# ANOOP BARANWAL v. UNION OF INDIA

- **Citation:** 2023 INSC 190
- **Court:** Supreme Court of India
- **Decided:** 2023-03-02
- **Bench:** K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, C.T. Ravikumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anoop-baranwal-v-union-of-india-37849
- **Pages:** 245

## Headnote

Election Laws: Constitution of India - Arts. 324(2), 32 and
142 -Appointment of Chief Election Commissioner and Election
Commissioners - Method of - Independence of Election Commission
- Constitutional validity of the practice of Union of India to appoint
the members of the Election Commission - Held: The vacuum in the
case of Art.324(2) is the absence of the law which Parliament was
contemplated to enact - This Court is concerned with the devastating
effect of continuing to leave appointments in the sole hands of the
Executive on fundamental values and also fundamental rights -
Time is ripe for the Court to lay down norms - Imperative need for
the Court to step in - Vacuum exists on the basis that unlike other
appointments, it was intended all throughout that appointment
exclusively by the Executive was to be a mere transient or stop gap
arrangement and it was to be replaced by a law made by the
Parliament taking away the exclusive power of the Executive - This
conclusion is clear and inevitable and the absence of law even
after seven decades points to the vacuum -As far as appointment to
the posts of Chief Election Commissioner and the Election
Commissioners are concerned, the same shall be done by the
President of India on the basis of the advice tendered by a Committee
consisting of the Prime Minister of India, the Leader of the
Opposition in the Lok Sabha and, in case, there is no such Leader,
the Leader of the largest Party in the Opposition in the Lok Sabha
having the largest numerical strength, and the Chief Justice of India
- This norm will continue to hold good till a law is made by the
Parliament.
Election Laws: Constitution of India - Art.324(5) - Protection
of Election Commissioner - Whether the Election Commissioner is
entitled to same protection as given to Chief Election Commissioner
- Held (per K. M. Joseph, J.) (for himself, Aniruddha Bose, Hrishikesh
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Roy and C. T. Ravikumar, JJ.): Second proviso to Article 324(5) only
enacts the protection that the Election Commissioner or Regional
Commissioner shall not be removed from Office except on the
recommendation of the Chief Election Commissioner - There is
equality otherwise, which exists between the Chief Election
Commissioner and the Election Commissioners in various matters -
The argument that the Election Commissioner must be accorded the
same protection as is given to the Chief Election Commissioner,
appears to be untenable, on a plain reading of Article 324(5) - In
the context of the said provision, the words 'provided further' cannot
be perceived as an additional protection to the Election
Commissioner - It is for Parliament acting in the constituent capacity
to consider whether it would be advisable to extend the protection
to the Election Commissioners so as to safeguard and ensure the
independence of the Election Commissioners as well - Held (per
Ajay Rastogi, J.) Various reports have recommended that the
protection against removal available to the Chief Election
Commissioner should be made available to the other Election
Commissioners to ensure the independence of the Election
Commission - Keeping in view the importance of maintaining the
neutrality and independence of the office of the Election Commission
to hold free and fair election which is a sine qua non for upholding
the democracy as enshrined in our Constitution, it becomes
imperative to shield the appointment of Election Commissioners and
to be insulated from the executive interference - It is the need of the
hour and advisable, to extend the protection available to the Chief
Election Commissioner under the first proviso to Article 324(5) to
other Election Commissioners as well until any law is being framed
by the Parliament - The conditions of service of the Election
Commissioners shall not be varied to his disadvantage after
appointment - Election Commission (Conditions of Service of
Election Commissioners and Transaction of Business) A

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[2023] 9 S.C.R. 1: 2023 INSC 190
1
ANOOP BARANWAL
v.
UNION OF INDIA
(Writ Petition (Civil) No.104 of 2015)
MARCH 02, 2023
[K.M. JOSEPH, AJAY RASTOGI, ANIRUDDHA BOSE,
HRISHIKESH ROY AND C.T. RAVIKUMAR, JJ.]
Election Laws: Constitution of India - Arts. 324(2), 32 and
142 -Appointment of Chief Election Commissioner and Election
Commissioners - Method of - Independence of Election Commission
- Constitutional validity of the practice of Union of India to appoint
the members of the Election Commission - Held: The vacuum in the
case of Art.324(2) is the absence of the law which Parliament was
contemplated to enact - This Court is concerned with the devastating
effect of continuing to leave appointments in the sole hands of the
Executive on fundamental values and also fundamental rights -
Time is ripe for the Court to lay down norms - Imperative need for
the Court to step in - Vacuum exists on the basis that unlike other
appointments, it was intended all throughout that appointment
exclusively by the Executive was to be a mere transient or stop gap
arrangement and it was to be replaced by a law made by the
Parliament taking away the exclusive power of the Executive - This
conclusion is clear and inevitable and the absence of law even
after seven decades points to the vacuum -As far as appointment to
the posts of Chief Election Commissioner and the Election
Commissioners are concerned, the same shall be done by the
President of India on the basis of the advice tendered by a Committee
consisting of the Prime Minister of India, the Leader of the
Opposition in the Lok Sabha and, in case, there is no such Leader,
the Leader of the largest Party in the Opposition in the Lok Sabha
having the largest numerical strength, and the Chief Justice of India
- This norm will continue to hold good till a law is made by the
Parliament.
