# T.N. SESHAN, CHIEF ELECTION COMMISSIONER "'!'-'-. OF INDIA ETC v. UNION OF INDIA AND OTHERS

- **Citation:** [1995] Supp. 2 S.C.R. 106
- **Court:** Supreme Court of India
- **Decided:** 1995-07-14
- **Bench:** A.M. Ahmadi, J.S. Verma N.P. Singh, S.P. Barucha, M.K. Mukherjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/t-n-seshan-chief-election-commissioner-of-india-etc-v-union-of-india-and-others-13086
- **Pages:** 35

## Headnote

,,
Constitution of India: Clause (1) of Art. 123.
c
Promulgation of Ordinance-Exercise of Power by the President, under
Art 123( 1) of the Constitution of India-Ordinance (No. 32 of 1993) entitled
"The Chief Election Commissioner & other Election Commissioners (Conditions of Seroice) Amendment Ordinance 1993'~ amended, substituted, and
D
inserted certain provisions to the "Chief Election Commissioner & other
Commissioners (Condition of S eroice) Act 1991''-Detennining the conditions
of seroice of the Chief Election Commissioner and other Election Commissioners and to provide for the procedure for transaction of the business by the
Election Commission and for matters connected therewith or incidental
thereto.
...
E
Constitution of India-Art 324. ·
Superintendence, direction and control of elections to be vested in an
Election Commission Exercise of Powers under Art. 324(2), of the Constitution of India-Number of Election Commissioner, beside the CEC was fixed
F
at tw~By subsequent notification, two ECs were appointed-Validity of the
Ordinance, notifications and the consequential orders and appointmentsWhether arbitrary and ultra vires the Constitution.
Interpretation of clause 2 of Article 324-Whether envisages a multiG member Election <;:ommission. Distinction between CEC and other ECsWhether essentially on account of their tenure-By virtue of Ordinance, CEC
and ECs are placed at par in the matter of salary etc.
First proviso to clause (5) of Art. 324-Whether the type of ir-
"'
removability con/ e1Ted on the Chief Election Commissioner is an indicia for
,......
H confening a higher status on him vis-a-vis the otherElection Commissioners.
106
--
T.N.SESHAN v. U.0.1.
107
in a multi-member body-Wliether Chief Election Commission is obliged to A
act as its Chaimwn-Fzmction of Election Commissioner-Wliether merely
advis01y--ldea of exclusive decision making power in the Chief Election
Commissioner-Not conducive to democratic principles.
The Chief Election Commissioner and other Election Commissioners
(Condition of Service) Ordinance, (now Act) 1993.
Chapter III of the Chief Election Commissioner and other Election
Commissioners (Condition of Service) Act, 1993,-Sec. 9, 1<>--Constitutional
validity of-Question of legislative competence-Clauses 2 and 5 of Article
B
324, contemplates and expressly provides a statute for appointment of ElecC
tion Commissioners and for their conditions of service-Hence provisions to
that effect cannot be challenged as unconstitutional.
Status of Chief Election Commissioner-Whether akin to a judge of the
Supreme Court of India-The position of Chief Election Commission in the
Wa"ant of precedence-Whether requires reconsideration-Government D
should not confer equivalence ·or interfere with the WWTant 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.
By an amendment Ordinance (now Act) entitled "The Chief Election E
Commissioner and other Election Commissioners (Condition of Service)
Ordinance, 1993." (hereinafter referred to as the Ordinance) the "Chief
Election Commissioner and other Commissioners (Condition of Service
Act) 1991" was sought to be amended and accordingly the number of
Election Commissioners, besides the Chief Election Commissioner was F
fixed two. Subsequently, in exercise of its powers under Clause 2 Art. 324,
the President of India, by notification dated 1.10.1993 appointed the two
Election Commissioners.
The validity of· the said Ordinance as well as the consequential
notification was assailed by the incumbent Chief Election Commissioner G
and another, as being arbitrary and unconstitutional. Writ Petitions were
filed in the Supreme Court for a declaration that the ordinance was
arbitrary, ultra vires the Constitution and hence void and also for quashing the said notification and the appointments of the two Election Commissioners.
