T.N. Seshan
Chief Election Commissioner of India etc. Vs. Union of India & Ors [1995] INSC 313 (14 July 1995)
Ahmadi
A.M. (Cj) Ahmadi A.M. (Cj) Mukherjee M.K. (J) Verma, Jagdish Saran (J) Singh
N.P. (J) Bharucha S.P. (J)
CITATION:
1995 SCC (4) 611 JT 1995 (5) 337 1995 SCALE (4)285
ACT:
HEAD NOTE:
THE
14TH DAY OF JULY,1995 Present:
Hon'ble
the Chief Justice Hon'ble Mr.Justice J. S. Verma Hon'ble Mr.Justice N. P. Singh
Hon'ble Mr.Justice S. P. Bharucha Hon'ble Mr.Justice M. K. Mukherjee Mr. M. K. Banerjee,
Attorney General of India, Mr. M. Chandra Sekhar, Additional
Solicitor General, Mr. G. Ramaswamy, Mr. N. A. Palkhivala, Mr. Ram Jethmalani,
Mr. O.P. Sharma, Mr. P.P. Rao, Mr. Soli J. Sorabjee, Mr. K.K. Venugopal, Mr. K.
Parasaran and Mr. A. K. Ganguli,Sr.Advs., M/s.G.Rajagopl, S. Muralidhar, Sanjay
Hegde, N.L.Ganapathi, S. Walia, Mohit Mathur, H. Devarajan, Niranjan Reddy, Shimona
Khanna, Abha R. Sharma, Ms. Kamini Jaiswal, Mr. Ranjan Dewivedi, Mr. R. S.
Sharma, Mr. H. D. Shourie (In- person) for the Petitioner in W.P.No.825/93, Mr.
M.M.Kashyap, Mr. N.N. Gooptu, Mr. H. K. Puri, Mr. A. V. Rangam, Mr. A. Ranganadhan,
Mr. Sumant Bhardwaj, Mr.A.S.Bhasme, Mr. S.K .Ningomban, Mr.Sunil Dogra, Mr. E.R.
Kumar,Mr. Gopal Jain,Mr.W.C.Chopra,Mr.Pankaj Chopra,M/s.Amariarputham,Aruna Mathur,
Mr. P.R. Seetharaman, Ms.Neeta Agrawal, Mr. N. Janardhanen Mr. K.R. Nagaraja,
M/s. E.C. Agrawala, Mahesh Agarwal, Atul Sharma, Purnima Bhat Kak, A.V.Palli, Dr.Subramian
Swamy, (In-person) for Respondent in C.A.No.504/94., Mr.Nukul Mudgal, Ms.Indu Malhotra,
Ms.Shirin Khajuria, Ms.A.Subhashini, Mr.P.Parmeshwaran, Sushil Prakash Mr.A.Subbarao,
Mr.Navin Prakash and Mr.R.B.Misra, K.V.Vish-wanathan Advs. with them for the
appearing parties.
The
following Judgment of the Court was delivered:
IN THE
SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO.805
OF 1993 T.N.Seshan, Chief Election Commissioner of India Versus Union of India
& Ors.
WITH WRIT PETITION (CIVIL) NO.791 OF 1993 Cho S. Ramaswamy versus Union of India
& others W I T H WRIT PETITION (CIVIL) NO.825 OF 1993 B.K. Rai &
Another versus Union of India & Others W I T H WRIT PETITION NO.268 OF 1994
Common Cause A Registered Society versus Union of India & Others
AHMADI,
CJI The President of India, in exercise of powers conferred upon him by clause
(1) of Arlicle 123 of the Conslilution of India, promulgated an Ordinance
(No.32 of 1993) entitled "The Chief Election Commissioner and other
Election Commissioners (Condition of Service) Amendment Ordinance, 1993"
(hereinafter called 'the Ordinance') to amend "The Chief Election
Commissioner and other Commissioners (Condition of Service) Act, 1991"
(hereinafter called "the Act'). This Ordinance was published in the
Gazette of India on October 1, 1993. Before we notice the amendments made in
the 1991 Act, by the said Ordinance it may be appropriate to notice the
provisions of the 1991 Act. As the long title of the Act suggests it lays down
the conditions of service of the Chief Election Commissioner (hereinafter called
'the CEC') and Election Commissioners (hereinafter called 'the ECs') appointed
under Article 324 of the Constitution of India. Section 3(1) provides that the
CEC shall be paid a salary which is equal to the salary of a Judge of the
Supreme Court of India. Section 3(2) says that an EC shall be paid a salary
which is equal to the salary of a Judge of a High Court Section 4 lays down the
term of office of the CEC and ECs to be six years from the date on which the
incumbent assumes charge of his office provided that the incumbent shall vacale
his office on his attaining, in the case of the CEC, the age of 65 years and
the EC the age of 62 years, notwithtanding the fact that the term of office is
for a period of six years. Section 8 extends the benefit of travelling
allowance, rent free residence, exemption from payment of income-tax on the
value of such rent free residence, conveyance facility, sumptuary allowance,
medical facitilies, etc., as applicable to a Judge of the Supreme Court or a
Judge of the High Court to the CEC and the EC, respectively, By the Ordinance
the title of the Act was sought to be amended by substituting the words
"and to provide for the procedure for transaction of business by the
Election Commission and for matters" for the words "and for
matters". By the substitution of these words the long title to the Act. got,
further elongaled as an Act, to delermine the conditions of service of the CEC
and other ECs and to provide for the procedure for transaction of business by
the Election Commission and for matters connected therewith or incidental
thereto. In section 1 of the Principal Act for the words and brackets "the
Chief Election Commissioner and other Election Commissioners (Condition of
Service)" the words and brackets "the Election Commission (Conditions
of Service of Election Commissioners and Transaction of Business)" came to
be substituted with the result that the amended provision read as the Election
Commission (Condition of Service of Election Commissioners and Transaction of Business)
Act, 1991. The definition clause in section 2 also underwent a change, in that,
the extant clause (b) came to be renumbered as clause (c) and a new clause (b)
came to be substituted by which the expression "Election Commission"
came to be defined as Election Commission referred to in Article 324 of the
Constitution of India. Consequent.