Election Laws: Constitution of India - Art.324(5) - Protection
of Election Commissioner - Whether the Election Commissioner is
entitled to same protection as given to Chief Election Commissioner
- Held (per K. M. Joseph, J.) (for himself, Aniruddha Bose, Hrishikesh
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Roy and C. T. Ravikumar, JJ.): Second proviso to Article 324(5) only
enacts the protection that the Election Commissioner or Regional
Commissioner shall not be removed from Office except on the
recommendation of the Chief Election Commissioner - There is
equality otherwise, which exists between the Chief Election
Commissioner and the Election Commissioners in various matters -
The argument that the Election Commissioner must be accorded the
same protection as is given to the Chief Election Commissioner,
appears to be untenable, on a plain reading of Article 324(5) - In
the context of the said provision, the words 'provided further' cannot
be perceived as an additional protection to the Election
Commissioner - It is for Parliament acting in the constituent capacity
to consider whether it would be advisable to extend the protection
to the Election Commissioners so as to safeguard and ensure the
independence of the Election Commissioners as well - Held (per
Ajay Rastogi, J.) Various reports have recommended that the
protection against removal available to the Chief Election
Commissioner should be made available to the other Election
Commissioners to ensure the independence of the Election
Commission - Keeping in view the importance of maintaining the
neutrality and independence of the office of the Election Commission
to hold free and fair election which is a sine qua non for upholding
the democracy as enshrined in our Constitution, it becomes
imperative to shield the appointment of Election Commissioners and
to be insulated from the executive interference - It is the need of the
hour and advisable, to extend the protection available to the Chief
Election Commissioner under the first proviso to Article 324(5) to
other Election Commissioners as well until any law is being framed
by the Parliament - The conditions of service of the Election
Commissioners shall not be varied to his disadvantage after
appointment - Election Commission (Conditions of Service of
Election Commissioners and Transaction of Business) Act, 1991.
Election Laws: Independent Permanent Secretariat for
Election Commission - Expenditure on the Consolidated Fund of
India - Held (per K. M. Joseph, J.) (for himself, Aniruddha Bose,
Hrishikesh Roy and C. T. Ravikumar): It is a matter of policy - The
Election Commission of India is to perform the arduous and
unenviable task of remaining aloof from all forms of subjugation
by and interference from the Executive - The Executive can bring
an otherwise independent Body to its knees, by starving it off or
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cutting off the requisite financial wherewithal and resources required
for its efficient and independent functioning - One cannot be
oblivious to the need for articulation of details in regard to the
expenditure, which is a matter of policy - Urgent need to provide
for a permanent Secretariat and also to provide that the expenditure
be charged on the Consolidated Fund of India - It is for the Union
of India to seriously consider bringing in the much-needed change
- Union of India /Parliament may consider bringing in the necessary
changes so that the Election Commission of India becomes truly
independent.
Constitution of India - Art. 326 - Representation of the People
Act, 1951 - s.62 - Right to Vote - Nature of Right - Whether Statutory
Right or Constitutional Right - Held (per K. M. Joseph, J.) (for himself,
Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar, JJ.): The right
to vote is not a civil right - The Right to Vote inevitably follows from
the inclusion of a person in the electoral roll - According to Art.
326, where the citizen is not less than eighteen years and does not
have the disqualifications, he becomes entitled to be entered in the
electoral roll - Such person, as is indicated in Article 326, indeed,
has a right, which can be said to be a Constitutional Right, which
may be right subject to the restriction - Held (Ajay Rastogi, J.) - By
virtue of Article 326, the right to vote became a constitutional right
granted to citizens - The said right was given effect by s.62 of
Representation of the People (ROP) Act, 1951 - The right to vote is
not just a statutory right - The right to vote is an expression of the
choice of the citizen, which is a fundamental right under Art.19(1)(a)
- The right to vote is not limited only to Art.326, but flows through
Arts.15, 17, 19, 21 - The right to vote in direct elections is a
fundamental right, subject to limitations laid down in Art. 326 -
The right to vote is not merely a constitutional right, but a component
of Part III of the Constitution.
Election Laws: Constitution of India - Art.14 - Rule of Law -
Role of Election Commission - Held (per K. M. Joseph, J.) (for himself,
Aniruddha Bose, Hrishikesh Roy and C. T. Ravikumar, JJ.): Rule of
law is the very bedrock of a democratic form of governance - An
Election Commission which does not ensure free and fair poll as
per the rules of the game, guarantees the breakdown of the
foundation of the rule of law - Any action or omission by the
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Election Commission in holding the poll which treats political parties
with an uneven hand and in an unfair or arbitrary manner would
be anathema to the mandate of Article 14, and therefore, cause its
breach.
