Holding

The appointment of the Chief Election Commissioner and Election Commissioners shall be made by the President on the advice of a committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha (or the leader of the largest opposition party in the Lok Sabha), and the Chief Justice of India, until Parliament enacts a law under Article 324(2).

Summary

The writ petitions challenged the constitutional validity of the practice of appointing the Chief Election Commissioner (CEC) and Election Commissioners (ECs) solely by the executive. The Supreme Court examined Article 324(2) and Constituent Assembly debates, concluding that Parliament was intended to enact a law governing such appointments but failed to do so for over seven decades, creating a constitutional vacuum. The Court held that the independence of the Election Commission is essential for democracy, the rule of law, and fundamental rights, and that leaving appointments exclusively to the executive undermines this independence. Exercising its plenary power under Article 142, the Court laid down norms: appointments shall be made by the President on the advice of a committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha (or the leader of the largest opposition party), and the Chief Justice of India, until Parliament enacts a law. The Court also addressed related issues, including the protection of Election Commissioners and the need for an independent secretariat, but declined to grant full relief on those points, making a fervent appeal to the government. The writ petitions were partly allowed.

Issues considered

Whether the practice of appointing the Chief Election Commissioner and Election Commissioners solely by the executive is violative of Article 324(2) and Article 14 of the Constitution?
Whether there exists a constitutional vacuum in Article 324(2) requiring judicial intervention?
Whether the right to vote is a constitutional or fundamental right?
Whether Election Commissioners are entitled to the same protection against removal as the Chief Election Commissioner under Article 324(5)?
Whether the Supreme Court can lay down guidelines for the appointment of the Chief Election Commissioner and Election Commissioners in the absence of a law made by Parliament?
Whether the Election Commission should have an independent secretariat and its expenditure charged on the Consolidated Fund of India?

Legislation cited

Constitution of Indias. 14, s. 142, s. 145, s. 146, s. 148, s. 19, s. 21, s. 229, s. 243K, s. 324, s. 324(2), s. 324(5), s. 326, s. 338, s. 338A, s. 338B, s. 367, s. 74, s. 77
Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991s. 10, s. 3, s. 4, s. 5, s. 6, s. 7, s. 8, s. 9
Election Symbols (Reservation and Allotment) Order, 1968s. 15, s. 16A, s. 18
Government of India (Transaction of Business) Rules, 1961s. 8, s. Third Schedule
Representation of the People Act, 1950s. 16, s. 19, s. 20, s. 27
Representation of the People Act, 1951s. 11A, s. 123, s. 33A, s. 33B, s. 62, s. 8, s. 8A

Subjects

Election LawsConstitution of IndiaAppointment of Election CommissionersIndependence of Election CommissionRight to VoteSeparation of PowersJudicial ActivismArticle 324Article 142Free and Fair ElectionsDemocracyRule of LawFundamental Rights

Judgment

[2023] 9 S.C.R. 1: 2023 INSC 190 1

ANOOP BARANWAL A
v.
UNION OF INDIA
(Writ Petition (Civil) No.104 of 2015)
MARCH 02, 2023 B
[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
C
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 D
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 E
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 F
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 G
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 H
1
2 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 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 –
B 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
C 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
D 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
E 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
F 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
G 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
H an otherwise independent Body to its knees, by starving it off or
ANOOP BARANWAL v. UNION OF INDIA 3

cutting off the requisite financial wherewithal and resources required A
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
B
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 C
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 D
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 E
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 F
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, G
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
H
4 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 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
B 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
C 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
D
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
E
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]
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
G 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
H
ANOOP BARANWAL v. UNION OF INDIA 5

provisions of any law to be made by Parliament’, it was intended A
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
B
Article 324(2) of the Constitution. [Paras 32 and 33][55-A, D, E-
F; 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 C
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 D
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 E
Election Commissioner or Election Commissioner. [Para 60][72-
G-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 F
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 G
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 H
6 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 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
B 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
C 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;
D 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
E 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
F 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
G 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,
H has a right, which can be said to be a Constitutional Right, which
ANOOP BARANWAL v. UNION OF INDIA 7

may be right subject to the restriction. Section 62(1) of the 1951 A
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
B
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; 115-
F-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 C
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 pre-
announced norms. It averts a democratic Government brought
to power by the strength of the ballot betraying their trust and D
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 E
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 F
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 G
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 H
8 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 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
B
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
C 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
D
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
E 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
F
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
G 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][156-
G-H; 157-A-F]
9. The vacuum in the case of Article 324 (2) is the absence
H of the law which Parliament was contemplated to enact. Political
ANOOP BARANWAL v. UNION OF INDIA 9

parties undoubtedly would appear to betray a special interest in A
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
B
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 C
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; 175-
D-E]
D
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, E
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 F
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 G
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
H
10 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 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
B
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
C 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
D
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
E 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; 180-
A-B, B-E, G-H; 181-A]
F
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
G 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
H matter which can also be provided by way of a law by Parliament.
ANOOP BARANWAL v. UNION OF INDIA 11

This Court has no doubt that there is considerable merit in the A
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
B
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 C
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 D
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 E
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] F
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; G
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.

H
12 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 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.
B
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
C 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 :
D [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
E 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
F 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
G 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
H Club and Another v. Chander Hass and Another (2008)
ANOOP BARANWAL v. UNION OF INDIA 13

1 SCC 683 : [2007] 12 SCR 1084; Asif Hameed v. State A
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 ;
B
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 C
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
D
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 E
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
F
(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 G
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
H
14 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 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.
B
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;
C 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:
D
[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
E 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
F
(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.
G 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.

H
ANOOP BARANWAL v. UNION OF INDIA 15

per AJAY RASTOGI, J. A
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 B
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 C
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, D
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 E
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 F
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 G
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] H
16 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 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
B
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
C 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,
D 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
E 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
F 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]
G 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
H
ANOOP BARANWAL v. UNION OF INDIA 17

recommended that the protection against removal available to A
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 B
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
C
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 D
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 E
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 F
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-A-
B]
K.S. Puttaswamy and Another v. Union of India and
Others (2017) 10 SCC 1 : [2017] 10 SCR 569 – G
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 H
18 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 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
B
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. (1978) 1 SCC
C 405 : [1978] 2 SCR 272 ; Jyoti Basu and Others v.
Debi Ghosal and Others (1982) 1 SCC 691 : [1982] 3
SCR 318; Union of India v. Association for Democratic
Reforms and Another (2002) 5 SCC 294 : [2002] 3 SCR
696; Kuldip Nayar and Others v. Union of India and
D Others (2006) 7 SCC 1 : [2006] 5 Suppl. SCR 1; Desiya
Murpokku Dravida Kazhagam (DMDK) and another
v. Election Commission of India (2012) 7 SCC 340 :
[2012] 3 SCR 1084; Vishakha v. State of Rajasthan AIR
1997 SC 3011 : [1997] 3 Suppl. SCR 404; Indira Nehru
Gandhi Smt v. Shri Raj Narain and Another AIR 1975
E SC 2299 : [1976] 2 SCR 347; Manoj Narula v. Union
of India (2014) 9 SCC 1 : [2014] 9 SCR 965; Lakshmi
Kant Pandey v Union of India AIR 1984 SC 469 : [1984]
2 SCR 795; Kumari Madhuri Patil and Another v Addl.
Commissioner, Tribal Development and Others (1994)
F 6 SCC 241 : [1994] 3 Suppl. SCR 50; Vineet Narain
and Others v Union of India and Another. (1998) 1 SCC
226 : [1997] 6 Suppl. SCR 595 ; Vishwa Jagriti Mission
Through President v Central Govt. Through Cabinet
Secretary and Others (2001) 6 SCC 577 : [2001] 3 SCR
540; Prakash Singh and Others v Union of India and
G Others (2006) 8 SCC 1 : [2006] 6 Suppl. SCR 473;
Laxmi v Union of India and Others (2014) 4 SCC 427;
Shakti Vahini v Union of India and Others (2018) 7
SCC 192 : [2018] 3 SCR 770 - referred to.

H
ANOOP BARANWAL v. UNION OF INDIA 19

Case Law Reference A
In the judgment of K.M. Joseph, J.
[2015] 13 SCR 1 referred to Para 9
[2002] 3 SCR 1040 referred to Para 9
[1993] 2 Suppl. SCR 659 referred to Para 9 B
[2015] 13 SCR 1 referred to Para 9
[2006] 6 Suppl. SCR 473 referred to Para 9
[1997] 6 Suppl. SCR 595 referred to Para 9
[1995] 2 Suppl. SCR 106 referred to Para 12
C
[1975] 1 SCR 814 referred to Para 13
[1973] Suppl. SCR 1 referred to Para 28
(2021) 8 SCC 1 relied on Para 29
[1991] 3 SCR 159 referred to Para 52
D
[1995] 2 Suppl. SCR 106 referred to Para 56
[1967] 2 SCR 762 referred to Para 78
[1984] 2 SCR 67 referred to Para 79
[1951] SCR 747 referred to Para 81
E
[1976] 2 SCR 347 referred to Para 81
[1996] 2 SCR 23 referred to Para 83
[2007] 7 SCR 705 referred to Para 84
[2007] 12 SCR 1084 referred to Para 88
[1989] 3 SCR 19 referred to Para 88 F
[1996] 1 SCR 89 referred to Para 93
[2007] 12 SCR 1084 referred to Para 93
[2014] 12 SCR 875 referred to Para 93
[1952] SCR 218 referred to Para 95 G
[1982] 3 SCR 318 referred to Para 96
[1992] 3 SCR 338 referred to Para 97
[1993] 1 SCR 786 referred to Para 98
[1997] 1 Suppl. SCR 641 referred to Para 99 H
20 SUPREME COURT REPORTS [2023] 9 S.C.R.

