that even if a person is inc luded in the electoral roll, if he is in confinement in a prison, it would not entitle him or rather it would disentitle him to cast his vote. In other words, while ordinarily, the Right to Vote inevitably follows from the inclusion of a person in the electoral roll, the Right to Vote may be denied in terms of the law as we have noticed. The mere inclusion of a person’s na me more than once in an electoral roll in a constituency, it has been declared, also would not entitle him to vote more than once [See Section 62(4)]. Equally, inclusion of a person’s name in the electoral roll of more than one constituency, would not entitle a person to cast his vote, in terms of such inclusion in more than one constituency [See Section 62(3) ]. No doubt, we do notice that this Court has issued notice in a case, which involves a challenge to Section 62(5) of the 1951 Act. 126. Section 16(1)(b) of the 1950 Act, provides for disqualification for a person of unsound mind to be registered in an electoral roll. There 40(2013) 7 SCC 507 117 is a condition, which is that, he must be so declared by a c ompetent court. Unsoundness of mind is also to be found in Article 326 as a disqualification. Section 16(1)(c) of the 1950 Act, it is to be noticed, disqualifies a person for registration in an electoral roll, if he is for the time being disqualified from voting under any law relating t o corrupt practices and other offences in connection with elections. If such a person is included in such electoral roll, his name is to be struck off f rom the electoral roll [See Section 16(2)]. Section 11A of the 1951 Act provides for disqualifications from voting. We have already noticed its contents. 127. In Desiya Murpokku Dravida Kazhagam (DMDK) and another v. Election Commission of India41, dealing with the validity of the Symbols Order 1968, providing for recognition and allotment based on the criteria mentioned therein, Justice Chelameswar authored a dissent. In the course of his dissent, the learned Judge, after adverting to Articles 81 and 170, which respectively provided for the composition of the Lok Sabha and the Legislative Assemblies, and, more particularly, that the Members of the said Legislative Bodies, would be chosen by direct elections and after adverting to Articles 325 and 326, held as follows: “98. The cumulative effect of all the abovementioned provisions is that the Lok Sabha and the Legislative Assemblies are to consist of members, who are to be elected by all the citizens, who are of 18 years of age and are not otherwise disqualified, by a valid law, to be voters. Thus, a constitutional right is created in all citizens, who are 18 years of age to choose (participate in the elect oral process) the members of the Lok Sabha or the Legisl ative Assemblies. Such a right can be restricted by the approp riate legislature only on four grounds specified under Article 326.” 128. In this regard, we may also notice the Judgment of this Court in Rajbala and others v. State of Haryana and others 42. Therein a Bench of two learned Judges was dealing with the constitutionalit y of the Haryana Panchayati Raj (Amendment) Act, 2015, under which , certain categories of person were rendered incapable of contesting elections. One such category was persons who did not possess specified educational qualifications. Justice Chelameswar speaking for the Bench, held as follows: 41 (2012) 7 SCC 340 42 (2016) 2 SCC 445 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] “31. The right to vote of every citizen at an election either to the Lok Sabha or to the Legislative Assembly is recognised und er Articles 325 and 326 subject to limitations ( qualifications and disqualifications) prescribed by or under the Constitution. On the other hand, the right to vote at an election either to the Rajya Sabha or to the Legislative Council of a State is confined only to Members of the electoral colleges specified under Articles 80(4) and (5) and Articles 171(3)(a), (b), (c) and (d) [ “171. (3) Of the total number of members of the Legislative Council of a State—(a) as nearly as may be, one-third shall be elected by electorates consisting of members of municipalities, district boards and such other local authorities in the State as Parliament may by law specify;(b) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons residing in the State who have been for at least three years graduates of any university in t he territory of India or have been for at least three years in possession of qualifications prescribed by or under any law ma de by Parliament as equivalent to that of a graduate of a ny such university;(c) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons who have been for at least three years engaged in teaching in such educational institutions within the State, not lower in standard than that of a secondary school, as may be prescribed by or under any law made by Parliament;(d) as nearly as may be, one-third shall be elected by the members of the Legislative Assembly of the State from amongst persons who are not members of the Assembly;( e) the remainder shall be nominated by the Governor in accordance with the provisions of clause (5).”] respectively. In the case of election to the R ajya Sabha, the electoral college is confined to elected members of Legislative Assemblies of various States and represe ntatives of Union Territories [ “80. (4) The representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the si ngle transferable vote.”]. In the case of the Legislative Counci l, the electoral college is divided into four parts consisting of: (i) members of various local bodies specified under Article 171(3)(a); (ii) certain qualified graduates specified under Article 171(3)(b); (iii) persons engaged in the occupation of teaching in certain qualified institutions 119 described under Article 171(3)( c); and (iv) Members of the Legislative Assembly of the State concerned. Interestingly, persons to be elected by the electors falling under any of the abovementioned categories need not belong to that category, in other words, need not be a voter in that category. [G. Narayanaswami v. G. Pannerselvam, (1972) 3 SCC 717, pp. 724- 25, para 14:” 14. Whatever may have been the opinions of Constitution-makers or of their advisers, whose views are cited in the judgment under appeal, it is not possible to say, on a perusal of Article 171 of the Constitution, that the Second Chambers set up in nine States in India were meant to incorporate the principle of what is known as ‘functional’ or ‘vocational’ representation which has been advocated by Guild-Socialist and Syndicalist Schools of Political Thought. Some of the observations quoted above, in the judgment under appeal itself, militate with the conclusions reached there. All that we can infer from our constitutional provisions is that additional representation or weightage was given to persons possessing special types of knowledge and experience by enabling them to elect their special representatives also for Legislative Councils. The concept of such representation does not carry with it, as a necessary consequence, the further notion that the representative must also possess the very qualifications of those he represents.”]” 129. Thereafter the Court also held as follows: “38. We, therefore, proceed on the basis that, subject to restrictions mentioned above, every citizen has a constitutional right to elect and to be elected to either Parliament or the State Legislatures.” 130. Still further, the Court held as follows: “The right to vote at an election to the Lok Sabha or the Legislative Assembly can only be subjected to restrictions specified in Article 326. It must be remembered that under Article 326, the authority to restrict the right to vote, can be exercised by the appropriate Legislature.” 131. What are the incidents of a legal right? In Salmond o n Jurisprudence, we find the following discussion about the characteristics of a legal right: ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] “(1) It is vested in a person who may be distinguished as the owner of the right, the subject of it, the person entitled, the person of inherence . (2) It avails against a person, upon whom lies the correlative duty. He may be distinguished as the person bound, or as the subject of the duty, or as the person of incidence . (3) It obliges the person bound to an act or omission in favour of the person entitled. This may be termed the content of the right. (4) The act or omission relates to some thing (in the widest sense of that word), which may be termed the object or subject-matter of the right. (5) Every legal right has a title, that is to say, certa in facts or events by reason of which the right has become vested in its owner.” 132. Article 168 of the Constitution reads as follows: “168. Constitution of Legislatures in States (1) For every State there shall be a Legislature which shall consist of the Governor, and (a) in the States of Bihar, Madhya Pradesh, Maharas htra, Karnataka and Uttar Pradesh, two houses: (b) in other States, one House (2) Where there are two Houses of the Legislature of a Stat e, one shall be known as the Legislative Council and the other as the Legislative Assembly, and where there is only one House, it shall be known as the Legislative Assembly.” 133. A perusal of Article 168(2) would lead us to the following inevitable conclusion: Wherever there are two Houses in a Legislature of a State, one is designated as Legislative Assembly and the other is called a Legislative Council. In States, where there is only one House, it will be called t he Legislative Assembly. So, it is that Article 170 deals with the composition of Legislative Assemblies whereas Article 171 deals with the composition of Legislative Councils. We may bear in mind that Section 27 of the 1950 Act[referred to in Shyamdeo Pd. Singh (supra)] actually deals 121 with the preparation of electoral roll for the Legislative Council and not the Legislative Assembly. We make this observation only to remind ourselves that there is a distinction between the Legisla ture of a State and Legislative Assembly. Article 168 deals with the constitution of the Legislatures of the States. Apart from the Governor, a Legislative Assembly, when there is only one House, would be the other constituent part of the Legislature of the State. Therefore, Article 326 deals with the House of the People, and the Legislative Assembly. It does not deal with Legislative Councils. As far as Article 327 is concer ned, it deals with power of Parliament to make law with respect to all matters or relating to election in connection to either House of Parliament. Equally, Parliament can make law in regard to either House of the Legislature of a State, including the preparation of electoral roll. However, there is a caveat. Article 327 begins with the words ‘subject to the provisions of this Constitution’. This would mean that Article 327 is subject to Article 326. Therefore, since Article 326 provides for the specific he ads of disqualification in regard to election to the House of the People and to the Legislative Assembly, the power to make law under Article 327 may not be available, overcoming the limitation as regards the grounds of disqualification enumerated in Article 326. This limitation is found even in Article 328, which deals with the powers of the State Legislature. 134. Undoubtedly, the Founding Fathers contemplated conferring the right to participate in elections to the House of Pe ople and the Legislative Assemblies on all citizens, who were of a certain age. The right was, however, subject to the condition that they were not to be disqualified. The disqualifications, again, were, however, limited to what was contained in Article 326. The disqualifications, no doubt, were to be expressly provided by a law to be made by the appropriate Legislature.The disqualification or rather qualification included the aspect of residence. Section 20 of the 1950 Act elaborates upon the concept of residenc e. Likewise, in the matter of corrupt practices and other crimes in connection with elections, within the meaning of Section 16(c) of the 1950 Act, the matter is to be regulated by the law. 135. Having noticed all the relevant provisions and bearing in mind the characteristics of a legal right, we find as follows: Since every legal right, which would include a Constitutional Right, [as the Constitution is also law though the grundnorm and not law for the purpose of Article 13,] must have a title, we must ascerta in whether a ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] citizen of India, who is not less than eighteen years, as, on the ‘qualifying date’, as found by us, has a right. Since, the title to a legal right means, “the facts or events, by reason of which, the rights become vested in its owner”, who is the person of inherence, we will explore, whether Article 326 contains the facts and reasons and whether it also contai ns the content of a Right. 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, we would find that, 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 ci tizen not less than eighteen years does not have the disqualifications, he bec omes 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, as we have noticed, gives also the Right to Vote to such a person. Any other interpretation would whittle down the grand object of conferring adult suffrage on citizens. 136. The mere fact that for the creation of a Right, one needs to lean on certain facts, which may consist of a law, which, in turn, is in the main respects dictated to by the constitutional provision, may not detract from the existence of a Right. Article 19 confers fundamental freedoms, which are understood as Fundamental Rights. The Fundamental Rights can be regulated by law made under Article 19(2) to Article 19(6). Could it be said that, in view of the power to regulate the Fundamental Right, no right exists?We are conscious that in the case of Fundamental Rights under Article 19, it could be said that the Right exists and it is only made subject to a law, which may be made. However, could it be sa id that whenever a law is made by Parliament, acting even within the boundaries of Article 326, by amending or adding to the disqualifications, even if it be limited by the disqualifications declared in Article 326, that such a law could be described as falling foul of the Constitution, as cont ained in Article 326? 137. Take for instance, a new corrupt practice is added by la w. Would it be vulnerable on the ground that it takes away the Constitutional 123 right under Article 326? We would think that it may not. What would be the position if the Legislature had not provided for any corrupt practice or a crime as a disqualification. Then there would be no such disqualification.However, the appropriate Legislature is also limited in the matter of the disqualifications by Article 326. In that sense, it could be said that Article 326 provides a constitutional rig ht, subject to restrictions which the law provides for, which must finally be traced to its shores. Section 62(1) of the 1950 Act provides the fulfilment of the goal of adult suffrage guaranteed in Article 326. Article 326(3) and Article 326(4) are only meant to provide against the misuse of the right. Section 62(2) is clearly reconcilable with Article 326. Section 62(5) again appears to be a restriction. 138. In regard to Article 326, we may observe, when the Founding Fathers clearly created a right on the citizen, who was an adult, (the age was originally 21 years and it was lowered to 18 years), to have his name entered in the electoral roll unless he has incurred disqualifications, which, in turn, were limited to those mentioned in Article 326, they were to be provided by law. It is clear that a law necessarily had to be made. The law was, indeed, made as we have noted by the 1950 and 1951 Acts, providing for the true contours of the disqualification li mited to what was provided in Article 326. Imagine a situation, if Parliament had not passed 1950 and 1951 Acts, it would have led to a situation where the foundational democratic process of holding elections to the House of the People and the Legislative Assemblies would have be en rendered impossible. A law had to be made and it was made. Not making the law would have led to a constitutional breakdown. We make these remarks to remind ourselves that treating the Constitution as the gru ndnorm, providing the very edifice of the State and the Legal System, the making of the law by the Legislative Body, which is a power entr usted to the Legislative Branch, may come with a duty. A conferment of legislative power, as is done under Article 245 read with Articl e 246 of the Constitution, is not to be confused with the making of the law u nder Article 326. The conferment of a legislative power under Articl e 245 read with Article 246 is the essential legislative powers in terms of the separation of power envisaged broadly under the Constitution. 139. We have noticed that we cannot and we need not finally pronounce on this aspect, in view of the fact that a Constitution Bench of this Court, which we have noticed in Kuldip Nayar (supra) has proceeded to hold that there is no Constitutional Right. ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] 140. What is important is that the Court noted in Anukul (supra) that holding of free and fair elections constitute a basic feature of the Constitution and approved of the view apparently that the Right to Elect is fundamental to democracy [See Jyoti Basu (supra)]. 141. Even if it is treated as a statutory right, which, at any rate, cannot be divorced or separated from the mandate of Article 326 , the right is of the greatest importance and forms the foundation for a free and fair election, which, in turn, constitutes the right of the people to elect their representatives. We would for the purpose of the lis in question rest content to proceed on the said basis. T. DEMOCRACY AND THE IMPORTANCE OF ELECTIONS 142. Dr. B.R. Ambedkar made the following pertinent observations regarding democracy in the course of his speech in the Constituent Assembly on 25.11.1949: “What we must do is not to be content with mere pol itical democracy. We must make our political democracy a so cial democracy as well. Political democracy cannot last unless there lies at the base of it a social democracy. What doe s social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life. These principles — liberty, equality and fraternity — are not to be tre ated as separate items in a trinity. They form a union of trini ty in the sense that to divorce one from the other is to defeat the ver y purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them. We must begin by acknowledging the fact that there is complete absence of two things in Indian society. One of these is equality. On the soci al plane, we have in India a society based on the principle of graded inequality, which means elevation for some and degradation for others. On the economic plane, we have a society in which there are some who have immense wealth as against many who live in abject poverty. 125 On January 26, 1950, we are going to enter into a l ife of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man, one vote and one vote, one value. In our social and economic life we shall, by reason of our social and economic structure, continue to deny the principle of one man, one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality i n our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which we have so laboriously built up.” 143. In Indira Nehru Gandhi Smt. v. Raj Narain and another 143, this Court adverted to the importance of elections in a de mocracy as follows: “198. … Democracy postulates that there should be periodical elections, so that people may be in a position either to re-elect the old representatives or, if they so choose, to chang e the representatives and elect in their place other repres entatives. Democracy further contemplates that the elections should be free and fair, so that the voters may be in a position to v ote for candidates of their choice. Democracy can indeed function only upon the faith that elections are free and fair and not rigged and manipulated, that they are effective instruments of asce rtaining popular will both in reality and form and are not mere rit uals calculated to generate illusion of defence to mass opinion. F ree and fair elections require that the candidates and their agents should not resort to unfair means or malpractices as may impinge upon the process of free and fair elections. Even in the absence of unfair means and malpractices, some times the result of an election is materially affected because of the improper rejection of ballot papers. …” 144. Aharon Barak, President of Supreme Court of Israel in his book ‘The Judge in a Democracy’ articulates concepts about democracy succinctly. He says the following while answering the difficult question as to what is democracy: 43 1975 Supp SCC 1 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] “What is democracy? According to my approach, democracy is a rich and complex normative concept. It rests on two bases. Th e first is the sovereignty of the people. This sovereignty is exercised in free elections, held on a regular basis, in which the people choose their representatives, who in turn represent their views. This aspect of democracy is manifested in majority rule and in the centrality of the legislative body through which the people’s representatives act. This is a formal aspect of democracy. It is of central importance, since without if the regime is not democratic. The second aspect of democracy is reflected in the rule of values (other than the value of majority rule) that characterize democracy. The most important of these values are separation of powers, the rule of law, judicial independence, human rights, and basic principles that reflect yet other values (such as morality and justice), social objectives (such as the public peace and security), and appropriate ways of behavior (reasonableness, good faith). This aspect of democracy is the rule of democratic values. This is a substantive aspect of democracy. It too is of central importance. Without it, a regime is not democratic. Both aspects, the formal and the substantive, are necessar y for democracy. They are “nuclear characteristics.” I discussed them in one case, holding that “these characteristics are based ... upon the recognition of the sovereignty of the people manifested in free and egalitarian elections; recognition of the nucleus of human rights, among them dignity and equality, the existence of separation of powers, the rule of law, and an independent judiciary.” (Emphasis Supplied) 145. He dilates on the qualities that inform a substantive democracy as follows: - “Democracy is not satisfied merely by abiding by proper elections and legislative supremacy. Democracy has its own internal morality based on the dignity and equality of all human beings. Thus, in addition to formal requirements (elections and the rule of the majority), there are also substantive requirements. The se are reflected in the supremacy of such underlying democratic values and principles as separation of powers, the rule of law, and 127 independence of the judiciary. They are based on such fundamental values as tolerance, good faith, justice, reasonableness, and public order. Above all, democracy cannot exist without the protection of individual human rights – rights so essential that they must be insulated from the power of the majority. Democracy is not just the law of rules and legislative supremacy; it is a multidimensional concept. It requires recognition of both the power of the majority and the limitations on that power.” (Emphasis Supplied) 146. On the topic of Change and Stability and elaborating on ‘The Dilemma of Change’, the learned Judge writes: - “The Dilemma of Change The need for change presents the judge with a difficult dilemma, because change sometimes harms security, certainty, and stability. The judge must balance the need for change with the need for stability. Professor Roscoe Pound expressed this well more than eighty years ago: “Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and of the need of change. Law must be stable and yet it cannot stand still.” Stability without change is degeneration. Change without stability is anarchy. The role of a judge is to help bridge the gap between the needs of society and the law without allowing the legal system to degenerate or collapse into anarchy. The judge must ensure stability with change, and change with stability. Like the eagle in the sky, which maintains its stability only when it is moving, so too is the law stable only when it is moving. Achieving this g oal is very difficult. The life of the law is complex. It is not mere logic. It is not mere experience. It is both logic and experience together. The progress of case law throughout history must be cautiou s. The decision is not between stability or change. It is a question of the speed of the change. The decision is not between rigidity or flexibility. It is question of the degree of flexibility.” (Emphasis Supplied) 147. In S.R. Chaudhuri v. State of Punjab and Others ,44, this Court had to deal with the question whether the person who was not a 44(2001) 7 SCC 126 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] Member of the Assembly and who failed to get himself elected during the period of six consecutive months, after appointment as Minister, could be reappointed as Minister without being elected after the expiry of the period of six consecutive months.The decision involved the interpretation of Article 164, and in particular, Article 164 (4) of the Constitution of India. Article 164 reads as follows. “164. Other provisions as to Ministers. — (1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor: Provided that in the States of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare w ho may in addition be in charge of the welfare of the Scheduled Castes and Backward Classes or any other work. (2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. (3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule. (4) A Minister who for any period of six consecutive months i s not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister. (5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall b e as specified in the Second Schedule.” A Bench of three Learned Judges of this Court disapproving of the resort to repeated appointments without the Minister getting elected held as follows: “21. Parliamentary democracy generally envisages (i) representation of the people , (ii) responsible government , and (iii) accountability of the Council of Ministers to the Legislature. The essence of this is to draw a direct line of authority from the people through the Legislature to the executive. The character and content of parliamentary democracy in the ultimate 129 analysis depends upon the quality of persons who ma n the Legislature as representatives of the people. It is said that “elections are the barometer of democracy and the contestan ts the lifeline of the parliamentary system and its set-up”.” “33. Constitutional provisions are required to be understood and interpreted with an object-oriented approach. A Constitution must not be construed in a narrow and pedantic sense. The words used may be general in terms but, their full import and true meaning, has to be appreciated considering the true context in whi ch the same are used and the purpose which they seek to achieve . Debates in the Constituent Assembly referred to in an earlier part of this judgment clearly indicate that a non-member’s inclusion in the Cabinet was considered to be a “privilege” that extends only for six months, during which period the member must get elected, otherwise he would cease to be a Minister. It i s a settled position that debates in the Constituent Assembly may be relied upon as an aid to interpret a constitutional provision because it is the function of the court to find out the intention of the framers of the Constitution. We must remember that a Constitution is not just a document in solemn form, but a living framework for t he Government of the people exhibiting a sufficient degree of cohesion and its successful working depends upon the democratic spirit underlying it being respected in letter and in spirit. The de bates clearly indicate the “privilege” to extend “only” for six months.”” (Emphasis supplied) 148. In B.R. Kapur v. State of T.N. and Another ,45 interpreting Article 164 again a Constitution Bench which also relied upon Constituent Assembly Debates held that a non-legislator could become a Chief Minister or Minister under Article 164 only if he had the qualification for membership of the legislative body and was also not disqualified within the meaning of Article 191. Of relevance to the cases before us are the following observations of Justice G.B. Pattanaik which are as follows: - “In a democracy, constitutional law reflects the value that people attach to orderly human relations, to individual freedom under the law and to institutions such as Parliament, political parties , free elections and a free press. xxxx xxxx xxxx 45(2001) 7 SCC 231 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] The said Constitution occupies the primary place. Notwithstanding the fact, we have a written constitution, in course of time, a wide variety of rules and practices have evolved which adjust operation of the Constitution to changing conditions. xxxx xxxx xxxx Many important rules of constitutional behaviour, whic h are observed by the Prime Minister and Ministers, members of t he Legislature, Judges and civil servants are contained neither in Acts nor in judicial decisions. But such rules have been nomenclatured by the constitution-writers to be the rule of “the positive morality of the constitution” and sometimes the authors provide the name to be “the unwritten maxims of the constitution” — rules of constitutional behaviour, which are considered to be binding by and upon those who operate the Constitution but which are not enforced by the law courts nor by the presiding officers in the House of Parliament.” (Emphasis supplied) 149. In B.P. Singhal v. Union of India and Another 46, dealing with Article 156(1) which declares that a Governor shall hold office during the pleasure of the President. This Court held after declaring that the Governor is not an agent of the ruling party at the Centre, as follows:- “71. When a Governor holds office during the pleasure of the Government and the power to remove at the pleasure of th e President is not circumscribed by any conditions or restrictions, it follows that the power is exercisable at any time, without assigning any cause. However, there is a distinction between the need for a cause for the removal, and the need to disclose the cause for removal. While the President need not disclose or inform the cause for his removal to the Governor, it is imperative that a cause must exist.” As regards the Limitations/ Restrictions on the exercise of removal of Governor, this Court observed as follows: - “(iv)Limitations/Restrictions upon the power under Article 156(1) of the Constitution of India 46(2010) 6 SCC 331 131 48. We may now examine whether there are any expres s or implied limitations or restrictions on the power of remova l of Governors under Article 156(1). We do so keeping in mind the following words of Holmes, J.: “… the provisions of the Constitution are not mathem atical formulas having their essence in their form; they are organic, living institutions… The significance is vital, nor formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth” (see Gompers v. United States [58 L Ed 1115 : 233 US 604 (1913)] , L Ed p. 1120).” (Emphasis supplied) U. POWERS, FUNCTIONS AND JURISDICTION OF THE ELECTION COMMISSION OF INDIA 150. Article 324 is a plenary provision clothing the Election Commission with the entire responsibility to hold the National and State elections and carries with it the necessary powers t o discharge its functions. However, the Commission cannot act against a law framed by Parliament or the State Legislature. The power of the Commission is also subject to norms of fairness and it cannot act arbitrarily. The action cannot be mala fide. Article 324 governs in matters not c overed by legislation. Being a high functionary who is expected to function fairly and legally if he does otherwise, the courts can veto the i llegal action (See Mohinder Singh Gill and Another v. Chief Election Commissioner, New Delhi and Others,47). 