Constitution of India - Art. 142 - Power of the Court to lay
down guidelines in order to fill legislative gaps - Held (per Ajay
Rastogi, J.): The Supreme Court has plenary power under Article
142 to issue directions to do "complete justice" - The Court has
created a jurisprudence, where it has exercised its power under
Article 142 to fill legislative gaps - Supreme Court has laid down
guidelines in order to fill the legislative gap on a number of
occasions - Series of case laws authoritatively demonstrate the
commitment of Supreme Court to intervene to preserve and promote
the "Rule of Law", by supplementing the legislative gaps till the
Legislature steps in.
Partly allowing the writ petitions, the Court
HELD:
per K. M. JOSEPH, J. (for himself, Aniruddha Bose,
Hrishikesh Roy and C. T. Ravikumar, JJ.):
1. In regard to the use of Constituent Assembly debates,
the law has not stood still. At any rate, whatever may be the
controversy, as regards its employment to discern, the purport
of a provision there can be no taboo involved in its use to
understand the history of a provision under the Constitution and
tshe various steps leading up to and accompanying its enactment.
[Para 28][51-E-F]
2. All the Members of the constituent assembly were of
the clear view that election must be conducted by an independent
Commission. It is equally clear that the Members of the
Committees, including the Constituent Assembly, wanted the
appointment to the Election Commission not to be made by the
Executive. In short, what the Founding Fathers clearly
contemplated and intended was, that Parliament would step-in
and provide norms, which would govern the appointment to such
a uniquely important post as the post of Chief Election
Commissioner and the Election Commissioners. When the
Founding Fathers, therefore, inserted the words 'subject to the
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provisions of any law to be made by Parliament', it was intended
that Parliament would make a law. While this Court would not go,
so far as to hold that Parliament was under a compellable duty,
which this Court can enforce by a Mandamus, to make a law, all
that this Court is finding is that the Constituent Assembly clearly
intended that Parliament must make a law within the meaning of
Article 324(2) of the Constitution. [Paras 32 and 33][55-A, D, EF; G-H]
3. It is clear that the founding fathers intended that the
elections in the country must be under the superintendence,
direction and control of an independent Body. The Body is the
Election Commission of India. Under Article 324, the Chief
Election Commissioner is an unalterable feature or figure. A
Commission can consist of only the Chief Election Commissioner.
A multi-Member Commission was also contemplated by the
founding fathers. However, the post of Election Commissioner
was to be need based. For nearly four decades, there was no
Election Commissioner. As noticed, it is on 16.10.1989 that the
first two Election Commissioners were appointed. In regard to
the appointment of the Chief Election Commissioner and other
Election Commissioners, the Constitution does not provide for
any criteria. It does not fix any qualifications. It does not prescribe
any disqualifications in the matter of appointment as either Chief
Election Commissioner or Election Commissioner. [Para 60][72G-H; 73-A-B]
4. It cannot be disputed that there is no strict demarcation
or separation of powers in India unlike the position obtaining in
the United States of America and Australia. The doctrine of
separation of powers, no doubt, has been eloquently expounded
by Montesquieu in his work "The Spirit of Laws" and the basis
on which it rests is the imperative need to avoid concentration of
power in one or two organs. Undoubtedly, an observance of
doctrine of separation of powers has been traced to the principle
of equality. Separation of powers as understood as prevailing in
India constitutes a part of the basic structure of the Constitution
of India. The theory of separation of powers in an ultimate analysis
is meant to prevent tyranny of power flowing from the assumption
of excess power in one source. Its value lies in a delicate but
skilful and at the same time legitimate balance being struck by
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the organs of the State in the exercise of their respective powers.
This means that the essential powers which are well understood
in law cannot be deliberately encroached upon by any organ of
the State. [Paras 81, 82 and 86][89-D-E, F-G; 92-D]
5. Judicial review has been recognized as forming a part of
the basic structure. Judicial review of legislation is expressly
provided in Article 13 of the Constitution. A court when it declares
a law made by the legislature as unconstitutional, if it be that, it is
within its bounds, cannot be accused of transgressing the principle
of separation of powers. Declaring even a law made by the
Parliament as unconstitutional forms a part of its powers. In view
of the enunciation of the doctrine of basic structure in India unlike
perhaps in most countries, even an amendment to the
Constitution can be declared unconstitutional by the court. Such
exercise cannot expose the court to the charge that it is not
observing the limits set by the Constitution. [Para 85][91-G-H;
92-A-B]
6. The right to vote is not a civil right. To cast the vote, a
person must be included in the electoral roll of the constituency.