A [2000] 2 Suppl. SCR 668 referred to Para 101
[2002] 3 SCR 696 relied on Para 103
[ 2003] 2 SCR 1136 referred to Para 104
[2006] 5 Suppl. SCR 1 referred to Para 105
B [2010] 6 SCR 972 referred to Para 107
(2013) 7 SCC 507 referred to Para 125
[2012] 3 SCR 1084 referred to Para 127
[2015] 12 SCR 1106 affirmed Para 128
[1975] Suppl. SCC 1 referred to Para 143
C
[2001] 1 Suppl. SCR 621 referred to Para 147
[2001] 3 Suppl. SCR 191 referred to Para 148
(2010) 6 SCC 331 referred to Para 149
[1978] 2 SCR 272 referred to Para 150
D
[1993] 1 Suppl. SCR 553 referred to Para 151
[1978] 1 SCR 393 referred to Para 151
[1985] 3 Suppl. SCR 1 referred to Para 151
(1995) 3 Suppl SCC 379 935 affirmed Para 152
E
[1995] 1 SCR 935 referred to Para 153
[1996] 3 SCR 1208 referred to Para 154
[2000] 3 Suppl. SCR 34 referred to Para 155
[2002] 3 SCR 696 affirmed Para 156
F [2012] 3 SCR 1084 referred to Para 158
[2014] 14 SCR 1227 referred to Para 159
[2000] 3 Suppl. SCR 34 affirmed Para 162
[2017] 1 SCR 158 referred to Para 171
G [1972] 2 SCR 318 referred to Para 173
[1995] 5 Suppl. SCR 592 referred to Para 175
[2002] 3 SCR 1040 referred to Para 176
[2008] 13 SCR 846 referred to Para 177
H
ANOOP BARANWAL v. UNION OF INDIA 21

[2019] 3 SCR 200 referred to Para 179 A
[2018] 10 SCR 141 relied on Para 181
[2015] 13 SCR 1 relied on Para 186
[1997] 6 Suppl. SCR 595 referred to Para 197
[1984] 2 SCR 795 referred to Para 199 B
[1991] 1 Suppl. SCR 251 referred to Para 200
[1991] 3 SCR 936 referred to Para 201
[1993] 2 Suppl. SCR 659 referred to Para 202
[1997] 3 Suppl. SCR 404 relied on Para 206
C
(1998) 7 SCC 739 relied on Para 208
[2014] 9 SCR 965 referred to Para 211
[2010] 7 SCR 585 referred to Para 212
[2018] 4 SCR 1 referred to Para 213
D
In the judgment of Rastogi, J.
[2017] 10 SCR 569 followed Para 24
[1952] SCR 218 referred to Para 47
[1978] 2 SCR 272 referred to Para 48
E
[1982] 3 SCR 318 referred to Para 49
[2002] 3 SCR 696 referred to Para 51
[2003] 2 SCR 1136 relied on Para 52
[2006] 5 Suppl. SCR 1 referred to Para 58
[2012] 3 SCR 1084 referred to Para 60 F
[2013] 12 SCR 283 relied on Para 63
[2015] 9 SCR 113 relied on Para 65
[1993] 1 SCR 594 relied on Para 68
[1997] 3 Suppl. SCR 404 referred to Para 73 G
[1976] 2 SCR 347 referred to Para 74
[2014] 9 SCR 965 referred to Para 79
[1995] 2 Suppl. SCR 106 relied on Para 101
H
22 SUPREME COURT REPORTS [2023] 9 S.C.R.

A [1984] 2 SCR 795 referred to Para 110
[1994] 3 Suppl. SCR 50 referred to Para 110
[1997] 6 Suppl. SCR 595 referred to Para 110
[1997] 3 Suppl. SCR 404 referred to Para 110
B [2001] 3 SCR 540 referred to Para 110
[2006] 6 Suppl. SCR 473 referred to Para 111
(2014) 4 SCC 427 referred to Para 112
[2018] 3 SCR 770 referred to Para 114
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.104
C
of 2015.
(Under Article 32 of The Constitution of India)
With
Writ Petition (Civil) Nos.1043 Of 2017, 569 Of 2021 And 998 of
D 2022.
Gopal Sankaranarayanan, Sr. Adv., Prashant Bhushan, Ms. Alice
Raj, Rahul Gupta, Ms. Ria Yadav, Varinder Kumar Sharma, Varun
Thakur, Syed Imtiyaz, Shantanu Sharma, Ali Safeer Farooqi, Sayeer
Agarwal, Ms. Sharddha Saran, Aftab Ali Khan, Brajesh Pandey, Shashank
E Ratnoo, Ashwini Kumar Upadhyay, Ashwani Kumar Dubey, Ms. Tanya
Srivastva, Ms. Aditi Gupta, Ms. Jhanvi Dubey, Ms. Shivani Vij, Ms.
Ishita Chowdhary, Ms. Trisha Chandran, Advs. for the Petitioner.
R. Venkataramani, AG, Tushar Mehta, SG, Balbir Singh, K. M.
Nataraj, ASGs, Prasenjeet Mohapatra, Samarvir Singh, Naman Tandon,
F Ms. Anu Sura, Prahlad Singh, Sharath Nambiar, Vinayak Sharma, Rajat
Nair, Ms. Priyanka Das, Manan Popli, Ms. Niranjana Singh, Ms. Shraddha
Deshmukh, Ankur Talwar, Sumit Teterwal, Chinmayee Chandra, Mayank
Pandey, Udai Khanna, Anirudh Bhat, Nakul chengappa K.K., Ms. Akriti
A. Manubarwala, Ms. Niranjana Singh, Shyam Gopal, Ms. Vijayalakshmi
Venkataramani, Anandh Venkataraman, Vinayak Mehrotara, Chitvan
G Singhal, Praveen Vignesh, Ms. Sonali Jain, Ms. Mansi Sood, Abhishek
Kumar Pandey, Arvind Kumar Sharma, Mukesh Kumar Maroria, Amit
Sharma, Kaleeswaram Raj, Nishe Rajen Shonker, Ms. Anu K. Joy, Alim
Anvar, Ms. Thulasi K. Raj, Advs. for the Respondent.

H
ANOOP BARANWAL v. UNION OF INDIA 23

The Judgments of the Court were delivered by A
K. M. JOSEPH, J.
INDEX*
A. THE CASES: THE FOUR WRIT PETITIONS ..................... 3
B. THE SUBMISSIONS OF THE PETITIONERS; SHRI
GOPAL SANKARANARAYANAN, LEARNED B
SENIOR COUNSEL IN WRIT PETITION (C) NO. 1043
OF 2017 .................................................................................... 7
C. SUBMISSIONS ON BEHALF OF SHRI
PRASHANT BHUSHAN, LEARNED COUNSEL ON
BEHALF OF PETITIONER IN WRIT PETITION (CIVIL) C
NO. 104 OF 2015. .................................................................. 11
D. SUBMISSIONS BY SHRI JAYA THAKUR, PETITIONER
IN WRIT PETITION (CIVIL) NO. 998 OF 2022 ............... 16
E. SUBMISSIONS OF SHRI KALEESWARAM RAJ,
D
LEARNED COUNSEL FOR THE INTERVENOR in
Writ Petition (Civil) No. 569 of 2021. ..................................... 17
F. SUBMISSIONS ON BEHALF OF THE LEARNED
ATTORNEY GENERAL FOR THE UNION OF INDIA ... 18
G. SUBMISSIONS OF SHRI TUSHAR MEHTA, LEARNED E
SOLICITOR GENERAL OF INDIA ................................... 25
H. SUBMISSIONS OF SHRI BALBIR SINGH, LEARNED
ADDITIONAL SOLICITOR GENERAL ............................ 27
ANALYSIS ............................................................................ 27
I. ‘THE FRAMING OF INDIA’S CONSTITUTION’ BY F
B. SHIVARAO ...................................................................... 27
J. THE CONSTITUENT ASSEMBLY DEBATES .................. 34
K. THE USE OF CONSTITUENT ASSEMBLY DEBATES ... 49
L. CONCLUSIONS ABOUT HISTORICAL PERSPECTIVES
INCLUDING THE LIGHT SHED BY THE CONSTITUENT G
ASSEMBLY DEBATES ....................................................... 51
M. ARTICLES IN THE CONSTITUTION, WHICH EMPLOY
THE WORDS ‘SUBJECT TO ANY LAW’ TO BE MADE

* Ed. Note: Pagination in the Index is as per the original judgment. H
24 SUPREME COURT REPORTS [2023] 9 S.C.R.

A BY PARLIAMENT AS CONTAINED IN ARTICLE 324 .. 59
N. DEVELOPMENTS AFTER 26 JANUARY 1950; THE CHIEF
ELECTION COMMISSIONERS AND THE ELECTION
COMMISSIONERS WHO WERE APPOINTED
AND THEIR TERMS ........................................................... 72
B O. A CLOSER LOOK AT S.S. DANOA (SUPRA), THE 1991
ACT AND T.N. SESHAN (SUPRA) ..................................... 78
P. THE CLAMOUR FOR REFORMS ..................................... 93
Q. SEPARATION OF POWERS AND JUDICIAL
ACTIVISM .......................................................................... 116
C R. IS THE RIGHT TO VOTE A STATUTORY RIGHT
OR A CONSTITUTIONAL RIGHT? ................................. 135
S. ARTICLE 326 DEMYSTIFIED .......................................... 151
T. DEMOCRACY AND THE IMPORTANCE OF
ELECTIONS ........................................................................ 180
D U. POWERS, FUNCTIONS AND JURISDICTION OF
THE ELECTION COMMISSION OF INDIA ................... 191
V. THE IMPACT OF ARTICLE 329(b) .................................. 197
W. PURSUIT OF POWER; A MEANS TO AN END OR AN
END IN ITSELF? ................................................................ 203
E
X. RULE OF LAW; FUNDAMENTAL RIGHTS AND
AN INDEPENDENT ELECTION COMMISSION .......... 205
Y. THE SYMBOLS ORDER; THE MODEL CODE OF
CONDUCT .......................................................................... 208
F Z. INDEPENDENCE; A STERLING AND INDISPENSABLE
ATTRIBUTE ........................................................................ 226
THE CONCEPT OF LEGITIMATE POWER OF
RECIPROCITY ................................................................... 226
AA. THE APPOINTMENT OF SHRI ARUN GOEL: A TRIGGER
G OR A MERE ASIDE? ........................................................ 230
BB. IS THERE A VACUUM IN ARTICLE 324? SHOULD
THE COURT INTERFERE, IF THERE IS ONE? ............ 242
CC. AN ELECTION COMMISSIONER ENTITLED TO
SAME PROTECTION AS GIVEN TO CHIEF
H ELECTION COMMISSIONER? ........................................ 278
ANOOP BARANWAL v. UNION OF INDIA 25
[K. M. JOSEPH, J.]

