# \ S.S. DHANOA v. UNION OF INDIA AND ORS

- **Citation:** [1991] 3 S.C.R. 159
- **Court:** Supreme Court of India
- **Decided:** 1991-07-24
- **Bench:** M.H. Kania, P.B. Sawant
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-s-dhanoa-v-union-of-india-and-ors-11205
- **Pages:** 25

## Headnote

B
Constitution of India, 1950: Article 324. Election CommissionPresident's Notification-Determination of number and appointment of
Election Commissioners-Ru/es providing ,tenure of 5 years or upto
superannuation age of 65 years-Subsequent notification by President
-Abolition of the post of Election Commissioners-Whether ma/a fide, C
whether affects independence of Election Commission-Material loss to
incumbents-Whether exigency of employment-Flashing of photographs of Election Commissioners while announcing their removal on
TV deprecated.
Election Commission-Salient features and composttwn of~ p
Appointment of Chief Election Commissioner is obligatory-Appointment of other Election Commissioners is not obligatory-Comn,ission's
work should warrant appointment of other Election CommissionersDistinction in service conditions and tenure of the Chief Election Commissioner and other £/ection Commissioners-What is-Chief Election
Commissioner whether primus inter partes-Need for laying down the E
. procedure for transacting the business of Election Commission
emphasised.
Article 324(2) of the Constitution empo~ers the President to fix
and appoint such number of Election Commissioners as he may from
time to time determine. By a notification dated 7.10.1989 the President F
fixed the number of Election Commissioners at two. By another notification dated 16.10.89, the President appointed the petitioner and
another person as El~ction Commissioners. Simultaneously, the President also promulgated the rules regulating the conditions of service and
tenure of the Election Commissioners under which an Election Commissioner was to hold office for a ferm of five years or until he attained the O
age of 65 years whichever was earlier.
However, on Isl January, 1990, the President issued two notifications rescinding the earlier two notifications dated 7.10.89 and
16.10.89. Consequently, the two posts of Election Commissioners were
abolished and the appointment of the petitioner and the other ElectiolJ
H
(:ommissioner came to an end.
159
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160
SUPREME COURT REPORTS
I 1991) 3 S.C.R.
The petitioner filed a writ petition in this Court challenging the
legality of the notifications dated 1st January, 1990 contending that: (a)
the Election Commission being an independent body, the abolition of
the posts of Election Commissioners and their consequent removal
tampered with the independence of the Election Commission directly or
indirectly; (b) in view of the service rules made by the President the
Election Commissioners were entitled to continue in office for full
tenure of five years or until they attained the age of 65 years whichever was earlier; (c) the notification abolishing the two posts and
removing the petitioner and the other Election Commissioner were
issued ma/a fide under the advice of the Chief Election Commissioner; (d) Petitioner's removal affected him materially; and (e) the
flashing of the photographs of the petitioner and. other Election Commissioner while announcing their removal on the television during a
· news bulletin subjected them to severe loss of dignity and reputation.
Dismissing the petition, this Court,
D
HELD: 1. The Election Commission as envisaged by the Constitution is an independent institution and has to function as such. In the
~
discharge of its duties and functions it is not amenable to the control of
any other body. The salient features of the composition of the Election
Commission as given in Article 324 are that the Commission shall
always consist of a permanent incumbent, viz. the Chief Election ComE
missioner. But the President has also been given the power to appoint
such number of other Election Commissioners as he may, from time to
time, fix. While the appointment of the Chief Election Commissioner is
a must, the appointment of the other Election Commissioner or Commissioners is not obligatory. The number of other Election Commissioners is left to the discretion of the President depending upon the need
F
felt

## Text

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S.S. DHANOA
A
v.
UNION OF INDIA AND ORS.
JULY 24, 1991
[M.H. KANIA AND P.B. SAWANT, JJ]
B
Constitution of India, 1950: Article 324. Election CommissionPresident's Notification-Determination of number and appointment of
Election Commissioners-Ru/es providing ,tenure of 5 years or upto
superannuation age of 65 years-Subsequent notification by President
-Abolition of the post of Election Commissioners-Whether ma/a fide, C
whether affects independence of Election Commission-Material loss to
incumbents-Whether exigency of employment-Flashing of photographs of Election Commissioners while announcing their removal on
TV deprecated.