However, even if it be that he is so included, if at the time of the
election, when he casts the vote, he has incurred any of the
disqualifications referred to in Section 16 of the 1950 Act, then
his Right to Vote will stand eclipsed. The Right to Vote inevitably
follows from the inclusion of a person in the electoral roll, the
Right to Vote may be denied in terms of the law. In keeping with
the mandate of Article 326, Parliament has made the 1950 Act
and the 1951 Act. It is thereafter that the first general elections
were held in the country. It may be true that the 1950 Act and the
1951 Act have been amended from time to time. At any given
point of time, placing Article 326 side-by-side with the law made
by Parliament or the law made by the State Legislature, if a person
is a citizen of India and not below eighteen years of age, and if he
does not incur the disqualifications, which cannot be more than
what is provided in Article 326, but the content of which, may be
provided by the law made by the competent Legislature and the
citizen not less than eighteen years does not have the
disqualifications, he becomes entitled to be entered in the
electoral roll. Such person, as is indicated in Article 326, indeed,
has a right, which can be said to be a Constitutional Right, which
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may be right subject to the restriction. Section 62(1) of the 1951
Act, gives also the Right to Vote to such a person. Any other
interpretation would whittle down the grand object of conferring
adult suffrage on citizens. Even if it is treated as a statutory right,
which, at any rate, cannot be divorced or separated from the
mandate of Article 326, the right is of the greatest importance
and forms the foundation for a free and fair election, which, in
turn, constitutes the right of the people to elect their
representatives. [Paras 95, 122, 125,135 and 141][100-A; 115F-G; 116-F; 122-B-E; 124-B-C]
7. The cardinal importance of a fiercely independent, honest,
competent and fair Election Commission must be tested on the
anvil of the rule of law as also the grand mandate of equality. Rule
of law is the very bedrock of a democratic form of governance. It
simply means that men and their affairs are governed by preannounced norms. It averts a democratic Government brought
to power by the strength of the ballot betraying their trust and
lapsing into a Government of caprice, nepotism and finally
despotism. It is the promise of avoidance of these vices which
persuades men to embrace the democratic form of Government.
An Election Commission which does not ensure free and fair poll
as per the rules of the game, guarantees the breakdown of the
foundation of the rule of law. Equally, the sterling qualities must
be possessed by an Election Commission is indispensable for an
unquestionable adherence to the guarantee of equality in Article
14. In the wide spectrum of powers, if the Election Commission
exercises them unfairly or illegally as much as he refuses to
exercise power when such exercise becomes a duty it has a telling
and chilling effect on the fortunes of the political parties.
Inequality in the matter of treatment of political parties who are
otherwise similarly circumstanced unquestionably breaches the
mandate of Article 14. The Election Commissioners including
the Chief Election Commissioner blessed with nearly infinite
powers and who are to abide by the fundamental rights must be
chosen not by the Executive exclusively and particularly without
any objective yardstick. [Para 165][138-F-H; 139-A-B, E]
8. If the drawing up of the panel itself results in a fate
accompli, then, the whole exercise would be reduced to a foregone
conclusion as to who would be finally appointed. What this Court
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finds about the method involved is, even proceeding on the basis
that the Government has the right to confine the appointee to
Civil Servants that it is in clear breach of the contemplated
mandate that be it as an Election Commissioner or Chief Election
Commissioner, the appointee should have a period of six years.
The philosophy behind giving a reasonably long stint to the
appointee to the post of Election Commissioner or the Chief
Election Commissioner, is that it would enable the Officer to have
enough time to gear himself to the needs of the Office and to be
able to assert his independence. An assured term would instil in
the appointee, the inspiration and the will to put in place any
reforms, changes, as also the inspiration to bring out his best. A
short-lived stint may drain the much needed desire besides the
time to fulfill the sublime objects of the high Office of the Election
Commissioner or the Chief Election Commissioner. Any tendency
towards placating the powers that be, would wax as also the power
and the will to assert his independence may wane, bearing in
mind, the short tenure. This apparently is the underlying
philosophy of the law made by Parliament, assuring, a term of six
years. The term of six years is separately assured to both the
Election Commissioner and the Chief Election Commissioner.
In other words, the object of the law and its command would stand
defeated and the practice lends strength to the complaint of the
petitioners. This Court must make it clear that the observations
are not meant to be an individualised assessment of the appointee,
who has excellent academic qualifications. But as this Court has
noted academic excellence which members of the civil service
may possess cannot be a substitute for values such as
independence and freedom from bias from political affiliation.