DD. REGARDING INDEPENDENT SECRETERIAT/ A
CHARGING EXPENDITURE ON THE
CONSOLIDATED FUND OF INDIA ............................... 285
EE. THE FINAL RELIEF .......................................................... 288
A. THE CASES: THE FOUR WRIT PETITIONS
1. In this clutch of writ petitions maintained under Article 32 of B
the Constitution, the Court is called upon to consider the true effect of
Article 324 and, in particular, Article 324(2) of the Constitution. The said
sub-Article reads as follows:
“324(2) The Election Commission shall consist of the Chief
Election Commissioner and such number of other Election C
Commissioners, if any, as the President may from time to time fix
and the appointment of the Chief Election Commissioner and other
Election Commissioners shall, subject to the provisions of any law
made in that behalf by Parliament, be made by the President.”
2. A Bench of two learned Judges of this Court in Writ Petition
(Civil) No. 104 of 2015, passed the following Order on 23.10.2018: D
“I.A. No.2 for amendment of writ petition; raising additional facts,
grounds and prayer is allowed.
The matter relates to what the petitioner perceives to be a
requirement of having a full-proof and better system of appointment
of members of the Election Commission. E
Having heard the learned counsel for the petitioner and the learned
Attorney General for India we are of the view that the matter
may require a close look and interpretation of the provisions of
Article 324 of the Constitution of India. The issue has not been
debated and answered by this Court earlier. Article 145 (3) of the
Constitution of India would, therefore, require the Court to refer F
the matter to a Constitution Bench. We, accordingly, refer the
question arising in the present proceedings to a Constitution Bench
for an authoritative pronouncement.
Post the matter before the Hon’ble the Chief Justice of India on
the Administrative Side for fixing a date of hearing.” G
3. We may notice the following prayers in the said Writ Petition
(Civil) No. 104 of 2015:
“
i) issue a writ of mandamus or an appropriate writ, order or
direction, commanding the Respondent: to make law for ensuring
H
26 SUPREME COURT REPORTS [2023] 9 S.C.R.

A a fair, just and transparent process of selection by constituting a
neutral and independent collegium/ selection committee to
recommend the name for the appointment of the member to the
Election Commission under Article 324(2) of the Constitution of
India;
ii) issue a writ of mandamus or an appropriate writ, order or
B direction constituting an interim neutral and independent collegium/
selection committee to recommend the names for the appointment
on the vacant post of the member to the Election Commission;
iii) issue a writ of mandamus or an appropriate writ, order or
direction commanding the Respondent to decide the petition of
C the petitioner dated 03.12.2014 for making a law for ensuring a
fair, just and transparent selection process by constituting an
independent and neutral collegiums/ selection committee for
recommending the names for members to the Election
Commission;”
4. In Writ Petition (Civil) No. 1043 of 2017, filed by one Shri
D Ashwani Kumar Upadhyay, which is also a Public Interest Litigation,
the reliefs sought are as follows:
“
a) directthe Central Government to take appropriate steps to
provide same and similar protection to both the Election
Commissioners so that they shall not be removed from their office
E except in like manner and on the like grounds as the Chief Election
Commissioner;
b) direct the Central Government to take appropriate steps to
provide independent secretariat to the Election Commission of
India and declare its expenditure as charged on the consolidated.
F fund of India on the lines of the Lok Sabha / Rajya Sabha
secretariat;
c) direct the Central Government to take appropriate steps to
confer rule making authority on the Election Commission of India
on the lines of the rule making authority vested in the Supreme
Court of India to empower it to make election related rules and
G code of conduct;
d) take such other steps as this Hon’ble Court may deem fit for
strengthening the office of the Election Commission of India and
allow the cost of petition to petitioner.”
5. In Writ Petition (Civil) No. 569 of 2021, filed by the Association
for Democratic Reforms, the reliefs sought are as follows:
H
ANOOP BARANWAL v. UNION OF INDIA 27
[K. M. JOSEPH, J.]

“i. Issue an appropriate writ, order or direction declaring the A
practice of appointment of Chief Election Commissioner and
Election Commissioner solely by the executive as being violative
of Articles 324(2) and 14 of the Constitution of India.
ii. Direct the Respondent to implement an independent system
for appointment of members of the Election Commission on the
lines of recommendation of Law Commission in its 255th report B
of March 2015; Second Administrative Reform Commission in its
fourth Report of January 2007; by the Dr. Dinesh Goswami
Committee in its Report of May 1990; and by the Justice Tarkunde
Committee in its Report of 1975.;”
6. In the latest and the last Writ Petition (Civil) No. 998 of 2022, C
Writ Petitioner is one Dr. Jaya Thakur. The relief sought is as follows:
“(a). issue a writ order or directions in the nature of Mandamus to
the Respondents to implement an independent and transparent
system for appointment of members of the. election Commission
on the lines, recommended by the Report of the Committee on
Electoral Reforms of May 1990, formulated by the Ministry of D
Law and Justice, Government of India, the Report of Second
Administrative Reforms Commission, Government of India of 2007
and the Report of Law Commission of India on Electoral Reforms
of March 2015 and;”
7. Having referred to the broad complaint, the reliefs sought, we
may appropriately notice the contentions of the parties. E
B. THE SUBMISSIONS OF THE PETITIONERS; SHRI
GOPAL SANKARANARAYANAN, LEARNED SENIOR
COUNSEL IN WRIT PETITION (C) NO. 1043 OF 2017
8. In Writ Petition No. 1043 of 2017, Shri Gopal Sankaranarayanan
makes the following submissions: F
There is a lacuna in the matter of appointment under Article 324.
Of the twelve categories of unelected Constitutional Authorities, it is
only the Election Commission and the National Commission for Scheduled
Castes, where qualifications and eligibility are not laid down in the
Constitution or the Statute. The words ‘subject to law made’ falls into
two broad categories. In the matter of appointments, they are represented G
by Articles 324, 338, 338A and 338B. The other category relates to
conditions of service. Representative of this group are Articles 146, 148,
229 and 243K. In the first category, Article 324 assumes critical
importance. Shri Gopal Sankaranarayanan put forward the test that if a
law could be made under Article 324, providing for a committee to select
CECs and ECs and also for their qualifications, then, there is a void. If H
28 SUPREME COURT REPORTS [2023] 9 S.C.R.

A such a law cannot be made, then, there is no vacuum. Continuing with
the argument about the presence of a vacuum, it is contended that the
underlying rationale for the Court intervening must be the existence of a
fundamental norm or a basic feature that needs to be secured. In this
regard, democracy and the concomitant imperative to hold free and fair
elections are projected. It is contended that the other aspect, which must
B be borne in mind, is to be not oblivious to the impact of the existence of
the vacuum on the rights of the members of the public, both directly and
indirectly. Like the Judiciary, the Election Commission must display
fearless independence. In the absence of norms regarding the
appointment, a central norm, viz., institutional integrity is adversely
affected. An independent appointment mechanism would guarantee
C eschewing of even the prospect of bias. Favouritism would be largely
reduced. Right to Vote is a Constitutional Right. With reference to law
prevailing in other South Asian countries and in the United Kingdom, it is
contended that clear qualification, as also eligibility conditions, have been
put in place. Mandatory tenures are made available. The removal process,
which is uniform, is rigorous. It is contended that there has been a sudden
D change after 2001, in the matter of appointing Chief Election
Commissioners. Successive Governments have decided to select
increasingly older candidates. This has resulted in casting a shadow on
the much-needed independence, apart from curtailing their tenure.
Inaction on the part of the Election Commission even in the face of
alarming increase of criminals in public life, must guide this Court. With
E reference to the Article, which we have adverted to, it is pointed out that
the Election Commission has indulged in the alleged misconduct and
favouritism. A vigorous appeal is made to the Court to listen to the
constitutional silence and understand the dire need for the Court to step-
in. In this regard, we are reminded that this Court has played a very
proactive role in matters relating to elections and electoral reforms.
F Interference was noteworthy in matters relating to affidavits on assets,
criminal antecedents, time-bound election petition trials, special courts
for criminal trials of M.P.s and M.L.A.s, protection from booth capturing,
freebies and NOTA. The executive underreach justifies judicial oversight
and activism, particularly when more than 72 years have gone by. It is
contended that no mandamus is soughtagainst Parliament or toimplement
G
the Gaikwad Law Commission Report. The following directions are
pressed for until a law is made. A Committee of five, comprising the
Prime Minister, the leader of the Opposition or of the single largest party
in the Lok Sabha, the Chief Justice of India, the Speaker of the Lok
Sabha and an eminent jurist selected by the first four to recommend
suitable candidates, is to be appointed for appointment to the Election
H
ANOOP BARANWAL v. UNION OF INDIA 29
[K. M. JOSEPH, J.]

Commission. The petitioner would have the Court declare qualifications, A
which include citizenship of India, and that a personshould have completed
between 45 years and 61 years. The further qualifications are that the
person should have impeccable integrity and high moral character. The
individual must have never had affiliation either directly or indirectly to
any political party. It is also prayed that the person appointed must have
been a Member of the IAS or the IPS or a Judge of the High Court. In B
terms of the two provisos in Article 324(5), the Election Commissioners
must be irremovable except after following the procedure in the first
proviso. An independent Secretariat must be established.The expenditure
of the Election Commission should be brought on par with those of the
Supreme Court, the CAG and the UPSC. The expenditure must be made
non-votable expenditure charged on the Consolidated Fund of India. C
C. SUBMISSIONS ON BEHALF OF SHRI PRASHANT
BHUSHAN, LEARNED COUNSEL ON BEHALF OF
PETITIONER IN WRIT PETITION (CIVIL) NO. 104 OF
2015.
9. An independent Election Commission is necessary for a D
functioning democracy as it ensures Rule of Law and free and fair
elections. The existing practice of appointment is incompatible with Article
324(2) and manifestly arbitrary. This is because Article 324(2) mandates
that Parliament should make a just, fair and reasonable law. The provision
for making a law was rested on the hope that in due course of time, the
Government would exhibit initiative to make such a law and ensure E
independence and integrity of the Members of the Election Commission.
It is contended that there is a vacuum. No power under the constitution
can be exercised contrary to Part III of the Constitution, be it the Executive
or the Legislative power. The Government of India (Transaction of
Business) Rules, 1961 are silent regarding the process of selection and
on the eligibility criteria. The convention invoked by the Union of India F
of appointments being made from Members of the Bureaucracy, is
criticised as being not a healthy convention. It is for the reason that it is
bereft of transparency, objectivity and neutrality. This system is
inaccessible to public. The Executive alone being involved in the
appointment, ensures that the Commission becomes and remains a
partisan Body and a branch of the Executive. The independence of the G
Commission is intimately interlinked with the process of appointment.
The concepts of power of reciprocity and loyalty to the appointing Body,
referred to in Supreme Court Advocates-on-Record Association and
Another vs. Union of India 1 , is invoked. With reference to
1
(2016) 5 SCC 1 H
30 SUPREME COURT REPORTS [2023] 9 S.C.R.