Election Commission-Salient features and composttwn of~ p
Appointment of Chief Election Commissioner is obligatory-Appointment of other Election Commissioners is not obligatory-Comn,ission's
work should warrant appointment of other Election CommissionersDistinction in service conditions and tenure of the Chief Election Commissioner and other £/ection Commissioners-What is-Chief Election
Commissioner whether primus inter partes-Need for laying down the E
. procedure for transacting the business of Election Commission
emphasised.
Article 324(2) of the Constitution empo~ers the President to fix
and appoint such number of Election Commissioners as he may from
time to time determine. By a notification dated 7.10.1989 the President F
fixed the number of Election Commissioners at two. By another notification dated 16.10.89, the President appointed the petitioner and
another person as El~ction Commissioners. Simultaneously, the President also promulgated the rules regulating the conditions of service and
tenure of the Election Commissioners under which an Election Commissioner was to hold office for a ferm of five years or until he attained the O
age of 65 years whichever was earlier.
However, on Isl January, 1990, the President issued two notifications rescinding the earlier two notifications dated 7.10.89 and
16.10.89. Consequently, the two posts of Election Commissioners were
abolished and the appointment of the petitioner and the other ElectiolJ
H
(:ommissioner came to an end.
159
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SUPREME COURT REPORTS
I 1991) 3 S.C.R.
The petitioner filed a writ petition in this Court challenging the
legality of the notifications dated 1st January, 1990 contending that: (a)
the Election Commission being an independent body, the abolition of
the posts of Election Commissioners and their consequent removal
tampered with the independence of the Election Commission directly or
indirectly; (b) in view of the service rules made by the President the
Election Commissioners were entitled to continue in office for full
tenure of five years or until they attained the age of 65 years whichever was earlier; (c) the notification abolishing the two posts and
removing the petitioner and the other Election Commissioner were
issued ma/a fide under the advice of the Chief Election Commissioner; (d) Petitioner's removal affected him materially; and (e) the
flashing of the photographs of the petitioner and. other Election Commissioner while announcing their removal on the television during a
· news bulletin subjected them to severe loss of dignity and reputation.
Dismissing the petition, this Court,
D
HELD: 1. The Election Commission as envisaged by the Constitution is an independent institution and has to function as such. In the
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discharge of its duties and functions it is not amenable to the control of
any other body. The salient features of the composition of the Election
Commission as given in Article 324 are that the Commission shall
always consist of a permanent incumbent, viz. the Chief Election ComE
missioner. But the President has also been given the power to appoint
such number of other Election Commissioners as he may, from time to
time, fix. While the appointment of the Chief Election Commissioner is
a must, the appointment of the other Election Commissioner or Commissioners is not obligatory. The number of other Election Commissioners is left to the discretion of the President depending upon the need
F
felt from time to time. [169A-B-C]
1.1 However, in the 1natter of the conditions of service and tenure
of office of the Election Cu1nmissioners, a distinction is made between
the Chief Election Commissioner on the one hand and Election Commissioners and Regional Co1nmissioners on the other. Whereas the conG
ditions 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 ElecB
lion Commissioners or to the Regional Commissioners. Their conditions
.\.
S.S. DHANOA v. U.0.1.
161
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. Thus in these two
respects not only the Election Commissioners are not on par with the
Chief Election Commissioner, but they are also 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. [169H, 170A-8-C]
Article 324(4) though spells out the relationship between Election
Commission and Regional Commissioners does not help to throw light
on the relationship between the Chief Election Commissioner and Election Commissioners inter se. The fact that the Regional Commissioners
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are to be appointed by the President in consultation with the Commi•-
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sion to asist the Commission to perform its functions, though places the
Election Commissioners on a higher pedestal than the Regional
Commissioners does not raise them to the status 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. Therefore, it canD
not be held that the Election Commissioners have the same powers
and the authority as the Chief Election Commissioner, and it may well
be that the Chief Election Commissioner has the power to disregard
and override the views of the Election Commissioners the abolition
of their posts therefore least infringed on the independence of the
Commission. [1758, 174H, J75A, 170E, 1808]
1.2 The petitioner and the other Election Commissioners were
appointed when the work of the Commission did not warrant their
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appointment. It is evident from record that the then Government had
thought it fit to make the two appointments although there was no need
to do so. What other considerations weighed with the then Government
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in making the appointment is anybody's guess, and the Court does nut
propose to go into them. However, it w&s expected that the Union of
India would candidly admit the initial mistake of making the said
appointments rather than defend them on non-existent grounds. Not
only there was no need for the said appointments, but also the appointments in the absence of the definition of their roles in the Commission
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were creating an untoward and unworkable situation rendering the
Commission internally torn and ineffectual in its functioning. Thus the
manner of appointment of the Election Commissioners and the attitude
adopted by them in the discharge of their functions was hardly calculated to ensure free and independent functioning of the Commission.
much less its smooth working. [175E, 179C-D, E, 178C]
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SUPREME COURT REPORTS
[1991] 3 S.C.R.