Changes
were also made elsewhere. In sub-section (1) of section 3, after the words
"Chief Election Commissioner", the words "and other Election
Commissioners" came to be inserted with the result they came to be placed
at par in regard to salary payable to them and sub-section (2) came to be
omitted. In section 4 the first proviso came to be substituted as under :
"Provided
that where the Chief Election Commissioner or an Election Commissioner affains
the age of 65 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." Thus the
age of superannuation of both the CEC and the ECs was fixed at 65 years. If
they attain the age of 65 years before completing their tenure of six years
they would in view of the proviso have to vacate office on attaining the age of
65 years. In Section 6, sub-section (2), after the words "Chief Election
Commissioner" the words "or an Election Commissioner" came to be
inserted and for the words "sub-section (4)" the words
"sub-section (3)" came to be substituted. It further provided for the
deletion of sub- section (3) and for renumbering sub-section (4) as sub-
section (3) and provided that in clause (b) the words "or as the case may
be, 62 years" shall be omitted. After section 8 in the Principal Act, by
the Ordinance a new Chapter came to be inserted comprising of two provisions,
namely, Sections 9 and 10. The new Chapter so inserted is relevant for our
purpose and may be reproduced at this stage:
"CHAPTER
III TRANSACTION OF BUSINESS OF ELECTION COMMISSION
9. The
business of the Election Commission shall be transacted in accordance with the
provisions of this Act.
10(1)
The Election Commission may, by unanimous decision, regulate the procedure for
transaction of the business as also allocation of the 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 differ in opinion on any matter, such matter shall be decided
according to the opinion of the majority." On the day of publication of
the Ordinance, 1st October, 1993, the President of India, in exercise of powers
conferred by clause 2 of Article 324 of the constitution of India, fixed, until
further orders, the number of Election Commissioners (other than the CEC) at
two. By a further notification of even date the President was pleased to
appoint Mr.M.S.Gill and Mr.G.V.G. Krishnamurthy as Election Commissioners with
effect from 1st
October, 1993.
The
first salvo was fired by Cho. S. Ramaswamy, a journalist, on 13th October, 1993. By a Writ Petition (Civil) No.791
of 1993 he prayed for a declaration that the Ordinance was arbitrary,
unconstitutional and void and for issuance of a writ of certiorari to quash the
notifications fixing the number of Election Commissioners at two and the
appointment of Mr.M.S.Gill and Mr.G.V.G.Krishnamurthy made thereunder. This was
followed by Writ Petition No.805 of 1993 by the incumbent CEC himself claiming
similar reliefs on 26th
October, 1993, Two other
writ petitions were also filed questioning the validity of the Ordinance and
the notifications referred to earlier. Three of these writ petitions came up
for preliminary hearing on November 15, 1993.
While admitting the writ petitions and directing rule to issue in all of them,
in the writ petition filed by the CEC notice on the application for interim
stay as well as for production of documents was ordered to issue and an ad-
interim order to the following effect was passed:
"Until
further orders, to ensure smooth and effective working of the Commission and
also to avoid confusion both in the administration as well as in the electoral
process, we direct that the Chief Election Commissioner shall remain in
complete overall control of the Commission's work. He may asoertain the views
of other Commissioners or such of them as he chooses, on the issues that may
come up before the Commission from time to time. However, he will not be bound
their views. It is also made clear that the Chief Election Commissioner alone
will be entitled to issue instructions to the Commission's staff as well as to
the outside agencies and that no other Commissioner will issue such
instructions." By a subsequent order dated 15.12.1993, after hearing the
learned Allorney General for the Union of India and the learned Advocates
General for the States of Maharashtra and West Bengal, the Court directed that
all the State Governments who want to be heard will be heard through their
counsel and further directed that the interim order shall continue till further
orders. iastly, it observed that since questions involved related to the
interpretation of Article 324 in particular, the matters should be placed
before a Constitution Bench.
During
the pendency of the aforesaid Writ Petitions, the Ordinance became an Act (Act
No.4 of 1994) on 4th
January, 1994 without
any change.
Before
we proceed further it would be proper to notice Article 324 of the
Constitution. It reads as under:
"324.
Superintendence, direction 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 elections to Parliament and
to the Iegislature 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).
(2)
The Election Commission shall consist of the Chief Election Commissioner and
such number of other 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.
(3)
When any other Election Commissioner is so appointed the Chief Election
Commissioner shall act, as the Chairman of the Election Commission.
(4)
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 election to the Legislative Council of each State having
such Council, the President may also appoint after consulation with the
Election 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 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 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 Commissioner or a Regional Commissioner shall
not 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)." The abridged factual
matrix on which the constitutional validily of the Ordinance (now Act) and the consequential
orders and appointments of the ECs have been questioned in the above petitions
may be broadly indicated at this stage as follows:
The
present ECE claims that after his appointment on 12.12.1990 he insisted on
strict compliance with the model Code of Conduct by all political parties and
candidates for election and look stern action against infractions thereof
regardless of the political party or candidate involved. The ruling party at
the centre was irked as a few of the bye- elections of the ruling party
leaders/cabinet, ministers were put off for the Government's failure to deploy
sufficient staff and police force for the elections and the ruling party lost
the elections in Tripura on account of strict action taken by the CEC against
erring officials & consequent postponement of elections. The ruling party
made attempts to influence the CEC but could not do so as he did not allow the
emissaries of the party to meet him. The CEC also filed a writ petition in the
Supreme Court for enforcing the constitutional right of the Election Commission
for staff and force. The CEC declined to postpone elections for four State
assemblies despite requests from the ruling party,including the Prime Minister,
got irritated with such unbending attitude of the CEC. The ruling party,
therefore, with a view to freeze the powers of the CEC and to prevent him from
taking any action against violation of code of conduct chose to amend the law
and misused the power of the President under Article 324(2) of the Constitution
by issuing the notification dated 1st October, 1993 fixing the number of ECs at
two and simultaneously appointing Mr. M.S. Gill & Mr. G.V.G. Krishnamurthy
as the other two ECs.
The
CEC not only impotes malafides for the issuance of the aforesaid notifications
& appointments but also alleges that the intention behind issuing the
Ordinance was to sideline the CEC and to erode his authority so that the ruling
party at the centre could extract favourable orders by using the services of
the newly appointed ECs.
Sections
9 & 10 of the Ordinance (now Act) are challenged as ultra vires the
Constitution on the plea that they are inconsistent with the scheme underlying
Article 324 of the Constitution, in that, the said Article 324 did not give any
power to the Parliament to frame rules for transaction of business of the
Election Commission. Section 10 is also challenged on the ground that it is
arbitrary and unworkable, So also the notification fixing the number of other ECs
at two is challenged as arbitrary and violative of Article 14 of the
Constitution.