A developments said to have taken place recently, casting a shadow on
the conduct of the Election Commission, the Report of Justice Madan
B. Lokur is relied upon. Several instances of inaction or omission are
pointed out. This is apart from various Commissions and Committees
which have highlighted the need for a change. This Court has stepped-
in on many occasions. It is further contended that the democracy is a
B facet of the basic structure of the Constitution.The appointment of
Members of the Election Commission is being done on the whims and
fancies of the Executive. The object of having an independent Election
Commission is defeated. It is further contended that the Election
Commission resolves various disputes between various political parties
C including the Ruling Government and other parties. This means that the
Executive cannot be the sole participator. The practice falls foul of Article
14. Elaborate reference is made to the Constituent Assembly Debates.
Elaborating on the powers of the Election Commission, it is pointed out
that the power to register a political party under Section 29A of the
Representative of the People Act, 1951, has come up for our consideration.
D The ruling of this Court in Indian National Congress v. Institute of
Social Welfare and Others,2 that the Election Commission acts in a
quasi-judicial capacity under Section 29A is relied upon. The Election
Commission is clothed under Rules 6 and 8 of the Election Symbols
(Reservation and Allotment) Order, 1968 to recognise political parties
and allot symbols. Rule 15 of the said Order is pressed into service to
E
highlight that Election Commission is empowered to take a decision with
reference to splintered and rival groups arising within already recognized
parties. There is power to withdraw and suspend recognition for breach
of duty to follow the model code of conduct or the instructions of the
Commission (See Rule 16A of the Symbol Order). It is blessed with the
F power to enforce the model code of conduct. The Election Commission
can, in exercise of powers under Article 324(1), ban a candidate from
campaigning. The Election Commission is also empowered to remove
star campaigners. Reliance is placed on the various Reports, which we
will advert to at a later stage. Still further, support is sought to be drawn
from the Second Judges case in Supreme Court Advocates-on-Record
G Association and Others vs. Union of India,3and the Judgment of this
Court declaring the NJAC unconstitutional in Supreme Court Advocates-
on-Record Association and Another vs. Union of India4. The learned
2
(2002) 5 SCC 685
3
(1993) 4 SCC 441
4
H (2016) 5 SCC 1
ANOOP BARANWAL v. UNION OF INDIA 31
[K. M. JOSEPH, J.]

Counsel also relies upon the Judgment of this Court in Prakash Singh A
and Others vs. Union of India and Others,5relating to reforms in the
Police Administration. This is besides relying on Vineet Narain and
Others vs. Union of India and Another,6 and the Third Judges Case in
Special Reference No. 1 of 1998, Re7. It is contended that the Court
may, apart from declaring appointment by the Executive of Members as
B
unconstitutional, direct the constitution of a Committee to recommend
the names for appointment on the basis of the Reports, including the
recommendations of the Law Commission of India in its Two-Hundred
and Fifty Fifth Report.
D. SUBMISSIONS BY SHRI JAYA THAKUR,
PETITIONER IN WRIT PETITION (CIVIL) NO. 998 OF C
2022
10. Shri Anup G. Choudary, learned Senior Counsel assisted by
Virender K. Sharma, appeared on behalf of the petitioner. It is pointed
out that there is ad-hocism flowing from the legislative vacuum.Regional
Commissioners have never been appointed since 1951. The role of the D
Election Commission is such that in a modern election process, it can be
abused by simply playing with the election schedule. The instrument of
instructions which were sought even at the time of passage of
amendments to the original Articlecan be filled in by judicial
intervention.Appointment is reduced only to Bureaucrats, that too, majorly E
IAS Officers. The IAS Officers work in close alliance to their political
masters. Appointment must be from a more broad-based pool of talent
like Judicial Members. The Secretariat must have sufficient manpower.
E. SUBMISSIONS OF SHRI KALEESWARAM RAJ,
LEARNED COUNSEL FOR THE INTERVENOR in Writ F
Petition (Civil) No. 569 of 2021.
11. Shri Kaleeswaram Raj, learned Counsel for the intervenor in
Writ Petition (Civil) No. 569 of 2021 would contend that the vacuum,
which is projected must be conceded as a democratic space which the
Founding Fathers of the Constitution, left open for the future Parliament
G
to fill-up. It is contended that the Constituent Assembly not being an
elected Body in the real sense, left many things to Parliament, which
could claim better democratic legitimacy. Relying upon the Judges’ cases,
5
(2006) 8 SCC 1
6
(1998) 1 SCC 226
7
(1998) 7 SCC 739 H
32 SUPREME COURT REPORTS [2023] 9 S.C.R.

A he would submit that a parallel may be drawn. It’s a glaring instance of
legislative inaction. Sincedenial of free and fair elections vitiates
Fundamental Rights of the citizens, judicial intervention is highly
necessary. The Right to Vote is now a part of the Fundamental Right. It
is contended that, in fact, the Right to Vote is a Constitutional Right. He
invites our attention to instances in other jurisdictions including from
B
neighbouring countries like Sri Lanka.
F. SUBMISSIONS ON BEHALF OF THE LEARNED
ATTORNEY GENERAL FOR THE UNION OF INDIA
12. The learned Attorney General, Shri R. Venkataramani, would
C address the following submissions:
Accepting the petitioners’ contention would involve nothing less
than an amendment to the provisions of Article 324. The case of the
petitioners is based on various Reports including that of the Central Law
Commission. The premise of the petitioners’ complaint is the failure of
D the extant mechanism and the reluctance or failure of the Union of India
to redress the complaint. A vacuum, which is not existent, is suggested
as the very foundation of the petitioners claim. There is no such vacuum.
The learned Attorney General would point out that introduction of the
Collegium or Body of persons to select the Chief Election Commissioner
or the Election Commissioner, would necessitate the Court, trampling
E upon the constitutional process of aid and advise of Ministers,
contemplated under Article 74 of the Constitution of India. There cannot
be merit in the contention that a tenure of six years must be inexorably
guaranteed. Judicial intervention in these matters would be at the expense
of causing violence to the delicate separation of powers between the
F Legislature, the Executive and the Judiciary. The cases at hand appear
to be supported with reference to an aspirational ideal as against any
vacuum which is disclosed. A debatably better model of selection of the
Commissioner cannot form the foundation for this Court to make a foray
into the working of constitutional provisions. Article 324(2) contemplates
clear procedure for appointment of a Chief Election Commissioner and
G the Election Commissioners.Till a law is made, providing otherwise,the
Founding Fathers have laid down that the appointment of the Chief
Election Commissioner and other Election Commissioners shall be by
the President. Indisputably, the Constitution of India follows the
Westminster model of Government. The powers of the President, it is
H well-settled, is to be exercised on the advice of the Council of Ministers.
ANOOP BARANWAL v. UNION OF INDIA 33
[K. M. JOSEPH, J.]

The President is only the formal Head of the State. The power under A
Article 324(2) was always understood to be exercised by the President,
acting on the aid and advise of the Council of Ministers. Article 77 provides
for the conduct of the business of the Government of India. Rules have
been laid down thereunder. The learned Attorney General does not dispute
that under the Rules, as laid down, the appointment of the Chief Election
B
Commissioner and the Election Commissioners is a matter which need
not engage the attention of the Council of Ministers. The Rules instead
provide that it is the Prime Minister, who is empowered to decide upon
the person to be appointed as the Chief Election Commissioner or the
Election Commissioner. In other words, the President exercises the power
under Article 324(2) andhe proceeds to appoint a person as a Chief C
Election Commissioner or an Election Commissioner, acting on the advice
of the Prime Minister. The contention is, it is this system, which has
been in place for the last more than seven decades. There is no room for
confusion. A long array of Chief Election Commissioners and the Election
Commissioners have been appointed by resorting to the legitimate method
D
contemplated under Article 324(2). It is further contended that there
exists no identifiable wrong or trigger point to warrant any judicial
interference. It is pointed out that elections have been held and voting
rights ensured to millions of eligible voters. Nearly 68 per cent polling
took place. The Election Commission of India, it is contended, has entered
into various agreements under the auspices of the United Nations under E
which the Election Commission of India shares its expertise and lends
its competent services for the conduct of elections in various other
countries. This is not a case where the petitioners have been able to
demonstrate that the independence of the Chief Election Commissioner
or the Election Commissioner is under threat. The Election Commission
F
is regulated in the discharge of its functions by law in every manner. The
matters relating to the appointment of the Chief Election Commissioner
and the Election Commissioner have been settled by the decision of this
Court in T.N. Seshan, Chief Election Commissioner of India v. Union
of India and others8. It is pointed out that the Election Commission
(Conditions of Service of Election Commissioners and Transaction of G
Business) Act, 1991 (hereinafter referred to as, ‘the 1991 Act) does not
deal with the process of selection and all the details that may be connected
to it. It is commended to the Court as a matter of fact that the Election
Commissioners have been appointed from the high-ranking Members of
8
(1995) 4 SCC 611 H
34 SUPREME COURT REPORTS [2023] 9 S.C.R.

A the Civil Services since no Government so far has thought it fit to provide
for any other source other than the Civil Services for making appointment
and the Parliament has also not intervened. The system has worked
well under Article 324(2). Any aberrations or illegalities in the matter of
appointment or acts or omissions on the part of the appointees, lend
themselves to the correctional jurisdiction of the superior courts under
B
its powers of judicial review. Section 4 of the 1991 Act does contemplate
a six-year tenure for both the Election Commissioners’ and the Chief
Election Commissioner.Based on the observations made in T.N. Seshan
(supra), Government has followed a sound practice of appointing Officers
from the Civil Services. It is contended that those who are considered
C for appointment, must be”ripe” enough ‘for being inducted into the
Election Commission’.The six-year tenure is an ideal. However, strict
adherence to the same would have introduced considerable problems.
This being the position, the concept of a composite tenure has been
arrived at. In other words, the separate term of six years, contemplated
in Section 4 of the 1991 Act of six years each, has been understood as
D
been practically attained with the incumbent being selected and appointed
in such a manner that the person appointed as an Election Commissioner
can look forward to an approximate tenure of six years, even though not
as Election Commissioner but as an Election Commissioner and as a
Chief Election Commissioner. There is a database of serving/retired
E Officers of the rank of Secretary to the Government of India/Chief
Secretaries. The appointees are selected from the said database. The
Minister of Law and Justice recommends a panel for the Prime Minister
and the President from the database. Unless this Court considers non-
adherence to Section 4 of the 1991 Act, as constituting a subversion of
the independence of the Election Commission requiring redress thereof,
F
this Court need not consider the ‘aspirational propositions’ as a principle
to occupy an ‘imagined vacuum’. The Reports relied upon by the
petitioners are based on systems enshrined in other jurisdictions. It is
significant that the Constituent Assembly, though conscious of other
mechanisms, deliberately chose to adopt the method found in Article
G 324(2). There is no identifiable wrong. There is no continuing wrong
either. The decisions, laying down principles, empowering this Court to
lay down guidelines, are inapposite. The decisions were rendered by this
Court in a situation where there clearly existed a vacuum. It is further
pointed out that the Court was invited and persuaded to interfere, more
importantly, when a Fundamental Right was found to exist or a right
H
ANOOP BARANWAL v. UNION OF INDIA 35
[K. M. JOSEPH, J.]