Parliament enshrined a term of six years separately for the Chief
Election Commissioner and the Election Commissioner. This is
the Rule, it is found in Section 4(1). A proviso cannot arrogate
itself to the status of the main provision. The exception cannot
become the Rule. Yet, this what the appointments have been
reduced to. It undermines the independence of the Election
Commission. The policy of the law is defeated. [Para 195][156G-H; 157-A-F]
9. The vacuum in the case of Article 324 (2) is the absence
of the law which Parliament was contemplated to enact. Political
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parties undoubtedly would appear to betray a special interest in
not being forthcoming with the law. The reasons are not far to
seek. There is a crucially vital link between the independence of
the Election Commission and the pursuit of power, its
consolidation and perpetuation. In the unique nature of the
provision, this Court is concerned with and the devastating effect
of continuing to leave appointments in sole hands of the Executive
on fundamental values, as also the Fundamental Rights, the time
is ripe for the Court to lay down norms. In other words, the vacuum
exists on the basis that unlike other appointments, it was intended
all throughout that appointment exclusively by the Executive was
to be a mere transient or stop gap arrangement and it was to be
replaced by a law made by the Parliament taking away the
exclusive power of the Executive. This conclusion is clear and
inevitable and the absence of law even after seven decades points
to the vacuum. [Paras 220,221 and 227][173-H; 174-A-B; 175D-E]
10. The appointment of the Chief Election Commissioner
and the Election Commissioners, shall be made by the President
on the advice of a Committee consisting of the Prime Minister,
the Leader of the Opposition of the Lok Sabha, and in case no
leader of Opposition is available, the leader of the largest
opposition Party in the Lok Sabha in terms of numerical strength,
and the Chief Justice of India. This will be subject to any law to
be made by Parliament. [Paras 230 and 231][177-H; 178-A-B]
11. The conditions of service and tenure of the Election
Commissioners and the Regional Commissioners was to be such
as made by the Rule provided. This, however, was subject to any
law made by Parliament. It may be true that there is equality
otherwise, which exists between the Chief Election Commissioner
and the Election Commissioners in various matters dealt with
under the Act. However, Article 324 is inoperable without the
Chief Election Commissioner. Even on a plain reading of Article
324(5), this Court is of the view that in regard to the prayer that
the Election Commissioner must be accorded the same protection
as is given to the Chief Election Commissioner, the argument
appears to be untenable. The first proviso to Article 324(5)
protects the Chief Election Commissioner alone from removal
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by providing for protection as is accorded to a Judge of the
Supreme Court of India. It is still further more important to notice
that the first proviso interdicts varying of the conditions of service
of the Chief Election Commissioner to his disadvantage after the
appointment. It is, thereafter, that the second proviso appears.
The second proviso exclusively deals with any other Election
Commissioner, inter alia. The word 'any other Election
Commissioner' has been provided to distinguish him from the
Chief Election Commissioner. Therefore, for the Election
Commissioners other than the Chief Election Commissioner, the
protection which is clearly envisaged, as against his removal is
only that it can be effected only with the recommendation of the
Chief Election Commissioner. In the context of the provision,
the words 'provided further' cannot be perceived as an additional
protection to the Election Commissioner. It is intended only to
be a standalone provision, specifically meant to deal with the
categories of persons mentioned therein. This Court would think
that no more need be said and reject the contention. However, in
the light of the fact that Election Commissioners have become
part of the Election Commission, perhaps on the basis of the
volume of work that justifies such an appointment and also the
need to have a multi-Member team otherwise, it is for Parliament
acting in the constituent capacity to consider whether it would be
advisable to extend the protection to the Election Commissioners
so as to safeguard and ensure the independence of the Election
Commissioners as well. This goes also as regards variation of
service conditions after appointment. [Para 233][179-C-D, G; 180A-B, B-E, G-H; 181-A]
12. There cannot be any doubt that the Election Commission
of India is to perform the arduous and unenviable task of
remaining aloof from all forms of subjugation by and interference
from the Executive. One of the ways, in which, the Executive can
bring an otherwise independent Body to its knees, is by starving
it off or cutting off the requisite financial wherewithal and
resources required for its efficient and independent functioning.
This Court must bear in mind that to elevate it to a constitutional
provision and protection thereunder, maybe a matter, which must
engage the attention of the Constituent Body. This is again a
matter which can also be provided by way of a law by Parliament.
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This Court has no doubt that there is considerable merit in the
complaint of the petitioner, which apparently, is endorsed by the
Election Commission of India itself. This Court cannot be
oblivious to the need for articulation of details in regard to the
expenditure, which is a matter of policy, which this Court refrains
from doing. This Court would only make an appeal on the basis
that there is an urgent need to provide for a permanent Secretariat
and also to provide that the expenditure be charged on the
Consolidated Fund of India and it is for the Union of India to
seriously consider bringing in the much-needed changes. [Paras
236 and 238][181-F-G; 182-B-D]
13. The Writ Petitions are partly allowed and they are
disposed of as follows: I. As far as appointment to the posts of
Chief Election Commissioner and the Election Commissioners
are concerned, the same shall be done by the President of India
on the basis of the advice tendered by a Committee consisting of
the Prime Minister of India, the Leader of the Opposition in the
Lok Sabha and, in case, there is no such Leader, the Leader of
the largest Party in the Opposition in the Lok Sabha having the
largest numerical strength, and the Chief Justice of India. This
norm will continue to hold good till a law is made by the Parliament.
II. As regards the relief relating to putting in place a permanent
Secretariat for the Election Commission of India and charging its
expenditure to the Consolidated Fund of India is concerned, the
Court makes a fervent appeal that the Union of India/Parliament
may consider bringing in the necessary changes so that the
Election Commission of India becomes truly independent. [Para
239][182-D-H]
Dr. Jaishri Laxmanrao Patil v. Chief Minister and others
(2021) 8 SCC 1; Union of India v. Assn. for Democratic
Reforms (2002) 5 SCC 294 : [2002] 3 SCR 696 ;
Supreme Court Advocates-on-Record Assn. and another
v. Union of India (2016) 5 SCC 1 : [2015] 13 SCR 1;
Vishaka and others v. State of Rajasthan and others
(1997) 6 SCC 241:[1997] 3 Suppl. SCR 404; Special
Reference No. 1 of 1998, Re 73 (1998) 7 SCC 739 -
relied on.