151. The Election Commission under Article 324 can postpone an election on the basis of the opinion that there existed disturbed conditions in the State or some area of the State thus making of holding f ree and fair elections not possible. The court followed the views in the Mohinder Singh Gill case (supra) that democracy depends on the man as much as on the Constitution [See Digvijay Mote v. Union of India and Others48]. The Election Commission is endowed with the power t o recognise political parties and to decide disputes arising among them.It can also adjudicate controversies between splinter groups within a political party. The Commission has been found to have the power to issu e the symbols order. This right has been traced to Article 324 [(See All Party 47(1978) 1 SCC 405) 48(1993) 4 SCC 175 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] Hill Leaders Conference Shillong v. Captain W.A. Sangma and Others49, and Kanhiya Lal Omar v. R.K. Trivedi and Others 50)]. 152. Recognising the magnitude of the exercise involved in ensuring free and fair elections, this Court declared that in case of conflict of opinion between the Election Commission and the Government, a s to the adequacy of the machinery to deal with the state of law a nd order, the assessment of the Election Commission was to prima facie prevail. This Court, no doubt, also observed that a mutually acceptable coordinating machinery may be put in place (see Election Commission of India v. State of T.N and Others 51). 153. While dealing with the power of the Election Commission to requisition such staff “for election duty” and disagr eeing with the Commission that it could requisition the service of the employees of the State Bank of India, this Court declared that the election commission did not have untrammelled power. The power must be trac ed to the Constitution or a law (see Election Commission of India v. State Bank of India Staff Association Local Head Office Unit, Patna and Others52). 154. The Election Commission has power to issue directions for the conduct of elections requiring the political parties to submit the details of the expenditure incurred or authorised by them for the purpose of the election of their respective candidates. This power was trac ed to the words “conduct of elections” [See Common Cause (A Registered Society) v. Union of India and Others 53]. 155. All powers though not specifically provided but necessary for effectively holding the elections are available to the Election Commission. [See Election Commission of India v. Ashok Kumar and Others54]. 156. Article 324 is a reservoir of power to be used for holding free and fair elections. The Commission as a creature of the Constitution may exercise it in an infinite variety of situations. In a democracy, the electoral process plays a strategic role. The commission can fill up the 49(1977) 4 SCC 161 50(1985) 4 SCC 628 51(1995) Suppl. 3 SCC 379 52(1995) suppl.2 SCC 13 53(1996) 2 SCC 752 54(2000) 8 SCC 216 133 vacuum by issuing directions until there is a law made. Thi s was laid down in the context of directions aimed at securing information abo ut the candidates [See Union of India v. Association for Democratic Reforms and Others 55]. 157. Following a spate of violence in the State of Gujarat and upon the dissolution of the Assembly, the Commission took the view that it may not be possible to hold the election though Article 174(1) mandated that there shall not be more than six months in between the last session of the assembly and the first meeting of the next session. After finding that Article 174 did not apply to a dissolved assembly as was indeed the case, this Court reiterated that the words ‘superintendenc e, control, direction as also ‘the conduct of all elections’ were the broadest terms. This court also found that if there is no free and fair periodic election, it is the end of democracy.[See (2000) 8 SCC 237]. The said judgment was rendered while answering a reference made to this Court under Article 143 of the Constitution. 158. The Election Commission has the power to lay down a certain benchmark to be achieved by a party in State politics before it could be recognised as a political party [See Desiya Murpokku Dravida Kazhagam (DMDK) v. Election Commission of India and Others 56]. Justice J. Chelameswar wrote a dissenting opinion. 159. While dealing with the aspect of jurisdiction of the Election Commission under Section 10A of the 1951 Act to ascertain whet her there has been a failure to lodge true, correct and genuine accounts of bona fide election expenditure and that it did not exceed the maximum limit, the Election Commission has been found to have overarching powers and it has been described as a ‘guardian of democracy ’.In this regard, we notice the following words of this Court in Ashok Shankarrao Chavan v. Madhavrao Kinhalkar 57 : “67. In this context, we also keep in mind the Preamble to the Constitution which in liberal words states that the People of India having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all citizens justice, liberty, equality and fraternity. In such a large democratic country such as ours, if purity in elections is not maintained, and 55(2002) 5 SCC 294 56(2012) 7 SCC 340 57 (2014) 7 SCC 99 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] for that purpose when the Constitution makers in their wis dom thought it fit to create an authority, namely, the Election Commission and invested with it the power of superintendence, control and also to issue directions, it must be stated that s uch power invested with the said constitutional authority should not be a mere empty formality but an effective and stable one, in whom the citizens of this country can repose in and look upon to ensure that such unscrupulous elements and their attempts to enter into political administration of this vast country are scuttled. I n that respect, since the ruling of this vast country is always in the hands of the elected representatives of the people, the enormous powers of the Election Commission as the guardian of democracy should be recognised. It is unfortunate that those who are really interested in the welfare of society and who are incapable of indulging in any such corrupt practices are virtually side-lined and are treated as totally ineligible for contesting the elections.” (Emphasis supplied) 160. Under Article 103(2) and Article 192(2), the President and the Governor are to act on the opinion of the Election Commi ssion as regards the question of disqualification of the Member of Pa rliament and of the Legislature of a State, respectively. This is the advisory jurisdiction of the Election Commission. It exercises vast administrative powers. Further, the Election Commission discharges quasi- judicial functions also. V. THE IMPACT OF ARTICLE 329(b) 161. Article 329 (b) declares as follows: “(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.” 162. Regarding the impact of Article 329(b), a Bench of thre e learned judges after an exhaustive review of the earlier case law has set down the following summary of conclusions in the case of Election Commission of India v. Ashok Kumar 58: 58 (2000) 8 SCC 216 135 “31. The founding fathers of the Constitution have consciously employed use of the words “no election shall be called in question” in the body of Section 329( b) and these words provide the determinative test for attracting applicability of Article 329(b). If the petition presented to the Court “calls in question an election” the bar of Article 329(b) is attracted. Else it is not. 32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follow s therefrom in view of the analysis made by us hereinabove: (1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declar ation of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. (2) Any decision sought and rendered will not amount to “calling in question an election” if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. (3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exerc ise of power being made out or the statutory body being shown to have acted in breach of law. (4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is avail able if assistance of the court has been sought for merely to correc t or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of ev idence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for inv oking the jurisdiction of the court. ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] (5) The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The court must guard against any attem pt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court’s indulgence by filing a petition outw ardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not a ct, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material. 33. These conclusions, however, should not be construed as a summary of our judgment. These have to be read along with the earlier part of our judgment wherein the conclusions have been elaborately stated with reasons.” 163. We would, therefore, find that the Election Commission of India has been charged with the duty and blessed with extraordina ry powers to hold elections to both Parliament and state legislatures from time to time.This is an enormous task.The power it possess es under Article 324 is plenary. It is only subject to any law which may be made by Parliament or by the State Legislature. Undoubtedly, the Election Commission is duty bound to act in a fair and legal manner. It must observe the provisions of the Constitution and abide by the directions of the Court. The same being done, it can draw upon a nearly infinite reservoir of power. Once the poll is notified,[which again is a call to be taken by the Election Commission itself, and indeed capable of being misused and the subject of considerable controversy, if bias or subse rvience to the powersthat be, isbetrayed], it assumes unusual powers. Its writ lies across Governments over the length and breadth of the country. Officers of the Government who come under its charge become subject to the superintendence of the Commission. The fate of the political parties and its candidates, and therefore, of democracy itself to a great me asure is allowed to rest in the hands of the Election Commission. Whil e there may be officers who assist the Commission, vitally important decisions have to be taken by those at the helm of the affairs. It i s the Chief Election Commissioner and the Election Commissioners at whose table 137 the buck must stop.It is in this scenario, we bear in mi nd that when a decision is taken in the process of the holding of the poll, that subject to proceedings which are initiated in courts which conduce to the effective holding of the poll, any proceeding which seeks to bring the election process under a shadow is tabooed. The significance of this asp ect is that it adds to the enormity of the powers and responsibili ties of the Election Commission. Awaiting the outcome of the poll to question the election before the tribunal may result in many illegal, unfair and mala fide decisions by the Election Commission passing muster for the day. Once the election results are out, the matter is largely reduced to a fait accompli.In fact, many a time an omission or a delayin taking a decision can itself be fatal to the holding of a free and fair poll. The relief vouchsafed in an election petition may not by itself provide a just solution to the conduct of election in an illegal, mala fide or unfair manner.These observations have a direct connection with the question with which we are concerned with, namely, the need to take the appointment of t he members of the Election commission out of the exclusive hands of the executive, namely, the party which not unnaturally has an inter est in perpetuating itself in power. W. PURSUIT OF POWER; A MEANS TO AN END OR AN END IN ITSELF? 164. The basic and underlying principle central to democracy is power to the people through the ballot. Abrahim Linco ln declared democracy to be Government of the people, by the people and for the people. A political party or a group or a coalition assum es reigns of governance. The purpose of achieving power is to run the Government. No doubt, the Government must be run in accordance with the dictate of the Constitution and the laws. Political parties not unnaturally come out with manifestos containing a charter of promises they inte nd to keep. Without attaining power, men organised as political parties cannot achieve their goals. Power becomes, therefore, a means to an end. The goal can only be to govern so that the lofty aims enshrined in the directive principles are achieved while observing the fundamental rights as also the mandate of all the laws. What is contemplated is a lawful Government. So far so good. What, however, is disturbing and forms as we understand the substratum of the complaints of the petitioner is the pollution of the stream or the sullying of the electoral process which precedes the gaining of power. Can ends justify the means? There can be no doubt tha t the ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] strength of a democracy and its credibility, and therefore, its e nduring nature must depend upon the means employed to gain power being as fair as the conduct of the Government after the assumption of power by it.The assumption of power itself through the electoral proces s in the democracy cannot and should not be perceived as an end. The end a t any rate cannot justify the means. The means to gain power in a democracy must remain wholly pure and abide by the Constitution and the laws. An unrelenting abuse of the electoral process over a period of time is the surest way to the grave of the democracy. Dem ocracy can succeed only in so far as all stakeholders uncompromisingly work at it and the most important aspect of democracy is the very p rocess, the electoral process, the purity of which alone will truly reflect the will of the people so that the fruits of democracy are truly reaped. The essential hallmark of a genuine democracy is the transformation of t he ‘Ruled’ into a citizenry clothed with rights which in the case of the Indian Constitution also consist of Fundamental Rights, which are also being freely exercised and the concomitant and radical change of the r uler from an ‘Emperor’ to a public servant. With the accumulation of wealth and emergence of near monopolies or duopolies and the rise of certain sections in the Media, the propensity for the electoral pr ocess to be afflicted with the vice of wholly unfair means being overlooked by those who are the guardians of the rights of the citizenry as declared b y this Court would spell disastrous consequences. X. RULE OF LAW; FUNDAMENTAL RIGHTS AND AN INDEPENDENT ELECTION COMMISSION 165. 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. We ex patiate. 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 powe r 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 which we have described which must be possessed by an Election Commission is 139 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 refuse s to exercise power when such exercise becomes a duty it has a telling and chil ling 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. Political parties must be viewed as organisations representing the hopes and aspirations of its constituents, who are citizens. The electorate are ordinarily, supporters or adherents of one or the other political parties. We may note that the recognition of NOTA, by this Court enabling a voter to express his distrust for all the candidates exposes the disenchantment with the el ectoral process which hardly augurs well for a democracy. Therefore, any action or omission by the Election Commission in holding the poll which treats political parties with an uneven hand, and what is more, in an unfair or arbitrary manner would be anathema to the mandate of Article 14, and therefore, cause its breach. There is an aspect of a citizen’s right to vote being imbued with the fundamental freedom under Article 19(1)(a). The right of the citizen to seek and receive information about the candidates who should be chosen by him as his representative has been recognised as a fundamental right [See Public Interest Foundation (supra)]. The Election Commissioners including the Chief Election Commis sioner blessed with nearly infinite powers and who are to abide by thefundamental rights must be chosen not by the Executive exclusively and particularly without any objective yardstick. Y. THE SYMBOLS ORDER; THE MODEL CODE OF CONDUCT 166. Apart from the 1950 and 1951 Acts, the Code of Election Rules, 1961 came to be made. In the year 1968,The Election Sym bols (Reservation and Allotment) Order, 1968[hereinafter referred to as, ‘the Symbols Order’] came to be made by Notification dated 31.08.1968, in exercise of powers conferred under Article 324 of the Constitution read with Section 29A of the 1951 Act and Rules 5 and 10 of the Conduct of Elections Rules. The Symbols Order deals with allotment and classification of symbols. Political parties are broadly divided into recognised political parties or unrecognised political parties. A recognised part y may be a national party or a state party. Conditions for recognition of a party as national party and state party are separately laid down. Paragraph-15 of the Symbols Order reads as follows: ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] “15. Power of Commission in relation to splinter groups or rival sections of a recognised political party– When the Commission is satisfied on information in its possession that there are rival sections or groups of a recognised pol itical party each of whom claims to be that party, the Commission may, after taking into account all the available facts and circumstances of the case and hearing such representatives of the secti ons or groups and other persons as desire to be heard, decide tha t one such rival section or group or none of such rival sections or groups is that recognised political party and the decision of the Commission shall be binding on all such rival sections or groups.” 167. Paragraph-16 deals with power of the Commission in case of amalgamation of two political parties. 168. In the very same year, that is 1968, a Model Code of Conduct also came to be issued. As of date, a large body of norms, forming part of the Model Code of Conduct, have been put in place. The Model Code of Conduct for Guidance of Political Parties and Candidates provides, inter alia, as follows: “1. No party or candidate shall include in any activity which may aggravate existing differences or create mutual hatred or cau se tension between different castes and communities, religious or linguistic. xxx xxx xxx 3. There shall be no appeal to caste or communal feeling s for securing votes. Mosques, Churches, Temples or other places of worship shall not be used as forum for election propaganda. 4. All parties and candidates shall avoid scrupulously all activities which are “corrupt practices” and offences under the election law, such as bribing of voters, intimidation of voters, impersonation of voters, canvassing within 100 meters of polling stations, holding public meetings during the period of 48 hours ending with the hour fixed for the close of the poll, and the transport and conveyance of voters to and from polling station.” 169. Thereafter, it proceeds to deal with meetings, procession s, polling day conduct. In regard to the party in power, we find the following as part of the Model Code of Conduct. Part VII of the Model Code of Conduct, inter alia, reads as follows: 141 “VII. Party in Power The party in power whether at the Centre or in the State or States concerned, shall ensure that no cause is given for any complaint that it has used its official position for the purposes of its election campaign and in particular – XXXX XXXX XXXX 1. (b) Government transport including official air-crafts, vehicles, machinery and personnel shall not be used for furtherance of the interest of the party in power; XXXX XXXX XXXX 3. Rest houses, dak bungalows or other Government accommodation shall not be monopolized by the party in power or its candidates and such accommodation shall be allowed to be used by other parties and candidates in a fair manner but no party or candidate shall use or be allowed to use such accommodation (including premises appertaining thereto) as a campaign office or for holding any public meeting for the purposes of el ection propaganda; 4. Issue of advertisement at the cost of public exchequer in the newspapers and other media and the misuse of official mass media during the election period for partisan coverage of political news and publicity regarding achievements with a view to furtheri ng the prospects of the party in power shall be scrupulously avoided. 5. Ministers and other authorities shall not sanctio n grants/ payments out of discretionary funds from the time elections ar e announced by the Commission; and” There are other aspects relating to Election Manifestos. There is a clear need for a fearless and independent Election Commiss ion of India to give full effect to these salutary principles. 170. Paragraph-16A of the Symbols Order inserted by Notification dated 18.02.1994, reads as follows: “16A. Power of Commission to suspend or withdraw recognition of a recognised political party for its failure to observe Model Code of Conduct or follow lawful directions and instructions of the Commission- ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] Notwithstanding anything in this Order, if the Commission is satisfied on information in its possession that a political p arty, recognised either as a National party or as a State party under the provisions of this Order, has failed or has refused or is refusing or has shown or is showing defiance by its conduct or otherwise (a) to observe the provisions of the ‘Model Code of Conduct for Guidance of Political Parties and Candidates’ as issued by the Commission in January, 1991 or as amended by it from time to time, or (b) to follow or carryout the lawful directi ons and instructions of the Commission given from time to time with a view to furthering the conduct of free, fair and peaceful elections or safeguarding the interests of the general public and the electorate in particular, the Commission may, after ta king into account all the available facts and circumstances of the case and after giving the party reasonable opportunity of showing cause in relation to the action proposed to be taken against it, either suspend, subject to such terms as the Commission may deem appropriate, or withdraw the recognition of such party as the National Par ty or, as the case may be, the State Party .” (Emphasis supplied) 171. In Abhiram Singh v. C.D. Commachen (DEAD) by Legal Representatives and others59, a Bench of seven learned Judges of this Court had to interpret the word ‘his’ in Section 123 of the Representation of the People Act. By a 4:3 majority, this Court held that the word ‘his’ in Section 123(3) of the Representation of the People Act, 1951, for the purpose of maintaining the purity of the electoral process, must be given a broad and purposive interpretation so that any appeal made to an elector by a candidate or his agent or by any other person with the consen t of the candidate or his election agent, to vote or refrain from voting, inter alia, on the grounds of religion and caste, would constitute a cor rupt practice. Dr. T.S. Thakur, C.J., wrote a concurring Judgment and we find it apposite to notice the following passage from his Judgment on the importance of India being a secular country and about according any particular religion, special privileges, being a violation of the basic principles of democracy: “35. At the outset, we may mention that while considering the mischief sought to be suppressed by clauses (2), (3) and (3-A) of 59(2017) 2 SCC 629 143 Section 123 of the Act, this Court observed in Ziya uddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra [Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17, decided by a Bench of three learned Judges.] that the historical, political and constitutional background of our democratic set-up needed adverting to. In this context, it was said t hat our Constitution-makers intended a secular democratic republic where differences should not be permitted to be exploited. … 62. … Dr Radhakrishnan, the noted statesman/philosopher had to say about India being a secular State in the following passage: “When India is said to be a secular State, it does not mean that we reject reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It does not mean that s ecularism itself becomes a positive religion or that the State assumes divine prerogatives. Though faith in the Supreme is the basic principle of the Indian tradition, the Indian State will not identify itself with or be controlled by any particular religion. We hold that no one religion should be given preferential status, or unique distinction, that no one religion should be accorded special privileges in national life or international relations for that would be a violation of the basic principles of democracy and contrary to the best interests of religion and Government. This view of religious impartiality, of comprehension and forbearance , has a prophetic role to play within the national and international life. No group of citizens shall arrogate to itself rights and privileges, which it denies to others. No person should suffer any form of disability or discrimination because of his religion but all like should be free to share to t he fullest degree in the common life. This is the basic principle involved in the separation of church and State .” (Emphasis supplied)” 172. The Model Code of Conduct, the views of this Court about appeal to religion, being a corrupt practice, and paragraph- 16A of the Symbols Order, empowering the Commission to act in the face of defiance, constitute a powerful weapon in the hands of an independent and impartial Election Commission. Placing the exclusive power to appoint with the Executive, hardly helps. 173. In regard to the Symbols Order, this Court in Shri Sadiq Ali and another v. Election Commission of India, New Delhi and others60, 60 (1972) 4 SCC 664 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] upheld the vires of the Symbols Order. This Court, inter alia, and held as follows: “40 … The Commission is an authority created by the Constitution and according to Article 324, the superintendence, direction and control of the electoral rolls for and the conduct of electi ons to Parliament and to the Legislature of every State and of elections to the office of President and Vice-President shall be vest ed in the Commission. The fact that the power of resolving a disp ute between two rival groups for allotment of symbol of a polit ical party has been vested in such a high authority would raise a presumption, though rebuttable, and provide a guarantee, though not absolute but to a considerable extent, that the power w ould not be misused but would be exercised in a fair and reasonabl e manner.” 174. It is further found that when the Commission issues directions, it does so on its own behalf and not as a delegate of some other Authority. This was on the construction of Article 324(1). 175. This Court upheld the power of the Election Commission of India to rescind its Order according recognition to a political party, even without elections having been held in all the States in the country [See Janata Dal (Samajwadi) v. Election Commission of India 61]. 176. In Indian National Congress (I) v. Institute of Social Welfare and others62, no doubt, this Court took the view that the Election Commission has not been conferred with the express power to deregister a political party registered under Section 29A, on the ground that it violated the Constitution or any undertaking given to the Election Commission at the time of its registration. This Court went on to hold also that while exercising its power to register a political party under Section 29A, the Commission acts quasi-judicially. The Court also set out the three exceptional cases where the Commission could review its O rder for registering a political party. It includes obtaining registration by practicing fraud or forgery. We may notice that under Paragraph-16A of the Symbols Order, the Commission has been empowered to suspend or wit hdraw the recognition of a party as a national or a state part y, after giving a reasonable opportunity. One of the grounds on which it can be so done is 61 (1996 (1) SCC 235 62 (2002) 5 SCC 685 145 refusal or defiance, apart from failure to observe the provisio ns of the Model Code of Conduct for Guidance. Therefore, after 1994, enormous powers have been conferred on the Election Commission to ensure compliance with the Model Code of Conduct for Guidance of Political Parties issued by the Election Commission in 1991 or as amended by it from time to time. The power can also be exercised under P aragraph- 16A in regard to failure or defiance in the matter of foll owing lawful directions and instructions by the Commission. 177. In Subramanian Swamy v. Election Commission of India through its Secretary63, this Court held that the purpose of making the Symbols Order was to maintain the purity of elections. The Court highlighted the duty of the Election Commission to hold free, fair and clean elections. 178. Paragraph-18 of the Symbols Order reads as follows: “18. Power of Commission to issue instructions and directions. The Commission, may issue instructions and directions- (a) for the clarification of any of the provisions of this Order; (b) for the removal of any difficulty which may arise in relation to the implementation of any such provisions; and (c) in relation to any matter with respect to the reser vation and allotment of symbols and recognition of political parties, for which this Order makes no provision or makes insufficient provision, and provision is in the opinion of the Commission necessary for the smooth and orderly conduct of elections.” 179. Dealing with the ambit of paragraph-18, this Court held, inter alia, in Edapaddi K. Palaniswami v. T.T.V. Dhinakaran and others 64, as follows: “24. Indeed, allotment of an election symbol cannot be claimed as a fundamental right as much as contesting election is not, as observed in Jyoti Basu v. Debi Ghosal [Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691] . It is a statutory right. It is also well settled that the Election Commission has plenary powers and could exercise the same to ensure free and fair elections. Clause 18 of 63 (2008) 14 SCC 318 64(2019) 18 SCC 219 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] the Symbols Order predicates the facet of such plenary power to be exercised by the Election Commission. Clause 18 reads thus : “18. Power of Commission to issue instructions and directions .