vouch-saved under an International Treaty. In the present batch of cases, A
there is no Fundamental Right involved, which can support any
interference by this Court. This is apart from Article 324(2) laying down
a procedure, signalling the absence of any vacuum. The proof of the
non-existence of the vacuum is sought to be established by the fact that
several Chief Election Commissioners and Election Commissioners have
been appointed according to need in the past. A perceived advancement B
in the method of appointment, based on the Reports, including the Law
Commission of India, would scarcely furnish the foundation for doing
violence to the provisions of the Constitution. We are reminded by the
learned Attorney General that this Court is being invited to apply principles
involved in the context of ordinary Statutes to the interpretation of the C
Constitution itself. The same is impermissible.
G. SUBMISSIONS OF SHRI TUSHAR MEHTA,
LEARNED SOLICITOR GENERAL OF INDIA
13. Relying upon Article 53, which deals with the Executive power
of the Union, it is contended that the law contemplated under Article D
324(2) is the law contemplated under Article 53(3)(b). In the absence of
such a law, the President has the constitutional power. The constitutional
validity of Article 324 cannot be considered as it is a part of the original
Constitution. The Constitution provides for a complete machinery to deal
with the appointments to the Commission. The Vineet Narain Judgment
was dealing with a lack of statutory enactment and not a constitutional E
provision. Any potential direction to include any non-Executive, would
involve a violation of the Doctrine of Separation of Powers. Reliance is
placed on the judgment of this Court inSamsher Singh v. State of Punjab
and Another9. Article 324(2) cannot lead to a constitutional duty on the
part of Parliament to legislate. Reliance is placed on T.N. Seshan (supra)
to contend that the President is the appointing Authority and that the F
Chief Election Commissioner could not claim to be equated with Supreme
Court Judges. The Doctrine of Separation of Powers is emphasised.
Separation of powers, it is pointed out, is a reflection of democracy
itself. The learned Solicitor General persuades the Court to exhibit judicial
restraint. A causus omissus may not justify judicial interference. Matters G
relating to policy rightfully must remain immune from the judicial radar.
What is involved in this case is essentially a political question.
H. SUBMISSIONS OF SHRI BALBIR SINGH, LEARNED
ADDITIONAL SOLICITOR GENERAL
9
(1974) 2 SCC 831
H
36 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 14. Shri Balbir Singh forcefully contended that there is no vacuum
and no trigger. Unlike the position obtaining in Vishakha, there is no dire
need made out. The efficient working of the Election Commission
unerringly points to independence, informing its functioning. Several
elections have been conducted under its aegis. The Election Commission
of India is recognised all over the world. A utopian model cannot be the
B
premise for inserting guidelines, when the existing provisions are working
well. The extent of neutrality and transparency invoked by the petitioners
cannot be a sound basis for the Court to interfere.
ANALYSIS
C I.‘THE FRAMING OF INDIA’S CONSTITUTION’ BY B.
SHIVARAO
15. It is apposite that we understand the historical perspective
including the debates in the Constituent Assembly. In the work, the
‘Framing of India’s Constitution’by B. Shivarao, we find the following
D narrative as regards the topic of Franchise and Elections.
“Election Commission
In the Government of India Act, 1935, and in the earlier statues
the conduct of elections was left to the executive – the Central or
Provincial Governments, according as election to the Central or
E State Legislature was concerned. In the discussions in the
Constituent Assembly, there emerged almost from the beginning
a consensus of opinion that the right to vote should be treated as
a fundamental right of the citizen and that, in order to enable him
to exercise this right freely, an independent machinery to control
F elections should be set up, free from local pressures and political
influences.
There was considerable discussion on these issues in the
Fundamental Rights Sub-Committee and the Minorities Sub-
Committee. K.M. Munshi’s draft articles on fundamental rights
included the following clause:
G
Every citizen has the right to choose the Government and the
legislators of the Union and his State on the footing of equality in
accordance with the law of the Union or the unit, as the case may
be, in free, secret and periodic elections.
H
ANOOP BARANWAL v. UNION OF INDIA 37
[K. M. JOSEPH, J.]

This clause was considered by the Fundamental Rights Sub- A
Committee at its meeting held on March 29, 1947. The sub-
committee approved that
(1) universal adult suffrage must be guaranteed by the Constitution;
(2) elections should be free, secret and periodic; and
B
(3) elections should be managed by an independent commission
set up under Union law.
To give effect to these conclusions, the following recommendation
was drafted for inclusion in the sub-committee’s report:
(1) Every citizen not below 21 years of age shall have the right to C
vote at any election to the Legislature of the Union and of any
unit thereof, or, where the Legislature is bicameral, to the lower
chamber of the Legislature, subject to such disqualifications on
the ground of mental incapacity, corrupt practice or crime as may
be imposed, and subject to such qualifications relating to residence D
within the appropriate constituency as may be required by or under
the law.
(2) The law shall provide for free and secret voting and for
periodical elections to the Legislature.
(3) The superintendence, direction and control of all elections to E
the Legislature, whether of the Union or of a unit, including the
appointment of Election Tribunals, shall be vested in an Election
Commission for the Union or the unit, as the case may be,
appointed in all cases in accordance with the law of the Union.
There was some difference of opinion about vesting so much F
power in the Union in the matter of Election Commissions. It will
be seen that, in terms of the recommendation made by the sub-
committee, the appointment of all Election Commissions,
irrespective of whether they were to function in relation to elections
to the Legislature of the Union or in relation to elections to the
Legislature of a unit was to be regulated by Union law. Some G
members of the sub-committee felt that it would be an infringement
of the rights of the units if such over-riding authority was given to
Union law in matters relating to elections to the Legislatures of
the units. Nevertheless the recommendation as included in the
draft was adopted by the sub-committee by a majority vote’. H
38 SUPREME COURT REPORTS [2023] 9 S.C.R.

A The Minorities Sub-Committee considered these provisions at its
meeting held on April 17, and accepted these recommendations.
The only point that arose at the meeting of this Sub-Committee
was raised by Syama Prasad Mukerjee, who thought that the
minorities should be effectively represented in these Election
Commissions. On the other hand Jairamdas Daulatram did not
B
think it practicable to provide for separate representation for
minorities. He suggested that the Election Commissions should
be so constituted that they would function as impartial bodies and
inspire confidence among all parties and communities. Accepting
this suggestion, the Minorities Sub-Committee proposed in its report
C that Election Commissions should be independent and quasi-judicial
in character.
The Advisory Committee on Fundamental Rights, Minorities, and
Tribal and Excluded Areas considered this matter at its meetings
of April 20 and 21. There was unanimous acceptance of the
D principles formulated by the Fundamental Rights Sub-Committee.
Discussion centred mainly on the question whether the chapter
on fundamental rights was the proper place for laying down these
matters which pertained to electoral law. C. Rajagopalachari was
of the view that franchise would not ordinarily be a part of
fundamental rights; and P.R. Thakur pointed out that the proposal
E not only made adult franchise compulsory, but also provided for
direct elections, thereby prejudging the issue of direct elections;
he expressed the view that the Advisory Committee, dealing as it
did with fundamental rights, could not appropriate the jurisdiction
to decide on this issue. Ambedkar, on the other hand, was clearly
F and emphatically of the opinion that adult franchise and all provision
for its free and fair exercise should be recognized as in the nature
of fundamental rights. He said:
So far as this committee is concerned, my point is that we
should support the proposition that the committee is in favour
G of adult suffrage. The second thing that we have guaranteed
in this fundamental right is that the elections shall be free and
the elections shall be by secret voting ... We have not said that
they shall be direct or they shall be indirect. This is a matter
that may be considered at another stage ... The third proposition
which this fundamental clause enunciates is that in order that
H
ANOOP BARANWAL v. UNION OF INDIA 39
[K. M. JOSEPH, J.]

elections may be free in the real sense of the world, they shall A
be taken out of the hands of the Government of the day, and
that they should be conducted by an independent body which
we may here call an Election Commission. We have also given
permission in sub-clause (3) of this clause that each unit may
appoint its own Commission. The only thing is that the law
B
shall be made by the Union. The reason for this is that later on
there will be a clause in the Constitution which will impose an
obligation upon the Union Government to protect the
Constitution framed by themselves for the units. Therefore
we suggested that the Union should have the power of making
a law, although the administration of that law may be left to the C
different units.
There was unanimous support for the principles enunciated by
Ambedkar but Rajagopalachari argued that it would not be proper
to deal with this issue as a fundamental right. It could not be taken
for granted, he said, that the Union Legislature would be elected D
by the direct vote of all citizens from all India. He therefore
suggested that these matters relating to franchise should be dealt
with when they arose in connection with the Constitution and not
be prejudged as fundamental rights. Eventually a compromise
solution suggested by Govind Ballabh Pant was adopted, and it
was decided that these recommendations need not go as part of E
the clauses on fundamental rights; but that in the letter forwarding
the report of the Advisory Committee the Chairman should make
it clear that the committee recommended the adoption of these
proposals.
In accordance with this decision the Advisory Committee F
recommended that, instead of being included in the chapter of
fundamental rights, the provision regarding the setting up of an
independent Election Commission, along with the other two
proposals regarding adult franchise and free and fair elections to
be held periodically, should find a place in some other part of the G
Constitution.
In his memorandum on the principles of a model Provincial
Constitution circulated on May 30, 1947, B.N. Rau, the
Constitutional Adviser, included a provision that the
superintendence, direction and control of elections, including the H
40 SUPREME COURT REPORTS [2023] 9 S.C.R.