The
writ petitions are resisted by the respondents, viz., the Union of India and
the two other ECs, Mr. M.S. Gill & Mr. G.V.G. Krishnamurthy as wholly
misconceived. It is contended on behalf of the Union Government that various
advisory bodies had from time to time called for a multi- member body had any
connection with the alleged discomfiture of the ruling party at the centre on
account of the stiff attitude of the CEC. It is further stated that the multi-
member body would not have been able to function without a supporting statute
providing for dealing with different situations likely to arise in the course
of transaction of business. The Ordinance was framed keeping in view the
observations made in this regard by this Court in the case strongly denied that
the changes in the law were made malafide with a view to laming the CEC into
submission or to erode his authority by providing that, in the event of a
difference of opinion, the majority view would prevail. It is contended that
the plain language of Article 324(2) envisages a multi-member Commission and,
therefore, any exercise undertaken to achieve that objective would be
consistent with the scheme of the said constitutional provision and could,
therefore, never be branded as malafide or ultravires the Constitution. A
provision to the effect that, in the event of a difference of opinion between
the three members of the Election Commission, the majority view should prevail
is consistent with democratic principles and can never be described as
arbitrary or ultravires Article 14 of the Constitution. The Union of India,
has, therefore, contended that the writ petitions are wholly misconceived and
deserve to be dismissed with costs.
The
Preamble of our Constitution proclaims that we are a Democratic Republic.
Democracy being the basic feature of our constitutional set up, there can be no
two opinion 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 fully 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) of the Constitution. The superintendence, direction
and control of the entire election process in the country has been vested under
the 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 Election Commissioner and such other
Election Commissioners as the President may, from time to time appoint. There
were 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 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." It is crystal clear from the plain language of
the said clause (2) that our Constitution-makers realised the need to set up an
independent body or commission which would be permanently in session with atleast
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. Clause (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 been specifically spell 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.
We may
now briefly notice the position of each functionary of the Election Commission.
In the first place, clause (2) states that the appointment of the CEC and other
ECs shall, subject to any law made in that behalf by Parliament, be made by the
President. Thus the President shall be the appointing authority. Clause (5)
provides that subject to any law made by Parliament, The conditions of service
and the lenure of office of the RCs shall be such as may be determined by rule
made by the president. of course the RCs do not form part of the Election
Commission but. are appointed merely to help the commission, that is to say,
the CEC and the ECs if any. As we have pointed out earlier the lenure,
salaries, allowances and other perquisites of the CEC and ECs had been fixed
under the Act as equivalent to a Judge of the Supreme Court and the High Court,
respectively.
This
has undergone a change after the ordinance which has so amended the Act as to
place them on par. However,the proviso to clause (4) of Article 324 says (i)
the CEC shall not be removed from his office except in like manner and on the
like grounds as a Judge of the Supreme Court and (ii) the condition of service
of the CEC shall not be varied to his disadvantage after his appointment. These
two limitations on the power of Parliament are intended to protect the
independence of the CEC from political and/or executive interference. In the
case of Ecs as well as Rcs the second proviso to clause(5) provides that they
shall not be removed from office except on the recommendation of the CEC. It
may also be noticed that while under clause (4), before the appointment of the RCs,
consultation with the Election Commission (not CEC) is necessary, there is no
such requirement in the case of appointments of ECs. The provision that the ECs
and the RCs once appointed cannot be removed from office before the expiry of
their tenure except on the recommendation of the CEC ensures their
independence.
The
scheme of Article 324 in this behalf is that after insulating the CEC by the
first proviso to clause (5), 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 day. It is necessary to relise
that this check on the executive's power to remove is built into the second
proviso to clause (5) to safeguard the independence of not only these
functionaries but the Election Commission as a body. 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
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 power only when there exist valid reasons which are
conducive to efficient functioning of the Election Commission. This, briefly
stated, indicates the status of the various functionaries constituting the
Election Commission.
The
concept of plurality is writ large on the face of Article 324, clause (2)
whereof clearly envisages a multi- member Election Commission comprising the
CEC and one or more ECs. Visualising such a situation, clause (3) provides that
in the case of a multi-member body the CEC will be its Chairman. If a
multi-member Election Commission was not contemplated where was the need to
provide in clause (3) for the CEC to act as its Chairman? There is, therefore,
no room for doubt that the Election Commission could be a multi- member body.
If Article 324 does contemplate a multi-member body, the impugned notifications
providing for the other two ECs cannot be faulted solely on that ground. We may
here quote, with approval, the observations of a two-Judge Bench of this Court
in S.S.Dhanoa v. Union of India and Others (1991) 3 SCC 567, vide paragraph 26:
"There
is no doubt that two heads are better than one, and particularly when an
institution like the Election Commission is entrusted with vital functions, and
is armed with exclusive uncontrolled powers to execute them, it is both
necessary and desirable that the powers are not exercised by one individual,
however, all-wise he may be.
It ill
conforms the tenets of the democratic rule. It is true that the independence of
an institution depends upon the persons who main 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." It must be realised that
these observations were made, notwithstanding the fact that the learned judges
were alive to and aware of the circumstances in which the Persident was
required in that case to rescind the notifications creating two posts of ECs
and appointing the petitioner Dhanoa and another to them.
There
can be no dispute, and indeed there never was, that the Election Commission
must be an independent body. It is also clear from the scheme of Article 324
that the said body shall have the CEC as a permanent incumbent and under clause
(2) such number of other ECs, if any, as the President may deem appropriate to
appoint. The scheme of Article 324, therefore, is that there shall be a
permanent body to be called the Election Commission with a permanent incumbent
to be called the CEC. The Election Commission can therefore be a single-member
body or a multi-member body if the President considers it necessary to appoint
one or more ECs. Upto this point there is no difficulty. The argument that a
multi-member Election Commission would be unworkable and should not, therefore,
be appointed must be stated to be rejected. Our Constitution-makers have
provided for a multi- member body. They saw the need to provide for such a
body.
If the
submission that a multi-member body would be unworkable is accepted it would
tantamount to destroying or nullifying clauses (2) and (3) of Article 324 of
the Constitution. Strong reliance was, however, placed on Dhanoa's case to
buttress the argument. The facts of that case were just the reverse of the
facts of the present case.
