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Election Laws: Constitution of India – Arts. 324(2), 32 and142 –Appointment of Chief Election Commissioner and ElectionCommissioners – Method of – Independence of Election Commission– Constitutional validity of the practice of Union of India to appointthe members of the Election Commission – Held: The vacuum in thecase of Art.324(2) is the absence of the law which Parliament wascontemplated to enact – This Court is concerned with the devastatingeffect of continuing to leave appointments in the sole hands of theExecutive on fundamental values and also fundamental rights –Time is ripe for the Court to lay down norms – Imperative need forthe Court to step in – Vacuum exists on the basis that unlike otherappointments, it was intended all throughout that appointmentexclusively by the Executive was to be a mere transient or stop gaparrangement and it was to be replaced by a law made by theParliament taking away the exclusive power of the Executive – Thisconclusion is clear and inevitable and the absence of law evenafter seven decades points to the vacuum –As far as appointment tothe posts of Chief Election Commissioner and the ElectionCommissioners are concerned, the same shall be done by thePresident of India on the basis of the advice tendered by a Committeeconsisting of the Prime Minister of India, the Leader of theOpposition in the Lok Sabha and, in case, there is no such Leader,the Leader of the largest Party in the Opposition in the Lok Sabhahaving the largest numerical strength, and the Chief Justice of India– This norm will continue to hold good till a law is made by theParliament.Election Laws: Constitution of India – Art.324(5) – Protectionof Election Commissioner – Whether the Election Commissioner isentitled to same protection as given to Chief Election Commissioner– Held (per K. M. Joseph, J.) (for himself, Aniruddha Bose, Hrishikesh Roy and C. T. Ravikumar, JJ.): Second proviso to Article 324(5) onlyenacts the protection that the Election Commissioner or RegionalCommissioner shall not be removed from Office except on therecommendation of the Chief Election Commissioner – There isequality otherwise, which exists between the Chief ElectionCommissioner and the Election Commissioners in various matters –The argument that the Election Commissioner must be accorded thesame protection as is given to the Chief Election Commissioner,appears to be untenable, on a plain reading of Article 324(5) – Inthe context of the said provision, the words ‘provided further’ cannotbe perceived as an additional protect ion to the ElectionCommissioner – It is for Parliament acting in the constituent capacityto consider whether it would be advisable to extend the protectionto the Election Commissioners so as to safeguard and ensure theindependence of the Election Commissioners as well – Held (perAjay Rastogi, J.) Various reports have recommended that theprotection against removal available to the Chief ElectionCommissioner should be made available to the other ElectionCommissioners to ensure the independence of the ElectionCommission – Keeping in view the importance of maintaining theneutrality and independence of the office of the Election Commissionto hold free and fair election which is a sine qua non for upholdingthe democracy as enshrined in our Constitut ion, it becomesimperative to shield the appointment of Election Commissioners andto be insulated from the executive interference – It is the need of thehour and advisable, to extend the protection available to the ChiefElection Commissioner under the first proviso to Article 324(5) toother Election Commissioners as well until any law is being framedby the Parliament – The conditions of service of the ElectionCommissioners shall not be varied to his disadvantage afterappointment – Election Commission (Conditions of Service ofElection Commissioners and Transaction of Business) Act, 1991.Election Laws: Independent Permanent Secretariat forElection Commission – Expenditure on the Consolidated Fund ofIndia – Held (per K. M. Joseph, J.) (for himself, Aniruddha Bose,Hrishikesh Roy and C. T. Ravikumar): It is a matter of policy – TheElection Commission of India is to perform the arduous andunenviable task of remaining aloof from all forms of subjugationby and interference from the Executive – The Executive can bringan otherwise independent Body to its knees, by starving it off or cutting off the requisite financial wherewithal and resources requiredfor its efficient and independent functioning – One cannot beoblivious to the need for articulation of details in regard to theexpenditure, which is a matter of policy - Urgent need to providefor a permanent Secretariat and also to provide that the expenditurebe charged on the Consolidated Fund of India – It is for the Unionof India to seriously consider bringing in the much-needed change– Union of India /Parliament may consider bringing in the necessarychanges so that the Election Commission of India becomes trulyindependent.Constitution of India – Art. 326 – Representation of the PeopleAct, 1951 – s.62 – Right to Vote – Nature of Right – Whether StatutoryRight or Constitutional Right – Held (per K. M. Joseph, J.) (for himself,Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar, JJ.): The rightto vote is not a civil right – The Right to Vote inevitably follows fromthe inclusion of a person in the electoral roll – According to Art.326, where the citizen is not less than eighteen years and does nothave the disqualifications, he becomes entitled to be entered in theelectoral roll – Such person, as is indicated in Article 326, indeed,has a right, which can be said to be a Constitutional Right, whichmay be right subject to the restriction – Held (Ajay Rastogi, J.) – Byvirtue of Article 326, the right to vote became a constitutional rightgranted to citizens – The said right was given effect by s.62 ofRepresentation of the People (ROP) Act, 1951 – The right to vote isnot just a statutory right – The right to vote is an expression of thechoice of the citizen, which is a fundamental right under Art.19(1)(a)– The right to vote is not limited only to Art.326, but flows throughArts.15, 17, 19, 21 – The right to vote in direct elections is afundamental right, subject to limitations laid down in Art. 326 –The right to vote is not merely a constitutional right, but a componentof Part III of the Constitution.Election Laws: Constitution of India – Art.14 – Rule of Law –Role of Election Commission – Held (per K. M. Joseph, J.) (for himself,Aniruddha Bose, Hrishikesh Roy and C. T. Ravikumar, JJ.): Rule oflaw is the very bedrock of a democratic form of governance – AnElection Commission which does not ensure free and fair poll asper the rules of the game, guarantees the breakdown of thefoundation of the rule of law – Any action or omission by the Election Commission in holding the poll which treats political partieswith an uneven hand and in an unfair or arbitrary manner wouldbe anathema to the mandate of Article 14, and therefore, cause itsbreach.Constitution of India – Art. 142 – Power of the Court to laydown guidelines in order to fill legislative gaps – Held (per AjayRastogi, J.): The Supreme Court has plenary power under Article142 to issue directions to do “complete justice” – The Court hascreated a jurisprudence, where it has exercised its power underArticle 142 to fill legislative gaps – Supreme Court has laid downguidelines in order to fill the legislative gap on a number ofoccasions – Series of case laws authoritatively demonstrate thecommitment of Supreme Court to intervene to preserve and promotethe “Rule of Law”, by supplementing the legislative gaps till theLegislature steps in. |