A appointment of election tribunals, should be vested in the Governor
acting in his discretion, subject to the approval of the Council of
State. Likewise, in the memorandum on the Union Constitution,
circulated on the same date, he included a similarly comprehensive
provision that the control of central elections, including the
appointment of election tribunals, should be vested in the President
B
acting in his discretion; the intention of this provision was to make
available to the President the advice of the Council of State.
The Provincial Constitution Committee in its report of June 27,
1947, accepted the suggestions in the Constitutional Adviser’s
memorandum but deleted the reference to the approval of the
C Council of State. The Union Constitution Committee deleted all
the suggestions for the exercise of discretionary powers by the
President and also the proposal for a Council of State. The
committee however took a definite step in the direction of a
centralized authority in the matter of elections: according to its
D recommendations, all powers of supervision, direction and control
in respect of the federal as well as provincial elections would be
vested in a Commission to be appointed by the President. The
Union Powers Committee expanded this proposal by the inclusion
in the Federal Legislative List of the subject “All Federal elections:
and Election Commission to superintend, direct and control all
E Federal and Provincial elections”.
The provisions suggested in the model Provincial Constitution came
up for discussion in the Constituent Assembly on July 18, 1947.
The Constitutional Adviser in his Draft Constitution of October,
F 1947 provided that the superintendence, direction and control of
all elections to the Federal parliament and Provincial Legislatures
(including the appointment of Election Tribunals for the decision
of doubts and disputes in connection with elections to Parliament
and to Provincial Legislatures) and of all elections to the offices
of President, Vice-President, Governor and President. The
G Drafting Committee altered this scheme and in its draft the power
of appointing an Election Commission for supervising elections to
the office of Governor and to the State Legislature was vested in
the Governor. The Drafting Committee expressed the definite
opinion that the Election Commission for provincial elections should
H be appointed by the Governor. This view underwent a radical
ANOOP BARANWAL v. UNION OF INDIA 41
[K. M. JOSEPH, J.]

change subsequently and on June 15, 1947, when the article came A
up for discussion in the Constituent Assembly, Ambedkar
introduced a new article which made comprehensive provision
for a Central Election Commission to be in charge of all Central
and State elections.”
J. THE CONSTITUENT ASSEMBLY DEBATES B
16. Draft Article 289 went on to blossom into Article 324 of the
Constitution. Regarding the Draft Article 289 it is apposite that we notice
the following developments and discussions. On 15th June, 1949, the
following discussions are noticed. Amendment No.99 was moved by
Dr. B.R. Ambedkar to the original Article 289. The original Article 289 C
read as follows:
“289. The superintendence, directions 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 D
Parliament and to the Legislature of every State and of elections
to the offices of President and Vice-President held under this
Constitution, including the appointment of election tribunals for
the decision of doubts and disputes arising out of or in connection
with elections to Parliament and to the Legislatures of States shall E
be vested in a Commission (referred to in his Constitution as the
Election Commission) to be appointed by the President.
(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 appoint, and when F
any other Election Commissioner is so appointed, the Chief Election
Commissioner shall act as the Chairman of the Commission.
(3) 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
G
the Legislative Council of each State having such Council, the
President shall 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 it by clause (1) of this article.
H
42 SUPREME COURT REPORTS [2023] 9 S.C.R.

A (4) The conditions of service and tenure of office of the Election
Commissioners and the Regional Commissioners shall be such as
the President may by rule determine: Provided that the Chief
Election Commissioner shall not be removed from the office except
in like manner and on the like grounds as a judge of the Supreme
Court and the conditions of the service of the Chief Election
B
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.
C (5) The President or the Governor or Ruler 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) of this article.”
D 17. The amendment moved contemplated substitution of the
original Article 289 inter alia as follows:
“(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 appoint, and when
E any other Election Commissioner is so appointed, the Chief Election
Commissioner shall act as the Chairman of the Commission.
Xxx xxx xxx
(4) The conditions of service and tenure of office of the Election
F Commissioners and the Regional Commissioners shall be such as
the President may by rule determine:
Provided that the Chief Election Commissioner shall not be
removed from the office except in like manner and on the like
grounds as a judge of the Supreme Court and the conditions of
the service of the Chief Election Commissioner shall not be varied
G
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.”
H 18. Dr. B.R. Ambedkar had this to state inter alia:
ANOOP BARANWAL v. UNION OF INDIA 43
[K. M. JOSEPH, J.]

“The House will remember that in a very early stage in the A
proceedings of the Constituent Assembly, a Committee was
appointed to deal with what are called Fundamental Rights. That
Committee made a report that it should be recognised that the
independence of the elections and the avoidance of any
interference by the executive in the elections to the Legislature
B
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 the wish of the House that while
there was no objection to regard this matter as of fundamental
importance, it should be provided for in some other part of the
Constitution and not in the Chapter dealing with Fundamental C
Rights. But the House affirmed without any kind of dissent that in
the interests of purity and freedom of elections to the legislative
bodies, it was of the utmost importance that they should be freed
from any kind of interference from the executive of the day. In
pursuance of the decision of the House, the Drafting Committee
D
removed this question from the category of Fundamental Rights
and put it in a separate part containing articles 289, 290 and so on.
Therefore, so far as the fundamental question is concerned that
the election machinery should be outside the control of the
executive Government, there has been no dispute. What article
289 does is to carry out that part of the decision of the Constituent E
Assembly. It transfers the superintendence, direction and control
of the preparation of the electoral rolls and of all elections to
Parliament and the Legislatures of States to a body outside the
executive to be called the Election Commission. That is the
provision contained in sub-clause (1).
F
Sub-clause (2) says that there shall be a Chief Election
Commissioner and such other Election Commissioners as the
President may, from time to time appoint. There were two
alternatives before the Drafting Committee, namely, either to have
a permanent body consisting of four or five members of the Election
Commission who would continue in office throughout without any G
break, or to permit the President to have an ad hoc body appointed
at the time when there is an election on the anvil. The Committee,
has steered a middle course. What the Drafting Committee
proposes by sub-clause (2) is to have permanently in office one
man called the Chief Election Commissioner, so that the skeleton H
44 SUPREME COURT REPORTS [2023] 9 S.C.R.

A machinery would always be available. Election no doubt will
generally take place at the end of five years; but there is this
question, namely that a bye-election may take place at any time.
The Assembly may be dissolved before its period of five years
has expired. Consequently, the electoral rolls will have to be kept
up to date all the time so that the new election may take place
B
without any difficulty. It was therefore felt that having regard to
these exigencies, it would be sufficient if there was permanently
in session one officer to be called the Chief Election Commissioner,
while when the elections are coming up, the President may further
add to the machinery by appointing other members to the Election
C Commission.
Now, Sir, the original proposal under article 289 was that there
should be one Commission to deal with the elections to the Central
Legislature, both the Upper and the Lower House, and that there
should be a separate Election Commission for each province and
D each State, to be appointed by the Governor or the Ruler of the
State. Comparing that with the present article 289, there is
undoubtedly, a radical change. This article proposes to centralize
the election machinery in the hands of a single Commission to be
assisted by regional Commissioners, not working under the
provincial Government, but working under the superintendence
E and control of the central Election Commission. As I said, this is
undoubtedly a radical change. But, this change has become
necessary because today we find that in some of the provinces of
India, the population is a mixture…”
(Emphasis supplied)
F
19. Professor Shibban Lal Saksena gave notice of an amendment
to the amendment to Article 289 which, inter alia, stated that after the
word ‘appoint’ in clause (2), the words “subject to confirmation by two-
third majority in a joint session of both the Houses of Parliament” be
inserted. He also proposed that in clause (4), the words “Parliament
G may by law determine” be substituted for the words “President may by
rule determine”. There were certain other amendments proposed by
Prof. Saksena. Prof. Saksena further went on to make the following
statement:
“..Of course it shall be completely independent of the provincial
H Executives but if the President is to appoint this Commission,
ANOOP BARANWAL v. UNION OF INDIA 45
[K. M. JOSEPH, J.]

naturally it means that the Prime Minister appoints this Commission. A
He will appoint the other Election Commissioners on his
recommendations. Now this does not ensure their
independence…”
Xxx xxx xxx
“So what I want is this that even the person who is appointed B
originally should be such that he should be enjoying the confidence
of all parties—his appointment should be confirmed not only by
majority but by two-thirds majority of both the Houses. If it is only
a bare majority, then the party in power could vote confidence in
him but when I want 2/3rd majority it means that the other parties C
must also concur in the appointment so that in order that real
independence of the Commission may be guaranteed, in order
that everyone even in opposition may not have anything to say
against the Commission, the appointments of the Commissioners
and the Chief Election Commissioner must be by the President
but the names proposed by him should be such as command the D
confidence of two-thirds majority of both the Houses of
Legislatures.”
xxx xxx xxx
“I want that in future, no Prime Minister may abuse this
right, and for this I want to provide that there should be two-thirds E
majority which should approve the nomination by the President.
Of course there is danger where one party is in a huge majority.
As I said just now it is quite possible that if our Prime Minister
wants, he can have a man of his own party, but I am sure he will
not do it. Still if he does appoint a party-man, and the appointment
F
comes up for confirmation in a joint session, even a small opposition
or even a few independent members can down the Prime Minister
before the bar of public opinion in the world. Because we are in a
majority we can have anything passed only theoretically. So the
need for confirmation will invariably ensure a proper choice.”
(Emphasis Supplied) G

20. On 16th June 1949, we notice that Shri H.V. Pataskar stated
as follows:
“As I said, so far as I can see, article 289(2) is quite enough for
the purpose. Even under article 289(2) we can appoint not merely H
46 SUPREME COURT REPORTS [2023] 9 S.C.R.

A some officials of the Government as Election Commissioners, but
people of the position of High Court Judges; we can make them
permanent; we can make them as Independent as we are trying
to make them in the case of the Central Commission.”
(Emphasis Supplied)
B
21. Pandit Hirday Nath Kunzru addressed the following concerns
and suggested as follows:
“Here two things are noticeable: the first is that it is only the Chief
Election Commissioner that can feel that he can discharge his
duties without the slightest fear of incurring the displeasure of the
C
executive, and the second is that the removal of the other Election
Commissioners will depend on the recommendations of one man
only, namely the Chief Election Commissioner. However
responsible he may be, it seems to me very undesirable that the
removal of his colleagues who will occupy positions as responsible
D as those of judges of the Supreme Court should depend on the
opinion of one man. We are anxious, Sir, that the preparation of
the electoral rolls and the conduct of elections should be entrusted
to people who are free from political bias and whose impartially
can be relied upon in all circumstances. But, by leaving a great
E deal of power in the hands of the President we have given room
for the exercise of political influence in the appointment of the
Chief Election Commissioner and the other Election
Commissioners and officers by the Central Government. The Chief
Election Commissioners will have to be appointed on the advice
of the Prime Minister, and, if the Prime Minister suggests the
F appointment of a party-man the President will have no option but
to accept the Prime Minister’s nominee, however unsuitable he
may be on public grounds. (Interruption). Somebody asked me
suitable why it should be so.”
xxx xxx xxx
G
“My remedy for the defects that I have pointed out is that Parliament
should be authorised to make provision for these matters by law.
Again, Sir, this article does not lay down the qualifications of
persons who are chosen as Chief Election Commissioners or as
Election Commissioners. And, as I have already pointed out, in
H
ANOOP BARANWAL v. UNION OF INDIA 47
[K. M. JOSEPH, J.]

the matter of removal, the Election Commissioners are not on the A
same footing as the Chief Election Commissioner.”
(Emphasis Supplied)
22. Shri K.M. Munshi expressed the following views:
“Between two elections, normally there would be a period of five B
years. We cannot have an Election Commission sitting all the time
during those five years doing nothing. The Chief Election
Commissioner will continue to be a whole-time officer performing
the duties of his office and looking after the work from day to day,
but when major elections take place in the country, either Provincial
or Central, the Commission must be enlarged to cope with the C
work. More members therefore have to be added to the
Commission. They are no doubt to be appointed by the President,
but as the House will find, they are to be appointed from time to
time. Once they are appointed for a particular period they are not
removable at the will of the President. Therefore, to that extent D
their independence is ensured. So there is no reason to believe
that these temporary Election Commissioners will not have the
necessary measure of independence. Any way the Chief Election
Commissioner an independent officer, will be the Chairman and
being a permanent officer will have naturally directing and
supervising power over the whole Commission. Therefore, it is E
not correct to say that independence of the Commission is taken
away to any extent.
We must remember one thing, that after all an election department
is not like a judiciary, a quasi-independent organ of Government.
It is the duty and the function of the Government of the day to F
hold the elections. The huge electorates which we are putting up
now, the voting list which will run into several crores—all these
must necessarily require a large army of election officers, of clerks,
of persons to control the booths and all the rest of them. Now all
this army cannot be set up as a machinery independent of G
Government. It can only be provided by the Central Government,
by the Provincial Government or by the local authorities as now.
It is not possible nor advisable to have a kingdom within a kingdom,
so that the election matters could be left to an entirely independent
organ of the Government. A machinery, so independent, cannot
H
48 SUPREME COURT REPORTS [2023] 9 S.C.R.