H
108
SUPREME

## Text

_Characters 0–39,994 of 89,310. This is a partial read: ask again with offset=39994 for what follows._

A
T.N. SESHAN, CHIEF ELECTION COMMISSIONER
"'!'-'-.
OF INDIA ETC.
v.
UNION OF INDIA AND OTHERS
B
JULY 14, 1995
[A.M. AHMADI, CJ, J.S. VERMA N.P. SINGH, S.P. BARUCHA
AND M.K. MUKHERJEE, JJ.]
,,
Constitution of India: Clause (1) of Art. 123.
c
Promulgation of Ordinance-Exercise of Power by the President, under
Art 123( 1) of the Constitution of India-Ordinance (No. 32 of 1993) entitled
"The Chief Election Commissioner & other Election Commissioners (Conditions of Seroice) Amendment Ordinance 1993'~ amended, substituted, and
D
inserted certain provisions to the "Chief Election Commissioner & other
Commissioners (Condition of S eroice) Act 1991''-Detennining the conditions
of seroice of the Chief Election Commissioner and other Election Commissioners and to provide for the procedure for transaction of the business by the
Election Commission and for matters connected therewith or incidental
thereto.
...
E
Constitution of India-Art 324. ·
Superintendence, direction and control of elections to be vested in an
Election Commission Exercise of Powers under Art. 324(2), of the Constitution of India-Number of Election Commissioner, beside the CEC was fixed
F
at tw~By subsequent notification, two ECs were appointed-Validity of the
Ordinance, notifications and the consequential orders and appointmentsWhether arbitrary and ultra vires the Constitution.
Interpretation of clause 2 of Article 324-Whether envisages a multiG member Election <;:ommission. Distinction between CEC and other ECsWhether essentially on account of their tenure-By virtue of Ordinance, CEC
and ECs are placed at par in the matter of salary etc.
First proviso to clause (5) of Art. 324-Whether the type of ir-
"'
removability con/ e1Ted on the Chief Election Commissioner is an indicia for
,......
H confening a higher status on him vis-a-vis the otherElection Commissioners.
106
--
T.N.SESHAN v. U.0.1.
107
in a multi-member body-Wliether Chief Election Commission is obliged to A
act as its Chaimwn-Fzmction of Election Commissioner-Wliether merely
advis01y--ldea of exclusive decision making power in the Chief Election
Commissioner-Not conducive to democratic principles.
The Chief Election Commissioner and other Election Commissioners
(Condition of Service) Ordinance, (now Act) 1993.
Chapter III of the Chief Election Commissioner and other Election
Commissioners (Condition of Service) Act, 1993,-Sec. 9, 1<>--Constitutional
validity of-Question of legislative competence-Clauses 2 and 5 of Article
B
324, contemplates and expressly provides a statute for appointment of ElecC
tion Commissioners and for their conditions of service-Hence provisions to
that effect cannot be challenged as unconstitutional.
Status of Chief Election Commissioner-Whether akin to a judge of the
Supreme Court of India-The position of Chief Election Commission in the
Wa"ant of precedence-Whether requires reconsideration-Government D
should not confer equivalence ·or interfere with the WWTant 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.
By an amendment Ordinance (now Act) entitled "The Chief Election E
Commissioner and other Election Commissioners (Condition of Service)
Ordinance, 1993." (hereinafter referred to as the Ordinance) the "Chief
Election Commissioner and other Commissioners (Condition of Service
Act) 1991" was sought to be amended and accordingly the number of
Election Commissioners, besides the Chief Election Commissioner was F
fixed two. Subsequently, in exercise of its powers under Clause 2 Art. 324,
the President of India, by notification dated 1.10.1993 appointed the two
Election Commissioners.
