Summary
Public interest petitions challenged the practice of appointing the Chief Election Commissioner and Election Commissioners on the advice of the Prime Minister alone. Article 324(2) makes these appointments subject to a law by Parliament, but none had been made in seven decades. A Constitution Bench held that the Constituent Assembly never meant appointments to stay exclusively with the executive, and that the absence of that law left a vacuum. It directed that, until Parliament legislates, appointments be made on the advice of a committee of the Prime Minister, the Leader of the Opposition and the Chief Justice of India. It urged Parliament to provide a permanent secretariat and charged expenditure.
Issues
- Whether, in the absence of the law contemplated by Article 324(2), the practice of appointing the Chief Election Commissioner and Election Commissioners solely on the advice of the executive leaves a constitutional vacuum that the Court can fill by laying down norms until Parliament legislates.
- Whether Election Commissioners must be given the same protection against removal as the Chief Election Commissioner, and whether the Court should direct an independent secretariat with expenditure charged on the Consolidated Fund of India.
- Whether the right to vote is merely a statutory right or a constitutional right.
Provisions considered
- Article 324(2) and (5) and its provisos, Constitution of IndiaThe Constituent Assembly debates, including Saksena's and Kunzru's objections and Ambedkar's admission that nothing prevented 'a fool or a knave' or a person under the executive's thumb from being appointed, show that the words 'subject to the provisions of any law made in that behalf by Parliament' were inserted so that Parliament would take appointments out of the executive's exclusive hands; Article 324(2) is unique compared with Articles 148, 243K, 338 and other 'subject to law' provisions, and the first proviso to clause (5) protects the Chief Election Commissioner alone. (¶¶ 16, 19, 21, 22, 23, 24, 30, 31, 32, 33, 41, 46, 49, 232, 233)
- Sections 4 and 10, Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991The Act governs conditions of service under Article 324(5) but not selection; Section 4 assures a separate six-year term subject to the age of sixty-five, and the practice of appointing near-retirement officers, including the appointment of an Election Commissioner on 18.11.2022 processed and notified within a single day from a panel of retired or retiring officers, reduced the proviso to the rule and undermined independence. (¶¶ 56, 63, 65, 187, 188, 189, 195)
- Articles 14, 19(1)(a), 32, 142 and 326, Constitution of IndiaAn Election Commission that treats similarly placed parties unevenly breaches Article 14 and the voter's freedom of expression; drawing on Vineet Narain, Vishaka, the Judges cases, Prakash Singh and Salil Sabhlok, the Court may fill a vacuum with norms operative only until the legislature acts. (¶¶ 135, 141, 165, 197, 198, 203, 210, 226, 227, 228)
Held
- Per K.M. Joseph J. for the Court: the Election Commission wields nearly plenary powers over elections, party recognition, symbols and the Model Code of Conduct, and its independence is vital to democracy, the rule of law and equality; independence requires that the appointee not be a person who feels obliged to the appointing authority. Seventy years without the contemplated law, despite repeated recommendations from the Goswami Committee to the Law Commission's 255th Report, create a vacuum; though the Court will not issue a mandamus to Parliament, it may lay down norms which Parliament could have made, modelled on the selection committees for the CBI Director and the Lokpal. (¶¶ 60, 61, 163, 165, 172, 186, 215, 216, 219, 220, 226, 227, 228, 229)
- The argument that Election Commissioners enjoy the Chief Election Commissioner's removal protection by reading the second proviso as an additional safeguard was rejected, following T.N. Seshan; whether to extend such protection is for Parliament in its constituent capacity. On the right to vote, though it is closely tied to Article 326 and of the greatest importance, the Court left the point open in view of Kuldip Nayar. (¶¶ 135, 139, 141, 232, 233)
- Per Ajay Rastogi J., concurring with additional conclusions: the right to vote in direct elections flows from Articles 15, 17, 19, 21 and 326 and is a fundamental right subject to the limits in Article 326; and until Parliament legislates, the grounds for removal of Election Commissioners should be the same as for the Chief Election Commissioner, subject to the Chief Election Commissioner's recommendation, and their conditions of service should not be varied to their disadvantage after appointment. (¶¶ 66, 67, 68, 69, 118, 125, 126)
Result
Writ Petitions partly allowed: until Parliament makes a law, the Chief Election Commissioner and Election Commissioners shall be appointed by the President on the advice of a committee of the Prime Minister, the Leader of the Opposition in the Lok Sabha (or, if none, the leader of the largest opposition party by numerical strength) and the Chief Justice of India; the Court appealed to the Union and Parliament to provide a permanent secretariat for the Election Commission and to charge its expenditure on the Consolidated Fund of India.