In
that case the President by a notification issued in pursuance of clause (2) of
Article 324 fixed the number of ECs, besides the CEC, at two and a few days
thereafter by a separate notification appointed the petitioner and one another
as ECs. By yet another notification issued under clause (5) of Article 324 the
President made rules to regulate their lenure and conditions of service. After
watching the functioning of the multi-member body for about a couple of months,
the President issued two notifications rescinding with immediate effect the
notification by which the two posts of ECs were created and the notification by
which the petitioner and one another were appointed thereto.
The
petitioner S.S. Dhanoa challenged the notifications rescinding the earlier
notification firstly on the ground that once appointed an EC continues in
office for the full term determined by rules made under clause (5) of Article
324 and, in any event, the petitioner could not be removed except on the
recommendation of the CEC. At the same time it was also contended that the
notifications were issued malafide under the advise of the CEC to get rid of
the petitioner and his colleague because the CEC was from the very begining
ill-disposed or opposed to the ceration of the posts of ECs. According to the
petitioner, there were differences of opinion between the CEC on the one hand
and the ECs on the other and since the CEC desired that he should have the sole
power to decide the did not like the association of the ECs.
The
principal question which the Division Bench of this Court was called upon to
decide was whether the President was justified in rescinding the earlier
notifications creating two posts of ECs and the subsequent appointments of the
petitioner and his colleague as ECs. The Court found as a fact that there was
no imminent need to create two posts of ECs and fill them up by appointing the
petitioner and his colleague. The additional work likely to be generated on
account of the lowering of the voling age from 21 years to 18 years could have
been handled by increasing the staff rather than appoint two ECs. So the Court
look the view that from the inception the Government had committed an error in
creating two posts of ECs and filling them up. We do not at the present desire
to comment on the question whether this aspect of the matter was justiciable.
It was further found as a fact that the petitioner's and his colleaque's
attitude was not cooperative and had it not been for the sagacity and restraint
shown by the CEC, the work of the Commission would have come to a standstill
and the Commission would have been rendered inactive. It is for this reason
that the court observed that no one need shed tears on the posts being abolished
(vide paragraphs 20, 23, 24 and 25 of the judgment.). The Court, therefore,
upheld the Presidential notifications rescinding the creation of the two posts
of ECs and the appointments of the petitioner and his colleague thereon.
Notwithstanding this bitter experience, the Division Bench made the
observations in paragraph 26 extracted hereinbefore, with which we are in
respectful agreement. We cannot overlook the fact that when the
Constitution-makers provided for a multi-member Election Commission they were
not oblivious of the fact that there may not be agreement on all points,but
they must have expected such high ranking functionaries to resolve their
differences in a dignified manner. It is the constitutional duty of all those
who are required to carry out certain constitutional functions to ensure the
smooth functioning of the machinery without the clash of egos. This should have
put an end to the matter, but the Division Bench proceeded to make certain
observations touching on the status of the CEC vis-a-vis the ECs, the procedure
to be followed by a multi-member body in decision making in the absence of
rules in that behalf etc., on which considerable reliance was placed by counsel
for the petitioners.
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. The appointment
of the RCs can be made after consulting the Election Commission since they are
supposed to assist that body in the performance of the functions assigned to it
by clause (1) of Article 324. If that be so there can be no doubt that they
would rank next to the CEC and the ECs. That brings us to the question
regarding the status of the CEC vis-a-vis the ECs. It was contended by the
learned counsel for the petitioners that the CEC enjoyed a status superior to
the ECs for the obvious reason that
(i) the
CEC has been granted conditions of service on par with a Judge of the Supreme
Court which was not the case with the conditions of service of ECs before the
Ordinance,
(ii) the
CEC has been given the same protection against removal from service as
available to a Judge of the Supreme Court whereas the ECs can be removed on the
CEC's recommendation,
(iii) the
CEC's conditions of service cannot be altered or varied to his disadvantage
after his appointment,
(iv) the
CEC has been conferred the privilege to act as Chairman of the multi-member
Commission and
(v) the
CEC alone is the permanent incumbent whereas the ECs could be removed, as
happened in the case of Dhanoa.
Strong
reliance was placed on the observations in paragraphs 10 and 11 of Dhanoa's
case in support of the argument that the CEC enjoys a higher status vis-a-vis
the ECs while functioning as the Chairman of the Election Commission. The
observations relied upon read thus:
"10
However, in the matter of the conditions of service and tenure of office of the
Election Commissioners, a distinction is made between the Chief Election
Commissioner on the one hand and Election Commissioners and Regional
Commissioners on the other. Whereas the conditions of service and tenure of
office of all are to be such as the President may, by rule determine, a
protection is given to the Chief Election Commissioner in that his conditions
of service shall not be varied to his disadvantage after his appointment, and
he shall not be removed from his office except in like manner and on the like
grounds as a Judge of the Supreme Court. These protections are not available
either to the Election Commissioners or to the Regional Commissioners. Their conditions
of service can be varied even to their disadvantage after their appointment and
they can be removed on the recommendation of the Chief Election Commissioner,
although not otherwise. It would thus appear that in these two respects not
only the Election Commissioners are not on par with the Chief Election
Commissioner, but they are placed on par with the Regional Commissioners
although the former constitute the Commission and the latter do not and are
only appointed to assist the Commission.
11. It
is necessary to bear these features in mind because although clause (2) of the
article states that the Commission will consist of both the Chief Election
Commissioner and the Election Commissioners if and when appointed, it does not
appear that the framers of the Constitution desired to give the same status to
the Election Commissioners as that of the Chief Election Commissioner. The
Chief Election Commissioner does not, therefore, appear to be primus inter partes,
i.e., first among the equals, but is intended to be placed in a distinctly
higher position. The conditions that the President may increase or decrease the
number of Election Commissioners according to the needs of the time, that their
service conditions may be varied to their disadvantage and that they may be
removed on the recommendation of the Chief Election Commissioner militate
against their being of the same status as that of the Chief Election
Commissioner." 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 in 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 his 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
placed on 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 the 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 time. 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 insulated the
CEC from external political or executive pressures, confidence was reposed in
this independent functionary to safeguard the 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 when he supported the amended draft submitted by
Dr. Ambedkar:
"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 Provincial 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 under the protective
umbrella of an independent CEC. This aspect of the matter escaped the attention
of the learned Judges who decided Dhanoa's case.
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.
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 are not intended to be permanent appointees. Since the Election
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.