The validity of· the said Ordinance as well as the consequential
notification was assailed by the incumbent Chief Election Commissioner G
and another, as being arbitrary and unconstitutional. Writ Petitions were
filed in the Supreme Court for a declaration that the ordinance was
arbitrary, ultra vires the Constitution and hence void and also for quashing the said notification and the appointments of the two Election Commissioners.
H
108
SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.
A
In support of the petitions, it was contended that (a) .The intention
B
c
behind issuing the ordinance was purely ma/aft.de, in order to sideline the
Chief Election Commissioner 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 Election Commissioner. (b) Article 324 of the
Constitution, does not give any power to the Parliament to frame rules for
transaction of business of the Election Commission. Hence, Sec. 9 and 10
of the ordinance are inconsistent with the scheme underlying article 324
and therefore ultra vires the Constitution. Also the provisions laid down
by the said Sections are arbitrary and unworkable, (C) The notification
fixing the number of Election Commissioners at two is arbitrary and
violative of Article 14 of the Constitution.
The respondents on the other hand, resisted the petitions contending
that:
(a) The language of Article 324(2) envisages a multi- member ComD
mission and therefore, any excise 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 ultra vires the.
Constitution. (b) The decision to convert the Election Commission into a
multi member body had not connection with the alleged discomfiture of
E
F
the ruling party at the centre on account of the stiff attitude of the Chief
Election Commissioner. (c) The Ordinance was framed keeping in view the
observations made by this Court in the case of S.S. Dhanoa v. Union of
India and Ors., [1991) 3 SCC 567. (d) A multi- member body would not
have been able to function Without a supporting ~tatute providing for,
dealing with different situations likely to arisen the course of transaction
of its business. A provision that lays down the rule of majority in the event
of a difference of opinion amongst its members is, therefore consistent with
the democratic principles and can never be described as arbitrary or ultra
vires Article 14 of the Constitution.
G
Dismissing the writ petitions, this Court
HELD: 1.1. Our constitution makers entrusted the responsibility to
hold free and fair elections and the task of conducting such elections in
the country to an independent body, insulated from political and/or exeeutive interference. This objective is achieved by setting up an Election
H Commission, a permanent body under Article 324(1) of the Constitution.
--... -
T.N.SESHAN v. U.0.1.
109
Clause (2) of Art. 324 provides that the said Commission shall consist of A
the Chief Election Commissioner and such number of Election Commissioners, if any, as the President may fix from time to time. [119-E-G]
1.2. The concept of plurality is writ large on the face of Article 324,
Clause (2) whereof clearly envisages a multi- member Election Commission comprising of the Chief Election Commissioner and one or more B
Election Commissioners. [121-H; 122-A]
S.S. Dhanoa v. Union of India and Ors., [1991) 3 SCC 567, referred
to.
c
2.1. It may be that if the Election Commissioner is a single member
body, the decisions may have to be taken by the Chief Election Commissioner but still they would be decisions of the Election Commissioner and
not of the individual. No body can be above the institution which he is
supposed to serve. To project the individual as mightier than the institution would be a grave mistake. Therefore even if the Election Commis- D
sioner is a single member body, the Chief Election Commissioner is merely
a functionary of that body; to put it differently the alter ego of the
Commissioner and no more. [129-B-D]
2.2. If the Election Commission is a multi-member body, the Chief E
Election Commissioner is obliged to act as its Chairman. The functions of
the Chairman would, therefore be to do all that is necessary for smooth
transaction of its business. He must conduct himself in such a manner so
that he is able to win the confidence of all his colleagues on the Commissioner carry them along with him. This, a Chairman might find difficult
to achieve if he thinks that othel,"s who are members of Commission are
his subordinates. [129-D-H]
F
Concise Oxford Dicti01wy, Black's Law Dictionary 6th Ed. Page 230,
Ballentines Law Dictionary 3rd Ed. Pages 189-190, Webster's New 20th
Century Dictionary, unabridged, 2nd Ed. Page 299 and Aiyer's Judicial G
Dictionary 11th Ed. Page 238-Referred to, for the meaning of'Chairman".