1.2.1 In view of the fact that there was no need for the posts of the
Election Commissioners at the time the appointments were made and
that in the absence of a clear definition of their role in the Commission,
particularly, vis-a-vis the Chief Election Commissioner, the appointments were an oddity, the abolition of the posts far from striking at the
independence of the Commission paved the way for its smooth and
effective functioning. [179H, 180AI
2. The instant case is not a case of a premature termination of
service. It is a clear case of the abolition of posts and the termination of
the service is a consequence thereof. Hence the termination of service is
not open to challenge on the ground of any illegality. [1800-Ej
3. The allegations of mala fides against the Chief Election
Commissioner are hard to accept. The removal of the Election Commissioners was not on the recommendations of the Chief Election Commissioner under the 2nd proviso to clause (5) of the Article 324. Nothing
has been brought on record to show that even otherwise the Government while abolishing the posts had acted on the suggestion of the Chief
Election Commissioner. On the other hand, the records shows that
although tht:re were bickerings even on petty issues, all the decisions
were taken ultimately unanimously. It is, however, another thing that
this unison in working, in the circumstances, could not have been
guaranteed for all time to come, and the Government if they desired the
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continuance of the two Commissioners had an option to make the rules of
business. That the Government chose one rather than the other option
is no ground to allege ma/a fides against them and much less against the
Chief Election Commissioner. [!SIB; 180F-H, 181A]
4. Material loss on account of cutting short of the tenure is not
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unknown in a service career and is one of the exigencies of employment.
The creation and abolition of post is the prerogative of the executive,
and in the present case of the President. Article 324(2) leaves it to the
President to fix and appoint such number of Election Commissioners as
he may from time to time determine. The power to create the posts is
unfettered. So also is the power to reduce or abolish them. If, therefore,
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the President, finding that there was no work for the Election Commis·
sioners or that the Election Commission could not function, decided to
....._
abolish the posts, that was an exigency of the office held by the
petiticmer. [181C-Dj
5. The flashing of the photographs of the petitioner and the other
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Election Commissioner in the news bulletin by the Doordarshan was
S.S. DHANOA v. U.0.L
163
clearly uncalled for. Although there is nothing on record to show at
whose instance it was don~;-:yet the act deserves condemnation in the
strongest language. It was within the powers of the Government to
investigate the incident and it could have offered to investigate the event
and to make proper amends to the petitioner and the other Election
Commissioner. Instead it has casually dismissed the incident by a
mechanical denial of it. The attitude adopted by the Government towards
the erstwhile public servants is strongly disapproved. [182E-F-G-H, 183A]
6. It appears that there is an impression in some quarters lh'!\ if
the Government admits its mistake whether it is committed by the same
Government or the earlier Government, it loses its face. Nothing can.. be
farther from reality. In a democratic regime, the Government represents the people. It adds to its respectability and credibility, if the
Government also owns its mistakes frankly: I 179D-E]
7. 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
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other in the matter of their rights, authority and powers. [174C]
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7. I It is an acknowledged rule of transacting business in a multimember body that when there is ·DO 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
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members or of the members present and voting etc. [174E]
7 .2 In a case such as that of the Election Commission which is not
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merely an advisory body but an executive one, it is difficult to carry on
its affairs by insisting on unanimous decisions in all matters. No procedure has been laid down for transacting the business when Election
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Commissioners are appointed. 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. I 174F-G]
8. 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
power to execute them, _it.is both necessary and desirable that the powers
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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 indeH
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SUPREME COURT REPORTS
[1991] 3 S.C.R.
pendence of an institution depends upon the perso.ns who man it and not
on their number. A single individual may sometimes prove capable of
withstanding all the pulls and pres.sures, which many may not. However, when vast powers are exercised by an institution which is account~
able 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 role have to be clearly defined, if the functioning of the institution
is not to come to a naught. [I 78E-G I
ORIGINAL JURISDICTION: Writ Petition (C) No. 235 of
1990.