—The Commission, may issue instructions and directions— (a) for the clarification of any of the provisions of this Order; (b) for the removal of any difficulty which may arise in relation to the implementation of any such provisions; and (c) in relation to any matter with respect to the reserv ation and allotment of symbols and recognition of political parties, for which this Order makes no provision or makes insufficient provision, and provision is in the opinion of the Commission necessary for the smooth and orderly conduct of elections.” 25. The Election Commission in the past has exercised plenar y powers under Para 18 for issuing interim directions regarding allocation of common symbols to the two factions, when the dispute under the Symbols Order was still pending before it. It was argued that the Election Commission cannot do so once it had finall y decided the dispute. There is no difficulty in agreeing with the proposition that once the dispute had been finally decided by ECI, the question of invoking powers under Para 18 by it (ECI) would not arise. However, if the dispute is pending enquiry before ECI or the final decision of ECI is sub judice in the proceedings before the constitutional court, providing for an equitable arrangement in the interests of free and fair elections and to provide equal level playing field to all concerned, would be a just and fair arrangement.” 180. The above observations indicate the width of the powers available to the Election Commission. 181. In Public Interest Foundation and others v. Union of India and others65, a Constitution Bench was invited but refused to add or prescribe disqualifications for contesting the elections other than what was prescribed by the Constitution and the Parliament. In this regard, an appeal made to the existence of plenary power under Article 324 did not pass muster. The attempt was to persuade the Court to direct the Election 65(2019) 3 SCC 224 147 Commission to disallow a candidate from contesting on the ground that charges have been framed for heinous and/or grievous offences. It was found that the Parliament had the exclusive legislative power to lay down the disqualifications for the membership of the Legislati ve Body. It is apposite that we, however, notice the following: “28. An essential component of a constitutional democracy is its ability to give and secure for its citizenry a representative form of government, elected freely and fairly, and comprising of a polity whose members are men and women of high integrity and morality. This could be said to be the hallmark of any free a nd fair democracy.” 182. This Court, thereafter, quoted from the Goswami Committee on Electoral Reforms, wherein the Committee bemoaned the role of money and muscle power at elections and rapid criminalisation of politics, greatly encouraging evils of booth capturing, rigging and violence. It is important that we notice paragraph-30: “30. Criminalisation of politics was never an unknown phenomenon in the Indian political system, but its presence was seemingly felt in its strongest form during the 1993 Mumbai bomb blasts which was the result of a collaboration of a diffused network of criminal gangs, police and customs officials and their political patrons. The tremors of the said attacks shook the entire nation and as a result of the outcry, a commission was constituted to study the problem of criminalisation of politics and the nexus among criminals , politicians and bureaucrats in India. The report of the Committee, Vohra Committee Report, submitted by Union Home Secretary, N.N. Vohra, in October 1993, referred to several observations made by official agencies, including Central Bureau of Investigation, Intelligence Bureau, Research and Analysis Wing, who unanimously expressed their opinion on the criminal network which was virtually running a parallel government. The Committee also took note of the criminal gangs who carried out their activities under the aegis of various political parties and gov ernment functionaries. The Committee further expressed great conc ern regarding the fact that over the past few years, several criminals had been elected to local bodies, State Assemblies and Parliament. The Report observed: ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] “3.2. … In the bigger cities, the main source of income relates to real estate — forcibly occupying lands/buildings, procuring such properties at cheap rates by forcing out the existing occu pants/ tenants etc. Over time, the money power thus acquired is used for building up contacts with bureaucrats and politicians and expansion of activities with impunity. The money power is used to develop a network of muscle-power which is also used by the politicians during elections.” And again: “3.3. … The nexus between the criminal gangs, polic e, bureaucracy and politicians has come out clearly in various parts of the country. The existing criminal justice system, which was essentially designed to deal with the individual offences/crimes, is unable to deal with the activities of the mafia; the provi sions of law in regard economic offences are weak…” 183. We are tempted to quote the following observations by Shri C. Rajagopalachari, made way back in 1922, which has been referred to by the Constitution Bench in Public Interest Foundation (supra): “40. … “… ‘Elections and their corruption, injustice and tyranny of wealth, and inefficiency of administration, will make a hell of life as soon as freedom is given to us….’”” 184. The Court, in Public Interest Foundation (supra), elaborately quoted from the Two Hundred and Forty-Fourth Report of the Law Commission of India on Electoral Disqualifications. This Court also reiterated the role and, thereafter, the powers of the Election Commission. The Court went on to observe that: “115. …The best available people, as is expected by the democratic system, should not have criminal antecedents and the voters have a right to know about their antecedents, assets and other aspects. We are inclined to say so, for in a constitutional democr acy, criminalisation of politics is an extremely disastrous and lamentable situation. The citizens in a democracy cannot be compelled to stand as silent, deaf and mute spectators to corruption by projecting themselves as helpless. The voters cannot be allowed to resign to their fate. The information given by a candidate must expres s 149 everything that is warranted by the Election Commission as per law. Disclosure of antecedents makes the election a fair one and the exercise of the right of voting by the electorate also gets sanctified. …” 185. Thereafter, the Constitution Bench went on to hold as follows: “116. Keeping the aforesaid in view, we think it appropriate to issue the following directions which are in accord with the decisions of this Court: 116.1. Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein. 116.2. It shall state, in bold letters, with regard to the cr iminal cases pending against the candidate. 116.3. If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her. 116.4. The political party concerned shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents. 116.5. The candidate as well as the political party concerned shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. When we say wide publicity, we mean that the same shall be done at least thrice after filing of the nomination papers. 117. These directions ought to be implemented in true spirit and right earnestness in a bid to strengthen the democratic se t-up. There may be certain gaps or lacunae in a law or legisla tive enactment which can definitely be addressed by the legislature if it is backed by the proper intent, strong resolve and determ ined will of right-thinking minds to ameliorate the situation. It must also be borne in mind that the law cannot always be found fault with for the lack of its stringent implementation by the autho rities concerned. Therefore, it is the solemn responsibili ty of all concerned to enforce the law as well as the directions laid down by this Court from time to time in order to infuse the cultur e of ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] purity in politics and in democracy and foster and nurture an informed citizenry, for ultimately it is the citizenry which decides the fate and course of politics in a nation and thereby ensures that “we shall be governed no better than we deserve”, and thus , complete information about the criminal antecedents of the candidates forms the bedrock of wise decision-makin g and informed choice by the citizenry. Be it clearly stated that informed choice is the cornerstone to have a pure and strong democracy . 118. We have issued the aforesaid directions with im mense anguish, for the Election Commission cannot deny a candidate to contest on the symbol of a party. A time has come that Parliament must make law to ensure that persons facing serious crimi nal cases do not enter into the political stream. It is one thing to take cover under the presumption of innocence of the accused but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation. It is true that false cases are foisted on prosp ective candidates, but the same can be addressed by Parliament through appropriate legislation. The nation eagerly waits for such legislation, for the society has a legitimate expectation to be gover ned by proper constitutional governance. The voters cry for systemat ic sustenance of constitutionalism. The country feels agonised when money and muscle power become the supreme power. Substantial efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering into politic s. They should be kept at bay.” It would appear that the grant of relief would have resulted in the rewriting of the provision. Z. INDEPENDENCE; A STERLING AND INDISPENSABLE ATTRIBUTE THE CONCEPT OF LEGITIMA TE POWER OF RECIPROCITY 186. What is independence? Independence is a value, which is only one of the elements in the amalgam of virtues that a person should possess. The competence of a man is not to be conflated with fierce independence. A person may be excellent, i.e., at his chosen vocation. 151 He may be an excellent Administrator. He may be honest but the quality of independence transcends the contours of the qualities of professional excellence, as also the dictates of honesty. We may, no doubt, clarify that, ordinarily, honesty would embrace the quality of courage of conviction, flowing from the perception of what is right and what is wrong. Irrespective of consequences to the individual, an honest person would, ordinarily, unrelentingly take on the high an d mighty and perseverein the righteous path. An Election Commissioner is answerable to the Nation. The people of the country look forward to him s o that democracy is always preserved and fostered. We may qualify the above observations by stating that true independence of a Body of persons is not to be confused with sheer unilateralism. This means that the Election Commission must act within the Constitutional framework and the laws. It cannot transgress the mandate of either and stil l claim to be independent. Riding on the horse of independence, it cannot act in an unfair manner either. Independence must be related, finally, to the question of ‘what is right and what is wrong’. A person, who is weak k need before the powers that be, cannot be appointed as a n Election Commissioner. A person, who is in a state of obligation or feels indebted to the one who appointed him, fails the nation and can have no place in the conduct of elections, forming the very foundation of the democracy. An independent person cannot be biased. Holding the scales e venly, even in the stormiest of times, not being servile to the powerfu l, but coming to the rescue of the weak and the wronged, who are otherwise in the right, would qualify as true independence. Up holding the constitutional values, which are, in fact, a part of the Ba sic Structure, and which includes, democracy, the Rule of Law, the Right to Equality, secularism and the purity of elections otherwise, would, indeed, proclaim the presence of independence. Independence must embrace the ability to be firm, even as against the highest. Not unnaturally, uncompromising fearlessness will mark an independent person from those who put all they hold dear before their Karma. It is in this context that we feel advised to refer to the following discussion in Supreme Court Advocates- on-Record Assn. and another v. Union of India 66: “310. A little personal research resulted in the revelation of the concept of the “legitimate power of reciprocity” deba ted by Bertram Raven in his article — “ The Bases of Power and the Power/Interaction Model of Interpersonal Influence ” (this 66 (2016) 5 SCC 1 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] article appeared in Analyses of Social Issues and Public Policy, Vol. 8, No. 1, 2008, pp. 1-22). In addition to having dealt with various psychological reasons which influenced the personality of an individual, reference was also made to the “legitimate power of reciprocity”. It was pointed out that the reciproci ty norm envisaged that if someone does something beneficial for another, the recipient would feel an obligation to reciprocate (“ I helped you when you needed it, so you should feel obliged to do this for me.” — Goranson and Berkowitz, 1966; Gouldner, 1960). In the view expressed by the author, the inherent need of powe r is universally available in the subconscious of the individual. On the satisfaction and achievement of the desired power, there is a similar unconscious desire to reciprocate the favour.” It is important that the appointment must not be overshadowed by even a perception, that a ‘yes man’ will decide the fate o f democracy and all that it promises. Certainty, the darkest app rehensions of the founding fathers as buttressed by the reports and oth er materials, unerringly point to the imperative need to act. AA. THE APPOINTMENT OF SHRI ARUN GOEL: A TRIGGER OR A MERE ASIDE? 187. An application was filed by the petitioner in W.P. No. 569 of 2021 to seek interim relief to provide for appointment to fill a vacancy of Election Commissioner which had arisen on 15.05.2022 by a Committee. The Bench commenced hearing of these cases on 17.11.2022. The matter stood posted to 22.11.2022.It would appear that on 18.11.2022, the vacancy of Election Commissioner came to be filled up by the appointment of one Shri Arun Goel. This appointment was attacked by Shri Prashant Bhushan, learned Counsel appearing for the petitioner, by contending that when the petitioner had moved an application, seeking interim relief relating to appointment, it was not open to the respondent- Union to make the appointment. This Court thereupon called upon the respondent to produce the files relating to the appointment. We perused the note as also the file. It is therein, inter alia, stated that a vacancy in the post of Election Commissioner arose upon the appointment of Shri Rajiv Kumar as the Chief Election Commissioner w.e.f. 15.05.2022. No specific law has been made under Article 324. A convention is put forward, which consisted of appointing senior Members of the Civi l Services, other serving or retired Officers of the rank o f Secretary to 153 the Government of India/Chief Secretary of State Government . The convention further comprised of the appointment of the seni or-most Election Commissioner as the Chief Election Commissioner so far. We found, undoubtedly, from the perusal of the files that the respondent was aware of the pendency of Writ Petition (Civil) No. 104 of 2015 a part from the other Writ Petitions. The appointment has been made apparently on the basis that there was no hinderance to the ma king of the appointment. Approval was sought on 18.11.2022 for the appointment of one Election Commissioner. On the very same day, drawing upon t he database of IAS Officers, serving and retired, in the position of Secretary to the Government of India, it was accessed. We found four name s, which included at the top of the list, the present appointee. Three other names were also considered by the Minister of Law and Justice. One of the Officers was from Andhra Pradesh and belonged to the 1983 Batch. The third Officer empanelled belonged to the Telangana State and he belonged to the 1983 Batch and the fourth Officer belonged to the Tamil Nadu cadre and belonged to the 1985 Batch. The present appointee belonged to the Punjab Cadre and was of the 1985 Batch. On the same day, i.e., on 18.11.2022, a Note was seen put-up, wherein th e Law Minister had suggested the panel of four names for the consideration of the Prime Minister and the President. Therein also, the absence of a law and the convention, which we have already referred to, has been noted. We further find that three of the Officers mentioned had superannuated during the last two years or so. The appointee, it was not ed was to superannuate in the month of December, 2022 and had taken voluntary retirement, was found to be the youngest of the four Members of the panel. It was recommended to the Prime Minister that consider ing his experience, age, profile and suitability, the current appoi ntee may be considered.On the very same day again, the Prime Mi nister recommended the name of the present appointee. We notice fur ther that, on the same day again, an application is seen made by the appointee in regard to voluntary retirement and accepting the same, again, w.e.f., 18.11.2022, and waiving the three months period required for acting on the request of voluntary retirement, the Officer’s request for voluntary retirement came to be accepted by the Competent Authority. Not coming as a surprise, on the same day, his appointment as Election Commissioner was also notified. We are a little mystified as to how the officer had applied for voluntary retirement on 18.11.2022, if he was not in the know about the proposal to appoint him. Whether that be,we no tice that ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] 18.11.2022 was a Friday and very next day, after the Court had directed the case to be listed to 22.11.2022, for considering the matter. 188. In regard to this appointment, the salient features ma y be noticed. The vacancy was subsisting from 15.05.2022. The Constitution Bench held a preliminary hearing on 17.11.2022. It was while so on the next day, i.e., 18.11.2022, when an interim application was also pending consideration, all the procedures commencing with t he proposal, processing of the same at the hands of the Minister for Law, the further recommendations of the concerned Officers, the recommendation of the Prime Minister, the acceptance of the application of t he appointee seeking voluntary retirement, waiving the three months period and the appointment by the President under Article 324(2), which came to be notified, took place in a single day. No doubt, there was no interim Order, restraining such appointment but, at the same time, I.A. No. 63 145 of 2021 in Writ Petition (Civil) No. 569 of 2021, seeking a direction to make appointment to the vacant post by an independent Body, was pendi ng consideration. Shri Prashant Bhushan would seek the invalidation of the appointment itself on the said score. 189. Since the Constitution Bench has been constituted to consider the need for a different method of appointment of the Chief Elect ion Commissioner and the Election Commissioners, the procedure involved in the appointment as has been followed throws up certain pertinent questions. Appointment is, admittedly, made from a panel of Senior Civil Servants, both retired and serving. Learned Attorney Gene ral would contend that the appointment is made from a panel of Office rs. The current appointee was due to retire on 31.12.2022. From the date of birth of the other three persons, who formed the panel, we find that one of the persons had superannuated, apparently, in the year 2020. Another Officer, whose name figured in the panel had also superannuated in the year 2020. The only other Officer, who was considered with the appointee, had also superannuated in the year 2020. As on 18.11.2022, if any of the three were considered and appointed, they would have had a tenure of less than three years. This is for the reason that, under Section 4 of the 1991 Act, an Election Commissioner is entitled to a term of six years, subject, however, to the condition that the Officer would have to vacate the Office upon his reaching the age of 65 years. In fact , even the appointed Officer was due to retire on 31.12.2022, at the age of sixty years. He would have a term of a little over five year s, on the basis of 155 the appointment made on 18.11.2022. He would be appointed not as a Chief Election Commissioner but as an Election Commissione r. Both the Chief Election Commissioner and the Election Commissioner, as per Section 4 of the 1991 Act, are to be appointed for a term of six years. 190. This brought up the question of Section 4, declaring a fixed term of six years from the date of assumption of Office, for a Chief Election Commissioner and an Election Commissioner, being observed in its breach. The learned Attorney General would respond as follows. He pointed out that since the time, when the Election Commission became a multi-Member team, a convention has grown up of making appointments of persons, initially as Election Commissioners and the se nior-most Election Commissioner, unless considered unfit, is appointed as the Chief Election Commissioner. As far as Section 4, declaring that the Chief Election Commissioner and the Election Commissioner are to be appointed for a term of six years and the appointments falling foul of the said mandate, the learned Attorney General would point out that the term of the Election Commissioner and the term as Chief Election Commissioner, for those who are appointed as the Chief Election Commiss ioner, is aggregated. In view of the first proviso to Section 4 of the 1991 Act, a shortfall, in terms of the six years stint, may occur. But it is pointed out that as far as possible, appointments are being made so as to fulfil the requirements of the law. In view of the operation of the proviso, resulting in a compulsory and premature vacating of the Office by the incumbent on attaining the age of 65 years, the term may not last for the full six years, even on the combination of the two appointments, viz., firstly as Election Commissioner and later as Chief Election Commissioner. The learned Attorney General would point out that this Court should not be detained by the said aspect, when the question, which this Co urt is concerned with, is different. As far as the criticism launched, both by Shri Prashant Bhushan and Shri Gopal Sankaranarayanan, that the panel which was considered, betrayed sheer arbitrariness and rein forced the grievance and the complaint of the Writ Petitioners that an undeniable case is made out for this Court to step in and grant relief so that a fair procedure for selection and appointment is laid down, till a law is made by the Parliament, the learned Attorney General would point out that Civil Servants or IAS Officers are by dint of the experience gathered in the course of their careers, ideally suited for appointmen t as Election Commissioners and Chief Election Commissioners. The y have experience in the matter of the conduct of the elections at di fferent ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] stages of their career. They operate as observers in State s other than their cadre States. The Election Commission is not to be conflated with the Chief Election Commissioner and the Election Commissioners. The Commission functions as a large team. It is in this regard that Officers of the Civil Services are impeccably poised for being considered under Article 324(2), it is pointed out. 191. The learned Attorney General would point out that that the panel of Officers, is born out of the database of serving and retired IAS Officers in the position of Secretaries to the Government of India. 192. When it was pointed out that it remained a mystery to the Court that incongruous with the unambiguous mandate of Section 4 of the 1991 Act, all the panellists were either retired (3 out of four) and the person finally appointed was himself appointed, when he had less than a month for his 60th birthday, it was submitted that the Court must bear in mind that the panel was drawn up from the database of Officers in the rank of Secretaries to the Government of India, both serving and retired, and drawn up by the Ministry of Law and Justice. When it was further queried as to why the respondent did not appear to exhibit any anxiety to ascertain whether there were Officers, who could be appoi nted who would be assured the full term of six years, in keeping with the mandate of law, it was submitted that there is a dearth of such Officers. 193. Thereupon, it was the contention of both Shri Prashan t Bhushan and Shri Gopal Shankaranarayan that this may not be the case. It is pointed out by Shri Prashant Bhushan that there are 160 Offi cers, who belonged to the 1985 Batch and some of them are younger than Shri Arun Goel. 194. We have noted that the three Officers in the panel w ere described and edged out, noting the factum of superannuation. On the said basis, it was found that the appointee was the youngest. Thereafter on the basis of his experience, age and suitability, the appointee was recommended and finally appointed. 195. If the drawing up of the panel itself results in a fate accompli, then, the whole exercise would be reduced to a foregone conclusion as to who would be finally appointed.What we find about the method involved is, even proceeding on the basis that the Government has the ri ght 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 157 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 inde pendence. 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 fulfil 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 s ix years is separately assured to both the Election Commissioner and t he Chief Election Commissioner. In other words, the object of the law and its command would stand defeated and the practice lends streng th to the complaint of the petitioners. We must make it clear that the observations are not meant to be an individualised assessment of the appointee, who we do note, has excellent academic qualifications. But as we have noted academic excellence which members of the civil service m ay possess cannot be a substitute for values such as independence and f reedom frombias from political affiliation. We draw the following conclusions: 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 unde rmines the independence of the Election Commission. The policy of the law is defeated. BB. IS THERE A V ACUUM IN ARTICLE 324? SHOULD THE COURT INTERFERE, IF THERE IS ONE? 196. When Article 324(2) provides that the appointment of the Chief Election Commissioner and the other Election Commissioners shall, subject to the provisions of any law, made in that behalf by Parliament, be made by the President, in view of Article 74, it would, undoubtedly, mean that the President is bound to make appointments in accor dance with the advice of the Council of Ministers. Taking into consideration ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] Article 77 also and, in view of the Rules of Business made, wh ich we have referred to in paragraph 51 of this Judgment, the appointment, till a law is made by Parliament, would be made by the President in accordance with advice of the Prime Minister. It was precisely such an appointment, which was the cause of unanimous concern to the Member s of the Constituent Assembly, which we have already adverted to. 197. The petitioners placed considerable reliance on the Judgment of this Court rendered in Vineet Narain and others v. Union of India and another67. No doubt, it is a case where the Court, inter alia, held as follows: “49. There are ample powers conferred by Article 32 read wit h Article 142 to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders of this Court as provided in Article 144 of the Constitution. In a catena of decisions of this Court, this power has been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role. It i s in the discharge of this duty that the IRC was constituted by the Government of India with a view to obtain its recommendations after an in-depth study of the problem in order to implement them by suitable executive directions till proper legislation is enacted. The report of the IRC has been given to the Government of India but because of certain difficulties in the present context, no further action by the executive has been possible. The study having been made by a Committee considered by the Government of India itself as an expert body, it is safe to act on the recommendations of the IRC to formulate the directions of this Court, to the extent they are of assistance. In the remaining area, on the basis of the study of the IRC and its recommendations, suitable directions can be formulated to fill the entire vacuum. This is the exe rcise we propose to perform in the present case since this exercise can no longer be delayed. It is essential and indeed the constitutiona l obligation of this Court under the aforesaid provisions to issue the necessary directions in this behalf. We now consider formulation of the needed directions in the performance of this obligati on. The directions issued herein for strict compliance are to operate 67 (1998) 1 SCC 226 159 till such time as they are replaced by suitable legislat ion in this behalf.” 198. We must, at once, notice, however, that this Court has also held as follows: “51. In exercise of the powers of this Court under Article 32 read with Article 142, guidelines and directions have been issued in a large number of cases and a brief reference to a few of t hem is sufficient. In Erach Sam Kanga v. Union of India [WP No. 2632 of 1978 decided on 20-3-1979] the Constitution Bench laid down certain guidelines relating to the Emigration Act. In Lakshmi Kant Pandey v. Union of India [(1984) 2 SCC 244] (In re, Foreign Adoption), guidelines for adoption of minor children by foreigners were laid down. Similarly in State of W.B. v. Sampat Lal [(1985) 1 SCC 317 : 1985 SCC (Cri) 62 : (1985) 2 SCR 256] , K. Veeraswami v. Union of India [(1991) 3 SCC 655 : 1991 SCC (Cri) 734] , Union Carbide Corpn. v. Union of India [(1991) 4 SCC 584] , Delhi Judicial Service Assn. v. State of Gujarat [(1991) 4 SCC 406] (Nadiad case), Delhi Development Authority v. Skipper Construction Co. (P) Ltd. [(1996) 4 SCC 622] and Dinesh Trivedi, M.P. v. Union of India [(1997) 4 SCC 306] guidelines were laid down having the effect of law, requiring rigid compliance. In Supreme Court Advocates-on-Record Assn. v. Union of India [(1993) 4 SCC 441] (IInd Judges case) a nine-Judge Bench laid down guidelines and norms for the appointment and transfer of Judges which are being rigidly followed in the matter of appointments of High Court and Supreme Court Judges and transfer of High Court Judges. More rece ntly in Vishaka v. State of Rajasthan [(1997) 6 SCC 241 : 1997 SCC (Cri) 932] elaborate guidelines have been laid down for observance in workplaces relating to sexual harassment of working women. In Vishaka [(1997) 6 SCC 241 : 1997 SCC (Cri) 932] it was said: (SCC pp. 249-50, para 11) “11. The obligation of this Court under Article 32 of the Constitution for the enforcement of these fundamental rights in the absence of legislation must be viewed along with the role of judiciary envisaged in the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region. These principles were accepted by the Chief Justices of Asia and the Pacific at Beijing in 1995 (*) ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] (As amended at Manila, 28th August, 1997 ) as those representing the minimum standards necessary to be observed in order to maintain the independence and effective functioning of the judiciary. The objectives of the judiciary mentioned in the Beijing Statement are: “Objectives of the Judiciary : 10. The objectives and functions of the Judiciary include the following: (a) to ensure that all persons are able to live securely u nder the rule of law; (b) to promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and (c) to administer the law impartially among persons and between persons and the State.” Thus, an exercise of this kind by the court is now a well-sett led practice which has taken firm roots in our constitu tional jurisprudence. This exercise is essential to fill the void in the absence of suitable legislation to cover the field.” 