That
brings us to the question: what role has the CEC to play as the Chairman of a
multi-member Election Commission? Article 324 does not throw any light on this
point. the debates of the Constituent Assembly also do not help. Although there
had been a multi-member Commission in the past no convention or procedural
arrangement had been worked out then. It is this situation which compelled the
Division Bench of this Court in Dhanoa's case to inter alia observe that in the
absence of rules to the contrary, the members of a multi-member body are not and
need not always be on par with each other in the matter of their rights,
authority and powers. Proceeding further in paragraph 18 it was said:
"18.
It is further an acknowledged rule of transacting business in a multi- member
body that when there is no express provision to the contrary, the business has
to be carried on unanimously. The rule to the contrary such as the decision by
majority, has to be laid down specifically by spelling out the kind of majority
-- whether simple, special, of all the members or of the members present and
voting etc.
In a
case such as that of the Election Commission which is not merely an advisory
body but an executive one, it is difficult to carry on its affairs by insisting
on undnlmous decisions in all matters. Hence, a realistic approach demands that
either the procedure for transacting business is spelt out by a statute or a
rule either prior to or simultaneously with the appointment of the Election
Commissioners or that no appointment of Election Commissioners is made in the
absence of such procedure.
In the
present case, admittedly, no such procedure has been laid down.
We
must hasten to add that the accuracy of the statement that in a multi-member
body the rule of unanimity would prevail in the absence of express provision to
the contrary was doubted by counsel for the respondents-ECs. At the same time,
counsel for the Union of India and the contesting ECs contended that the
Ordinance was promulgated by the President strictly in conformity with the view
expressed in Dhanoa's case.
From
the discussion upto this point what emerges is that by clause (1) of Article
324, the Constitution-makers entrusted the task of conducting all elections in
the country to a Commission referred to as the Election Commission and not to an
individual. It may be that if it is a single-member body the decisions may have
to be taken by the CEC but still they will be the decisions of the Election
Commission. They will go down as respondents of the Election Commission and not
the individual. It would be wrong to project the individual and eclipse the
Election Commission.
Nobody
can be above the institution which he is supposed to serve. He is merely the
creature of the institution, he can exist only if the institution exists. To
project the individual as mightier than the institution would be a grave
mistake. Therefore, even if the Election Commission is a single-member body,
the CEC is merely a functionary of that body; to put it differently, the alter
ego of the Commission and no more. And if it is a multi-member body the CEC is
obliged to act as its Chairman. 'Chairman' according to the Concise Oxford
Dictionary means a person chosen to preside over meetings, e.g., one who
presides over the meetings of the Board of Directors. In Black's law Dictionary,
6th Edition, page 230, the same expression is defined as a name given to a
Presiding Officer of an assembly, public meeting, convention, deliberative or
legislative body, board of directors, committee, etc. Similar meanings have
been attributed to that expression in Ballentine's law Dictionary, 3rd Edition,
pages 189-190, Webster's New Twentieth Century Dictionary, Unabridged, 2nd
Edition, page 299, and Aiyer's Judicial Dictionary, 11th Edition, page 238. 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 correctly recorded and do all that is necessary for smooth
transaction of business. The nature and duties of this office may very
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 that others who are members of the Commission are his
subordinates. The functions of the Election Commission are essentially
administrative but there are certain adjudicative and legislative functions as
well. The Election Commission has to lay down certain 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 undertake
subordinate legislation making functions as well. See M.S. Gill vs. Chief Elecction
Commissioner (1978) 2 SCR 272. We need say no more on this aspect of the
matter.
There
can be no doubt that the Election Commission discharges a public function. As
pointed out earlier, the scheme of Article 324 clearly envisages a multi-member
body comprising the CEC and the ECs. The RCs may be appointed to assist the
Commission. If that be so the ECs cannot be put on par with the RCs. As already
pointed out, ECs form part of the Election Commission unlike the RCs. Their
role is, therefore, higher than that of RCs. If they form part of the
Commission it stands to reason to hold that they must have a say in
decision-making. If the CEC is considered to be a superior in the sense that
his word is final, he would render the ECs non-functional or ornamental. Such
an intention is difficult to cull out from Article 324 nor can we attribute it
to the Constitution-makers. We must reject the argument that the ECs' function
is only to tender advise to the CEC.
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 be varied to his disadvantage after
his appointment whereas there is no such safeguard in the case of ECs. That is presumbly
because the posts are lemporary 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.
As
pointed out earlier, neither Article 324 nor any other provision in the
Constitution expressly states how a multi-member Election Commission will
transact its business nor has any convention developed in this behalf. That is
why in Dhanoa's case this Court thought the gap could be filled by an
appropriate statutory provision. Taking a clue from the observations in that
connection in the said decision, the President promulgated the Ordinance
whereby a new chapter comprising sections 9 and 10 was added to the Act
indicating how the Election Commission will transact its business. Section 9
merely states that the business of the Commission shall be transacted in
accordance with the provisions of the Act. Section 10 has three sub-sections.
Sub-section
(1) says that the Election Commission may, by unanimous decision, regulate the
procedure for transaction of its business and for allocation of its business
among the CEC and the ECs. It will thus be seen that the legislature has left
it to the Election Commission to finalise both the matters by a unanimous
decision. Sub-section (2) says that all other business, save as provided in
sub-section (1), shall also be transacted unanimously, as far as is possible.
It is
only when the CEC and the ECs cannot reach a unanimous decision in regard to
its business that the decision has to be by majority. It must be realised that
the Constitution- makers preferred to remain silent as to the manner in which
the Election Commission will transact its business, presumably because they
thought it unnecessary and perhaps even improper to provide for the same having
regard to the level of personnel it had in mind to man the Commission.
They
must have depended on the sagacity and wisdom of the CEC and his colleagues.
The bitter experience of the past, to which a reference is made in Dhanoa's
case, made legislative interference necessary once it was also realised that a
multi-member body was necessary. It has yet manifested the hope in sub-sections
(1) and (2) that the Commission will be able to take decisions with one voice.