A be allowed to sit as a kind of Super-Government to decide which
Government shall come into power. There will be great political
danger if the Election Tribunal becomes such a political power in
the country. Not only it should preserve its independence, but it
must retain impartiality. Therefore, the Election Commission must
remain to a large extent an ally of the Government; not only that,
B
but it must, a considerable extent, be subsidiary to Government
except in regard to the discharge of the functions allotted to it by
law.
“Therefore, the Parliament as well as the State Legislatures are
free to make all provisions with regard to election, subject, of
C course, to this particular amendment, namely, the superintendence,
direction and control of the Election tribunal. Today, for instance,
the elections re controlled by officers appointed either by the Center
or the Provinces as the case may be. What is now intended is that
they should not be subjected to the day-to-day influence of the
D Government nor should they be completely independent of
Government, and therefore a sort of compromise has been made
between the two positions; but I agree with my honourable Friend,
Pandit Kunzru that for the sake of clarity, at any rate, to allay any
doubts clause (2) requires a little amendment. At the beginning of
clause (2) the following words may be added; “subject to the
E provisions of law made in this behalf by Parliament.”
(Emphasis Supplied)
23. Dr. B.R. Ambedkar made the following remarks:
“Now with regard to the question of appointment I must confess
F that there is a great deal of force in what my Friend Professor
Saksena said that there is no use making the tenure of the Election
Commissioner a fixed and secure tenure if there is no provision in
the Constitution to prevent either a fool or a knave or a person
who is likely to be under the thumb of the Executive. My provision—
G I must admit-—does not contain anything to provide against
nomination of an unfit person to the post of the Chief Election
Commissioner or the other Election Commissioners. I do want to
confess that this is a very important question and it has given me
a great deal of headache and I have no doubt about it that it is
going to give this House a great deal of headache. In the U.S.A.
H
ANOOP BARANWAL v. UNION OF INDIA 49
[K. M. JOSEPH, J.]

they have solved this question by the provision contained in article A
2 Section (2) of their Constitution whereby certain appointments
which are specified in Section (2) of article 2 cannot be made by
the President without the concurrence of the Senate; so that so
far as the power of appointment is concerned, although it is vested
in the President it is subject to a check by the Senate so that the
B
Senate may, at the time when any particular name is proposed,
make enquiries and satisfy itself that the person proposed is a
proper person. But it must also be realised that that is a very
dilatory process, a very difficult process. Parliament may not be
meeting at the time when the appointment is made and the
appointment must be made at once without waiting. Secondly, the C
American practice is likely and in fact does introduce political
considerations in the making of appointments. Consequently, while
I think that the provisions contained in the American Constitution
is a very salutary check upon the extravagance of the President
in making his appointments, it is likely to create administrative
D
difficulties and I am therefore hesitating whether I should at a
later stage recommend the adoption of the American provisions
in our Constitution. The Drafting Committee had paid considerable
attention to this question because as I said it is going, to be one of
our greatest headaches and as a via media it was thought that if
this Assembly would give or enact what is called an Instrument of E
Instructions to the President and provide therein some machinery
which it would be obligatory on the President to consult before
making any appointment, I think the difficulties which are felt as
resulting from the American Constitution may be obviated and
the advantage which is contained therein may be secured. At this
F
stage it is impossible for me to see or anticipate what attitude this
House will take when the particular draft Instructions come before
the House. If the House rejects the proposal of the Drafting
Committee that there should be an Instrument of Instructions to
the President which might include, among other things, a provision
with regard to the making of appointments, this problem would G
then be solved by that method. But, as I said, it is quite difficult for
me to anticipate what may happen. Therefore in order to meet
the criticism of my honourable Friend Professor Saksena,
supported by the criticism of my honourable Friend Pandit Kunzru,
I am prepared to make certain amendments in amendment No.
H
50 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 99. I am sorry I did not have time to circulate these amendments,
but when I read them the House will know what I am proposing.”
(Emphasis Supplied)
24. Thereafter, he proposed that an amendment which read as
follows:
B
“The appointment of the Chief Election Commissioner and other
Election Commissioners shall, subject to the provisions of any law
made in this behalf by Parliament, be made by the President.”
(Emphasis Supplied)
C 25. We notice that the amendment which was proposed by
Professor Shibban Lal Saksena which we have noticed came to be
negatived and the amendment which was proposed by Dr. B.R.
Ambedkar was adopted. Thus, Article 289 as amended was added to
the Constitution. It is this Article which appears in the Constitution as
D Article 324.
26. At this stage, we may only notice the following comment,
however, in the work by B Shiva Rao: -
“By leaving a great deal of power in hands of the President, it
gave room for the exercise of political influence by the Central
E Government in the appointment of the Chief Election
Commissioner and the other Election Commissioners. His remedy
was that Parliament should be authorized to make provision for
these matters by law. K.M. Munshi, while supporting Ambedkar’s
proposal suggested in order to meet Kunzru’s criticism an
amendment requiring that the appointment of the Chief Election
F
Commissioner and the other Election Commissioners would be
subject to law made by Parliament; and that the power of the
President to make rules regulating their conditions of service would
likewise be subject to any law made by Parliament. With these
modifications the article was adopted: at the revision stage it was
G numbered as article 324.”
27. The Constituent Assembly of India can proximately be traced
to the deliberations of the cabinet mission. The broad features were as
follows. The members of the constituent assembly were to be elected
not on the basis of adult suffrage. At the time, i.e., in 1946, India was still
H under British rule. British India broadly consisted of the Governors
ANOOP BARANWAL v. UNION OF INDIA 51
[K. M. JOSEPH, J.]

provinces and the Chief Commissioner’s provinces. There were also a A
large number of princely states. An interim government, no doubt, based
on elections, was put in place. There were also at the same time,
provincial legislative bodies. The members of the Constituent Assembly
came to be elected by the members of the provincial assemblies and
they were not directly elected by the people of the country as such. Shri
B
Kaleeswaram Raj is, therefore, correct that the Constituent Assembly
was not directly elected by the people. There were changes which were
necessitated by the partition. Suffice it to note that there were 238
members representing the Governors and others provinces. This is besides
89 sent by the princely states. The first meeting of the Assembly was
held on 9th December, 1946.One Shri B.N.Rau was appointed as the C
constitutional advisor. He made a draft constitution. A drafting committee,
drawn from the members of the constituent assembly in turn with the
help of the Secretariat as well, brought out two drafts further, which in
turn, were published.Public discussion ensued. Thereafter, the draft
articles were discussed in the constituent assembly.There were further
D
amendments. It is to be noticed also that the humongous task necessarily
led to the creation of several committees. The most prominent of them
can be perceived as the drafting committee, the advisory committee and
various sub-committees which included the sub-committee on
fundamental rights.
K. THE USE OF CONSTITUENT ASSEMBLY DEBATES E

28. 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 the various steps leading up to and F
accompanying its enactment. In this regard, we may refer to the following
view expressed in His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala and Another10:
“1598. If the debates in the Constituent Assembly can be looked
into to understand the legislative history of a provision of the G
Constitution including its derivation, that is, the various steps leading
up to and attending its enactment, to ascertain the intention of the
makers of the Constitution, it is difficult to see why the debates
10
(1973) 4 SCC 225
H
52 SUPREME COURT REPORTS [2023] 9 S.C.R.

A are inadmissible to throw light on the purpose and general intent
of the provision. After all, legislative history only tends to reveal
the legislative purpose in enacting the provision and thereby sheds
light upon legislative intent. It would be drawing an invisible
distinction if resort to debates is permitted simply to show the
legislative history and the same is not allowed to show the
B
legislative intent …”
(Emphasis supplied)
29. In fact, in a recent Judgment by Justice Ashok Bhushan, which
is partly concurring and partly dissenting, reported in Dr. Jaishri
C Laxmanrao Patil v. Chief Minister and others11, has approved, after
referring to the decisions of this Court on the point, ‘the use of Constituent
Assembly debates’.
L. CONCLUSIONS ABOUT HISTORICAL PERSPECTIVES
INCLUDING THE LIGHT SHED BY THE CONSTITUENT
D ASSEMBLY DEBATES
30. The members of the Constituent Assembly were undoubtedly
concerned over the need to ensure independence of the Election
Commission. Under the Government of India Act, 1935, the earlier law,
it was the Executive which was conferred the power to conduct the
E election. Initially, there was a consensus of opinion, in fact, that the right
to vote was to be made a fundamental right. In fact, in the draft Article
by Shri K.M. Munshi, he contemplated providing for right to choose for
every citizen and a free secret and periodic election.The Fundamental
Rights Sub-Committee also approved that there must be universal adult
franchise guaranteed by the Constitution.The election was to be free,
F secret and periodic. Most importantly, the Fundamental Rights Sub-
Committee in the meeting held on 29.03.1947 contemplated that an
independent Commission must be set up under Union law. A
recommendation providing for an Election Commission being appointed
in all cases with the law of the Union was made. Further, it becomes
G clear from a perusal of the work ‘Framing of India’s Constitution’ by B.
Shiva Rao that some disputes arose relating to so much power being
conferred on the Union in the matter of elections. The dispute essentially
related to clothing the Commission with power to conduct elections in
regard to the State Legislatures, besides the Union Legislature. The
11
(2021) 8 SCC 1
H
ANOOP BARANWAL v. UNION OF INDIA 53
[K. M. JOSEPH, J.]