199. It, therefore, becomes necessary for us to undertake a journey back in time to recapture the views taken by this Court, which has been referred to in paragraph-51. In Lakshmi Kant Pandey v. Union of India68, this Court was dealing a public interest litigation lodged against malpractices in trafficking of children in connection with adoption of Indian children by foreigners living abroad. The Court noted f rom the legislative history that though Bills were introduced, including the Adoption of Children Bill, 1980, besides the earlier Bill in 1972, it had not attained a legislative effect. The Court found that inter-country adoption had to be supported but great care had to be exercised in the matter of giving children in adoption to foreign parents. The Court referred to, inter alia, the draft Declaration by the Commission for Social Development at its twenty-sixth session, besides the guidelines and draft guidelines, which were approved on 04.09.1982. The Court notes, at paragraph-10, the absence of a law providing for adoption of an Indian child by the foreign parent. Thereafter, it elaborated on the materials availa ble and finally proceeded to lay down certain principles and norms which w ere to be observed in the matter of giving a child in adoption to foreign parents. 68 (1984) 2 SCC 244 161 200. In Union Carbide Corporation and others. v. Union of India and others69, one of the questions, which fell for consideration was whether the Supreme Court had the power under Article 142 to withdraw to itself, Original Suits pending in the District Court at Bhopal and dispose of the same in accordance with the settleme nt. Similarly, the Court had to deal with the contention that it had no juri sdiction to withdraw the criminal proceedings. This is what, inter alia, the Court held: “58. This Court had occasion to point out that Article 136 is worded in the widest terms possible. It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing of appeals by granting special leave against any kind of judgment or order made by a Court or Tribunal in any cause or matter and the powers can be exercised in spite of the limitations under the specific provisions for appeal contained in the Constitution or other laws. The powers given by Article 136 are, however, in the nature of special or residuary powers which are exercisable outside the purview of the ordinary laws in cases where the needs of justice demand interference by the Supreme Court. (See Durga Shankar Mehta v. Thakur Raghuraj Singh [(1955) 1 SCR 267 : AIR 1954 SC 520 : 9 ELR 494] ). xxx xxx xxx 61. To the extent power of withdrawal and transfer of cases to the apex Court is, in the opinion of the Court, necessary for t he purpose of effectuating the high purpose of Articles 136 and 142(1), the power under Article 139-A must be held not to exhaust the power of withdrawal and transfer. Article 139-A, it is relevant to mention here, was introduced as part of the scheme of the Constitution Forty-second Amendment. That amendment proposed to invest the Supreme Court with exclusive jurisdiction to determine the constitutional validity of central laws by inserting Articles 131- A, 139-A and 144-A. But Articles 131-A and 144-A were omitted by the Forty-third Amendment Act, 1977, leaving Article 139-A intact. That article enables the litigants to approach the apex Court for transfer of proceedings if the conditions envisaged in that article are satisfied. Article 139-A was not intended, nor does it operate, 69 (1991) 4 SCC 584 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] to whittle down the existing wide powers under Articles 136 and 142 of the Constitution.” 201. In Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and others 70, the question arose in the following factual context: Police Officers assaulted and arrested on flimsy grounds and handcuffed and tied with a rope, a Chief Judicial Magistrate. The scope of the Criminal Contempt Jurisdiction fell for consideration.This Court wished to provide against the recurrence of such instances. The Court directed the State Government to take immediate steps for review and revision of the Police Regulations. In the light of the Co mmission appointed, the Court held, inter alia, as follows: “49. Learned counsel, appearing on behalf of the State of Gujarat and the police officers, urged that in the present proceedings this Court has no jurisdiction or power to quash the criminal proceedings pending against N.L. Patel, CJM. Elaborating his contention, learned counsel submitted that once a criminal case is registered against a person the law requires that the court should allow the case to proceed to its normal conclusion and there should be no interference with the process of trial. He further urg ed that this Court has no power to quash a trial pending before the crimin al court either under the Code of Criminal Procedure or under the Constitution, therefore, the criminal proceedings pending against Patel should be permitted to continue. Learned Attorney General submitted that since this Court has taken cognizance of the contempt matter arising out of the incident which is the su bject matter of trial before the criminal court, this Court has ample power under Article 142 of the Constitution to pass any order necessary to do justice and to prevent abuse of process of t he court. The learned Attorney General elaborated that there is no limitation on the power of this Court under Article 142 in quashing a criminal proceeding pending before a subordinate court. Before we proceed to consider the width and amplitude of this Court ’s power under Article 142 of the Constitution it is necessary to remind ourselves that though there is no provision like Secti on 482 of the Criminal Procedure Code conferring express power on this Court to quash or set aside any criminal proceedings pending 70 (1991) 4 SCC 406 163 before a criminal court to prevent abuse of process of the court, but this Court has power to quash any such proceedings in exercise of its plenary and residuary power under Article 136 of the Constitution, if on the admitted facts no charge is made out against the accused or if the proceedings are initiated on concocted facts, or if the proceedings are initiated for oblique purposes. Once this Court is satisfied that the criminal proceedings amount to abuse of process of court it would quash such proceedings to ensur e justice. In State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982 SCC (Cri) 283 : (1982) 3 SCR 121] , this Court quashed first information report and issued direction prohibiting investigation into the allegations contained in the FIR as the Court was satisfied that on admitted facts no offence was made out against the persons named in the FIR. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234] , criminal proceedings were quashed as this Court was satisfied that the case was founded on false facts, and the proceedings for trial had been initiated for oblique purposes. 50. Article 142(1) of the Constitution provides that Supreme Court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any ‘cause’ or ‘matter’ pending before it. The expression ‘cause’ or ‘ma tter’ would include any proceeding pending in court and it would cover almost every kind of proceeding in court including civil or criminal. The inherent power of this Court under Article 142 coupled with the plenary and residuary powers under Articles 32 and 136 embraces power to quash criminal proceedings pending before any court to do complete justice in the matter before this Court. If the court is satisfied that the proceedings in a criminal ca se are being utilised for oblique purposes or if the same are continued on manufactured and false evidence or if no case is made out on the admitted facts, it would be in the ends of justice to set as ide or quash the criminal proceedings. It is idle to suggest that in such a situation this Court should be a helpless spectator. 51. Mr Nariman urged that Article 142(1) does not contemplate any order contrary to statutory provisions. He placed reliance on the Court’s observations in Prem Chand Garg v. Excise Commissioner, U.P., Allahabad [1963 Supp 1 SCR 885, 899 : ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] AIR 1963 SC 996] and A.R. Antulay v. R.S. Nayak [(1988) 2 SCC 602 : 1988 SCC (Cri) 372] , where the Court observed that though the powers conferred on this Court under Article 142(1) are very wide, but in exercise of that power the Court ca nnot make any order plainly inconsistent with the express stat utory provisions of substantive law. It may be noticed that in Prem Chand Garg [1963 Supp 1 SCR 885, 899 : AIR 1963 SC 996] and Antulay case [(1988) 2 SCC 602 : 1988 SCC (Cri) 372] observations with regard to the extent of this Court’s power under Article 142(1) were made in the context of fundamental rights. Tho se observations have no bearing on the question in issue as there is no provision in any substantive law restricting this Court’s power to quash proceedings pending before subordinate court. Thi s Court’s power under Article 142(1) to do “complete justice” is entirely of different level and of a different quality. Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional power of this Court. Once this Court h as seisin of a cause or matter before it, it has power to issue any order or direction to do “complete justice” in the matte r. This constitutional power of the Apex Court cannot be limi ted or restricted by provisions contained in statutory law. In Harbans Singh v. State of U.P. [(1982) 2 SCC 101 : 1982 SCC (Cri) 361 : (1982) 3 SCR 235, 243] , A.N. Sen, J. in his concurring opinion observed: (SCC pp. 107-08, para 20) “Very wide powers have been conferred on this Court for due and proper administration of justice. Apart from the jurisdiction and powers conferred on this Court under Articles 32 and 136 of the Constitution I am of the opinion that this Court retains a nd must retain, an inherent power and jurisdiction for dealing with any extraordinary situation in the larger interests of administration of justice and for preventing manifest injustice being done. This power must necessarily be sparingly used only in exceptional circumstances for furthering the ends of justice.” No enactment made by Central or State legislature can limi t or restrict the power of this Court under Article 142 of the Constitution, though while exercising power under Article 142 of the Constitution, the Court must take into consideration the statutory provisio ns regulating the matter in dispute. What would be the nee d of 165 “complete justice” in a cause or matter would depend upon the facts and circumstances of each case and while exercising that power the Court would take into consideration the e xpress provisions of a substantive statute. Once this Court has take n seisin of a case, cause or matter, it has power to pass any order or issue direction as may be necessary to do complete justice in the matter. This has been the consistent view of this Court as would appear from the decisions of this Court in State of U.P. v. Poosu [(1976) 3 SCC 1 : 1976 SCC (Cri) 368 : (1976) 3 SCR 1005] ; Ganga Bishan v. Jai Narain [(1986) 1 SCC 75] ; Navnit R. Kamani v. R.R. Kamani [(1988) 4 SCC 387] ; B.N. Nagarajan v. State of Mysore [(1966) 3 SCR 682 : AIR 1966 SC 1942 : (1967) 1 LLJ 698] ; Special Reference No. 1 of 1964 [(1965) 1 SCR 413, 499 : AIR 1965 SC 745] and Harbans Singh v. State of U.P. [(1982) 2 SCC 101 : 1982 SCC (Cri) 361 : (1982) 3 SCR 235, 243] Since the foundation of the criminal trial of N.L. Patel is based on the facts which have already been found to be false, it would be in the ends of justice and also to do complete justice in the cause to quash the criminal proceedi ngs. We accordingly quash the criminal proceedings pending before the Chief Judicial Magistrate, Nadiad in Criminal Cases Nos. 1998 of 1990 and 1999 of 1990.” 202. It issued various guidelines also for the protection of the Members of the Subordinate Judiciary. The decision in Supreme Court Advocates-on-Record Association and others v. Union of India 71 related to the appointment of Judges to the Supreme Court a nd High Court and transfer of Judges and Chief Justices.In the majority opinion of Justice J. S. Verma, we may notice the following: “447. When the Constitution was being drafted, there was general agreement that the appointments of Judges in the superior judiciary should not be left to the absolute discretion of the executive, and this was the reason for the provision made in the Constitution imposing the obligation to consult the Chief Justice of India and the Chief Justice of the High Court. This was done to achieve independence of the Judges of the superior judiciary even at the time of their appointment, instead of confining it only to the provision of security of tenure and other conditions of servic e 71 (1993) 4 SCC 441 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] after the appointment was made. It was realised tha t the independence of the judiciary had to be safeguarded not merely by providing security of tenure and other conditions of service after the appointment, but also by preventing the influence o f political considerations in making the appointments, if left to the absolute discretion of the executive as the appointing authority. It is this reason which impelled the incorporation of the obligation of consultation with the Chief Justice of India and the Chief Justice of the High Court in Articles 124(2) and 217(1). The Constituent Assembly Debates disclose this purpose in prescribing for su ch consultation, even though the appointment is ultimately an executive act.” (Emphasis Supplied) 203. We may at once observe as follows: We have noticed in the context of the Constituent Assem bly debates, as also what preceded it in the form of Sub-Committee Reports, that there was general agreement that a law must be made by Parliament and the amended draft Article 289 came to be, accordingly, f urther amended and approved, leading to the insertion of the words ‘subject to the law to be made by Parliament’ in Article 324(2). In other words, the purpose for which the provision was made, as also the imperative need to make such a law, has been eloquently articulated in the views of the Members of the Constituent Assembly. The appointment of Judges of the Superior Judiciary under the Government of India Act, which preceded the Constitution, was being made in the absolute discretion of the Crown. This Court took note of the fact that if left to t he absolute discretion of the Executive, as the appointing Authority, it may lead to political considerations in making the appointment. Article 124(2) dealing with appointments to the Supreme Court and Article 217(1) which deals with appointments to the High Courts, was to be made based on what was described as ‘consultations’ in these Articles. It will be again noticed that Article 324(2), does not provide for consultation with any one and it appears to place the power to make appointments, exclusively with the Executive as the President is bound by the advice of the Prime Minister. However, it is precisely to guard against the abuse by th e exclusive power being vested with the Executive that instead of a c onsultative process being provided, Parliament was to make a law. This clearly was the contemplation of the Founding Fathers. This Court proceeded to lay 167 down norms in the absence of any specific guidelines. We may, in this regard, notice paragraph-477: “477. The absence of specific guidelines in the enacted provisions appears to be deliberate, since the power is vested in high constitutional functionaries and it was expected of them to develop requisite norms by convention in actual working as envisaged in the concluding speech of the President of the Constituent Assembly. The hereinafter mentioned norms emerging from the actu al practice and crystallized into conventions — not exhaustive — are expected to be observed by the functionaries to regulat e the exercise of their discretionary power in the matter s of appointments and transfers.” 204. We may also indicate that this Judgment provides a situation where this Court has laid down norms, even in the constitutional realm. 205. It is further of the greatest moment that this Court noted that it was realised that independence of the Judiciary had to be p rotected not merely after appointment but by the process of appointme nt. The Chief Election Commissioner can also be removed only in t he same fashion as a Judge of the Supreme Court. His conditions of se rvice cannot be varied to his disadvantage. But unlike the Comptroller and Auditor General, who also enjoys protection after appoint ment, the Founding Fathers clearly intended to also provide for an independent Election Commission regulating by law, the appointment itself. This is in place of consultation provided for Judges. 206. In Vishaka and others v. State of Rajasthan and others 72, a Writ Petition was filed for enforcement of Fundamental Right s of working women under Articles 14, 19 and 21. The complaint in the Writ Petition was sexual harassment of working women at work places. An alleged brutal gangrape of a social worker provided, what may be described as, an immediate trigger. This Court went on to f ind that an incident of sexual harassment violated the Fundamental Rights of General Equality, under Articles 14 and 15, and a Right to Life and Liberty, under Article 21. The Court drew support from the role of the Judiciary in the Beijing Statement of Principles of the Independence of Judiciary in Law Asia Region. We may set down the objectives, which the Court drew upon, inter alia: 72 (1997) 6 SCC 241 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] “Objectives of the Judiciary : 10. The objectives and functions of the Judiciary include the following: (a) to ensure that all persons are able to live securely u nder the rule of law; (b) to promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and (c) to administer the law impartially among persons and between persons and the State.” 207. The Court also drew on an International Convention providing for elimination of all forms of discrimination against women. Finally, on the basis of the Principle that when there is no inconsistency between a Convention and a Domestic Law and there is a void in the Dom estic Law, and bearing in mind the meaning and content of the Fundamental Rights, the Court went on to lay down elaborate guidelines and norms. The norms included as to what constituted sexual harassment, inter alia. This Court went on to even provide for disciplinary action to be initiated and a complaint mechanism. The guidelines were, however, made binding and enforceable in law, until suitable legislation was enacted. The norms enunciated by this Court, which may have been legislativ e in nature, interestingly, held the field for more than fifteen years, when Parliament came out with a law. 208. In Special Reference No. 1 of 1998, Re73 (The Third Judges case), which no doubt, was a Judgement rendered in a Reference made under Article 143(1) of the Constitution, one of the contentions w as, whether the expression, both in Articles 217(1) and 222(1), viz., (consultation with the Chief Justice of India required consultation with the plurality of Judges or the sole opinion of the Chief Justice sufficed), this Court went on to answer the question that the sole individual opinion of the Chief Justice would not constitute ‘consultation’. It was also laid down that the Chief Justice of India must consult four senior-most puisne Judges before making appointment to the Supreme Court and Hig h Courts. No doubt, it could be said that the decisions [the Judges cases] could be said to have sprouted from the construction of the words used in the relevant Articles and, in particular, the word ‘consult’. Also, it is true that Article 124(2) as it stood then, read as follows: 73 (1998) 7 SCC 739 169 “124(2). Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted: Provided further that – (a) A Judge may, by writing under his hand addressed to the President, resign his office; (b) A judge may be removed from his office in the manner provided in clause (4).” (Emphasis supplied) 209. What is of relevance is, however, the elaboration of the procedure, as regards consultation, and the laying down of norms, which were to govern the appointment to the Superior Judiciary. The mandate to consult four may appear to crystalize a figure not to be found in the Constitution. 210. In fact, we may observe that the Doctrine of Separati on of Powers has spawned decisions of this Court largely in the context of litigation where challenges led to actions by the Legislat ive Organ, allegedly contravening the limits set for it. This is not to say that we are holding that it would be open to the courts to be oblivious to the true role it is called upon to perform and which flows from the judicial function that it discharges. As noticed by this Court, however, there is no magic formula and what it all amounts to is, the need to maintain a delicate balance. While, it is true that, ordinarily, the Court cannot, without anything more, usurp what is purely a legislative power or function, in the context of the Constitution, which clothes the citizens with Fundamental Rights and provides for constitutional goals to be achieved and inertia of the Legislative Department producing a clear situation, where there exist veritable gaps or a vacuum, the Court may not shy away from w hat essentially would be part of its judicial function. 211. A Writ Petition was filed under Article 32 of the Constitution assailing the appointment of certain Ministers despite their involvement in serious and heinous crimes. The Constitution Bench of this Court in ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] Manoj Narula v. Union of India74 went on to refer to the criminalisation of politics as being an anathema for the sanctity of d emocracy. Of immediate interest to this Court, are the following observations: “Principle of constitutional silence or abeyance 65. The next principle that can be thought of is constitutional silence or silence of the Constitution or constitutional abeyance. The said principle is a progressive one and is applied as a recognised advanced constitutional practice. It has been recognised by the Court to fill up the gaps in respect of certain areas in the interest of justice and larger public interest. Liberalisation of the concept of locus standi for the purpose of development of public interest litigation to establish the rights of the have-nots or to pr event damages and protect environment is one such feature. Similarly, laying down guidelines as procedural safeguards in the matter of adoption of Indian children by foreigners in Laxmi Kant Pandey v. Union of India [(1987) 1 SCC 66 : 1987 SCC (Cri) 33 : AIR 1987 SC 232] or issuance of guidelines pertaining t o arrest in D.K. Basu v. State of W.B. [(1997) 1 SCC 416 : 1997 SCC (Cri) 92 : AIR 1997 SC 610] or directions issue d in Vishaka v. State of Rajasthan [(1997) 6 SCC 241 : 1997 SCC (Cri) 932] are some of the instances.” 212. In Bhanumati and others v. State of U.P. through its Principal Secretary and others 75, pronouncing a State Law providing for No Confidence Motion as valid, a Bench of this Court, inter alia, held as follows: “50. The learned author elaborated this concept further by saying, “Despite the absence of any documentary or material form, these abeyances are real and are an integral part of any Const itution. What remains unwritten and indeterminate can be just as muc h responsible for the operational character and restraining qualit y of a Constitution as its more tangible and codified components.” (P. 82) 51. Many issues in our constitutional jurisprudence evolved out of this doctrine of silence. The basic structure doctrine vis-à -vis Article 368 of the Constitution emerged out of this concept of 74 (2014) 9 SCC 1 75 (2010) 12 SCC 1 171 silence in the Constitution. A Constitution which professes to be democratic and republican in character and which brings about a revolutionary change by the Seventy-third Constitut ional Amendment by making detailed provision for democrat ic decentralisation and self-government on the principle of gra ss- root democracy cannot be interpreted to exclude the provision of no-confidence motion in respect of the office of the Chairperson of the panchayat just because of its silence on that aspect.” 213. In Kalpana Mehta and others v. Union of India and others76, a Constitution Bench of this Court, inter alia, held as follows: “51. The Constitution being an organic document, its ongoing interpretation is permissible. The supremacy of the Constitutionis essential to bring social changes in the national polity evolved with the passage of time. The interpretation of the Constitution is a difficult task. While doing so, the constitutional courts are not only required to take into consideration their own experience over time, the international treaties and covenants but also keep the doctrine of flexibility in mind. It has been so stated in Union of India v. Naveen Jindal [Union of India v. Naveen Jindal , (2004) 2 SCC 510]. XXX XXX XXX 53. Recently, in K.S. Puttaswamy v. Union of India [K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1], one of us (Dr D.Y. Chandrachud, J.) has opined that constitutional developments have taken place as the words of the Constitution have be en interpreted to deal with new exigencies requiring an expans ive reading of liberties and freedoms to preserve human rights under the Rule of Law. It has been further observed that the interpretation of the Constitution cannot be frozen by its original understanding, for the Constitution has evolved and must continuously evolve to meet the aspirations and challenges of the present and the future. The duty of the constitutional courts to interpret the Constitution opened the path for succeeding generations to meet the challenges. Be it stated, the Court was dealing with privacy as a matt er of fundamental right.” (Emphasis supplied) 76 (2018) 7 SCC 1 ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] In case of Article 324(2), it was the original understanding itself that law be made. This understanding has received reinfo rcement by subsequent developments, including objective reports. 214. Equally, we may notice what this Court, in Manoj Narula (supra), held as regards constitutional morality: “74. The Constitution of India is a living instrument with capabilities of enormous dynamism. It is a Constitution made for a progressive society. Working of such a Constitution depends upon the prevalent atmosphere and conditions. Dr Ambedkar had, throughout the debate, felt that the Constitution can live and grow on the bedrock of constitutional morality. Speaking on the same, he said: “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.” [ Constituent Assembly Debates, 1948, Vol. VII, 38.]” 215. We have set down the legislative history of Article 324, which includes reference to what transpired, which, in turn, includes the views formed by the members of Sub-Committees, and Members of the Constituent Assembly. They unerringly point to one conclusio n. The power of appointment of the Members of the Election Commission, which was charged with the highest duties and with nearly infinite powers, and what is more, to hold elections, not only to the Central Legislature but to all the State Legislatures, was not to be lodged exclusivel y with the Executive. It is, accordingly that the words ‘subject to any law to be made by Parliament’ were, undoubtedly, incorporated. 216. No law, however, came to be enacted by Parliament. We have elaborately referred to the noises and voices eloquently and without a discordant note being struck, which points to an o verpowering symphony, which calls for the immediate need to fulfil the intention of the Founding Fathers, starting with the Goswami Committee in the year 1990, more than three decades ago, the Two Hundred and Fifty-Fifth Central Law Commission Report in 2015 and the Reports, both in the Press and other materials. 217. It may be true that Election Commission of India provide its services to certain countries. That, however, cannot deflect this Court 173 from providing forwhat the Founding Fathers contemplated als o and advocated by in various reports. 218. It may be true only Chief Election Commissioners were appointed for the first four decades of the Republic and, thereafter, since the year 1993, the Election Commission has become a team, whic h consists of the Chief Election Commissioner and the two Election Commissioners. It may be true that in the sense that the President, acting on the advice of the Prime Minister, in accordance with the concern ed Rules of Business, has been making appointments. 219. However, it is equally clear that Article 324 has a uni que background. The Founding Fathers clearly contemplated a law by Parliament and did not intend the executive exclusively calling the shots in the matter of appointments to the Election Commission. Seven decades have passed by. Political dispensations of varying hues, which have held the reigns of power have not unnaturally introduced a law. A law could, not be one to perpetuate what is already permitted namely appointment at the absolute and sole discretion of the Executive. A law, as Gopal Sankaranarayanan points out, would have to be necessarily different. The absence of such a law does create a void or vacuum. This is despite a chorus of voices even cutting across the political divide urging divesting of the exclusive power of appointment from the Executive. 220. We have noticed, that while making a law is ordinarily a power with the legislative branch and being a power, i t cannot be compelled by a Court, the making of law may be a const itutional imperative. In the context of Article 326, making of law as contemplated in Article 326, was an unavoidable necessity. Realising that the statutory framework was necessary to breathe life into Article 326 and which was not to be incongruous with this command, Parliament enacted the 1950 Act and the 1951 Act. The first General Election followed. Making of law by Parliament as provided for in Article 146 and Ar ticle 229 dealing with conditions of service of employees of the Supreme Court and the High Court respectively, was and is a sheer power and enabling provision. The context and the purpose signals no imperative need. No intention to indeed peremptorily provide for a law as is discernible in the case of appointment of the members of the Election Commis sion of India pervades the Articles. The vacuum in the case of Article 324 (2) is the absence of the law which Parliament was contemplated t o enact. ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] 221. 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 indep endence of the Election Commission and the pursuit of power, its consolidation and perpetuation. 222. As long as the party that is voted into power is concerne d, there is, not unnaturally a near insatiable quest to continue in the saddle. A pliable Election Commission, an unfair and biased overseer of the foundational exercise of adult franchise, which lies a t the heart of democracy, who obliges the powers that be, perhaps offe rs the surest gateway to acquisition and retention of power. 223. The values that animated the freedom struggle had to be brought home to a new generation through the insertion of the provision relating to fundamental duties. Criminalisation of politics, a huge surge in the influence of money power, the role of certain sections of the media where they appear to have forgotten their invaluable role and have turned unashamedly partisan, call for the unavoidable and unpostponable filling up of the vacuum. Even as it is said that justice must not only be done but seen to be done, the outpouring of demands for an impartial mode of appointment of the Members require, at the least, the bani shing of the impression, that the Election Commission is appointed by less than fair means. 224. We bear in mind the fact that the demand for putting in place safeguards to end the pernicious effects of the exclusive po wer being vested with the Executive to make appointment to th e Election Commission, has been the demand of political parties across the board. Once power is assumed, however, the fact of the matter is that, despite the concerns of the Founding Fathers and the availability of p ower, successive governments have, irrespective of their colour, shied away, from undertaking, what again we find was considered would be done by Parliament, by the Founding Fathers. 225. The electoral scene in the country is not what it was in the years immediately following the country becoming a Republic. Criminalisation of politics, with all its attendant evi ls, has become a nightmarish reality. The faith of the electorate in the very process, which underlies democracy itself, stands shaken. The impact of ‘b ig money’ and its power to influence elections, the influence of certain sections of media, makes it also absolutely imperative that the appointment of the 175 Election Commission, which has been declared by this Court to be the guardian of the citizenry and its Fundamental Rights, becomes a matter, which cannot be postponed further. 226. While this Court is neither invited nor if it is invited, would issue a Mandamus to the Legislature to make a law, as contemplated in Article 324(2), it may not be the end of the duty of this C ourt in the context of the provision in question. We have already elaborated and found that core values of the Constitution, including democracy, and Rule of Law, are being undermined. It is also intricately interlinked with the transgression of Articles 14 and 19. Each time, on account of a ‘knave’, in the words of Dr. Ambedkar, or again in his words, ‘a person under the thumb of the Executive’, calls the shots in the matter of holding the elections, which constitutes the very heart of democracy, even formal democracy, which is indispensable for a Body Polity to answer the description of the word ‘democracy’, is not realised. 227. In the unique nature of the provision, we are concerned with and the devastating effect of continuing to leave appointm ents in sole hands of the Executive on fundamental values, as also the Fundamental Rights, we are of the considered view that 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 transi ent 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 conclusi on is clear and inevitable and the absence of law even after seven de cades points to the vacuum. 228. Article 148 of the Constitution, dealing with appointment of the Comptroller and Auditor General of India, provides that it is to be made by the President. This is to be contrasted with the appointment of the Members of the Election Commission in Article 324( 2). On a comparison of both the Articles, the difference is stark and would justify the petitioners contention that in regard to the appointment of the Members of the Election Commission, having regard to the ov erwhelming importance and the nearly infinite plenary powers, they have in regard to the most important aspect of democracy itself, viz., the holding of free and fair elections, the Founding Fathers have provided for th e unique method of appointment suited to the requirements of the posts in question. The refusal of Parliament, despite what was contemplated by the Founding ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] Fathers, and what is more, the availability of a large number of Reports, all speaking in one voice, reassures us that even acting within the bounds of the authority available to the Judicial Branch, we must lay down norms, which, undoubtedly, must bear life only till Parliament steps in. We have found, how appointments are being made in our discussion earlier. Our minds stand fortified that there is an imperative need for the Court to step in. 229. As regards the exact norm, which should be put in place, we bear in mind the following considerations: We have before us the various Reports, which we have referr ed to. We would think that, while what must be laid down, must be fair and reasonable, but it must be what Parliament would or could lay down, if it were to make a law. Under the Rules of Business made under A rticle 77, it is acknowledged that the appointment of the Chief Election Commissioner and the Election Commissioners do not en gage the Cabinet.We take note of the fact that for the appointment to the Director of the Central Bureau of Investigation [which is not a constitutional post], Section 4A of Delhi Special Police Establishment Act, 1946, contemplates that appointment shall be made by the Central Government on the basis of recommendation of a committee consisting of the Prime Minister as the Chairperson, the Leader of the Opposition recognised in the House of People, as such, or where there is no such Leader of the Opposition, then, the Leader of the Single Largest Opposition Party in the House and the Chief Justice of India or a Judge of the Supreme Court nominated by him. Similarly, we find, in regard to the appointment of the Chairperson and Members of the Lokpal, under the Lokpal and Lokayukta s Act, 2013, the Chief Justice is one of the five Members of a Selection Committee, in the matter of appointment. We deem it appr opriate to notice Section 4 of the Lokpal and Lokayuktas Act, 2013, which reads as follows: “4. (1) The Chairperson and Members shall be appointed by the President after obtaining the recommendations of a Selectio n Committee consisting of— (a) the Prime Minister—Chairperson; (b) the Speaker of the House of the People—Member; (c) the Leader of Opposition in the House of the People—Member; 177 (d) the Chief Justice of India or a Judge of the Supreme Court nominated by him—Member; (e) one eminent jurist, as recommended by the Chairperson and Members referred to in clauses (a) to (d) above, to be nominated by the President—Member. (2) No appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy in the Selection Committee. (3) The Selection Committee shall for the purposes of selecti ng the Chairperson and Members of the Lokpal and for preparing a panel of persons to be considered for appointment a s such, constitute a Search Committee consisting of at least seven persons of standing and having special knowledge and expertise in the matters relating to anti-corruption policy, public administration, vigilance, policy making, finance including insurance and banking, law and management or in any other matter which, in the opinion of the Selection Committee, may be useful in making the selection of the Chairperson and Members of the Lokpal: Provided that not less than fifty per cent. of the members of the Search Committee shall be from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities and women: Provided further that the Selection Committee may also consider any person other than the persons recommended by the Search Committee. (4) The Selection Committee shall regulate its own procedure in a transparent manner for selecting the Chairperson and Members of the Lokpal. (5) The term of the Search Committee referred to in sub-section (3), the fees and allowances payable to its members and the manner of selection of panel of names shall be such as may be prescribed.” We bear in mind the Report of the Goswami Committee and, what is more, the Law Commission Report (Two Hundred and Fifty- Fifth) and lay down as follows. 230. The appointment of the Chief Election Commissioner and the Election Commissioners, shall be made by the President on the advice ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] of a Committee consisting of the Prime Minister,the Leader of the Opposition of the Lok Sabha,and in case no leader of Oppos ition is available, the leader of the largest opposition Party in the Lok Sabha in terms of numerical strength, and the Chief Justice of India. 231. We make it clear that this will be subject to any law to be made by Parliament. CC. AN ELECTION COMMISSIONER ENTITLED TO SAME PROTECTION AS GIVEN TO CHIEF ELECTION COMMISSIONER? 232. One of the contentions raised by the petitioners is this Court must provide for the same protection to the Election Commissioners as is available to the Chief Election Commissioners. Even the Report of the Election Commission itself would appear to endorse the said view and complaint. We expatiate. It is the contention of the petitioners that when the Constitution was framed, the Founding Fathers contemplat ed that appointment of Election Commissioners was to be need based and not a full-time affair. Contrary to the said view, however, a mu lti-Member team, is what the Election Commission of India has become, i n fact, since 1993. It is here to stay. The distinction between the Chief Election Commissioner and the Election Commissioners have been whittled down considerably by the amendments brought to the 1991 Act. However, when it comes to the constitutional protection, it is pointed out that the second proviso to Article 324(5) only enacts the protection th at the Election Commissioner or Regional Commissioner shall not be removed from Office except on the recommendation of the Chief Election Commissioner. An attempt has, in fact, been made to persuade this Court to hold that, being in the nature of a further proviso, as the words of the second proviso begin as ‘provided further’, it is only a further protection to the Election Commissioner or a Regional Commissioner. Thus, it is pointed out, the Court must adopt the following interpretation. An Election Commissioner or Regional Commissioner can be removed only in th e like manner and on like grounds as a Judge of the Supreme Cour t of India. A further safeguard is, however, provided to the Election Commissioner, viz., that he can be removed from Office onl y on the recommendation of the Chief Election Commissioner. To appreciate the argument, we recapture Article 324(5). It reads as follows: “324(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Electi on 179 Commissioners and the Regional Commissioners shall be such as the President may by rule determine; Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment: Provided further that any other Election Commissione r or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.” 233. We decode the said provision as follows: The conditions of service and tenure of the Election Commissioners and the Regional Commissioners was to be such as made by t he Rule provided. This, however, was subject to any law made by Par liament. Parliament has quickly on the heels of the Goswami Committee, stepped in with the 1991 Act. We have already noted the terms of the Act as subsequently amended. It contemplates salary to be paid, not only to the Election Commissioner but also to the Chief Election Commissioners, which is to be equal to the salary of the Judge of the Supreme Court of India. The term as we have already noticed, both of the Chief Election Commissioner and the Election Commissioner, was to be six years, subject to the proviso, which we have noticed. It also provides for other aspects relating to conditions of service. While unanimity of views among t he members is statutorily contemplated in Section 10(1) as a desirable goal, the inevitable differences of opinion was contemplated and Section 10(3) has declared that in such an eventuality, it is the opinion of the majority of the Members, which would prevail. We have already noticed how in T.N. Seshan (supra), this has been found to not militate against the Chief Election Commissioner being given the power to act as the Chairman of the Commission. It may be true that there is equality otherwise, which exists between the Chief Election Commissioner and the Election Commissioners in various matters dealt with under the Act . However, we must bear in mind, in law, Article 324 is inoperable without the Chief Election Commissioner [See T.N. Seshan (supra)]. In law, there may not be an insuperable obstacle for Parliament to decide to do away with the post of Election Commissioner. In fact, it happened, as can be seen in the Judgment in Dhanoa (supra) wherein it was found that the termination of service of the Election Commissioners f ollowing the ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] abolition of the posts did not constitute removal of the Election Commissioner within the meaning of the second proviso to Article 324(5). More importantly, even on a plain reading of Article 324(5), we are of the view that in regard to the prayer that the Election C ommissioner must be accorded the same protection as is given to the Chief Election Commissioner, the argument appears to be untenable. This prayer was rejected, in fact, in T.N. Seshan (supra). It is clear as day light that the first proviso protects the Chief Election Commissioner alone from removal by providing for protection as is accorded to a Judge of the Supr eme Court of India. It is still further more important to notice t hat the first proviso interdicts varying of the conditions of service of the Chief Election Commissioner to his disadvantage after the appointment. It is, thereafter, that the second proviso appears. The second proviso exclusively deals with any other Election Commissioner, inter alia. The word ‘any other Election Commissioner’ has been provided to distinguish him from the Chief Election Commissioner.Therefore, for the Election Commissioners other than the Chief Election Commissioner, the protection which is clearly envisaged, as against his removal is only that it can be effected only with the recommendation of the Chief Election Commissioner. We are of the view that in the context of the provision, the words ‘provided furt her’ 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. In fact, the acceptance of the argument of the petitioners would inv olve yet another consequence, which to our minds, would appear to project an anomalous result. To put it mildly, if the Election Commis sioner is accorded the protection available under the first proviso to the Chief Election Commissioner, the result will be as follows. He would be entitled to not only claim immunity from removal except on being impeached like a Judge of the Supreme Court but he would be conferred with a further protection even after the impeachment or before the impeachment starts, that the Chief Election Commissioner must also recommend the removal. We would think that no more need be said and we reject the contention. However, we only would observe that 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 a ppointment 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 181 Commissioners as well. This goes also as regards variat ion of service conditions after appointment. DD. REGARDING INDEPENDENT SECRETERIAT/ CHARGING EXPENDITURE ON THE CONSOLIDATED FUND OF INDIA 234. One of the contentions and, therefore, relief sought is, that there must be an independent Secretariat to the Election Commission of India and the its expenditure must be charged on the Consolidated Fund of India on the lines of the Lok Sabha/Rajya Sabha Secretariat. 235. In this regard, the second respondent (the Ele ction Commission of India) has filed a counter affidavit in Writ Petition (C) No. 1043 of 2017, in which Writ Petition, the contention and the prayer have been incorporated. In the Counter Affidavit of the Election Commission itself, the stand of the Election Commission can be stated in a nutshell as follows: It has sent a proposal that the expenditure of the Commission should be charged on the Consolidated Fund of India. It refers to the Election Commission Charging of Expenses on the Consolidated Fund of India Bill, 1994, which provided for the various items of expenditure to be charged upon the Consolidated Fund of India. It reiterated its proposal for an independent Secretariat as also charging of the exp enditure on the Consolidated Fund of India by letter dated 13.04.2012, as also in December, 2016. It has also laid store by the recommendatio n of the Law Commission, which inter alia, recommended the insertion of Article 324(2A), which contemplated the Election Commission being provided with an independent and permanent secretarial staff. 236. There cannot be any doubt that the Election Commission of India is to perform the arduous and unenviable task of remaining aloof from all forms of subjugation by and interference from the Executiv e. One of the ways, in which, the Executive can bring a n otherwise independent Body to its knees, is by starving it off or cutt ing off the requisite financial wherewithal and resources required for its ef ficient and independent functioning. It would not be unnatural if faced with the prospect of it not being supplied enough funds and facilities, a vulnerable Commission may cave in to the pressure from the Executive and, thus, it would result in an insidious but veritable conquest of an otherwise defiant and independent Commission. This is apart from the fact that cutting off the much-needed funds and resources will detract from its efficient functioning. ANOOP BARANWAL v. UNION OF INDIA [K. M. JOSEPH, J.] 237. No doubt, the stand of the Union of India would appear to be that these are all matters of policy and no interference i s needed or warranted. 238. We must bear in mind that to elevate it to a constit utional 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. We have no doubt that there is considerable merit in the complaint of the petitio ner, which apparently, is endorsed by the Election Commission of India itself. We cannot be oblivious to the need for articulation of details in regard to the expenditure, which is a matter of policy, which we refrain from doing. We would only make an appeal on the basis that there is an urgent need to provide for a permanent Secretariat and also to pro vide 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-nee ded changes. EE. THE FINAL RELIEF 239. The Writ Petitions are partly allowed and they are disposed of as follows: I. We declare that as far as appointment to the posts of Chi ef 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 plac e a permanent Secretariat for the Election Commission of India an d 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. 183 RASTOGI, J. 1. I have had the advantage of going through the judgment penned by my brother K.M. Joseph, J. I entirely agree with the conclusio ns which my erudite Brother has drawn, based on the remarkable process of reasoning with my additional conclusion. I wish to add few lines and express my views not because the judgment requires any further elaboration but looking for the question of law that emerge of considerable importance. 2. For the purpose of analysis, the judgment has been divided into following sections: I. Reference II. Election Commission of India III. Why an independent Election Commission is necessary A. Working a Democratic Constitution B. Right to vote C. Free and fair elections IV . Constitutional and statutory framework: The Constitutional Vacuum V . The Judgment in TN Seshan VI. Reports of various Commissions on Manner of Appointment of Chief Election Commissioner and Election Commissioners VII. Comparative framework - Foundational parameters VIII. Process of selection of other constitutional/stat utory bodies IX. Constitutional silence and vacuum- power of the Court tolay down guidelines X. Independence of Election Commissioners XI. Directions ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] I. Reference 3. This case arises out of a batch of writ petitions, with the initial petition filed as a public interest litigation by Anoop Baranwal in January 2015. The petitioner raised the issue of the constitutional validity of the practice of the Union of India to appoint the members of the E lection Commission. It was argued in the petition that a fair, just, and transparent method to select the members of the Election Commission is missing. The petition also referred to several reports, which we will discuss in due course, to highlight the issue of bringing reforms in the selection of members of the Election Commission. It was further highlight ed that since the appointment of the members of the Election Commission was solely on the advice of the parliamentary executive of the Union, which leads to arbitrariness and is in violation of Article 14 of the Constitution. The petition has also suggested that the process of selection of members of the Election Commission (Chief Election Commissioner/Ele ction Commissioner) should be transparent and with greate r scrutiny, accountability and stability as it is for the other constitutional and legal authorities including Judges of the Supreme Court and High Courts, Chief Information Commissioner, Chairpersons and Members of the Human Rights Commission, Chief Vigilance Commissioner, Director of Central Bureau of Investigation, Lokpal, Members of the Press Council of India. The writ petition made a prayer for issuing of mandamus to the Union Government to make law for ensuring a transparent process of selection by constituting a neutral and independent committee to recommend the names of Chief Election Commissioner/Election Commissioners. Vide order dated 23 October, 2018, a two Judge Bench of this Court emphasized on the importance of the matter, and referred the matter under Article 145(3) of the Constitution to the Constitutional Bench. The order is reproduced as follows: “The matter relates to what the petitioner perceives to be a requirement of having a full-proof and better system of appointment of members of the Election Commission. Having heard the learned counsel for the petitioner and the learned Attorney General for India we are of the view that the ma tter may require a close look and interpretation of the provis ions of Article 324 of the Constitution of India. The issue has not be en 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 185 question arising in the present proceedings to a Constitution Bench for an authoritative pronouncement. Post the matter before t he Hon’ble the Chief Justice of India on the Administrative Side for fixing a date of hearing.” 4. A couple of similar writ petitions were tagged with the above petition. On 29 September 2022, this Constitution Bench started the hearing of the case. The Bench sat for several days hearing the arguments of the petitioner side and of the Union government a nd Election Commission of India on the respondents’ side. 5. The Union Government has opposed this group of petitions on the premise that the Court must respect the principle of separation of power between different organs of the State and should refr ain from interfering in the selection process of the Election Comm ission under Article 324. It was argued by the Union that Article 324 of the Constitution conferred the power to appoint Election Commissioners solely upon the Parliament. He made a reference to the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 (hereinafter being referred to as the “Act 1991”) to emphasize his point that the Parliament being cautious of its responsibil ity protected the condition of service of the Chief Election Commissioner/Elec tion Commissioners. 6. The learned Attorney General Mr. R. Venkataramani suggested that the absence of any law does not mean that a constitutional vacuum exists, calling for the interference of the Court. It was al so argued by the learned Attorney General that the appointment of the memb ers of the Election Commission by the President has not damaged the process of free and fair elections. 7. The learned Solicitor General Mr. Tushar Mehta argued that if there are lacunas in the process of selection/appointment of Election Commission, then it is for the Parliament and not the Court to look into the issues. The learned counsel further argued that the appointment of the Election Commissioners is to be made by the President, therefore it is not open to the judiciary to interfere with the power of the executive. Mr. Mehta further argued that there is something called “independence of the executive” which must not be interfered with. It was also argued by the counsel for the Election Commission that since the right to vote is a statutory right and not a fundamental right, so it does not call any interference for violation of fundamental rights. ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] 8. It was raised by the petitioners that the issue of appointment of Election Commission is linked not just with the right to vote but with the conception of free and fair elections. Reference was also m ade to the selection processes in other jurisdictions to emphasize on the point that a larger set of parameters or factors play an important role in appointment of Commissioners. Points were also debated regarding the ter m of the Chief Election Commissioner/Election Commissioners, and the process of removal of Election Commissioners. The petitioners further argued that there must be constitutional safeguards in the term a nd tenure of the Election Commissioners, so that they can function independently. 9. This case not only raises certain fundamental questions about the interpretation of Article 324 of the Constitution but also forces us to look at the larger perspective about how the process of selection of Election Commission is linked with the working of a democracy, the right to vote, idea of free and fair elections, and the import ance of a neutral and accountable body to monitor elections. This Court ought to make a discussion on these interconnected debatable issues ra ised for our consideration. All these points are indeed sacrosanct for democracy and for maintaining the independence of the Election Commission. II. Election Commission of India 10. Article 324 (1) provides that the power of superintendence , direction, and control of the preparation of the electoral rolls for, and the conduct of, elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under the Constitution is vested in the Election Commission. 11. As to the composition of the Election Commission, Article 324(2) provides that the Election Commission shall consist of the Chief Election Commissioner and such number of other Elec tion Commissioners, if any, as the President may from time to time fix, and the appointment of the Chief Election Commissioner and other Election Commissioners, subject to the provisions of any law made in that behalf by the Parliament, be made by the President. 12. By an order dated 1st October 1993, the President has fixed the number of Election Commissioners as two, until further orders. The current composition of the Election Commission is that of Chief Election Commissioner and two Election Commissioners. 13. Article 324(3) provides that the Chief Election Commissioner shall act as the Chairman of the Election Commission. 187 14. As regards the service conditions, Article 324(5) provides that subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be determined by the rules made by the President. In exercise of its power under Article 324(5), the Parliament has enacted the Act 1991. 15. The provisos to Article 324(5) provide the mechanism for removal of Chief Election Commissioner, Election Commissioners, and Regional Commissioner. The first proviso to Article 324(5) provides that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment. Furthermore, any other Election Commissioner or a Regional Commissioner, according to the second proviso to Article 324(5), shall not be removed from office except on the recommendation of the Chief Election Commissioner. 16. The facility of support staffs of the Election Commission has been covered under Article 324(6), which provides that the President, or the Governor of a State, shall, when so requested by t he Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharg e of the functions conferred on the Election Commission. 17. The question that emerges for consideration is what interpretation needs to be afforded to the above-discussed provisions, so that the independence of the Election Commission is ensured. Be fore dealing with that, we shall deal with the necessity of the independence which is imperative of the Election Commission. III. Why an independent Election Commission is Necessar y A. “Working a Democratic Constitution ”1 18. The basic perception of democracy is that it is a government by the people, of the people, and for the people. “People” is the central axis on which the concept of democracy revolves. The establishment of democracy has been linked with the idea of welfare of the people. Dr BR Ambedkar had once noted that democracy means “a form and a method of government whereby revolutionary changes in the economic 1 Borrowed from the title of the classic book - Granville Austin, Working a Democratic Constitution: A History of the Indian Experience, O xford University Press. ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] and social life of the people are brought about without bl oodshed.”2 Democracy is thus linked with the realization of the aspir ations of the people. 19. According to the celebrated philosopher John De wey, “Democracy is not simply and solely a form of government, but a social and personal ideal”, in other words, it is not only a property of political institutions but of a wide range of social relationships. 