But
just in case that hope is belied the rule of majority must come into play. That
is the purport of section 10 of the Act. The submission that the said two
sections are inconsistent with the scheme of Article 324 inasmuch as they virtually
destroy the two safeguards, namely (i) the irremovability of the CEC and (ii)
prohibition against variation in service conditions to his disadvantage after
his appointment, does not cut ice. In the first place, the submission proceeds
on the basis that the other two ECs will join hands to render the CEC
non-functional, a premise which is not warranted. It betrays the CEC's lack of
confidence in himself to carry his colleagues with him. In every multi- member
commission it is the quality of leadership of the person heading the body that
matters. Secondly the argument necessarily implies that the CEC alone should
have the power to take decisions which, as pointed out earlier, cannot be
accepted because that renders the ECs' existence ornamental.
Besides,
there is no valid nexus between the two safeguards and Section 9 and 10; in
fact the submission is a repetition of the argument that a multi-member
commission cannot function, that it would be wholly unworkable and that the
Constitution-makers had erred in providing for it. Tersely put, the argument
boils down to this: erase the idea of a multi-member Election Commission from
your minds or else give exclusive decision making power to the CEC. We are
afraid such an attitude is not condusive to democratic principles. Foot Note 6
at page 657 of Halsbury's Laws of England, 4th Edition (Re-issue), Vol. 7(1)
posits:
"The
principle has long been established that the will of a Corporation or body can
only be expressed by the whole or a majority of its principles, and the act of
a majority is regarded as the act of the whole. (See Shakelton on the Law and
Practice of Meetings, eight Edition, Compilation of AG, page 116)" The
same priniple was reiterated in Grindley vs. Barker 126 English Reporter 875 at
879 & 882. We do not consider it necessary to go through various decisions
on this point.
The
argument that the impugned provisions constitute a fraud on the Constitution
inasmuch as they are designed and calculated to defeat the very purpose of
having an Election Commission is begging the question. While in a democracy
every right thinking citizen should be concerned about the purity of the
election process - this Court is no less concerned about the same as would be
evident from a series of decisions - it is difficult to share the inherent
suggestion that the ECs would not be as concerned about it.
And to
say that the CEC would have to suffer the humiliation of being overridden by
two civil servants is to ignore the fact that the present CEC was himself a
civil servant before his appointment as CEC.
The
Election Commission is not the only body which is a multi-member body. The
Constitution also provides for other public institutions to be multi-member
bodies. For example, the Public Service Commission. Article 315 provides for
the setting up of a Public Service Commission for the Union and every State and Article 316 contemplates a
multi-member body with a Chairman. Article 338 provides for a multi-member
national Commission for SC/ST comprising a Chairman, Vice- Chairman and other
members. So also there are provisions for the setting up of certain other
multi-member Commissions or Parliamentary Committees under the Constitution.
These also function by the rule of majority and so we find it difficult to
accept the broad contention that a multi-member Commission is unworkable. It
all depends on the attitude of the Chairman and its members. If they work in
co-operation, appreciate and respect each other's point of view, there would be
no difficulty, but if they decide from the outset to pull in opposite
directions, they would by their conduct make the Commission unworkable and thus
fail the system.
That
takes us to the question of mala fides. It is in two parts. The first part
relates to events which preceded the Ordinance and the second part to
post-Ordinance and notification events. On the first part the CEC contends that
since, after his appointment, he had taken various steps with a view to
ensuring free and fair elections and was constrained to postpone certain elections
which were to decide the fale of certain leaders belonging to the ruling party
at the Centre, i.e., the National Congress (i), he had caused considerable
discomfiture to them. His insistence on strict observance of the model Code of
Conduct had also disturbed the calculations of the ruling party. According to
him, he had postponed the elections in Kalka Assembly constituency, Haryana,
because the Chief Minister of Haryana, belonging to the ruling party at the
Centre, had flouted the guidelines. So also he had postponed the elections in
the State of Tripura which ultimately led to the dismissal of the Government
headed by the Chief Minister belonging to the ruling party at the Centre. The
postponement of the bye-elections involving Shri Sharad Pawar and Shri Pranab Mukherjee
also upset the calculations of the said party. He had also postponed the
election in Anipet Assembly constituency, Tamil Nadu, as the Chief Minister of
the State had flouted the model Code of Conduct by announcing certain projects
on the eye of the elections.
Shri Santosh
Mohan Deb, Union Minister, belonging to the ruling party, was also upset
because the CEC look disciplinary action against officials who were found
present at his election meetings. The ruling party was also unhappy with his
decision to announce general elections for the State Assemblies for Madhya
Pradesh, Uttar Pradesh, Rajasthan, Himachal Pradesh and the National Capital
Territory of Delhi as the party was not ready for the same.
According
to the CEC he had also spurned the request made through the Ieieutenant
Governor of Delhi by the said party for postponement of the Delhi elections.
According to him, emissaries were sent by the said party at the Centre to him
but he did not oblige and he even look serious exception regarding the conduct
of the Governor of Uttar Pradesh, Shri Moti Lal Vohra, for violating the model
Code of Conduct.
Since
the ruling party at the Centre failed in all its attempts to prevail upon to
him, it decided to convert the Election Commission into a multi-member body
and, after having the Ordinance issued by the President, the impugned
notifications appointing the two ECs were issued. The extraodinary haste with
which all this was done while the CEC was at Pune and the urgency with which one
of the appointees Shri M.S. Gill was called to Delhi by a special aircraft betrayed the keenness on the part of
the ruling party to install the two newly appointed ECs. The CEC describes in
detail the post-appointment events which took place at the meeting of 11th October, 1993 in paragraphs 18 (c) to (f) and (g)
of the writ petition. According to him, by the issuance of the Ordinance and
the notifications the ruling party is trying to achieve indirectly that which
it could not achieve directly. These, in brief, are the broad counts on the
basis whereof he contends that the ruling party at the Centre was keen to
dislodge him.
On
behalf of the union of India it is contended that the allegation that the power
to issue an Ordinance was misused for collateral purpose, namely, to impinge on
the independence of the Election Commission, is wholly misconceived since it is
a known fact that the demand for a multi-member Commission had been raised from
time to time by different political parties. The Joint Committee of both Houses
of Parliament had submitted a report in 1972 recommending a multi-member body
and the Tarkunde Committee appointed on behalf of the Citizens for Democracy
also favoured a multi-member Election Commission in its report submitted in
August 1974. Similarly, the Committee on electoral reforms appointed by the Janata
Dal Government, in its report in May, 1990, favoured a three member Election
Commission. Various Members of Parliament belonging to different political
shades had also raised a similar demand from time to time. The Advocates
General of various States in their meeting held on 26th September, 1993 at New Delhi had
made a similar demand. It was, therefore, not correct to contend that the
decision to constitute a multi-member Election Commission was abruptly taken
with a mala fide intention, to curb the activities of the present CEC. The
allegation that the decision was taken because the ruling party at the Centre
was irked by the attitude of the CEC in postponing elections on one ground or
the other is denied.