(Under Article 32 of the Constitution oi India).
Gopal Subramanium, Ms. Binu Tamta and S. Murlidhar for the
Petitioner.
D
Altaf Ahmad, Additional Solicitor General, Ms. A. Subhashini,
K. Swami, C.S. Vaidyanathan and S.R. Setia for the Respondents.
The Judgment of the Court was delivered by
SA WANT, J. On 7th October, 1989, by a notification issued in
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exercise of the powers conferred by clause (2) of Article 324 of the
Constitution, the President fixed, until further orders, the number of
Election Commi>S!oners (other than the Chief Election Commissioner), at two. By a subsequent notification of 16th October, 1989
issued under the same provisions, the President appointed the
petitioner and one Shri V.S. Seigell as Election Commissioners w.e.f.
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the afternoon of that day. On the same day, by another notification
issued in exercise of the powers conferred by clause (5) of Article 324
of the Constitution, the President made rules to regulate the conditions of service and tenure of office of the Election Commissioners
(other than the Chief Election Commissioner). These conditions laid
down, among other things, that an Election Commissioner shall hold
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office for a term of five years or until he attains the age of 65 years
whichever happens earlier.
2. On 1st 1anuary, 1990, in exercise of the powers conferred
under Article 324(2) of the Constitution. the President issued two
notifications-one rescinding, with immediate effect, the notification of
H 7th October, 1989 creating the two posts of Election Commissioners
S.S. DHANOA v .. U.0.1. [SAWANT. J.]
165
and another rescinding, with immediate effect, the notification of 16th
October, J9S9 by which the appointment of the petitioner and Shri
V.S. Seigell was made. It is these two notifications of 1st January, 1990
which are being assailed in the present petition.
3. The grounds of attack are, firstly, once appointed, an Election Commissioner continues in office for his full tenure determined by
the rules made under Article 324(5) of the Constitution which is five
years or till the attainment of 65 years of age whichever is earlier. The
President could remove the petitioner only on the recommendation of
the Chief Election Commissioner. He had otherwise no power to cut
short the tenure either under the Constitution or under the rules.
Hence, the rescission of the notifications of 7th and 16th October,
1989 by the impugned notifications of !st January, 1990 is illegal.
Secondly, it is urged that the Election Commission is an independent
body and its independence is vital to free and fair elections which are a
sine qua non for democracy. Any interference with the working of the
Election Commission. directly or indirectly, is bound to have adverse
effect on the health of our democracy. Hence, it is of paramount
importance to the democracy enshrined in our Constitution that its
independence is not eroded in any manner. The device adopted in tbe
present case, viz., of the rescission of the notification creating the
posts and thereby abolishing the posts and thus removing the petitioner and the other Election Commissioner was an attempt to remove
the Election Commissioners which removal could not be effected
otherwise either under the Constitution or under the service rules. The
third attack is that the two notifications were issued mala fide under
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the advice of the Chief Election Commissioner with the sole object of
getting rid of the petitioner and the other Election Commissioner
because the Chief Election Commissioner was from the beginning illdisposed towards the creation of the posts of the Election CommisF
sioners. It is also alleged that there were differences of opinion between the Chief Fite.ion Commissioner on the one hand and the Election Commissioners on the other and the former desired that he should
have the sole power of decisi(}n-making in all matters. Lastly, it is
contended that the petitioner's removal affected him materially since
after a distinguisl.~d career as a civil servant he had joined the Bihar
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Public Service Commission as its Chairman only on 30th September,
1989 and had resigned the said post on 14th October, 1989 to join as
Election Commissioner on 16th October, 1989. His career was abruptly ended within less than three months thereafter. It was also urged
that while announcing the removal, his photograph was flashed on the
television during a news-bulletin of 2.1.1990 subjecting him to severe
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SUPREME COURT REPORTS
I 1991] 3 S.C.R.
loss of dignity and reputation. This act also shows ma/a /ides of the
Janata Dal which was a part of the succeeding government and had a
prejudice against him.