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Rajbala and others v. State of Haryana and others.
(2016) 2 SCC 445 : [2015] 12 SCR 1106; Election
Commission of India v. State of T.N and Others (1995)
3 Suppl. SCC 379, Union of India v. Association for
Democratic Reforms and Others.(2002) 5 SCC 294 :
[2002] 3 SCR 696 and Election Commission of India v.
Ashok Kumar (2000) 8 SCC 216 : [2000] 3 Suppl.
SCR 34 - affirmed.
Supreme Court Advocates-on-Record Association and
Another v. Union of India (2016) 5 SCC 1:[2015] 13
SCR 1; Indian National Congress v. Institute of Social
Welfare and Others (2002) 5 SCC 685 : [2002] 3
SCR 1040; Supreme Court Advocateson-Record
Association and Others v. Union of India (1993) 4 SCC
441 : [1993] 2 Suppl. SCR 659; Prakash Singh and
Others v. Union of India and Others (2006) 8 SCC 1 :
[2006] 6 Suppl. SCR 473; Vineet Narain and Others v.
Union of India and Another (1998) 1 SCC 226 : [1997]
6 Suppl. SCR 595; T.N. Seshan, Chief Election
Commissioner of India v. Union of India and others
(1995) 4 SCC 611 : [1995] 2 Suppl. SCR 106 ; Samsher
Singh v. State of Punjab and Another (1974) 2 SCC
831 : [1975] 1 SCR 814 ; His Holiness Kesavananda
Bharati Sripadagalvaru v. State of Kerala and Another
(1973) 4 SCC 225 : [1973] 0 Suppl. SCR 1; S.S.
Dhanoa v. Union of India and Others (1991) 3 SCC
567 : [1991] 3 SCR 159; I. C. Golak Nath and Others
v. State of Punjab and Another AIR 1967 SC 1643 :
[1967] 2 SCR 762; Bandhua Mukti Morcha v. Union
of India and Others (1984) 3 SCC 161:[1984] 2 SCR
67; In Re. Delhi Laws Act, 1912 AIR 1951 SC 332:
[1951] SCR 747; Madras Bar Association v. Union of
India 2021 SCC OnLine SC 463; Indira Nehru Gandhi
v. Raj Narain & Ors. (1975) Suppl. SCC 1 : [1976] 2
SCR 347; Indian Aluminium Co. and others v. State of
Kerala and others (1996) 7 SCC 637 : [1996] 2 SCR
23 ; State of U.P. v. Jeet S. Bisht (2007) 6 SCC 586 :
[2007] 7 SCR 705 ; Divisional Manager, Aravali Golf
Club and Another v. Chander Hass and Another (2008)
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1 SCC 683 : [2007] 12 SCR 1084; Asif Hameed v. State
of J & K (1989) Suppl.2 SCC 364 : [1989] 3 SCR 19;
Common Cause v. Union of India and Others (1996) 1
SCC 753 :[1996] 1 SCR 89 ; Divisional Manager,
Aravali Golf Club and Another v. Chander Hass and
Another (2008) 1 SCC 683 : [2007] 12 SCR 1084 ;
State of T.N. v. State of Kerala and another (2014) 12
SCC 696 : [2014] 12 SCR 875 ; N.P. Ponnuswami v.
Returning Officer, Namakkal AIR 1952 SC 64 : [1952]
0 SCR 218; Jyoti Basu and Others. Debi Ghosal and
Others. (1982) 1 SCC 691 : [1982] 3 SCR 318 ; Mohan
Lal Tripathi vs. District Magistrate, Raibraally and
others (1992) 4 SCC 80 : [1992] 3 SCR 338 ; Rama
Kant Pandey v. Union of India (1993) 2 SCC 438 :
[1993] 1 SCR 786; Anukul Chandra Pradhan,
Advocate Supreme Court v. Union of India and others
(1997) 6 SCC 1 : [1997] 1 Suppl. SCR 641; Shyamdeo
Pd. Singh v. Nawal Kishore Yadav (2000) 8 SCC 46 :
[2000] 2 Suppl. SCR 668 ; People's Union for civil
Liberties (PUCL) and Another vs. Union of India and
Another (2003) 4 SCC 399 : [ 2003] 2 SCR 1136;
Kuldip Nayar and Others v. Union of India and Others
(2006) 7 SCC 1 : [2006] 5 Suppl. SCR 1; K. Krishna
Murthy v. Union of India (2010) 7 SCC 202 : [2010] 6
SCR 972 ; Chief Election Commissioner and Others v.
Jan Chaukidar (Peoples Watch) and Others [2013] 10
SCR 641; Desiya Murpokku Dravida Kazhagam
(DMDK) and another v. Election Commission of India
(2012) 7 SCC 340 : [2012] 3 SCR 1084 ; S.R.