The
issue regarding the constitution of a multi-member Election Commission was a
live issue and the same was discussed at various fora and even the Supreme
Court in Dhanoa's case had indicated that vast discretionary powers, with virtually
no checks and balances, should not be left in the hands of a single individual
and it was desirable that more than one person should be associated with the
exercise of such discretionary powers. It was, therefore, in public interest
that the Ordinance in question was issued and two ECs were appointed to
associate with the CEC. The deponent contends that this was a bona fide
exercise and it was unfortunate that a high ranking official like the CEC had
alleged that one of the ECs had been appointed because he was a close friend of
the Prime Minister, an allegation which was unfounded. It is therefore denied
that the Ordinance and the subsequent notifications appointing the two ECs were
intended to sideline the CEC and erode his authority. The Government bona fide
followed the earlier reports and the observations made in Dhanoa's case to
which a reference has already been made. It is, therefore, contended that
Sections 9 and 10 do not suffer from any vice as alleged by the CEC. The two ECs
have also filed their counter affidavits denying these allegations. Shri G.V.G.
Krishnamurthy,
Respondent No.3 in the CEC's petition, has pointed out that the CEC had made
unprecedented demands, for example, (i) to be equated with Supreme Court
Judges, and had pressurised the Government that he be ranked along with Supreme
Court Judge in the Warrant of Precedence, (ii) the powers of contempt of court
be conferred upon the Election Commission, (iii) the CEC had refused to
participate in meetings as ex-officio member of the delimitation Commission
headed by Mr. Justice A.M. Mir, Judge of the High Court of J & K, on the
ground that his position was higher, he having been equated with judges of the
Supreme Court, (iv) the CEC be exempted from personal appearance in court, (v)
the Election Commission be exempted from the purview of the UPSC so far as its
staff was concerned, etc.
The
learned Allorney General pointed out that no mala fides can be attributed to
the exercise of legislative power by the President of India under Article 123
of the Constitution. He further pointed out. that having regard to the express
language of Article 324(2) of the Constitution, it was perfectly proper to
expand the Election Commission by making appropriate changes in the extant law.
The question whether it is necessary to appoint other ECs besides the CEC is
for the Government to decide and that is not a justiciable matter. The demand
for a multi-member Commission was being voiced for the last several years and
merely because it was decided to make an amendment in the statute through an
Ordinance, it is not permissible to infer that the decision was actuated by
malice. It was lastly contended that Article 324 nowhere stipulates that before
ECs are appointed, the CEC will be consulted. In the absence of an express
provision in that behalf, it cannot be said that the failure to consult the CEC
before the appointments of the two ECs viliates the appointment.
One of
the interveners, the petitioner of SLP No.16940 of 1993, has filed written
submissions through his counsel wherein, while supporting the action to
constitute the multi-member Commission, he has criticised the style of
functioning of the CEC and has contended that his actions have, far from
advancing the cause of free and fair elections, resulted in hardships to the
people as well as the system. It has been pointed out that several rash
decisions were taken by the CEC on the off-chance that they would pass muster
but when challenged in court he failed to support them and agreed to withdraw his
orders. It is, therefore, contended that the style of functioning of the
present CEC itself is sufficient reason to constitute a multi-member Commission
so that the check and balance mechanism that the Constitution provides for
different institutions may ensure proper decision-making.
There
is no doubt that when the Constitution was framed the Constitution-makers
considered it necessary to have a permanent body headed by the CEC. Perhaps the
volume of work and the complexity thereof could be managed by a single- member
body. At the same time it was realised that with the passage of time it may
become necessary to have a multi- member body. That is why express provision
was made in that behalf in clause (2) of Article 324. It seems that for about
two decades the need for a multi-member body was not felt.
But
the issue was raised and considered by the Joint Committee which submitted a
report in 1972. Since no action was taken on that report the Citizens for
Democracy, a non- governmental organisation, appointed a committee headed by Shri
Tarkunde, a former Judge of the Bombay High Court, which submitted its report
in August 1974. Both these bodies favoured a multi-member Commission but no
action was taken and, after a full, when the Janata Dal came to power, a
committee was appointed which submitted a report in May 1990. That committee
also favoured a multi-member body.
Prior
to that, in 1989 a multi-member Commission was constituted but we know its fale
(see Dhanoa's case). But the issue was not given up and demands continued to
pour in from Members of Parliament of different hues. These have been mentioned
in the counter of the union of India. It cannot, therefore, be said that this
idea was suddenly pulled out of a bag. Assuming the present CEC had taken certain
decisions not palatable to the ruling party at the Centre as alleged by him, it
is not permissible to jump to the conclusion that that was cause for the
Ordinance and the appointments of the ECs. If such a nexus is to weigh, the CEC
would continue to act against the ruling party to keep the move for a
multi-member Commission at bay. We find it difficult to hold that the decision
to constitute a multi- member Commission was actuated by malice. Therefore,
even though it is not permissible to plead malice, we have examined the
contention and see no merit in it. It is wrong to think that the two ECs were
pliable persons who were being appointed with the sole object of eroding the
independence of the CEC.
We may
incidentally mention that the decisions taken by the CEC from time to time
postponing elections at the last moment, of which he has made mention in his
petition, have evoked mixed reactions. This we say because the CEC uses them to
lay the foundation for his contention that the entire exercise was mala fide.
Some of his other decisions were so unsustainable that he could not support
them when tested in court. His public utterances at times were so abrasive that
this court had to caution him to exercise restraint on more occasions than one.
This gave the impression that he was keen to project his own image. That he has
very often been in the newspapers and magazines and on television cannot be
denied. In this backdrop, if the Government thought that a multi-member body
was desirable, the Government certainly was not wrong and its action cannot be
described as malafide. Subsequent events would suggest that the Government was
wholly justified in creating a multi-member Commission. The CEC has been seen
in a commercial on television and in newspaper advertisements.
The
CEC has addressed the Press and is reported to have said that he would utilise
the balance of his tenure to form a political party to fight corruption and the
like [Sunday Times (Bombay) dated June 25, 1995 page 28]. Serious doubts may arise regarding his decisions
if it is suspected that he has political ambitions, in the absence of any
provision, such as, Article 319 of the Constitution. The CEC is, it would
appear, totally oblivious to sense of decorum and discretion that his high office
requires even if the cause is laudable.