4. The petition is resisted by the !st respondent (Union of India)
and the 2nd respondent (the then Chief Election Commissioner). No
separate coun.ter-affidavit is filed on behalf of the 3rd respondentElection Commission. After the sad demise of the 2nd respondent
during the pendency of the petition, he was deleted as a party to the
petition. However, the reply filed by him is being relied upon on
behalf of the other respondents. In the reply filed by the 1st respondent, it is contended that the President had issued the impugned notification rescinding the notification of 7th October, 1989 in bona fide
exercise of his power under the first part of clause (2) of Arlide 324 of
the Constitution which authorises the President to determine the
strength of the Election Commission and fix the number of Election
Commissioners from time to time. There is no limita.tion on the power
of the President to determine and fix the strength of the Election
Commission from time to time. The exercise of the said power is based
on the subjective satisfaction of the President formed on the advice
tendered by the Counsel of Ministers. In SUl.!Jlort.,of this contention, it
is pointed out that whereas Article 324(2) creates an obligation that
the Election Commission shall consist of the Chief Election Commissioner, as regards the appointment of the other Election Commissioners and their number, the matter is left, without any limitation, to
the discretion of the President. It is further pointed out that when the
President had issued the notifications of 7th and 16th October, 1989,
he had expected that on account of the reduction in the lower-age limit
of the voters from 21 to 18 years necessitating revision of the electoral
rolls and the impending statutes, viz., the Panchayat Raj and Nagar
Palika Bills, which were then before the Parliament, the work of the
Election Commission would increase, and to cope up with the same,
the augmentation of the strength of the Election Commissi9n was
necessary. However, the electoral rolls became ready and the two Bills
in question lapsed on 13th October, 1989. Hence, the augmented
strength was considered surplus to the requirement. A decision was,
therefore, taken to abolish the posts and the impugned notification of
7th October, 1989 was rescinded. Consequent upon it, the appointments of the petitioner and the other Election Commissioner came to
an end. It was not necessary to issue another notification to rescind the
notification of 16th October, 1989 by which the said appointments
were made. However. by way of abundant precaution, the notification of 16th October, 1989 was also rescinded by another notification
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S.S. DHANOA v. U.0.1. [SAWANT. J.j
167
of 1st January, 1990. It was, thus, according to the !st respondent. a
case of a termination of service of the petitioner consequent upon the
abolition of the post. It was not a case of a removal of the petitioner
from service as alleged by the petitioner. In the affidavit filed by the
2nd respondent, he has been candid in stating that there was in fact no
need of any Election Commissioner and the Chief Election Commissioner along with his then machinery was capable of coping with the
work. However, after the appointment of the Election Commissioners, the Election Commission took decisions on all matters unanimously although there were differences of opinion. There was no occasion for the Chief Election Commissioner either to resent the appointment of the petitioner and the other Election Commissioner or to
recommned their removal. In fact, the petitioner himself has admitted
in the petition that the Chief Election Commissioner had at no stage
made any recommendation for his removal or for the removal of the
other Election Commissioner. He has also vehemently denied the allegations made against him qua the various incidents and has contended
the all his ac.tions were in conformity with law and the past practices of
the Commission.
5. Article 324 of the Constitution reads as follows:
"324. Superintendence, direction and control of elections
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to be vested in an Election Commssion.·-( I) The superintendence, direction and control of the preparation of the
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elecroral rolls for, and the conduct of, all elections to
Parliament, and to the Legislature of every State and of
elections to the offices of President and Vice-President
held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election
Commission).
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2. The Election Commission shall consist of the
Chief Election Commissioner and such number of other
Election Commissioners, if any, as the President may fron1
time to time fix and the appointment of the Chief Election
Commissioner and other Election Commissioners shall.
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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.
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(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
consultation 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 Commis·
sioners 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 provisions of clause ( 1) of the Article show that the
superintendence, direction and control of the preparation of the
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electoral rolls for and the conduct of all elections to Parliament and to
the Legislature of every State and of elections to the offices of the
President and Vice-President are vested in the Election Commission.
The relevant provisions of the Representation of the People Act, 1950
and of the Representation of the People Act, 1951 further show that
various functions are entrusted to, and powers are conferred upon, the
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Commission in the matter of the conduct of election to the Parliament
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S.S. DHANOA v. U.0.1. [SAWANT. J.]
169
and to the Legislatures of the States. Jn the discharge of these duties
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and in the exercise of these powers, the Commission has to act on its
own and to take various dicisions and implement them as an independent body. In the discharge of its duties and functions, it is not amenable to the control of any other body. There is no doubt, therefore,
that the Election Commission as envisaged by the Constitution is an
independent institution and has to function as such.