3. The Election Commissioner discharges a public function. The functions of the Election Commission are essentially administrative but there
certain adjudicative and legislative functions as well. Besides administrative functions it may be called up to perform quasi judicial duties and H
B
c
110
SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
undertake subordinate legislation making functions. Election Commis·
sioners form a part of the Election Commission unlike the Regional Com·
missioners, and hence have a say in decision making. If the Chief Election
Commissioner is considered to be a superior in the sense that his word is
final, he would render the other Election Commissioners non-functional or
ornamental. Such an intention is difficult, to cull out from Art. 324 of the
Constitution of attribute it of our Constitution makers. [129-H; 130-C-E]
M.S. Gill v. Chief Election Commissioner, [1978] 2 SCR 272, referred
to.
4.1. The distinguishing feature between ·the position of the Chief
Election Commissioner and the Election Commissioners as is envisaged
in Art. 324 is essentially on account of their tenure. [130-E,F]
4.2. The first proviso to clause (5) of Art. 324 of the Constitution lays
down that the conditions of service in case of the Chief Election Commis·
D sioner cannot be varied to his disadvantage after his appointment. Such a
protection is not extended to the Election Commissioners. That is
presumably because the posts of Election Commissioner are temporary in
character. But even if it is not so, that feature al~ne cannot lead to the
conclusion that the final word in all matters lies with Chief Election
E
Commissioner. [126-E-F]
4.3. The second ground relates to removability. In case of the Chief
Election Commissioner, he can be removed from office in like manner and
on the like ground as a Judge of the Supreme Court whereas the Election
Commissioners can be removed on the recommendation of the Chief
F
Election Commissioner. That, however, is not an indicia for conferring a
higher status on the Chief Election Commissioner. The Chief Election
Commissioner is intended to be permanent incumbent and therefore in
order to preserve and safeguard his independence, he had to be treated
differently. There cannot be an Election Commission without a Chief
Election Commissioner, while that is not the case with the other Election
G Commissioners. In the very nature of things. The Election Commissioners
could not be conferred the type of irremovability that is best11wed ·on the
Chief Election Commissioner. If that were to be done, the entire scheme
. of Art. 324 would have to undergo a change. But the fact the Chief Election
Commissioner is a permanent incumbent cannot confer on him a higher
H status than the Election Commissioner. [126-F-H; 127-A, B]
-
T.N.SESHAN v. U.0.1.
111
5. Neither Article 324 nor any other provision in the Constitution A
expressly states how a multi-member Election Commissioner will transact
its business nor has any convention developed in this behalf. That is why
keeping in mind the bitter experience of the past of which a reference has
been made in Dhanoa's case, this Court, thought that the gap could be
filled by an appropriate statutory provision, thereby making legislative
interference necessary in this regard. Taking a clue from the said decision,
the President of India promulgated the ordinance whereby a new chapter
comprising Sec. 9 and 10 was added to the Act, indicating how the Election
Commission will transact its business. Although the said provisions have
manifested the hope that the Commission will be able to take decisions
B
with one voice, in case that hope is belled, the rule majority must come C
into play. Section 10 clearly provides for unanimity. Even if it is to be
assumed 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 Sec. 10. [131-A-B, F]
6. Although some of the service conditions of the Chief Election
Commissioner are akin to those of the Supreme Court Judges, the Chief
Election Commissioner could not legitimately claim to be equated with a
Supreme Court Judge. Maintenance of the status of the Judges of the
Supreme Court and the High Court is highly desirable in the national
interest. Personnel belonging to other for a claim equation to High Court
and Supreme Court judges merely because certain jurisdiction earlier
exercised by those courts are transferred to them, not realising the distinction between constitutional and statutory functionaries. The Government,
t'1erefore, should not confer equivalence or interfere with the Warrant of
Precedence, if it is likely to affect the position of the High Court and
Supreme Court Judges without first seeking the view of the Chief Justice
oflndia. [139-A, B, F-H; 140-A]
D
E
F
7. In the facts and circumstances of the present case the argument
that the imugned provisions constitute a fraud on the constitution inas- G
much as they are designed and calculated to defeat the very purpose of
having an Election Commission is begging the question. [132-E, F]
Both clauses (2) and (5) of Article 324 contemplate a statute for the
appointment of Election Commissioners and for their conditions of service. The impugned law provides for both these matters and provisions to H
112
SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
A
that effect cannot be challenged as unconstitutional since they are expressly provided for by Clauses (2) and (5) of Art. 324. Once the provision for
the Constitution of a multi-member Commission is unassailable,
provisions incidental thereto cannot be challenged. [138-D]
B
c
8. The impugned ordinance, notification and the consequential orders and appointments are upheld in their entirety. [140-F]