That
takes us to the question of legislative competence. The contention is that
since Article 324 is silent, Parliament expected the Commission itself to
evolve its own procedure for transacting its business and since the CEC was the
repository of all power to be exercised by the Commission falling within the
scope of its activity, it did not see the need to engraft any procedure for
transacting its business. If the Election Commission at any time saw the need
for it, it would itself evolve its procedure but Parliament cannot do so and
hence Sections 9 and 10 are unconstitutional. Except the legislation
specifically permitted by clauses (2) and (5) of Art. 324 and Articles 327 and
328, Part XV of the Constitution does not conceive of a law by Parliament on
any other matter and hence the impugned legislation is unconstitutional.
Now it
must be noticed at the outset that both clauses (2) and (5) of Article 324
contemplate a statute for the appointment of ECs and for their conditions of
service. The impugned law provides for both these matters and provisions to
that effect cannot be challenged as uncontitutional since they are expressly
permitted by the said clauses (2) and (5). once the provision for the
constitution of a multi- member Commission is unassailable, provisions
incidental thereto cannot be challenged. It was urged that the legislation
squarely fell within Entry 72 of list I of the Seventh Schedule. That entry
refers to "Elections to Parliament, to legislatures of States and to the
Offices of President and Vice-President; the Election Commission". If, as
argued, the scope of this entry is relatable and confined to clauses (2) and
(5) of Article 324 and Articles 327 and 328 only, it would be mere tautology.
If the contention that the CEC alone has decisive power is not accepted, and we
have not accepted it, and even if it is assumed that the normal rule is of unanimily,
sub-sections (1) and (2) of Section 10 provide for unanimity. It is only if
there is no unanimily that the rule of majority comes into play under
sub-section (3). Therefore, even if we were to assume that the Commission alone
was competent to lay down how it would transact its business, it would be
required to follow the same pattern as is set out in Section 10. We, therefore,
see no merit in this contention also.
We
would here like to make it clear that we should not be understood to approve of
the ratin of Dhanoa's case in its entirety. We have expressly approved it where
required.
One of
the matters to which we must advert is the question of the status of an
individual whose conditions of service are akin to those of the judges of the
Supreme Court. This seems necessary in view of the reliance placed by the CEC
on this aspect to support his case. In the instant case some of the service
conditions of the CEC are akin to those of the Supreme Court Judges, namely, (i)
the provision that he can be removed from office in like manner and on like
grounds as a Judge of the Supreme Court and (ii) his conditions of service
shall not be varied to his disadvantage after appointment. So far as the first
is concerned instead of repeating the provisions of Article 124(4), the
draftsman has incorporated the same by reference. The second provision is
similar to the proviso to Article 125(2). But does that confer the status of a
Supreme Court Judge on the CEC? It appears from the D.O.
No.193/34/92
dated July 23, 1992 addressed to the then Home Secretary, Shri Godbole, the CEC
had suggested that the position of the CEC in the Warrant of Precedence needed
reconsideration. This issue he seems to have raised in his letter to the Prime
Minister in December 1991. It becomes clear from Shri Godbole's reply dated
July 25, 1992, that the CEC desired that he be placed at No.9 in the Warrant of
Precedence at which position the Judges of the Supreme Court figured. It
appears from Shri Godbole's reply that the proposal was considered but it was
decided to maintain the CEC's position at No.11 along with the Comptroller and
Auditor General of India and the Allorney General of India.
However,
during the course of the hearing of these petitions it was stated that the CEC
and the Comptroller and Auditor General of India were thereafter placed at
No.9A. At our request the learned Allorney General placed before us the revised
Warrant of Precedence which did reveal that the CEC had climbed to position
No.9A along with the Comptroller and Auditor General of India. Maintenance of
the status of Judges of the Supreme Court and the High Courts is highly
desirable in the national interest. We mention this because of late we find
that even personnel belonging to other fora claim equation with High Court and
Supreme Court Judges merely because certain jurisdictions earlier exercised by
those Courts are transferred to them not realising the distinction between
constitutional and statutory functionaries. We would like to impress on the
Government that it should not confer equivalence or interfere with the Warrant
of Precedence, if it is likely to affect the position of High Court and Supreme
Court Judges, however pressing the demand may be, without first seeking the
views of the Chief Justice of India. We may add that Mr. G.
Ramaswamy,
learned counsel for the CEC, frankly conceded that the CEC could not
legitimately claim to be equated with Supreme Court Judges. We do hope that the
Government will take note of this and do the needful.
We
have deliberately avoided going into the unpleasant exchanges that look place
in the chamber of the CEC on 11th October, 1993, to which reference has been
made by the CEC in paragraph 18 (c to f and g) of his petition. These
allegations have been denied by Shri Krishnamurthy and Shri Gill does not
support the CEC when he says he was abused.
Although
these allegations and counter allegations found their way into the press, we do
not think any useful purpose will be served by washing dirty linen in public
except showing both the CEC and Shri Krishnamurthy in poor light.
The
CEC and the ECs are high level functionaries. They have several years of
experience as civil servants behind them.
All of
them have served in responsible positions at different levels. It is a pity
they did not try to work as a leam. The efforts of Shri Gill to persuade the
other two to forget the past and to get going with the job fell on deaf ears.
Unfortunately, suspicion and distrust got the better of them. We hope they will
forget and forgive, start on a clean state of mutual respect and confidence and
get going with the lask entrusted to them in a sporting spirit always bearing
in mind the fact that the people of this great country are watching them with
expectation. For the sake of the people and the country we do hope they will
eschew their egos and work in a spirit of camaraderie.
In the
result, we uphold the impugned Ordinance (now Act 4 of 1994) in its entirety.
We also uphold the two impugned notifications dated 1st October, 1993. Hence,
the writ petitions fail and are dismissed. The interim order dated 15th
November, 1993 will stand vacated. If, as is reported, the incumbent CEC has
proceeded on leave, leaving the office in charge of Shri Bagga, Shri Bagga will
forthwith hand over charge to Shri Gill till the CEC resumes duty. The TAs will
stand disposed of. In the facts and circumstances of the case, we direct
parties to bear their own costs. If the CEC has incurred the costs of his
petition from the funds of the Election Commission, the other two ECs will be
entitled to the same from the same source.
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