Chaudhuri v. State of Punjab and Others (2001) 7 SCC
126 : [2001] 1 Suppl. SCR 621; B.R. Kapur v. State of
T.N. and Another (2001) 7 SCC 231:[2001] 3 Suppl.
SCR 191; B.P. Singhal v. Union of India and Another
(2010) 6 SCC 331; Mohinder Singh Gill and Another
v. Chief Election Commissioner, New Delhi and Others
(1978) 1 SCC 405 : [1978] 2 SCR 272 ; Digvijay Mote
v. Union of India and Others (1993) 4 SCC 175 : [1993]
1 Suppl. SCR 553; All Party Hill Leaders Conference
Shillong v. Captain W.A. Sangma and Others (1977) 4
ANOOP BARANWAL v. UNION OF INDIA
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SUPREME COURT REPORTS
[2023] 9 S.C.R.
SCC 161 : [1978] 1 SCR 393 ; Kanhiya Lal Omar v.
R.K. Trivedi and Others (1985) 4 SCC 628 : [1985] 3
Suppl. SCR 1; Election Commission of India v. State
Bank of India Staff Association Local Head Office Unit,
Patna and Others (1995) suppl.2 SCC 13 : [1995] 1
SCR 935; Common Cause (A Registered Society) v.
Union of India and Others (1996) 2 SCC 752:[1996] 3
SCR 1208 ; Election Commission of India v. Ashok
Kumar and Others (2000) 8 SCC 216 : [2000] 3 Suppl.
SCR 34; Ashok Shankarrao Chavan v. Madhavrao
Kinhalkar (2014) 7 SCC 99 : [2014] 14 SCR 1227;
Abhiram Singh v. C.D. Commachen (DEAD) by Legal
Representatives and others (2017) 2 SCC 629: [2017]
1 SCR 158; Shri Sadiq Ali and another v. Election
Commission of India, New Delhi and others (1972) 4
SCC 664 : [1972] 2 SCR 318; Janata Dal (Samajwadi)
v. Election Commission of India (1996) 1 SCC 235:
[1995] 5 Suppl. SCR 592 ; Indian National Congress
(I) v. Institute of Social Welfare and others (2002) 5
SCC 685 : [2002] 3 SCR 1040 ; Subramanian Swamy
v. Election Commission of India through its Secretary
(2008) 14 SCC 318 : [2008] 13 SCR 846; Edapaddi
K. Palaniswami v. T.T.V. Dhinakaran and others [2019]
3 SCR 200; Public Interest Foundation and others v.
Union of India and others (2018) 3 SCC 224 : [2018]
10 SCR 141; Lakshmi Kant Pandey v. Union of India
(1984) 2 SCC 244 : [1984] 2 SCR 795; Union Carbide
Corporation and others. v. Union of India and others
(1991) 4 SCC 584 : [1991] 1 Suppl. SCR 251; Delhi
Judicial Service Association, Tis Hazari Court, Delhi v.
State of Gujarat and others (1991) 4 SCC 406:[1991]
3 SCR 936; Manoj Narula v. Union of India (2014) 9
SCC 1 : [2014] 9 SCR 965 ; Bhanumati and others v.
State of U.P. through its Principal Secretary and others
(2010) 12 SCC 1 : [2010] 7 SCR 585; Kalpana Mehta
and others v. Union of India and others (2018) 7 SCC
1 : [2018] 4 SCR 1 - referred to.
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per AJAY RASTOGI, J.
1. Indian democracy will work only when the institutions
which have the responsibility to preserve democracy work. Each
institution in our Constitution has its demarcated role, which can
only be fulfilled if the people who are running these institutions
are responsible. The people who run these institutions need to
be accountable to the people, and therefore the process of
selecting them has to ensure the independence of the institution.
To strengthen the democratic processes, the institution of the
Election Commission needs to be independent and demonstrate
transparency and accountability. This reason is enough in itself
to call this Court to examine the institutional structure of the
Election Commission of India. [Paras 25 and 28][191-B, E-F]
2. By virtue of Article 326, the right to vote became a
constitutional right granted to citizens. The said right was given
effect by Section 62 of Representation of the People (ROP) Act,
1951. Section 62(1) of ROP Act provides: "No person who is not,
and except as expressly provided by this Act, every person who
is, for the time being entered in the electoral roll of any
constituency shall be entitled to vote in that constituency." The
legal position is that the relevant provision of the ROP Act is
derived from the text of the Constitution, which in this case, is
Article 326. The right to take part in the conduct of public affairs
as a voter is the core of the democratic form of government,
which is a basic feature of the Constitution. The right to vote is
an expression of the choice of the citizen, which is a fundamental
right under Article 19(1)(a). The right to vote is a part of a citizen's
life as it is their indispensable tool to shape their own destinies
by choosing the government they want. In that sense, it is a
reflection of Article 21. In history, the right to vote was denied to
women and those were socially oppressed. Our Constitution took
a visionary step by extending franchise to everyone. In that way,
the right to vote enshrines the protection guaranteed under
Article 15 and 17. Therefore, the right to vote is not limited only
to Article 326, but flows through Article 15, 17, 19, 21. Article
326 has to be read along with these provisions. It is declare the
right to vote in direct elections as a fundamental right, subject to
limitations laid down in Article 326. [Paras 46 and 68][197-D-F;
205-G-H; 206-A-B]
ANOOP BARANWAL v. UNION OF INDIA
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SUPREME COURT REPORTS
[2023] 9 S.C.R.