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6. The salient features of the composition of the Election Commission as given in clauses (2), (3) and{ 4) of the Article are that the
Commission shall always consist of a perm'lnent incumbent, viz., the
Chief Election Commissioner. But the Preside.nt has also been given
the power to appoint such number of other Election Commissioners as
he may, from time to time, fix. In other words, \llhile. the appointment
of the Chief Election Commissioner is a must, the appointment of the
other Election Commissioner or Commissioners is <not obligatory.
What is further, the number of other Election Commissioners is left to
the descretion of the President depending upon the need felt from .time
to time. This would mean that both the increase and the reduction in
the number of the Election Commissioners would depend upon the
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requirements of the time as assessed by the President.
7. The power given to the Preside,nt to appoint the Chief Election Commissioner and other E.lection Commissioners is subject to the
provisions of any law that may be made by the Parliament in that
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behalf. The Parliament has thus reserved to itself the power to regulate these appointments. It is obvious from clauses (2) and (3), that
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when the Commission consists only of Chief Election Commissioner, it
is he who alone constitutes the Commission and acts as such. However, when other Election Commissioners are appoirtted, the Commission consists of both the Chief Election Commissioner and the other
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Election Commissioners and together they constitute the Commission.
In such a case, the Chief Election Commissioner acts as the Chairman
of the Election Commission.
8. Clause ( 4) of the Article gives power to the President to
appoint, after consulting the Election Commission, such Regional
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Commissioners as he may consider necessary to assist the Election
Commission in the performance of the functions conferred on the
Commission. The Regional Commissioners abviously do not constitute
the Commission but are appointed to assist it.
9. However, in the matter of the conditions of service and
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[1991] 3 S.C.R.
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 Commissillners 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.
10. 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
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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
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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. In this connection, the controversy as to whether there should
be a one 1nember Commission or a multi-member Commission also
assumes a little importance since it throws light both on the genesis of
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Article 324 as well as its implications. We may first refer to the relevant discussion on the subject in the Constituent Assembly.
11. In the Draft Constitution, the present Article 324 was
numbered as Article 289. It appears from Dr. Ambedkar's introductory comments on the Article (Constitu~nt Assembly Debates, Vol.
H VIII p. 905) that the Drafting Committee appointed on the Fundamen-
S.S. DHANOA v. U.O.l. {SAWANT, J.{
171
ta! Rights had made a report that the independence of the electipns
and the avoidance of any interference by the executive in the elections
to the legislature should be regarded as a Fundamental Right and
provided for, in the Chapter dealing with Fundamental Rights. When
the matter came up before the House, it was decided to treat it as of
fundamental importance but to provide for it in some other part of the
Constitution and not in the chapter dealing with Fundamental Rights.
The House had affirmed without any kind of dissent that in the
interests of purity and freedom of elections, the Commission should be
free from any kind of interference from the executive of the day.
Article 289 (now Article 324) wa:s designed to carry· out that part of the
decision of the House. Explaining the provisions of clause (2) of the
Article, Dr. Ambedkar staled that there were two alternatives before
the Drafting Committee, viz., either to have a permanent body consisting of 4 or 5 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 Drafting Committee had steered a middle
course. What the Committee proposed by the said clause was to have
permanently in office one man called the Chief Election Commissioner
so that the skeleton machinery would always be available .. This was felt
sufficient, taking into consideration all exigencies. At the same time, it
was felt that when the elections come up, the President may add to the
machinery by appointing other members of the Commission. Commenting upon clause (4) of the then Article 289 (rrow clause (5) of
Article 324), Dr. Ambedkar stated as follows:
"So far as clause (4) is concerned, we have left the matter
to the President to determine the conditions of service and
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the tenure of office of the members of the Election Commission, subject to one or two conditions, that the Chief
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Election Commissioner shall not be liable to be removed
except in the same manner as a Judge of the Supreme
Court. If the object of this House is that all matters relating
to Elections should be outside the control of the Executive
Government of the day, it is absolutely necessary that the
new machinery which we are setting up, namely, the ElecG
tion Commission should be irremovable by. the executive
by a mere fiat. We have, therefore, given the Chief Election Commissioner the same status so far as removability is
concerned as we have given to the Judges of the Supreme
Court. We, of course,.do not propose to give.the same status
to the other members of the Commission. We have left the
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matter to the President as to the circumstances under which
he would deem fit to remove any other member of the
Election Commission, subject to one .condition that the
Chief Election Commissioner must recommend that the
removal is just and proper.