3 Democracy is thus about collective decision-making. The principles of democracy have been held as a part of the basic structure of the Constitution .4 20. The Indian Constitution establishes a constitutional democracy. The Preamble to the Constitution clearly lays down the vision and creates an outline of the structure of democracy that India envisaged to be, right at the moment of independence. The Preamble to the Indian Constitution begins with the phrase “We, the People of India”. This clearly indicates that the foundations of the future of the Indian Constitution and democracy begin with the people of India at the core. The phrase al so means that the people of India would be in a deciding position to choose the governments they want. The phrase also highlights that the structures of governance which were being created by the Constitution were supposed to act towards the welfare of the people. The Preambl e provides that the people of India have resolved to constitute India into a “SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC”. Each term in this phrase defined the collective vision of not only the founders of the Indian Constitution but also the collective destiny of the people of India. These words also denote the kind of democratic structures that we were going to create. The word “DEMOCRATIC” in the Pream ble is interlinked with the words preceding and succeeding it, that is “SOVEREIGN”, “SOCIALIST”, “SECULAR”, “REPUBLIC”. The Preamble also provides that the people of India are securing for its citizens “JUSTICE social, economic and political”. The word “J USTICE” manifests the vision of undoing hundreds of years of injustice that was prevalent on Indian soil. Justice was to be based on three components: social, economic, and political. 21. Democracy was established in India to fulfill the goals which have been significantly encapsulated in the terms of the Preamble. The 2 Babasaheb Ambedkar: Writings and Speeches, Vol. 17 Part III, page 475 3 https://plato.stanford.edu/entries/dewey-political/ 4 His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Another, (1973) 4 SCC 225 189 institutions which were set up were given a role and duty to fulfi ll the task as enshrined in the Preamble and the Constitution. While the three main pillars of the State rest on the legislature, executive, and judiciary have their designated roles, the Constitution framers were also visionary in the sense that they envisaged the creation of other institutions, which would be independent in nature and would facilitate the working of the three pillars by either demanding accountability or by tak ing on roles which would maintain the faith of the people in the three pillars of democracy. The Election Commission of India is one such institut ion that has been created through the text of the Const itution. It is constitutionally an independent body. The role of the Election Commission of India is to ensure that the democratic process in India does not come to a standstill. The task conferred on the Election Commission is enormous. It has to ensure that periodical elections keep on happening. 22. India has chosen a system of direct elections. This means that elections are supposed to happen at regular intervals where the peo ple of India directly participate by exercising their right to vote. The Constitution also provides for elections where the representatives of the people are chosen by an indirect method. These include the elections for the post of President and Vice-President and the membe rs of State Legislative Councils. The task to maintain the sanctity of the elections is supposed to be carried out by the Election Commission in a fair, transparent and impartial manner, and without any bias or favour. The Elec tion Commission has been given a wide range of powers to wards “superintendence, direction, and control” over the conduct of all elections to Parliament and the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution. The three words “s uperintendence”, “direction”, and “control” have not been defined in the Constitution but were used in a sense to give the widest responsibility to the Election Commissi on. In that sense, the Election Commission becomes one of the most important as well as central institutions for preserving and promoting the democratic process and the structures of democracy on Indian soil. The role of the Election Commission takes much more relevance given the fact that how the Indian society and polity used to traditionally behave. As a chief architect of the constitution, Dr. B.R. Ambedkar once said “Democracy in India is only a top-dressing on an Indian soil, which is ess entially undemocratic.”5 5 Constituent Assembly Debates, 4 November 1948, ht tp://164.100.47.194/loksabha/ writereaddata/cadebatefiles/C04111948.html ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] 23. The Election Commission performs its role to ensure that every person in the society is able to participate in the process of elections to select the government. Therefore, the Election Commission in its working needs to demonstrate the highest degree of transpar ency and accountability. The decisions taken by the Election Commission need to generate the trust of the people so that the sanctity of t he democratic process is maintained. If the Election Commission starts showing any arbitrary decision-making, then the resulting situation would not just create doubt on the members of the Election Commission of being biased but would create fear in the minds of the common citizens that the democratic process is being compromised. Therefore, the Election Commission needs to be independent and fully insulated from any external or internal disrupting environment. The working of the Commission has to generate confidence in the minds of the people. In a country like India, where millions of people still struggle to fulfill their basic needs, it is their right to vote which gives them hope that they would elect a government that would help them in crossing the boundaries of deprivation. If this power is compromised or taken away even by one slight bad decision or biases of the members of the Election Commission, it would undoubtedly attack the very basic structure of Indian democracy. The Indian democ racy has succeeded because of the people’s faith and participa tion in the electoral process as well as the everyday work of the i nstitution. As a constitutional court of the world’s largest democracy, we cannot allow the dilution of people’s faith in democratic institutions. The country gained and adopted democracy after decades of struggle and sacrifi ces, and the gains received by us cannot be given away because the institutions still continue to operate in an opaque manner. 24. A nine-judge bench of this Court in the case of K.S. Puttaswamy and Another v. Union of India and Others6 held: “Opacity enures to the benefit of those who monopolize scarce economic resources. On the other hand, conditions where civil and political freedoms flourish ensure that governmental policies are subjected to critique and assessment. It is this scrutiny which sub-serves the purpose of ensuring that socio-economic benefits actually permeate to the underprivileged for whom they are meant. Conditions of freedom and a vibrant assertion of civil and political rights promote a constant review of the justness of socio-economic 6 (2017) 10 SCC 1 191 programmes and of their effectiveness in addressing deprivation and want. Scrutiny of public affairs is founded upon the existence of freedom.” 25. 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 peo ple, and therefore the process of selecting them has to ensure the independence of the institution. 26. Democracy is not an abstract phenomenon. It has been given effect by a range of processes. The perception and trust in institutions are important parameters on which the working of democracy is assessed. The success of democracy, thus, depends on the working of institutions that support the pillars of the structure of democracy. 27. Accountability of institutions provides legitimacy not only to the institutions themselves, but also to the very idea of democracy. That is to say, if the institutions are working in a fair and transparent manner, then the citizens would be assured that democracy is working. In that sense, democracy is a means to check on officeholders and administrators and to call them to account. Therefore, the norms and rules governing these institutions cannot be arbitrary or lack transparency. 28. To strengthen the democratic processes, the institution of the Election Commission needs to be independent and dem onstrate transparency and accountability. This reason is enough in itself t o call this Court to examine the institutional structure of the Election Commission of India. B. Right to Vote 29. The working of democracy depends on whether the people can decide the fate of the elected form of government. It depe nds on the choices which people make in different ways. This choice of people cannot be compromised, as their mandate in elections cha nges the destinies of government. India is democratic because the people govern themselves. It is a republic because the government’s power is derived from its people. Through the electoral process and votin g, citizens participate in democracy. By voting, citizens take part in the public affairs of the country. Thus, citizens by voting enjoy their right to choose the ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] composition of their government. It is their choice, and their ability to participate. A nine-judge bench in the case of K.S. Puttaswamy (Supra) held: “... it must be realised that it is the right to question, the right to scrutinize and the right to dissent which enables an inform ed citizenry to scrutinize the actions of government. Those who are governed are entitled to question those who govern, about the discharge of their constitutional duties including in the provision of socio-economic welfare benefits. The power to scrutinize and to reason enables the citizens of a democratic polity to make informed decisions on basic issues which govern their rights.” 30. The right to vote is now widely recognized as a fundamental human right.7 However, this was not always the case. The history of the adult franchise tells us that it was limited to the privileged in society.8 It took several decades of struggles by marginalized communities to gain the right to vote. The right to vote is so intrinsic to the practice of democracy. 31. It has been argued by the counsel for the Election Commission of India, that the right to vote is merely a statutory right, and since no fundamental right is violated, it does not call the attention of this Court. This Court does not agree with the view argued by th e Election Commission. Furthermore, it becomes necessary to look at the Constituent Assembly Debates to examine the scope of the right to vote . 32. The demand for the adult franchise was consistently rais ed by several Indian leaders. In their drafts prepared for the consideration of the Constituent Assembly, Dr. BR Ambedkar 9 and KT Shah 10 had proposed the incorporation of the right to vote in the fundamental rights portion. This proposal was initially endorsed in the initial draft report of the Fundamental Rights Sub-Committee, which was a pa rt of the Advisory Committee of the Constituent Assembly.11 The draft provision also included a sub-clause on an independent Election Commiss ion. Reproduced as follows: 7 https://www.ohchr.org/en/elections 8BR Ambedkar, “Evidence before the Southborough Comm ittee”, in Babasaheb Ambedkar: Writings and Speeches, published by Gover nment of India, Vol. 1, pages 243-278 9 BR Ambedkar, “States & Minorities”, in Babasaheb Ambedkar: Writings and Speeches, published by Government of India, Vol. 1., pages 381-541 10 B. Shiva Rao, The Framing of India’s Constitution, Select Documents, Vol. 2, at Page 54 (hereinafter “Shiva Rao”) 11 Shiva Rao, at pages 137 & 139 (dated 03.04.1947) 193 1. “Every citizen not below 21 years of age shall have the right to vote at any election to the Legislature of the Union and any unit thereof, or, where the Legislature is bicameral, to the lower chamber of the Legislature, subject to such disqualifications on the ground of mental incapacity, corrupt practice or crime as may be imposed, and subject to such qualifications relating to residence within the appropriate constituency, as may be required by or under the law. 2. The law shall provide for free and secret voting and for periodical elections to the Legislature. 3. The superintendence, direction and control of all elect ions to the Legislature whether of the Union or the unit, including the appointment of Election Tribunals shall be vested in an Election Commission for the Union or the unit, as the case may be, appointed in all cases, in accordance with the law of the Union.” 33. This shows that the Framers envisaged that the right to vote must be accompanied by a provision establishing the Election Commission. Constitutional Adviser B.N. Rau’s note on the draft provision explains the inclusion of the right to vote as a fundamental right: “Clause 12. This secures that the right to vote is not refused t o any citizen who satisfies certain conditions. The idea of an Election C ommission to supervise, direct and control all elections is new. ”12 34. KT Shah however objected to the idea of a centralized Election Commission. He argued that, “if adopted, would be a serious infringement of the rights of Provincial Autonomy; and as such, I think it ought to be either dropped or reworded, so as not to prejudice the rights of the Provincial Legislature to legislate on such subjects.” 13 The clause on right to vote and the creation of the Election Commission as part of the fundamental rights was then accepted by a majority vote by the Fundamental Rights Sub-Committee.14 The clause was then forwarded to the Advisory Committee in the “Report of the Sub-Comm ittee on Fundamental Rights” dated April 16, 1947.15 12 Shiva Rao, page 148 13 ibid, page 155 14 Ibid, page 164 15 Ibid, p. 173. Furthermore, the ground for contrary views was only that the right was being extended the States/units. See “Minutes Of Di ssent To The Report” dated April 17-20, 1947 by KM Panikkar, page 187 ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] 35. The draft prepared by the Fundamental Rights Sub-Committee was examined by the Minorities Sub-Committee to see if any rights proposed needed to be “amplified or amended” to protect minority rights.16 In the Minutes of the Meeting of the Minorities Sub-Committee date d April 17, 1947, there were two suggestions on the fundamental right to vote and Election Commission. S.P.Mukherjeeproposed, “Minorities should be adequately represented on the Election Co mmissions proposed for the Union and the units”. 17Jairamdas Daulatram suggested that “such bodies should be made neutral so that the y may inspire confidence among all parties and communitie s. Separate representation for the minorities may not be workable.” 18 It was also decided by the Minorities Sub-Committee on April 18, 1947 “to mention in [their] report that the Election Commission should be an independent quasi-judicial body.”19 36. After the clause on the right to vote passed by the Fundamental Rights Sub-Committee and the Minorities Sub-Committee reached for consideration before the Advisory Committee, there was a serious debate on whether to keep the clause in the fundamental rights chapter or not. Dr. Ambedkar argued for retaining it as a fundamental right.20 He stated: “… so far as this committee is concerned my point is that we should support the proposition that the committee is in favour of adult suffrage. The second thing we have guaranteed in t his fundamental right is that the elections shall be free and the elections shall be by secret voting. It shall be by periodical elections... The third proposition which this fundamental clause enunciates is that in order that elections may be free in the real sense of the word, they shall be taken out of the hands of the Government of the day, and that they should be conducted by an independent body which we may here call an Election Commission.”21 37. But this view was disagreed with by several members of the Advisory Committee. They had an apprehension that such a clause may be objected to in the Constituent Assembly by the representatives of the 16 ibid, page 199 17 ibid, page 201 18 ibid, page 201 19 ibid, page 205 20 ibid, page 247 21 ibid, page 249-250 195 Princely States.22 C. Rajagopalachari expressed that the future method of elections was not clear, and hence it was not right to keep a detailed clause on the franchise in the fundamental rights. He said: “My only point is whether it is proper to deal with thi s as a fundamental right or whether we should leave it, or a greater part of it, for the consideration of the whole Assembly. I subm it we cannot take it for granted that the Union Legislature shall be elected by the direct vote from all citizens from all India. It may be a Federation Constitution. It may be indirectly elect ed. The Government of the Union may be formed indirectly, so that we cannot assume that every adult or any one whatever the description may be, shall have a direct vote to the Legislature. We cannot lay down a proposition here without going into those details. We cannot therefore deal with the subject at all now. Whether there is going to be direct election or indirect election, that must be settled first.”23 (sic) 38. Dr. Ambedkar tried to resolve the opposition to this clause by arguing that: “My reply is that this document or report will go before t he Constituent Assembly. There will be representatives of the States; there will be representatives of the Muslim League. We shall hear from them what objection they have to adult suffrage. If the whole Constituent Assembly is convinced that while it may be advisable to have adult suffrage for British India, for reasons of some special character, the Indian States cannot have adult suffrage, and there must be some sort of a restricted suffrage, it will be still open to the Constituent Assembly to modify our proposals.”24 39. Govind Ballabh Pant explained the reason why there was a concern regarding inclusion of the right to vote in the fundamental rights chapter. He said: “The only apprehension is that some people belonging to the States may prick the bubble and say that their rights have been interfered with and so on. They may not be represented. We will have what we desire.” 25 22 Statement of Sardar Patel, p. 249 23 ibid, page 250 24 ibid, page 250 25 251 ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] 40. In response to Pant, the following reply was given by D r Ambedkar: “While we are anxious that the Indian States should come in, we shall certainly stick to certain principles and not yield sim ply to gather the whole lot of them in our Constitution.”26 41. As an alternative, Govind Ballabh Pant suggested that “thi s very clause is sent to the Constituent Assembly, not as part of these fundamental rights, but included in the letter of the Chairm an to the effect that we recommend to the Constituent Assembly the fol lowing principles in regard to the framing of the Constitution.” 27 While Dr. Ambedkar insisted on his view, the majority of members of the Advisory Committee including Sardar Patel adopted Pant’s suggestion.28 42. Accordingly, in the “Minutes of the Meetings of the Advisory Committee” dated April 21, 1947, it was noted: “Clause 13 to be deleted from the fundamental rights, but it should be recomme nded by the Chairman in his report to the Constituent Assembly on behalf of the committee, that it be made a part of the Union Constitution. ”29 In his letter addressed to the President of the Constituent Assembl y, Sardar Patel presented the interim report of the Advisory Committee , while also noting that: “While agreeing in principle with th is clause, we recommend that instead of being included in the list of fundamental rights, it should find a place in some other part of the Constitution.”30 43. What emerges from this discussion is that there was an initial agreement among the members of the fundamental rights sub-committee and the minority rights sub-committee that there needs to be a clause in the fundamental rights chapter which should provide for the r ight to vote; and the task to conduct free and fair elections, there shall be an independent body called the Election Commission.However, the clause was not retained by the Advisory Committee as a fundamental right because it was apprehended that the princely states might not ag ree to the Union Constitution if that clauseis retained, as India was going through a historical period of unification where negotiations were b eing made with the princely states to become part of a united India. Despite this, 26 ibid, page 251 27 ibid, page 251 28 ibid, page 251-52 29 ibid, page 288 30 ibid, page 296 197 the Founders retained the right to vote as a constitution al right by recommending that it should find a place in the text of the constitution. 44. On 16 June 1949, Dr. B.R. Ambedkar moved the following clause, providing for the adult franchise: “289-B: Elections to the House of the People and to t he Legislative Assemblies of states to be on the basis of adul t suffrage: The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every citizen, who is not less than twenty- one years of age on such date as may be fixed in this behalf by or under any law made by the appropriate Legislature and i s not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of nonres idence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.” 31 45. The clause was adopted, which later became Article 326 o f the Constitution. 46. 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 c onstituency.” 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. 47. However, the judgments of this Court adopted a restricte d view of the right to vote for a number of decades. In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Oth ers 32 (hereinafter “N.P. Ponnuswami”), a bench of six judges of this Court was dealing with the question whether the High Court under Article 226 can have jurisdiction to interfere with the order of the Returning Officer by reason of the provisions of Article 329(b) of the Constitution. While the Court was examining the contours of Article 329(b), it also made the 31 CONSTITUENT ASSEMBLY OF INDIA DEBATES (PROCEEDINGS)- VOLUME VIII Thursday, the 16th June 1949, Available at: http://164.100.47.194/loksabha/writereaddata/cadeba tefiles/C16061949.html 32 1952 SCR 218 ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] following observation: “The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it.” 48. A different view was adopted by a Constitution Bench of this Court in the case of Mohindhr Singh Gill and Another v. Chief Election Commissioner, New Delhi and Others. 33 (hereinafter “Mohindhr Singh Gill”). The Bench was called on to interpret Articles 324 and 329(b) of the Constitution. It noted: “The most valuable right in a democratic polity is the ‘little man’s’ little pencil-marking, accenting and dissenting, called his vote.... Likewise, the little man’s right, in a representative s ystem of Government to rise to Prime Ministership or Presidentship by use of the right to be candidate cannot be wished away by calling it of no civil moment. If civics mean anything to self-governing citizenry, if participatory democracy is not to be scuttled by law.... The straightaway conclusion is that every Indian has a right to ele ct and be elected and this is constitutional as distinguished from a common law right and is entitled to cognizance by Courts, subject to statutory Regulations.” 49. However, a subsequent decision of a two-judge bench in Jyoti Basu and Others v. Debi Ghosal and Others 34 (hereinafter “Jyoti Basu”) relied upon the position taken by N.P. Ponnuswami (Supra). The two-judge bench was dealing with the specific question who m ay be joined as a party to an election petition, but went to observe: “A right to elect, fundamental though it is to democr acy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outsi de of statute, there is no right to elect, no right to be elected and no right to dispute and election. Statutory creations they are, andtherefore, subject tostatutory limitation.” 50. While the above three decisions made statements of the right to vote, the issue of interpretation of Article 326, dealin g with adult franchise, had not arisen in these cases. Therefore, the statements made cannot be treated as an authority on the subject. 33 (1978) 1 SCC 405 34 (1982) 1 SCC691 199 51. In the case of Union of India v. Association for Democratic Reforms and Another 35 (hereinafter “ ADR” ), this Court was considering whether there is a right of the voter to know ab out the candidates contesting election. Holding in affirmative, it was held: “In democracy, periodical elections are conducted for having efficient governance for the country and for the benefit of citizens - voters. In a democratic form of government, voters are of utmost importance. They have right to elect or re- elect on th e basis of the antecedents and past performance of the candidate. The voter has the choice of deciding whether holding of educa tional qualification or holding of property is relevant for electing or re- electing a person to be his representative...” (emphasis added) 52. Amendments were made to ROP Act after ADR judgment. Whether the amendments followed the mandate laid down in ADR were scrutinized by a three-judge bench case of People’s Union for Civil Liberties (PUCL) and Another v. Union of India and Ano ther36 (hereinafter “ PUCL 2003”). This Courtre-examined the issue of whether a voter has any fundamental right to know the antecedents/ assets of a candidate contesting the election under Article 19(1)(a). An argument was made before this Court that a voter does not have such a right, as there is no fundamental right to vote from which the right to know the antecedents of a candidate arises. While the three judges(M.B. Shah, Venkatarama Reddi, D.M. Dharmadhikari, JJ.) unanimously agreed that the voters have a right under Article 19(1)(a) to know the antecedents of a candidate, there was a difference on whether the scope of the right to vote. 53. Referring to N.P. Ponnuswamiand Jyoti Basu judgments, Justice MB Shah held that “there cannot be any dispute that the right to vote or stand as a candidate for election and decision with regard to violation of election law is not a civil right but is a creature of statute or special law and would be subject to the limitations envisaged therein.” He held that, “Merely because a citizen is a voter or has a right to elect his representative as per the [ROP] Act, his fundamental ri ghts could not be abridged, controlled or restricted by statutory provisions except 35 (2002) 5 SCC 294 36 (2003) 4 SCC 399 ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] as permissible under the Constitution.” He stated that whether the right to vote is a statutory right or not does not have any implica tion on the right to know antecedents, which is a part of fundamental right und er Article 19(1)(a). He however also held that democracy based on adult franchise is part of the basic structure of the Constitution, a nd that the right of adults to take part in the election process either as a voter or a candidate could only be restricted by a valid law which does not offend constitutional provisions. 54. Justice Venkatarama Reddi emphasized on the right to vote, and held: “The right to vote for the candidate of one’s choice is of the essence of democratic polity. This right is recognized by our Constitution and it is given effect to in specific form by the Representation of the People Act. The Constituent Assembly debates reveal that the idea to treat the voting right as a fundamental right was dropped; nevertheless, it was decided to provide for it elsewher e in the Constitution. This move found its expression in Article 326…” 55. He disagreed with the views expressed in N.P. Ponnuswamiand Jyoti Basu, and held: “the right to vote, if not a fundamental right, is ce rtainly a constitutional right. The right originates from the Constitution and in accordance with the constitutional mandate contained in Article 326, the right has been shaped by the statute, namely, R.P. A ct. That, in my understanding, is the correct legal position as regards the nature of the right to vote in elections to the House of people and Legislative Assemblies. It is not very accurate to describe it as a statutory right, pure and simple.” 56. Justice Venkatarama Reddi then distinguished the constitutional right to vote with the act of giving vote/freedom of voting. He held: “a distinction has to be drawn between the conferment of the right to vote on fulfillment of requisite criteria and the culmination of that right in the final act of expressing choice towards a particular candidate by means of ballot. Though the initial right cannot be placed on the pedestal of a fundamental right, but, at the s tage when the voter goes to the polling booth and casts his vote, his freedom to express arises. The casting of vote in favour of one or 201 the other candidate tantamounts to expression of his opinion and preference and that final stage in the exercise of voting right marks the accomplishment of freedom of expression of the voter. That is where Article 19(1)(a) is attracted. Freedom of voting as distinct from right to vote is thus a species of freedom of expression and therefore carries with it the auxiliary and complementary rights such as right to secure information about the candidate which are conducive to the freedom. None of the decisions of this Court wherein the proposition that the right to vote is a pure and simple statutory right was declared and reiterated, considered the question whether the citizen’s freedom of expression is or is not involved when a citizen entitled to vote casts his vote in favour of one or the other candidate…” In his conclusions, he noted: “The right to vote at the elections to the House of peopl e or Legislative Assembly is a constitutional right but not mer ely a statutory right; freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a). The casting of vote in favour of one or the other candidate marks the accomplishment of freedom of expression of the voter.” 57. Justice DM Dharmadhikari expressed his agreement with the view taken by Justice Venkatarama Reddi, thus making it a maj ority decision holding that the right to vote is a constitutional right. Even Justice Shah had held that the right of adults to take part in the election process as a voter could only be restricted by a valid law which does not offend constitutional provisions. 58. An argument based on the majority view in PUCL 2003 was put forth before a Constitution Bench of this Court in Kuldip Nayar and Others v. Union of India and Others 37(hereinafter “ Kuldip Nayar”). It was argued that a right to vote is a constitutional right besides that it is also a facet of fundamental right under Article 19(1)(a) of the Constitution. The Constitution bench rejected the argument. It was held: “The argument of the petitioners is that the majority view in the case of People’s Union for Civil Liberties, therefore, was th at a right to vote is a constitutional right besides that it is also a facet of fundamental right under Article 19(1)(a) of the Constitution. 37 (2006) 7 SCC 1 ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] We do not agree with the above submission. It is clear that a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression, while reiterating the view in Jyoti Basu v. Debi Ghosal (supra) that a right to elect, fundamental though it is to democracy, is neither a fundamental right nor a common law right, but pure and simple, a statutor y right. Even otherwise, there is no basis to contend that the right to vote and elect representatives of the State in the Council of States is a Constitutional right. Article 80(4) merely deals with the manner of election of the representatives in the Council of States as an aspect of the composition of the Council of States. There is nothing in the Constitutional provisions declaring the right to vote in such election as an absolute right under the Constitution.” 