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 805 of
1993 Etc. Etc.
(Under Article 32 of the Constitution of India.)
M.K. Banerjee, Attorney General of India, M.Chandra Sekhar, Additional Solicitor General, G. Ramaswamy, N.A. Palkhivala, Ram Jethmalani, O.P. Sharma P.P. Rao, Soli J. Sorabjee, K.K. Venugopal, K.
Parasaran, AK. Ganguli, G. Rajagopal, S. Murlidhar, Sanjay Hegde, N.L.
D Ganapathi, S. Walia, Mohit Mathur, H. Devarajan, Niranjan Reddy,
Shimona Khanna, Abha R. Sharma, Ms. Kamini Jaiswal, Ranjan Dewivedi,
R.S. Sharma, H.D. Shourie (In-person) for the Petitioner in W.P. No.
825/93, M.M. Kashyap, N.N. Gooptu, H.K. Puri, AV. Rangam, ARanganadhan, Sumant Bhardwaj, AS. Bhasme, S.K. Ningomban, Sunil Dorga,
E.R. Kumar, Gopal Jain, W.C. Chopra, Pankaj Chopra, Amariarputham,
E
Aruna Mathur, P.R. Seetharaman, Ms. Neeta Agrawal, N. Janardhanan,
K.R. Nagaraja, E.C. Agarwala, Mahesh Agarwal, Atul Sharma, Purnima
Bhat Kak, AV. Palli, Dr. Subramian Swamy, (In-person) for Respond~nt
in C.A. No. 504/94., Mukul Mudgal, Ms. Indu Malhotra, Ms. Shirin
Khajuria, K.V. Vishwanathan, Ms. A Subhashini, P. Parmeshwaran, Sushi!
Prakash, A. Subbarao, Navin Prakash and R.B. Misra for the appearing
F parties.
The Judgment of the Court was delivered by
AHMADI, CJ. The President of India, in exercise of powers conG ferred upon him by clause (1) of Article 123 of the Constitution 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 OrH dinance was published in the Gazette of India on October 1, 1993. Before
-
-
T.N.SESHAN v. U.0.1. (AHMADI, J.]
113
we notice the amendments made in the 1991 Act, by the said ordinance it A
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 vacate his
office on his attaining, in the case of the CEC, the age of 65 years and the
EC the age of 62 years, notwithstanding 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
B
c
the valve of such rent free residence, conveyance facility, sumpulary allowance, medical facilities, etc., as applicable to a Judge of the Supreme D
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 elongated as an Act to determine the conditions of service of E
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 p
Commission Conditions of Service of Election Commissioner 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,' ~91. 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 G
to be substituted by which the expression "Election Commission" came to
be defined as Election Commission referred to in Article ~24 of the
Constitution of India. Consequent changes were also made elsewhere. In
sub-section (1) of section 3, after the words "Chief Election Commissioner",
H
114
SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
A
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 :
B
"Provided that where the Chief Election Commissioner or an
Election Commissioner attains 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
C 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
D 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 year" 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
E
be reproduced at this stage :
F
G
"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 busin~ss 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
T.N.SESHAN v. U.0.1. [AHMADI, J.]