(Emphasis supplied)
Prof. Shibban Lal Saksena wanted, among other things, the
appointment of the Chief Election Commissioner as well as of the
Election Commissioners to be confirmed by two-third majority in a
joint session of both Houses of Parliament. He also wanted both the
Chief Election Commissioner and the Election Commissioners to be
removed by the same process, viz., in like manner and on the like
grounds as a Judge of the Supreme Court, and non-variation of the
service conditions of the Election Commissioners to their disadvantage
as was provided for in the service conditions of the Chief Election
Commissioner. This amendment was supported, among others, by
Pandit Hriday Nath Kunjru. The amendments were not accepted by
the House, and the distinction between the Chief Election Commissioner and the Election Commissioners with regard to the security of
the service conditions and the procedure of their removal was
maintained as was proposed.
12. It appears that the issue whether the Commission should be
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uni-member or multi-member had remained alive even after the adoption of the Constitution, and it cannot be said that it has lost its relevance even today. This is clear from the Election Commission's
reports of the earlier period. The 2nd respondent in the Commission's
report for 1986-87, had· referred to this issue and observed therein, as
pointed out by the petitioner himself, as follows:
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"though three of the former Chief Election Commissioners
have opposed a multi-member body on the ground, inter
alia, that quick decisions are needed in Election matters
and the Commission acts in actual practice in consultations
with various authorities, agencies and that a process of
deliberation precedes its decisions and there is considerable force in what they have said, it would, in view of the
demand from certain quarters for a multi-member Commission, be desirable to eBmine the proposal and take a
decision after ascertaining the views of the various political
parties. A suggestion to tliis effect was made to the
Government by the Commission through its letter dated
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S.S. DHANOA v. U.O.l. [SAWANT, J.]
173
October 29, 1986 to the Law Minister".
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As stated by the 2nd respondent, the then Prime Minister had
categorically stated in Parliament in December 1988 that he was
against a multi-member Election Commission. It is presumed that this
statement was made by the Prime Minister after the Government had
considered the views expressed by the 2nd respondent in his letter of
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29th October, 1986 to the Law Minister.
13. Unfortunately, there was no discussion in the Constituent
Assembly on the subject of the procedure to be adopted by the Commission in transacting its business when Election Commissioners are
appointed in addition to the Chief Election Commissioner. We are
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also not aware as to what precise relationship between the Chief Elec- ·
tion Commissioner and the other Election Commissioners, if and when
appointed, was assumed by the earlier three Chief Election Commissioners when they opposed the multi-member Election Commission
or what suggestion was made by the 2nd respondent with regard to
the said relati"nship in his letter of 29th October, 1986 to the Law
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Minister. As we have seen from the provisions of clause (3) of Article
324, all that the Article says is that when any other Election Commissioner is appointed. the Chief Election Commissioner shall act as the
Chairman of the Election Commission.
14. What is, therefore, evident from the discussion of the
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framers of the Constitution is, firstly, they did not want to give the
same status to the Election Commissioners as of the Chief Election
Commissioner and, secondly, they wanted the Chief Election Commis-
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sioner to be in overall control of the business of the Commission. The
nearest analogy of another Constitutional institution that comes to our
mind in this connection, is that of the Council of Ministers under
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Articles 74 and 163 of the Constitution. The Prime Minister and the
Chief Minister, as the case may be, are at the head of the Council of
Ministers and they together with the other Ministers constitute the
Council. They are, however, not bound by the views of the other
Ministers and may even override them. Nor have the other Ministers
the same power as the Prime Minister or the Chief Minister. There is
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also "~me similarity between the powers of the Prime Minister and the
Chief Minister on the one hand and the Chief Election Commissioner
on the other, in the matter of recommendations for the removal of the
other Ministers and Commissioners respectively. There is no doubt
that there is an important distinction between the Council of Ministers
and the Election Commission in that whereas the Prime Minister or
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the Chief Minister is appointed by the President or the Governor and
the other Ministers are appointed by the President or the Governor on
the advice of the Prime Minister or the Chief Minister, the appointment of both the Chief Election Commissioner and the other Election
Commissioners as the law stands today, is made by the President under
Article 324(2) of the Constitution. It has, however, to be noted that
the provisions of the said Article have left the matter of appointment
of the Chief Election Commissioner and the other Election Commissioners to be regulated by a law to be made by the Parliament, and the
President exercises the power of appointing them today because of the
absence of such law which has yet to be made. In pointing out these
similarities we do not intend to place the two institutions on par.
Instead, we want to stress 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.