3. The right to vote is not merely a constitutional right, but
a component of Part III of the Constitution as well, it raises the
level of scrutiny on the working of the Election Commission of
India, which is responsible for conducting free and fair elections.
As it is a question of constitutional as well as fundamental rights,
this Court needs to ensure that the working of the Election
Commission under Article 324 facilitates the protection of
people's voting rights. [Para 69][206-C-E]
4. Both Article 324 of the Constitution and the Election
Commission (Conditions of Service of Election Commissioners
and Transaction of Business) Act, 1991 are silent on the selection
process of the Chief Election Commissioner and the Election
Commissioner. [Para 90][211-F]
5. This Court has plenary power under Article 142 to issue
directions to do "complete justice". An analysis of the judgments
of this Court shows that the Court has created jurisprudence,
where it has exercised its power under Article 142 to fill legislative
gaps. The series of case laws authoritatively demonstrate the
commitment of this Court to intervene to preserve and promote
the "Rule of Law", by supplementing the legislative gaps till the
Legislature steps in. This has been done in exercise of the plenary
power of this Court under Article 142 of the Constitution. In order
to fill the legislative vacuum, i.e. the absence of any law made by
the Parliament for the appointment of members of the Election
Commission and in the light of the views expressed in various
reports of the Law Commission, Election Commission, etc., this
Court is of the considered view that the instant case thus aptly
calls for the exercise of the power of this Court under Article
142 to lay down guidelines to govern the process of selection
and removal of Chief Election Commissioner and Election
Commissioners, till the Legislature steps in.[Paras 109,113 and
118][237-A-B; 238-G; 241-E-F]
6. In order to allow independence in the functioning of the
Election Commission as a Constitutional body, the office of Chief
Election Commissioners as well as the Election Commissioners
have to be insulated from the executive interference. The
protection available to the Chief Election Commissioners is not
available to other Election Commissioners. Various reports have
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recommended that the protection against removal available to
the Chief Election Commissioner should be made available to
the other Election Commissioners to ensure the independence
of the Election Commission. In the facts and circumstances,
keeping in view the importance of maintaining the neutrality and
independence of the office of the Election Commission to hold
free and fair election which is a sine qua non for upholding the
democracy as enshrined in our Constitution, it becomes
imperative to shield the appointment of Election Commissioners
and to be insulated from the executive interference. It is the
need of the hour and advisable, to extend the protection available
to the Chief Election Commissioner under the first proviso to
Article 324(5) to other Election Commissioners as well until any
law is being framed by the Parliament. [Paras 119,120 and
125][241-G; 242-C-D; 244-D-F]
7. Until the Parliament makes a law in consonance with
Article 324(2) of the Constitution, the following guidelines shall
be in effect: (1) It is declared that the appointment of the Chief
Election Commissioner and the Election Commissioners shall
be made on the recommendations made by a three-member
Committee comprising of the Prime Minister, Leader of the
Opposition of the Lok Sabha and in case no Leader of Opposition
is available, the Leader of the largest opposition party in the Lok
Sabha in terms of numerical strength and the Chief Justice of
India. (2) It is desirable that the grounds of removal of the Election
Commissioners shall be the same as that of the Chief Election
Commissioner that is on the like grounds as a Judge of the
Supreme Court subject to the "recommendation of the Chief
Election Commissioner" as provided under the second proviso
to Article 324(5) of the Constitution of India. (3) The conditions
of service of the Election Commissioners shall not be varied to
his disadvantage after appointment. [Para 126][244-F-H; 245-AB]
K.S. Puttaswamy and Another v. Union of India and
Others (2017) 10 SCC 1 : [2017] 10 SCR 569 -
followed.
People's Union for Civil Liberties (PUCL) and Another
v. Union of India and Another (2003) 4 SCC 399:
[2003] 2 SCR 1136 ; People's Union for Civil Liberties
v. Union of India (2013) 10 SCC 1 : [2013] 12
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[2023] 9 S.C.R.
SCR 283; Raj Bala v. State of Haryana and Others
(2016) 1 SCC 463 : [2015] 9 SCR 113; Unnikrishnan
J.P. and Others v. State of Andhra Pradesh and Others
[1993] 1 SCR 594 : (1993) 1 SCC 645; T.N. Seshan,
Chief Election Commissioner of India v. Union of India
and Others (1995) 4 SCC 611 : [1995] 2 Suppl. SCR
106 - relied on.
N.P. Ponnuswami v. Returning Officer, Namakkal
Constituency and Others [1952] SCR 218 : 1952 AIR
64; Mohindhr Singh Gill and Another v. Chief Election
Commissioner, New Delhi and Others.