59. The Constitution Bench in Kuldip Nayar seems to have missed the point that Justice Venkatarama Reddi’s opinion in PUCL 2003 that the right to vote is a constitutional right was explicitly concurred by Justice Dharmadhikari. Therefore, Kuldip Nayar’s view that PUCL 2003 considered the right to vote/elect as a statutory right doe s not seem to portray the correct picture. 60. In Desiya Murpokku Dravida Kazhagam and Another v. Election Commission of India,38 a three-judge bench was considering a challenge to the constitutional validity of the amendment of the Election Symbols (Reservation and Allotment) Order, 1968, which mandated that in order to be recognized as a State party in the State, a poli tical party would have to secure not less than 6% of the total valid votes polled in the State and should also have returned at least 2 membe rs to the Legislative Assembly of the State. The counsel for the Election Commission of India in the case had argued that since the right to vote was a statutory right, it could not be questioned by way of a writ petition. The majority by 2:1 upheld the amendment. However, Justice Chelameswar wrote a dissenting opinion. The dissenting ju dge also addressed the counsel for the Election Commission of India that t he right to vote is merely a statutory right. He held: “The right to elect flows from the language of Articles 81 and 170 r/w Articles 325 and 326. Article 326 mandates that the election to the 38 2009 (16) SCC 781 203 Lok Sabha and legislative Assemblies shall be on the basis of Adult Suffrage, i.e., every citizen, who is of 18 years of age and is not otherwise disqualified either under the Constitution or Law on the ground specified in the Article Shall Be entitled to be registered as a voter. Article 325 mandates that there shall be one general electoral roll for every territorial constituency. It further declares that no person shall be ine ligible for inclusion in such electoral roll on the grounds only of religion, race, caste, sex, etc. Articles 81 and 170 mandate that the members of the Lok Sabha and Legislative Assembly are required to be Chosen by Direct Election from the territorial constituencies in the States. The States are mandated to be divided into territorial constituencies under Articles 81(2) (b) and 170(2)17. The cumulative effect of all the above ment ioned provisions is that the Lok Sabha and the Legislative Assemblies are to consist of members, who are to be elected by all the citizens, who are of 18 years of age and are not otherwise disqualified, by a valid law, to be voters. Thus, a Constitutional right is created in all citizens, who are 18 years of age to choose (participate in the electoral process) the members of the Lok Sabha or the Legislative Assemblies. Such a rig ht can be restricted by the appropriate Legislature only on four grounds specified under Article 326.” 61. Justice Chelameswar also clarified that the question whether the right to vote or contest at any election to the Legislat ive Bodies created by the Constitution did not arise in the case of N.P. Ponnuswami, which is cited as an authority on the right to vote. He noted: “With due respect to their Lordships, I am of the opinion that both the statements (extracted above) are overbroad statements made without a complete analysis of the scheme of the Constituti on regarding the process of election to the Legislative Bodies adopted in subsequent decisions as a complete statement of law. A classical example of the half truth of one generation becoming the whole truth of the next generation.” 62. The majority decision in this case did not reco rd any disagreement regarding the conclusion that the right to participate in the electoral process, either as a voter or as a candidate, is a constitutional right. 63. In 2013, the correctness of ADR and PUCL 2003 was doubted before a three judge-bench of this Court in People’s Union for Civil ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] Liberties and Another v. Union of India and Another 39(PUCL 2013). In this case, the validity of certain rules of the Conduct of Election Rules, 1961 to the extent that these provisions violate the sec recy of voting which is fundamental to the free and fair elections. I t was put forward that the Constitution bench judgment in Kuldip Nayar created a doubt on ADR and PUCL 2003. The three-judge bench in PUCL 2013 held that “Kuldip Nayar does not overrule the other two decisions rather it only reaffirms what has already been said by the two aforesaid decisions”. However, the three-judge bench went on to note that: “… there is no contradiction as to the fact that right to vote is neither a fundamental right nor a Constitutional right but a pure and simple statutory right. The same has been settled in a catena of cases and it is clearly not an issue in dispute in the present case.” 64. While the scope of the right to vote was not before PUCL 2013, but it went on to observe that the right to vote is only a statutory right. But, the three-judge bench in PUCL 2013 followed ADR and PUCL 2003 to reiterate that “[t]he casting of the vote is a facet of t he right of expression of an individual and the said right is provided under Article 19(1)(a) of the Constitution of India”, and therefore, a prima facie case existed for the exercise of jurisdiction of this Court under Article 32. The bench concluded that: “No doubt, the right to vote is a statutory right but it is equally vital to recollect that this statutory right is the essence of democrac y. Without this, democracy will fail to thrive. Therefore, even if the right to vote is statutory, the significance attached with the right is massive. Thus, it is necessary to keep in mind these facets while deciding the issue at hand.” 65. A clarity on the status of the right to vote was given in the judgment in Raj Bala v. State of Haryana and Others .40 Justice Chelameswar and Justice Sapre gave separate concurring opinions. After analysing the previous decisions of this Court, Justice Chelameswar came to the conclusion that “every citizen has a constitutional r ight to elect and to be elected to either Parliament or the State legislatures.” Justice Sapre reiterated the view taken in PUCL 2003 that the “right to vote” is a constitutional right but not merely a statutory right. 39 (2013) 10 SCC 1 40 (2016) 1 SCC 463 205 66. What emerges from this detailed discussion is that there ha s been a conflicting view on the status of the right to vote. This gives an opportunity for us to authoritatively hold that the right to vote is not just a statutory right. In our view, we must look beyond that. Our decision to analyse the contours of the right to vote is facilitated by the reasoning provided by the nine-judge bench in K.S. Puttaswamy. In that case, a plea was made that since privacy was not included as a fundamental right in the original Constitution, it cannot be declared a funda mental right. The bench rejected this argument, and held: “it cannot be concluded that the Constituent Assemb ly had expressly resolved to reject the notion of the right to privacy as an integral element of the liberty and freedoms guaranteed by the fundamental rights... The interpretation of the Constitution cannot be frozen by its original understanding. The Constitution has evolved and must continuously evolve to meet the aspirations and challenges of the present and the future.” 67. In the instant case, the provision on adult franchise is in Article 326 of the Constitution. An analysis of Constituent Assembly Debates shows that it was initially considered as a fundamental ri ght in the proceedings of the Advisory Committee. The only reason why it was shifted from fundamental rights status to another constitutional provision was that the founders did not want to offend the Princely State s, with whom they were negotiating to be a part of a united India. Oth erwise, they had stressed the importance of the right to vote and universal adult franchise. Seventy-five years after Independence, w e have the opportunity to realize their absolute vision by recognizing what they could not due to socio-political circumstances of their t ime. When the Constitution came into force, what were known as Prin cely States became a part of India, and accepted direct elections as a method of choosing the government. These areas have now been incl uded in different states. Therefore, there has been no objection to the right to vote. 68. The right to take part in the conduct of public aff airs 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 expres sion 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 ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] 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.41 In that way, the right to vote enshrines the protection guaranteed under Article 15 and 17. Therefore, the right to vote is not limited only to Article 326, but flows through Article 15, 17, 19, 21. Article 326 has to be read along with these provisions. We therefore declare the right to vote in direct elections as a fundamental right, subject to limitations laid down in Article 326. This Court has precedents to support its reasoning. In Unnikrishnan J.P. and Others v. State of Andhra Pradesh and Others, 42 this Court read Article 45 and 46 along with Article 21 to hold that the right to education is a fundamental right for children between the age group of 6-14. 69. Now that we have held that the right to vote is not mere ly a constitutional right, but a component of Part III of the Consti tution 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 f undamental rights, this Court needs to ensure that the working of the Election Commission under Article 324 facilitates the protection of people’s voting rights. C. Free and Fair Elections 70. Democracy works when the citizens are given a chance to decide the fate of the ruling government by casting their vote in periodical elections. The faith of the citizens in the democratic processes is ensured by conducting free and fair elections through an independent and neutral agency. 71. Free and fair elections have been enshrined as a precedent for the working of democracy in global conventions and rights- based frameworks. The Universal Declaration of Human Righ ts 1948 recognizes that: “1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. 2. Everyone has the right of equal access to public service in his country. 41 https://journals.library.brandeis.edu/index.php/ca ste/article/view/282/63 42 (1993)1 SCR594 207 3. The will of the people shall be the basis of the au thority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”43 72. Article 25 of the International Covenant on Civil and Political Rights provides: “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.” 73. India is committed to these international frameworks. T his Court has previously read India’s obligation to international frameworks to recognise new areas of constitutional discourse, which are explicitly not covered by the provisions of the Constitution or wher e there is a constitutional vacuum.44 But free and fair elections have been recognised as an essential feature of the democratic apparatus by the judgments of this Court as well. 74. In Indira Nehru Gandhi Smt v. Shri Raj Narain and Another,45 Justice HR Khanna held in his opinion: “All the seven Judges [in Kesavananda Bharti case] w ho constituted the majority were also agreed that democratic set-up was part of the basic structure of the Constitution. Democracy postulates that there should be periodical election, so that people may be in a position either to re-elect the old representatives or, if they so choose, to change the representatives and elect in their place other representative. Democracy further contemplates that the elections should be free and fair, so that the voters may be in 43 Article 21, Universal Declaration of Human Rights 44 Vishakha v. State of Rajasthan, AIR 1997 SC 3011 45 AIR 1975 SC 2299 ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] a position to vote for candidates of their choice. Democracy can indeed function only upon the faith that elections are free and fair and not rigged and manipulated, that they are effective instruments of ascertaining popular will both in reality and form and are not mere rituals calculated to generate illusion of deference to mas s opinion. Free and fail elections require that the candidates and their agents should not resort to unfair means or malpractices as may impinge upon the process of free and fair elections.” 75. For conducting free and fair elections, an independent body in the form of Election Commission is a must. In Mohindhr Singh Gill, a Constitution Bench was called to interpret Article 324 and Article 329(b) of the Constitution. emphasized on the connection between electi ons and the role of the Election Commission. Justice Krishna Iyer (speaking for Chief Justice Beg, Justice Bhagwati, and himself) stated: “Democracy is government by the people. It is a cont inual participative operation, not a cataclysmic, periodic exercise. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of this proxy. Although the full flower of participative Government rarely blossoms, the minimum credential of popular Government is appeal to the people after every term for a renewal of confidence . So we have adult franchise and general elections as constitutional compulsions. “The right of election is the very essence of the constitution” (Junius). It needs little argument to hold that the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more.” 76. It was emphasized by Justice Krishna Iyer: “The Election Commission is an institution of central importance and enjoys far-reaching powers and the greater the power to affect others’ right or liabilities the more necessary the need to hear.” 77. Justice PK Goswami in his concurring opinion (for himself & PN Singhal) held: “Elections supply the visa viva to a democracy. It was, therefore, deliberately and advisedly thought to be of paramount importance that the high and independent office of the Election Commission should be created under the Constitution to be in complete charge 209 of the entire electoral process commencing with the issue of the notification, by the President to the final declaration of the result.” 78. Justice Goswami further emphasized on the need of independence of the Election Commission in the following words: “The Election Commission is a high-powered and independent body which is irremovable from office except in accordance with the provisions of the Constitution relating” to the removal of Judges of the Supreme Court and is intended by the framers o f the Constitution, to be kept completely free from any pul ls and pressures that may be brought through political influence in a democracy run on party system.” 79. The importance of periodical elections was also emphasized in the Constitution Bench decision in Manoj Narula v. Union of India,46 which held: “In the beginning, we have emphasized on the concep t of democracy which is the corner stone of the Constitution. There are certain features absence of which can erode the fundamental values of democracy. One of them is holding of free and fair election by adult franchise in a periodical manner… for it is the heart and soul of the parliamentary system.” 80. Thus, the role of the Election Commission is integ ral to conducting free and fair elections towards the working of democracy. It is the duty and constitutional obligation of this Court to protect and nurture the independence of the Election Commission. IV. Constitutional and statutory framework: The Constitutional Vacuum 81. Article 324 of the Constitution provides that superintendence, direction and control of elections shall be vested in an Election Commission. Clause 1 of Article 324 provides: “The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).” 46 (2014) 9 SCC1 ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] 82. The composition of the Election Commission is provided under Clause (2) of Article 324. It provides: “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.” 83. Article 324(3) states that the Chief Election Commission er shall act as the Chairman of the Election Commission. 84. Clause (5) of Article 324 deals with conditions of service and tenure of office of the Election Commissioner. It provides that: “Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the E lection Commissioners and the Regional Commissioners shall be such as the President may by rule determine: Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief El ection Commissioner shall not be varied to his disadvantage after his appointment: Provided further that any other Electi on Commissioner or a Regional Commissioner shall not be removed from office except on the recommendationof theChief ElectionCommissioner.” 85. What comes out of this provision is that the Office of the Chief Election Commissioner stands on a higher constitutional pedestal, as he is given equivalence to a Judge of the Supreme Court in matters of removal. The other thing which comes out is that “the conditions of service of the Chief Election Commissioner shall not be v aried to his disadvantage after his appointment.” That is to say, the i ndependence cannot be indirectly diluted by creating unwarranted conditions of service. Lastly, a wide discretion has been vested with the Chief Election Commissioner to seek removal of any other Election Commissioner or a Regional Commissioner. 86. It has been argued before us that there exists a constitutional vacuum in the method of selection of the Chief Election Commissioner and other Election Commissioners, and nothing has been provided under 211 Article 324. It has been argued that as the Executive (through President) is making these appointments, it reduces the independence of the Election Commission. Furthermore, it was pointed out that the term and tenure of the Election Commissioners also need to be streamlined in order to ensure absolute independence of the Election Commission and to prevent any arbitrary or biased decision to be taken by the Chi ef Election Commissioner. 87. It has been argued by the learned Attorney General th at the conditions of service and tenure of the Chief Election Commi ssioner and Election Commissioners is already governed by the Act, 1991. 88. The Act provides “the conditions of service of the Chi ef Election Commissioner and other Election Commissioners to provide for the procedure and for transaction of business by the Election Commission and for matters] connected therewith or incidental thereto”. T he Act deals with salary (Section 3), tenure/term of office (Sect ion 4), leave (Section 5), pension (Section 6), and other conditions of service (Section 8). 89. The term of office provided under Section 4 for the Chief Election Commissioner or an Election Commissioner is “of six y ears from the date on which he assumes his office”, subject to the proviso that “where the Chief Election Commissioner or an Election Commissioner attains the age of sixty-five years before the expiry of the said term of six years, he shall vacate his office on the date on which he attains the said age”. Section 4 thus does not provide a mandatory 6 years of term. 90. An analysis of the provisions of the Act also indicates that there is nothing provided in terms of the selection process of the Chief Election Commissioner or the Election Commissioners. Thus, what emerges from this discussion is that both Article 324 and the Act, 1991 are silent on the selection process of the Chief Election Commissioner and the Election Commissioners. There also appears to be a lacunae in ensuring independence as the Actindirectly provides a discretion to the Executive to appoint someone close to retirement at the age of 65 as the Chief Election Commissioner or the Election Commissioner, a nd thus will not be able to take the full term of 6 years. 91. We need to look at the Constituent Assembly Debates t o examine the level of independence which was expected from the Election Commission. Moving the draft Article on the Election Commission before ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] the Constituent Assembly on 15 June 1949, Dr BR Ambedkar explained the vision behind the provision was independence from the executive in conducting elections. Dr Ambedkar said: “... the House affirmed without any kind of dissent that in the interests of purity and freedom of elections to the legislative bodies, it was of the utmost importance that they should be freed fr om any kind of interference from the executive of the day… Therefore, so far as the fundamental question is concerned that the election machinery should be outside the control of the exec utive Government, there has been no dispute. What Article 289 does is to carry out that part of the decision of the Constituent Assembly. It transfers the superintendence, direction and control o f the preparation of the electoral rolls and of all elections to Parliament and the Legislatures of States to a body outside the executive to be called the Election Commission. That is the provision contained in sub-clause (1).” 47 92. The reason behind having a permanent office of Chief Election Commissioner was explained by Dr Ambedkar as follows: “What the Drafting Committee proposes by sub-clause (2) is to have permanently in office one man called the Chief Election Commissioner, so that the skeleton machinery would always be available. Elections no doubt will generally take place at the end of five years; but there is this question, namely that a bye-election may take place at any time. The Assembly may be dissolved before its period of five years has expired. Consequently, the elect oral rolls will have to be kept up to date all the time so th at the new election may take place without any difficulty. It was therefore felt that having regard to these exigencies, it would be sufficient if there was permanently in session one officer to be calle d the Chief Election Commissioner, while when the elections are coming up, the President may further add to the machinery by appointing other members to the Election Commission.” 93. The above statement suggests that the office of the Chie f Election Commissioner requires a kind of permanency, which may be fulfilled by having someone with a stable full term as the Chief Election Commission. 47 Constituent Assembly Debates, 15 June 1949, http://164.100.47.194/loksabha/writereaddata/cadeba tefiles/C15061949.html 213 94. Regarding the conditions of service, Dr Ambedkar said: “So far as clause (4) is concerned, we have left the matter to the President to determine the conditions of service and the tenure of office of the members of the Election Commission, subject to one or two conditions, that the Chief Election Commissioner shall not be liable to be removed except in the same manner as a Judge of the Supreme Court. If the object of this House is that all matters relating to Elections should be outside the control of the Executive Government of the day, it is absolutely necessary that the ne w machinery which we are setting up, namely, the Elec tion Commission should be irremovable by the executive by a mere fiat. We have therefore given the Chief Election Commission er the same status so far as removability is concerned as we have given to the Judges of the Supreme Court. We, of course, do not propose to give the same status to the other members of the Commission. We have left the matter to the President a s to the circumstances under which he would deem fit to remove any other member of the Election Commission; subject to one condition that-the Chief Election Commissioner must recommend that the removal is just and proper.” 95. However, Shibban Lal Saxena pointed out that the d raft provision may favour the Executive in the appointment of the Chief Election Commissioner and the Election Commissioners, and therefore appealed for a change in the provision. He argued: “If the President is to appoint this Commission, naturally it means that the Prime Minister appoints this Commission. He will appoint the other Election Commissioners on his recommendations. Now, this does not ensure their independence. Of course once he is appointed, he shall not be removable except by 2/3rd majority of both Houses. That is certainly something which can instill independence in him, but it is quite possible that some pa rty in power who wants to win the next election may appoint a staunch party-man as the Chief Election Commissioner. He is removable only by 2/3rd majority of both Houses on grave charges, which means he is almost irremovable. So what I want is this that even the person who is appointed originally should be such that he should be enjoying the confidence of all parties his appointment should be confirmed not only by majority but by two-thirds majority of ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] both the Houses…Of course, there is a danger when one party is in huge majority. Still, if he does appoint a party-man, and the appointment comes up for confirmation in a joint session, even a small opposition or even a few independent members can down the Prime Minister before the bar of public opinion in the world.” 96. On 16 June 1949, Hirday Nath Kunzru echoed a similar sentiment, and also highlighted the issues regarding the removal of the Election Commissioners. He said: “Here two things are noticeable: the first is that it is only the Chief Election Commissioner that can feel that he can discharge his duties without the slightest fear of incurring the displeasure of the executive, and the second is that the removal of the other Election Commissioners will depend on the recommendations of one man only, namely the Chief Election Commissioner. Howev er responsible he may be it seems to me very undesirable tha t the removal of his colleagues who will occupy positions as.responsible as those of judges of the Supreme Court should depend on the opinion of one man. We are anxious, Sir, that the preparation of the electoral rolls and the conduct of elections should be entrusted to people who are free from political bias and whose impartiality can be relied upon in all circumstances. But, by leaving a great deal of power in the hands of the President we have given room for the exercise of political influence in the appointment of the Chief Election Commissioner and the other Election Commissioners and officers by the Central Government. The Chief Election Commissioner will have to be appointed on the advice of the Prime Minister, and, if the Prime Minister sugge sts the appointment of a party-man, the President will have no option but to accept the Prime Minister’s nominee, however unsuitable he may be on public grounds.” 97. He warned thus: “If the electoral machinery is defective or is not eff icient or is worked by people whose integrity cannot be depended upo n, democracy will be poisoned at the source; nay, people, instead of learning from elections how they should exercise their vote, how by a judicious use of their vote they can bring about changes in the Constitution and reforms in the administration, will learn only how parties based on intrigues can be formed and what unfair methods they can adopt to secure what they want.” 215 98. Dr Ambedkar agreed with the points made by Saksena and Kunzru, and said: “...with regard to the question of appointment I must confess that there is a great deal of force in what my Friend Professor Saksena said that there is no use making the tenure of the Election Commissioner a fixed and secure tenure if there is no provision in the Constitution to prevent either a fool or a knave or a p erson who is likely to be under the thumb of the Executive . My provision—I must admit—does not contain anything to provide against nomination of an unfit person to the post of the Chief Election Commissioner or the other Election Commissioners…” 99. The solution which Dr Ambedkar gave was that the Constituent Assembly should adopt as “Instrument of Instructions to the President”, which may consist of the guidelines according to which the Presi dent has to make the appointments. He said: “The Drafting Committee had paid considerable attention to this question because as I said it is going, to be one of our greates t headaches and as a viamedia it was thought that if this Assembly would give or enact what is called an Instrument of Instructions to the President and provide therein some machinery which it would be obligatory on the President to consult before making any appointment, I think the difficulties which are felt as resulting… may be obviated and the advantage which is contained therein may be secured.” 100. He, however, added that since he was unsure whether the Assembly would adopt his suggestion of Instrument of Instructions, he suggested an amendment to the effect that “The appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the Provisions of any law made in this behalf by Parliament, be made by the President.” This is incorporated currently in Article 324(2). The idea behind this amendment was that the “law made in this behalf by Parliament” would address the concerns and fear rais ed by members of the Constituent Assembly that the Executive shoul d not have the exclusive say in the appointment of the Ch ief Election Commissioner and the Election Commissioners. However, we find that the Act, 1991 does not cover any aspect highlighted in the Constituent Assembly. It is for this reason that this Court needs to lay down certain broader parameters to fill the constitutional/legislative gap. ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] V . The Judgment in TN Seshan 101. It would be relevant to quote the following excerpt from the Constitution-bench judgment of this Court in T .N. Seshan, Chief Election Commissioner of India v. Union of India and Others 48: “10. The Preamble of our Constitution proclaims that we a re a Democratic Republic. Democracy being the basic feature of our constitutional set-up, there can be no two opinions that free and fair elections to our legislative bodies alone would guarantee the growth of a healthy democracy in the country. In order to ensure the purity of the election process it was thought by our Constitution- makers that the responsibility to hold free and fair elections in the country should be entrusted to an independent body which would be insulated from political and/or executive interference. It is inherent in a democratic set-up that the agency which is entrusted the task of holding elections to the legislatures should be f ully insulated so that it can function as an independent agency free from external pressures from the party in power or executive of the day.” 102. In that case, a petition challenged the validity of “The Chief Election Commissioner and other Election Commissioners (Condition of Service) Amendment Ordinance, 1993” (hereinafter ca lled ‘the Ordinance’) to amend the Act, 1991. While upholding the amendment, the court discussed the role of the election commission being a multi member body and the relation between CEC and other ECs . Some important points highlighted were as follows: “The ECs and the RCs have been assured independence of functioning by providing that they cannot be removed except on the recommendation of the CEC. Of course, the recommendation for removal must be based on intelligible, and cogent considerations which would have relation to efficient functioning of the Election Commission. That is so because this privilege has been conferred on the CEC to ensure that the ECs as well as the RCs are not at the mercy of political or executive bosses of the da y…. If, therefore, the power were to be exercisable by the CEC as per his whim and caprice, the CEC himself would become an instrument of oppression and would destroy the independence of 48 (1995) 4 SCC 611 217 the ECs and the RCs if they are required to function under the threat of the CEC recommending their removal. It is, therefore , needless to emphasise that the CEC must exercise this pow er only when there exist valid reasons which are conducive to efficient functioning of the Election Commission.” Held further: “15. We have already highlighted the salient features regarding the composition of the Election Commission. We have pointed out the provisions regarding the tenure, conditions of service, salary, allowances, removability, etc., of the CEC, the ECs and the RCs. The CEC and the ECs alone constitute the Election Commission whereas the RCs are appointed merely to assist the Commission…” Furthermore: “17. Under clause (3) of Article 324, in the case of a multi- member Election Commission, the CEC “shall act” as the Chairman of the Commission. As we have pointed out earlier, Article 324 envisages a permanent body to be headed by a permanent incumbent, namely, the CEC. The fact that the CEC is a permanent incumbent cannot confer on him a higher status than the ECs for the simple reason that the latter a re not intended to be permanent appointees. Since the Elec tion Commission would have a staff of its own dealing with matters concerning the superintendence, direction and control of the preparation of electoral rolls, etc., that staff would have to function under the direction and guidance of the CEC and hence it was in the fitness of things for the Constitution-makers to provide that where the Election Commission is a multi-member body, the CEC shall act as its Chairman. That would also ensure continuity and smooth functioning of the Commission.” Also, held: “21. We have pointed out the distinguishing features from Article 324 between the position of the CEC and the ECs. It is essentially on account of their tenure in the Election Commission that certain differences exist. We have explained why i n the case of ECs the removability clause had to be different. The variation in the salary, etc., cannot be a determinative f actor ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] otherwise that would oscillate having regard to the fact that the executive or the legislature has to fix the conditio ns of service under clause (5) of Article 324. The only distinguishing feature that survives for consideration is that in the case of the CEC his conditions of service cannot be varied to h is disadvantage after his appointment whereas there is no such safeguard in the case of ECs. That is presumably because the posts are temporary in character. But even if it is not so, th at feature alone cannot lead us to the conclusion that the fina l word in all matters lies with the CEC. Such a view would render the position of the ECs to that of mere advisers which does not emerge from the scheme of Article 324.” (emphasis added) 103. The judgment in T.N. Seshan did not directly consider the issues which are before this Bench. Furthermore, the observations made in T.N. Seshan indicate that the Election Commissioners were not mere advisors, but have a crucial constitutional role. VI.Reports of Various Commissions on Manner of Appointment of Chief Election Commissioner and Elec tion Commissioners: A. Dinesh Goswami Commission, 1990 49 “Appointment of CEC 1. The appointment of the Chief Election Commissioner should be made by the President in consultation with the Chief Justice of India and the Leader of the Opposition (and in case no Leader of the opposition is available, the consultation should be with the leader of the largest opposition group in the Lok Sabha). 2. The consultation process should have a statutory backing. 3. The appointment of the other two Election Commissioners should be made in consultation with the Chief Justice of India, Leader of the Opposition (in case the Leader of the opposition is not available, the consultation should be with the leader of 49 Dinesh Goswami Commission (1990), Chapter II, Elec toral Machinery, pg. 9, 10, Available at: https://adrindia.org/sites/default/files/ Dinesh%20Goswami%20Report%20on%20Electoral%20Reforms.pdf 219 the largest opposition group in the Lok Sabha) and the Chief Election Commissioner.” B. National Commission to Review the Working of Constitution-Report (2002) 50 “(62) The Chief Election Commissioner and the other Election Commissioners should be appointed on the recommendation of a body consisting of the Prime Minister, Leader of the Opposition in the Lok Sabha, Leader of the Opposition in the Rajya Sabha, the Speaker of the Lok Sabha and the Deputy Chairman of the Rajya Sabha. Similar procedure should be adopted in the c ase of appointment of State Election Commissioners. [Para 4.22]” C. Election Commission of India Proposed Reforms (2004) 51 “The independence of the Election Commission upon which the Constitution makers laid so much stress in the Constitution would be further strengthened if the Secretariat of the E lection Commission consisting of officers and staff at various levels is also insulated from the interference of the Executive in the matter of their appointments, promotions, etc., and all such functions are exclusively vested in the Election Commission on the lines of the Secretariats of the Lok Sabha, and Rajya Sabha, Registries of the Supreme Court and High Courts, etc. The Independent Secretariat is vital to the functioning of the Election Commission a s an independent constitutional authority. In fact, the provision of an independent Secretariat to the Election Commission has already been accepted in principle by the Goswami Committee on Electoral Reforms and the Government had, in the Constitution (Seventieth Amendment) Bill, 1990, made a provision also to that effect. That Bill was, however, withdrawn in 1993 as the Government proposed to bring in a more comprehensive Bill.” 50 National Commission to Review the Working of Const itution-Report (2002) Para 4.22, pg. 14 , Available at: https://www.thehinducentre.com/multimedia/archive/03091/ncrwc_3091109a.pdf 51 Election Commission of India Proposed Reforms (200 4), 12. COMPOSITION OF ELECTION COMMISSION AND CONSTITUTIONAL PROTECTION O F ALL MEMBERS OF THE COMMISSION AND INDEPENDENT SECRETARI AT FOR THE COMMISSION, Pg. 14, 15, available at: h t t p s : / / p r s i n d i a . o r g / f i l e s / b i l l s _ a c t s / b i l l s _ p a r l i a me n t / 2 0 0 8 / bill200_20081202200_Election_Commission_Proposed_El ectoral_Reforms.pdf ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] D. Report of Second Administrative Reform Commission (2009) 52 “In recent times, for statutory bodies such as the National Human Rights Commission (NHRC) and the Central Vigilance Commission (CVC) , appointment of Chairperson and Members are made on the recommendations of a broad based Committee. Given the far reaching importance and critical role of the Election Commission in the working of our democracy, it would certainly be appropriate if a similar collegium is constituted for selection of the Chief Election Commissioner and the Election Commissioners.” E. Background Paper on Electoral Reform, Ministry of Law & Justice (2010) 53 “Recommendation Clause (5) of Article 324 of the Constitution, inter alia, provides that the Chief Election Commissioner shall not be removed from his office except in like manner and on like grounds as a Judge of the Supreme Court. However, Clause (5) of Article 324 does not provide similar protection to the Election Commissioners and it only says that they cannot be removed from office except on the recommendation of the Chief Election Commissioner. The provision, in the opinion of the Election Commission, is inadequate and requires an amendment to provide the very same protection and safeguard in the matter of removability of Elec tion Commissioners from office as is provided to the Chief Ele ction Commissioner. The Election Commission recommends th at constitutional protection be extended to all members of the Election Commission. The Election Commission also recommends that the Secretariat of the Election Commission, consisting of officers and staff at various levels is also insulated from the interferenc e of the Executive in the matter of their appointments, promotions, etc., and all such functions are exclusively vested in the Ele ction Commission on the lines of the Secretariats of the Lok S abha, 52 Report of Second Administrative Reform Commission (2009), Pg. 79, Available at: https://darpg.gov.in/en/arc-reports 53 Background Paper on Electoral Reform, Ministry of Law & Justice (2010), 6.3 Measures for Election Commission, pg. 19, Available at: https://lawmin.gov.in/sites/default/files/bgp_0.doc 221 and Rajya Sabha, Registries of the Supreme Court and High Courts etc. The third recommendation of the Election Commission is that its budget be treated as “Charged” on the Consolidated Fund of India.” F. Law Commission of India Report, 2015 (255 th Report)54 104. Taking note of the important role played by the Election Commission of India i.e., the task of conducting elections throughout the country, the Law Commission in its 255 th Report emphasized that the Commission should be completely insulated from political pressure or executive interference to maintain the purity of elections, inherent in a democratic process, and recommended: “Appointment of Chief Election Commissioner and Ele ction Commissioners – (1) The Election Commissioners, including the Chief Election Commissioners, shall be appointed by the President by warrant under his hand and seal after obtaining the recommendations of a Committee consisting of: (a) the Prime Minister of India – Chairperson (b) the Leader of the Opposition in the House of the People – Member (c) the Chief Justice of India – Member Provided that after the Chief Election Commissioner ceas es to hold office, the senior-most Election Commissioner sha ll be appointed as the Chief Election Commissioner, unles s the Committee mentioned in sub-section (1) above, for reasons to be recorded in writing, finds such Election Commissioner to be unfit. Explanation: For the purposes of this sub-section, “the Leader of the Opposition in the House of the People” shall, when no s uch Leader has been so recognised, include the Leader of the single largest group in opposition of the Government in the House of the People.” 105. The Law Commission also recommended the formation of an independent and permanent Secretariat staff for Election Commission and suggested that: 54 255th LAW COMMISSION OF INDIA REPORT, 2015, Chapte r VI- STRENGTHENING THE OFFICE OF THE ELECTION COMMISSION OF INDIA, Available at: https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/ 08/2022081635.pdf ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] “The Election Commission shall have a separate independent and permanent secretarial staff. The Election Commission may, b y rules prescribed by it, regulate the recruitment, and the conditions of service of persons appointed, to its permanent secretarial staff.” 106. These reports clearly indicate the need for reforms in t he working of the Election Commission, in particular in the pr ocess of selection and removal of the members of the Election Commission. VII. Comparative framework - Foundational parameters 107. An examination of practice for appointment of the head of election-conducting bodies across the world shows some trends t hat include amongst others, the inclusion of members of the opposition. In most jurisdictions, such appointments are a consultative process, involving members/ nominees of both the ruling party and the oppositi on party. The presence of opposition in various critical decision-making processes of governance is a sine qua non for a healthy democracy. It not only provides a system of accountability of the ruling party but also ensures a much-crucial deliberative process. This, in turn, plays a pivotal role in preserving the true essence of democracy by raising the concerns of the people of the country. In addition, some jurisdicti ons also have Constitutional functionaries such as Speakers of the house of Parliament/ Legislature, and Judges of the Highest Court in the country in a multi- member Committee. Relevant details of electoral bod ies of some countries are as follows: 55 Constitution of Islamic Republic of Pakistan, avai lable at : https://drive.google.com/file/d/1TMpGdvhpYXMh07ZQoS _SDxwQoH_C8itF/ view?usp=sharing 223 56 Constitution of the People’s Republic of Bangladesh , Available at: https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/3309 5/73768/F-2125404014/ BGD33095%20Eng2.pdf ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] 57 Commonwealth Electoral Act,1918 available at: http s://www.legislation.gov.au/ Details/C2022C00074 58 Canada Election Act, available at: https://laws-lois.justice.gc.ca/eng/acts/E-2.01/page- 2.html#docCont 225 59 Constitution of Sri Lanka- https://drive.google.com/file/d/1W5j3D_8CUiYjox8t8e USlg7SFifjmebK/ view?usp=sharing ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] 60 FEDERAL ELECTION CAMPAIGN ACT OF 1971, available at : https://www.govinfo.gov/content/pkg/COMPS-985/pdf/C OMPS-985.pdf 61 Constitution of Nepal, Available at: https://lawcommission.gov.np/en/wp-content/uploads/ 2021/01/Constitution-of- Nepal.pdf 227 62 Electoral Commission Act 51 of 1996, available at: https://www.gov.za/sites/default/files/gcis_document/201409/act51of1996.pdf ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] 229 VIII. Process of Selection of other Constitutional/Sta tutory Bodies 108. Various state institutions supporting constitutional democracy have an independent mechanism for the appointment of its heads a nd members. The same is carried out with an object to keep them insulated from any external influence that allows them to remain neutral to carry on the assigned functions. Table showing the position of various authorities is as follows: 63https://www.electoralcommission.org.uk/who-we-are-a nd-what-we-do/about-us/ commissioners/our-commissioners ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] 231 ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] 233 ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] 235 ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] 237 IX. Constitutional Silence and Vacuum: Power of the Court to lay guidelines 109. 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 a jurisprudence, where it has exercised its power under Article 142 to fill legislative gaps.64 Reference can also be made to the speech given by Dr B.R. Ambedkar in the Constituent Assembly on 4 November 1948, where he noted that the Drafting Committee had tried to include detailed processes to avoid the misuse of power. Dr Ambedkar was emphasizing on a constitu tional design which would prevent arbitrariness by laying down legal procedures to regulate power.65 110. This Court has laid down guidelines in order to fill the legislative gap on a number of occasions. In Lakshmi Kant Pandey v Union of India,66 in the absence of statutory enactment for the adoption of Indian children by foreign parents, their Court laid down safeguards to prevent malpractice by social organizations and private adoption agencies. Directions were provided in Kumari Madhuri Patil and Another v Addl. Commissioner, Tribal Development and Others67for issuance and early scrutiny of social status certificates (showing that a person belongs to SC/ST community) for admission in educational institutions or for employment. This Court laid down guidelines for autonomy of CBI and other special investigating agencies in the case of Vineet Narain and Others v Union of India and Another. 68 In the case of Vishaka and Others v State of Rajasthan and Others, 69 this Court laid down guidelines to ensure prevention of sexual harassment o f women at workplace. Another judgment in this regard is Vishwa Jagriti Mission Through President v Central Govt. Through Cabinet Secretar y and Others, 70 where a two-judge bench of this Court laid down guidelines for educational institutes to prevent the menace of ragging. 64 Krishnan RH and Bhaskar A, “Article 142 of the Indi an Constitution: On the Thin Line between Judicial Activism and Restraint” in Salman Khurshid and others (eds), Judicial Review: Process, Powers, and Problems (Essays in Honour of Upendra Baxi) (Cambridge University Press 2020) 65 https://www.hindustantimes.com/opinion/ambedkars-c onstitutionalism-speaks-to- contemporary-times-101637851829964.html 66 AIR 1984 SC 469 67 (1994) 6 SCC 241 68 (1998) 1 SCC 226 69AIR 1997 SC 3011 70 (2001) 6 SCC 577 ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] 111. This Court in the case of Prakash Singh and Others v Union of India and Others,71 after studying various committee reports on police reforms, laid down certain directions in the nature of police reforms to be operative until the new Police Act is to be framed. It is necessary to quote the following excerpt from the judgment: “It is not possible or proper to leave this matter only with an expression of this hope and to await developments further. I t is essential to lay down guidelines to be operative till th e new legislation is enacted by the State Governments. Article 32 read with Article 142 of the Constitution empowers this Court to issue such directions, as may be necessary for doing complete jus tice in any cause or matter. All authorities are mandated by Art icle 144 to act in aid of the orders passed by this Court….I n the discharge of our constitutional duties and obligations having regard to the aforenoted position, we issue the following directions to the Central Government, State Governments and Union Territories for compliancetill framing of the appropriate legislations.” 112. This Court has also laid down guidelines to streamline and facilitate the institutional apparatus and procedural system. In the case of Laxmi v Union of India and Others, 72 this Court intervened to prevent cases of acid violence, and laid down guidelines on sale of acid and the treatment of victims of acid attack. A three-judge bench decision in Shakti Vahini v Union of India and Others 73 issued guidelines to check unlawful interference by Khap panchayat in interfa ith and inter caste marriages. The Court held: “To meet the challenges of the agonising effect of honour crime, we think that there has to be preventive, remedial and pu nitive measures and, accordingly, we state the broad contours and the modalities with liberty to the executive and the police administration of the concerned States to add further measures to evolve a robust mechanism for the stated purposes.” 113. The series of case laws authoritatively demonstra te 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 th is Court under Article 142 of the Constitution. 71 (2006) 8 SCC 1 72 (2014) 4 SCC 427 73 (2018) 7 SCC 192 239 114. Our decision is therefore to lay down parameters or guidelines for the selection process for the appointment of the Chi ef Election Commissioner and the Election Commissioner. This decision is supported by the two-judge judgment in State of Punjab v. Salil Sabhlok and Others.74 In this case, it was pointed out that no parameters or guidelines have been laid down in Article 316 of the Constitution for selecting the Chairperson of the Public Service Commission and no law ha s been enacted on the subject with reference to Schedule VII List II Entry 41 of the Constitution. In his concurring opinion, Justice Madan Lokur, for the bench, relied on Mohindhr Singh Gill case to reiterate that: “... wide discretion is fraught with tyrannical potential eve n in high personages. Therefore, the jurisprudence of pru dence demands a fairly high degree of circumspection in the select ion and appointment to a constitutional position having important and significant ramifications.” 115. Justice Lokur also analysed the previous judgments of this Court on judicial review of the selection process, and noted: “115. In Centre for PIL [Centre for PIL v. Union of India, (2011) 4 SCC 1 : (2011) 1 SCC (L&S) 609] this Court struck down the appointment of the Central Vigilance Commissioner w hile reaffirming the distinction between merit review pertaining to the eligibility or suitability of a selected candidate and judicial review pertaining to the recommendation-making process.… Acknowledging this, this Court looked at the appointment of the Central Vigilance Commissioner not as a merit review of t he integrity of the selected person, but as a judicial review of the recommendation-making process relating to the integrity of the institution. It was made clear that while the personal integrity of the candidate cannot be discounted, institutional integrity is the primary consideration to be kept in mind while recommending a candidate. It was observed that while this Court cannot sit in appeal over the opinion of HPC, it can certainly see whether rele vant material and vital aspects having nexus with the objects of the Act are taken into account when a recommendation is made. This Court emphasised the overarching need to act for the good of the institution and in the public interest. Reference in this context was made to N. Kannadasan [N. Kannadasan v. Ajoy Khose, (2009) 7 SCC 1 : (2009) 3 SCC (Civ) 1] .” (emphasis added) 74 (2013) 5 SCC 1 ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] 116. It was also held that the selection process of a constitutional post cannot be equated with the selection process of a bureaucr atic functionary. If the Executive is left with the exclusive discretion to select the candidate, it may destroy the fabric of the constitutional institution. This Court held: “A constitutional position such as that of the Chairperson of a Public Service Commission cannot be equated with a pu rely administrative position—it would be rather facetious to d o so. While the Chief Secretary and the Director General of Police are at the top of the ladder, yet they are essentially administra tive functionaries. Their duties and responsibilities, however onerous, cannot be judged against the duties and responsibilities of an important constitutional authority or a constitutional trustee, whose very appointment is not only expected to inspire confidence in the aspirational Indian but also project the credibility of the institution to which he or she belongs. I am, therefore, unable to accept the view that the suitability of an appointee to the post of Chairperson of a Public Service Commission should be evaluated on the same yardstick as the appointment of a senior administra tive functionary… The Chairperson takes the oath of allegiance t o India and to the Constitution of India—not an oath of allegiance to the Chief Minister. An appointment to that position cannot be taken lightly or on considerations other than the public interes t. Consequently, it is not possible to accept the contention that the Chief Minister or the State Government is entitled to act only on the perceived suitability of the appointee, over ever ything else, while advising the Governor to appoint the Chairperson of the Public Service Commission. If such a view is accepted, it will destroy the very fabric of the Public Service Commission.” (para 119 and 125) 117. It was concluded that the Court can frame guidelines till the Legislature steps in. To quote: “136. In the light of the various decisions of this Court adverted to above, the administrative and constitutional imperative can be met only if the Government frames guidelines or parameters for the appointment of the Chairperson and Members of the Punjab Public Service Commission. That it has failed to do so does not preclude this Court or any superior court from giving a direction to the State Government to conduct the necessary exercise withi n a specified period. Only because it is left to the State Legislature to 241 consider the desirability or otherwise of specifying the qualifications or experience for the appointment of a person to the position of Chairperson or Member of the Punjab Public Service Commission, does not imply that this Court cannot direct the executive to frame guidelines and set the parameters.This Court can certainly issue appropriate directions in this regard, and in the li ght of the experience gained over the last several decades coupled with the views expressed by the Law Commission, the Second Administrative Reform Commission and the views expressed by this Court from time to time, it is imperative for good governance and better administration to issue directions to the executi ve to frame appropriate guidelines and parameters based o n the indicators mentioned by this Court. These guidelines can and should be binding on the State of Punjab till the State Legislature exercises its power.” (emphasis added) 118. That Article 324(2) refers to the appointment of the Chief Election Commissioner and other Election Commissioners which shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. It contemplates that the Parliament makes a law laying down the procedure of selection for appointment of the Chief Election Commissioner and other Election Commissioners, but such law has not been made by the Parliament, even after 73 years sin ce the adoption 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 t he 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. X. Independence of Election Commissioners 119. 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. This is envisa ged under the proviso to Article 324(5) which reads: “Provided that the Chief Election Commissioner shall not b e removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment: Provided further that any other Election Commissione r or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.” 120. There are two procedural safeguards available regardi ng the removal of the CEC: (i) shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court; (ii) the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment. However, second proviso to Article 324(5) postulates that the removal of t he Election Commissioners could be made only on the recommendation of the Chief Election Commissioner. The protection available to the Chief Election Commissioners is not available to other Election Commissioners. Various reports have recommended that the protection against removal available to the Chief Election Commissioner should be made availabl e to the other Election Commissioners to ensure the independence of the Election Commission. 121. A note titled “Proposed Electoral Reforms” (2004) 75 prepared and published by the Election Commission o f India itselfrecommended that: “In order to ensure the independence of the Election Commission and to keep it insulated from external pulls and pressures, Clause (5) of Article 324 of the Constitution, inter alia, provides that the Chief Election Commissioner shall not be removed from his office except in like manner and on like grounds as a Judge of the Supreme Court. However, that Clause (5) of Article 324 does not provide similar protection to the Election Commissioners and it merely says that they cannot be removed from office except on the recommendation of the Chief Election Commissioner. The provision, in the opinion of the Election Commission, is inadequate and requires an amendment to provide the very same protection and safeguard in the matter of removability of Elec tion 75 Election Commission of India Proposed Reforms (200 4), Pg. 14, 15, available at: https://p rs india.or g/files /bil ls_ acts/bills_parliam ent/2008/ bill200_20081202200_Election_Commission_Proposed_El ectoral_Reforms.pdf 76 Background Paper on Electoral Reform, Ministry of Law & Justice (2010), 6.3 Measures for Election Commission, pg. 19, Available at: https://lawmin.gov.in/sites/ default/files/bgp_0.doc 243 Commissioners from office as is available to the Chief Electi on Commissioner.” (emphasis added) 122. The above recommendation was reiterated in the Background Paper on Electoral Reform (2010) 76 prepared by the Union Ministry of Law and Justice, in co-sponsorship o f Election Commission of India states: “Recommendation Clause (5) of Article 324 of the Constitution, inter alia, provides that the Chief Election Commissioner shall not be removed from his office except in like manner and on like grounds as a Judge of the Supreme Court. However, Clause (5) of Article 324 does not provide similar protection to the Election Commissioners and it only says that they cannot be removed from office except on the recommendation of the Chief Election Commissioner. The provision, in the opinion of the Election Commission, is inadequate and requires an amendment to provide the very same protection and safeguard in the matter of removability of Elec tion Commissioners from office as is provided to the Chief Ele ction Commissioner. The Election Commission recommends th at constitutional protection be extended to all members of the Election Commission. The Election Commission also recommends that the Secretariat of the Election Commission, consisting of officers and staff at various levels is also insulated from the interferenc e of the Executive in the matter of their appointments, promotions, etc., and all such functions are exclusively vested in the Ele ction Commission on the lines of the Secretariats of the Lok S abha, and Rajya Sabha, Registries of the Supreme Court and High Courts etc. The third recommendation of the Election Commission is that its budget be treated as “Charged” on the Consolidated Fund of India.” (emphasis added) 123. The office of the Election Commission is an independent constitutional body which has been vested with the powers of superintendence, direction and control of the preparation of elector al rolls and the conduct of all parliamentary and State Legislatures’ elections and that of the office of President and Vice-President in terms of Article 324(1) of the Constitution. In terms of Article 324(2), the office of Election ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.] Commission comprises of Chief Election Commissioner and “such number of other Election Commissioners, if any, as t he President may from time to time fix”and by an Order dated 01 October, 1993, the President has fixed the number of Election Commissioners to two until further orders. Since 1993, it is a multi-member Commission with equal participation in transacting the business of the Election Commission as provided under Chapter III of the Act, 1991 to ensure the sm ooth and effective functioning of the Election Commission. 124. Article 324(5) of the Constitution is intended to ensure the independence of the Election Commission free from all external political interference and, thus, expressly provides that the removal of the Chief Election Commission from office shall be in like manner as on the grounds as of a Judge of the Supreme Court. Nevertheless, a similar procedure has not been provided for other Election Commissioners under second proviso to Article 324(5) of the Constitution. The other conditions of the service of Chief Election Commissioner/other Election Commissioners have been protected by the Legislature by the Act 1991. 125. In the facts and circumstances, keeping in vie w 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, in my view, 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. XI. Directions 126. Until the Parliament makes a law in consonance with Article 324(2) of the Constitution, the following guidelines shall be in effect: (1) We declare that the appointment of the Chief Elec tion 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 Chie f 245 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. Bibhuti Bhushan Bose Writ petitions partly allowed. (Assisted by : Shubhansh Thakur and Shubhanshu Das, LCRAs) ANOOP BARANWAL v. UNION OF INDIA [AJAY RASTOGI, J.]