115
Commissioner and other Election Commissioners differ in opinion A
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 B
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
c
for issuance of a writ of certiorari to quash the notifications fixing the
number of Election Commissioners at two the appointments of Mr. M.S. D
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 petition came up for preliminary
hearing on November 15, 1993. While admitted the writ petitions and E
direction 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 Coyunission 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
F
the Commission's work. He may ascertain the views of other
Commissioners or such of them as he chooses, on the jssues that G
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."
H
116
SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R.
A
By a subsequent order dated 15.12.1993, after hearing the learned Attorney
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 though their
counsel and further directed that the interim order shall continue till
B
c
D
E
F
G
H
further orders. Lastly, 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.4of1994) of 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 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).
(2) The Election Commission shall consist of the Chief Election
Commissioner and such number of other Election Commissioners,
if any, as the President may from time to time fix and the appoint-
~ent of the Chief Election Commissioner and other Election
Commissioners shall, subject to the provisions of any law made m
that behalf by Parliament be made by the President.
e
(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 e~ch biennial election to the
legislative Council of each state having such Council, the President,
may also appoint after consultation with the Election Commission
T.N.SESHAN v. U.0.1. [AHMADl,J.]
117
such Regional Commissioners as he may consider necessary to A
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 the Election Commissioners · and the Regional Commissioners shall be such as the
President may by rule determine :
B
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 C
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.
D
(6) The President, or the Government 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 E
the Election Commission by clause (1)."
The abridged factual matrix on which the constitutional validity 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 :
F
The present CEC 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 took stern action against
in fractions thereof regardless of the political party or candidate involved. G
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 election 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 H
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SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
A hut 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 peclined to postpone elections for four State assemblies despite
requests from the ruling party. The ruling party, including the Prime
B
c
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 imputes 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
D 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
E
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.
F
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 Election Commission. It denies the allegation that the
G decision to convert the Election Commission into 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
H arise in the course of transaction of business. The Ordinance was framed
~
T.N.SESHAN v. U.O.I. [AHMADI, J.]
119
keeping in view the observations made in this regard by this Court in the A
case of S.S. Dhanoa v. U.O.l. & Ors., (1991) 3 SCC 567. It is strongly denied
that the changes in the law were made malafide with a view to laming the
CBC into submission or to erode his authority by providing that, in the
event of difference of opinion, the majority view would prevail. It is
contended that the plain language of Article 324(2) envisages a multi-memB
..
ber 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 c
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 D
Democratic Republic. Democracy being the basic feature of the 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 E
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 election 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 F
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 constituG
tion of the Election Commission by providing that it shall consist of the
CBC 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 CBC 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 to the ECs as is made manifest from the use H
120
SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.
A
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. Commis-
.;......-
B
c
sioner 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 proposed by subclause (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
D 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
E
F
time to time. Clause (3) of the said article makes it clear that when 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 ~f 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
G 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 tenure of office of
the ECs and 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,
H the CEC and the ECs, if any. As we have pointed out earlier the tenure,
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T.N.SESHAN v. U.0.L [AHMADI, J.)
121
salaries, allowances and other perquisites of the CBC and ECs had been A
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 ameJided the Act as to place them on par. However, the
proviso to clause( 4) of Article 324 says (i) the CBC 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 conditions of service of the CBC shall B
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 the CEC. It
may also be noticed that while under clause ( 4), before the appointment C
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 provission 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 D
Article 324 in this behalf is that, after insulting 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 CBC. Of course, the recommendation for removal must
be based on intelligible, and cognate considerations which would have
relation to efficient functioning of the Election Commission. That is so E
because this privilege has been conferred on the CBC to ensure that the
ECs as well as the RCs are not atthe mercy of political or executive bosses
of the day. It is necessary to realise 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 CBC as F
per his whim and caprice, the CBC himself would become in 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 CBC recommending
their removal. It is, therefore, needless to emphasise that the CBC must
exercise this power only when there exist valid reasons which are conducive
to efficient functioning of the Election Commission. This, briefly stated, G
indicated 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 com- H
122
SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.
A
prising 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 ComB
c
D
E
F
mission 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 an 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.