Minority Sub-Committee also made a report that the Election Commission A
should be independent and quasi-judicial in character.The Advisory
Committee on Fundamental Rights, Minority, Tribal and Excluded Area
also accepted the principles formulated by the Fundamental Rights Sub-
Committee. However, the view was expressed by Shri C. Rajagopalachari
that the right to vote should not be a part of fundamental right. Dr.
B
Ambedkar, however, specifically opined that in order that election may
be free in the real sense of the word, they shall be taken out of the hands
of the government of the day, and be conducted by the independent
body called the Election Commission. Shri C. Rajagopalachari, however,
persevered with the theme that the matter relating to franchise may not
find itselfamong the provisions providing for Fundamental Rights. Shri C
Govind Vallabh Pant suggested a compromise and the Advisory
Committee thereby recommended that instead of being included in the
Chapter on Fundamental Rights, the provisions relating to franchise and
to an independent Election Commission should be located in another
part of the Constitution. In his work, the Framing of India’sConstitution,
D
by B. Shivarao has not minced words by commenting that by leaving a
great deal of power in the hands of the President, it gave room for
exercising political influence in the appointment of the Election
Commissioner and other election commissioners. The remedy, it was
found, which was contemplated was, that the Parliament would make a
law to regulate the matter. As we have noticed, there was severe criticism, E
particularly by Shri Kunzuru and Professor Shiben Lal Saxena, and it
was thereupon, that Shri K.M. Munshi while supporting Ambedkar’s
amendment to the original article, recommended that the appointment
be subject to the law made by the Parliament. It is on this fundamental
basis that the amendment which was proposed by Dr. Ambedkar to the
F
original article was adopted.
31. Professor Saxena was emphatic that the draft amended Article
289, which contemplated appointment being made by the President,
without anything more, would necessarily mean that the Prime Minister
would end up appointing the Commission. He warned that it would not
ensure their independence. He was clear that in future, no Prime Minister G
should abuse the right to appoint.Shri H.V. Pataskar felt Article 289(2)
sufficed. The thought which comforted the Member was not merelysome
official of the Government could be appointed as Election Commissioners
but people in the position of High Court Judges. Pandit Hirday Nath
Kunzru clearly articulated the anxiety and the need for the preparation H
54 SUPREME COURT REPORTS [2023] 9 S.C.R.

A of the electoral roll and the conduct of the elections, being entrusted to
people, who were free from political bias and whose impartiality could
be relied upon ‘in all circumstances’. The plight of the President, who
has to act on the advice of the Prime Minister, was highlighted. It was
the learned Member, who suggested the remedy for the defect, thatis
that the Parliament should be authorised to make provisions for these
B
matters, by law. This was also the view of the Sub-Committee on
Fundamental Rights. Shri K. M. Munshi, took the view that the Election
Commission must remain to a large extent an ally of the Government.
The pursuit of independence of the Election Commission, he felt, should
not result in there arising ‘a kingdom within a kingdom’. It was not to be
C a quasi-independent organ of the Government. This is on the basis that
the Election Commission would necessarily have to rely upon Officers,
who would have to be provided by the Government. Finally, we find Dr.
Ambedkar acknowledging the existence of a great deal of merit in the
fear that guaranteeing a fixed and secured tenure, was of no use, if
there was no provision in the Constitution, which would stand in the way
D of either an incompetent or unfair official, becoming and running the
Election Commission. In particular, Dr. Ambedkar foresaw the danger
of the Election Commissioners, being persons who were likely to be
under the control of the Executive. The provision, as proposed to be
amended by Dr. Ambedkar, it was admitted by Dr. Ambedkar himself,
E did not provide against an ‘unfit’ person being appointed to the Election
Commission. Thereafter, he predicted that the question will emerge as
one of the greatest headaches. He found solace in the prospect of an
instrument of instructions being issued to the President, which would
guide the President in the matter of appointment to the Election. Noticing
the uncertainty about the prospect, however, it was and to allay the
F apprehensions voiced by both Professor Saxena and Pandit Kunzru, that
Article 324(2), as it presently obtains, came to be proposed by way of
the amendment to the amendment of the original Article. In other words,
before the words ‘be made by the President’, the words ‘subject to
provisions of any law made in this behalf by Parliament’. came to be
G inserted.
32. We understand the historical perspective, and the deliberations
of the Fundamental Rights Sub-Committee, the Drafting Committee and
the other Sub-Committees and, finally, of the Constituent Assembly itself,
to be as follows:
H A golden thread runs through these proceedings.
ANOOP BARANWAL v. UNION OF INDIA 55
[K. M. JOSEPH, J.]

All the Members were of the clear view that election must be A
conducted by an independent Commission. It was a radical departure
from the regime prevailing under the Government of India Act, 1935.
The Members very well understood that providing for appointment of
Members of the Election Commission by the President would mean that
the President would be bound to appoint the Election Commissioner solely
B
on the advice of the Executive, which, in a sense, was understood as on
the advice of the Prime Minister. The model of appointment prevailing in
the United States was deliberated and not approved. Though, Shri K.
M. Munshi was not in favour of giving complete independence to the
Election Commission and felt that it should be an ally of the Government,
it clearly did not represent the views of the predominant majority of the C
Members. Right to Vote was, to begin with, considered so sacrosanct
that it was originally contemplated as a Fundamental Right. However,
finally, as we have already noticed, it was found more appropriate that it
should be contained in a separate part of the Constitution, which is the
position obtaining under the Constitution. It is equally clear that the
D
Members of the Committees, including the Constituent Assembly, wanted
the appointment to the Election Commission not to be made by the
Executive. The uncertain prospect of an instrument of instructions, finally
led the Assembly to adopt the amendment suggested by Dr. Ambedkar,
which, as we have noticed, was initially the suggestion made by Pandit
Kunzru, and what is more, even seconded by Shri K. M. Munshi. In E
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. In this regard,
we notice the final words of Dr. Ambedkar in regard to the debate
F
surrounding Article 324, was that he felt sorry that he did not have time
to circulate the amendments.
33. It is important that we understand that when the Founding
Fathers, therefore, inserted the words ‘subject to the provisions of any
law to be made by Parliament’, it was intended that Parliament would G
make a law. While we 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 we are finding is that the Constituent
Assembly clearly intended that Parliament must make a law within the
meaning of Article 324(2). Such an understanding of Article 324(2) may
H
56 SUPREME COURT REPORTS [2023] 9 S.C.R.

A be contrasted with similar provisions in the Constitution, which also
contemplated enabling the making of law by Parliament. This brings us
to the question relating to an evaluation of similar provisions in the
Constitution.
M. ARTICLES IN THE CONSTITUTION, WHICH
B EMPLOY THE WORDS ‘SUBJECT TO ANY LAW’ TO
BE MADE BY PARLIAMENT ASCONTAINED IN
ARTICLE 324
34. One of the contentions of the respondent-Union is that this
Court must bear in mind the snowballing effect of the interpretation
C canvassed by the petitioners being accepted on other situations governed
by other Articles.
35. Articles in the Constitution, which employ the words ‘subject
to any law’ to be made by Parliament as contained in Article 324.
D 36. Article 98 provides that each House of Parliament shall have
a separate Secretarial Staff. Article 98(2) provides that Parliament may,
by law, regulate the recruitment and conditions of the staff. Article 98(3)
empowers the President, in consultation with the Speaker of the House
of People or Chairman of the Council of States, to make Rules, till
Parliament makes law. Apart from the dissimilarity, it is to be noticed
E
that, even in the matter governed by Article 98, if not law, Rules are to
govern.
37. Article 137 declares that, subject to the provisions of any law
made by Parliament or Rules made under Article 145, Supreme Court
F shall have the power of review. It will be noticed that in the first place,
the Supreme Court has framed rules, regulating the power to review.
The absence of a law made by Parliament would have little effect. The
purport of Article 137 has absolutely no comparison with Article 324(2).
Article 142(2) uses the same expression, viz., ‘subject to the provisions
of any law made by Parliament’ and it provides that the Supreme Court
G is to have power for ordering the attendance of any person, the discovery
or protection of any document or the investigation or punishment for any
contempt. Patently, the absence of any law under Article 142cannot
produce the impact, which Article 324(2) is capable of producing and,
what is more, vouchsafed by the debates in the Constituent Assembly.
H
ANOOP BARANWAL v. UNION OF INDIA 57
[K. M. JOSEPH, J.]

38. Article 145 uses the expression ‘subject to the provisions of A
any law made by Parliament’, Supreme Court can make Rules for
regulating the practice and procedure of the Court. It is self-evident that
it bears no resemblance to the context, purpose and background of Article
324(2).
39. Article 146 of the Constitution of India reads as follows: B

“146. Officers and servants and the expenses of the Supreme
Court
(1) Appointments of officers and servants of the Supreme Court
shall be made by the Chief Justice of India or such other Judge or C
officer of the Court as he may direct: Provided that the President
may by rule require that in such cases as may be specified in the
rule, no person not already attached to the Court shall be appointed
to any office connected with the Court, save after consultation
with the Union Public Service Commission
D
(2) Subject to the provisions of any law made by Parliament, the
conditions of service of officers and servants of the Supreme
Court shall be such as may be prescribed by rules made by the
Chief Justice of India or by some other Judge or officer of the
Court authorised by the Chief Justice of India to make rules for
E
the purpose: Provided that the rules made under this clause shall,
so far as they relate to salaries, allowances, leave or pensions,
require the approval of the President
(3) The administrative expenses of the Supreme Court, including
all salaries, allowances and pensions payable to or in respect of F
the offices and servants of the Court, shall be charged upon the
Consolidated Fund of India, and any fees or other moneys taken
by the court shall form part of that Fund.”

40. Article 146(2) is essentially a matter which deals with the
conditions of service of Officers and Servants of Supreme Court. In G
regard to the said employees, the Founding Fathers have provided for
Rule-making power with the Chief Justice of India. We are clear in our
minds that apart from the fact, the rule-making power is lodged with the
Chief Justice of India, there cannot be any valid comparison between
the employees of the Supreme Court and the members of theElection
H
58 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Commission. There is no safeguard provided against the removal as is
contemplated for the Chief Election Commissioner and Election
Commissioners. Article 148 deals with appointment of the Comptroller
and Auditor General of India. It reads as follows:
“148. Comptroller and Auditor General of India
B
(1) There shall be a Comptroller and Auditor General of India
who shall be appointed by the President by warrant under his
hand and seal and shall only be removed from office in like manner
and on the like grounds as a Judge of the Supreme Court

C (2) Every person appointed to be the Comptroller and Auditor
General of India shall, before he enters upon his office, make and
subscribe before the President, or some person appointed in that
behalf by him, an oath or affirmation according to the form set out
for the purpose in the Third Schedule
D (3) The salary and other conditions of service of the Comptroller
and Auditor General shall be such as may be determined by
Parliament by law and, until they are so determined, shall be as
specified in the Second Schedule: Provided that neither the salary
of a Comptroller and Auditor General nor his rights in respect of
leave of absence, pension or age of retirement shall be varied to
E
his disadvantage after his appointment
(4) The Comptroller and Auditor General shall not be eligible for
further office either under the Government of India or under the
Government of any State after he has ceased to hold his office
F (5) Subject to the provisions of this Constitution and of any law
made by Parliament, the conditions of service of persons serving
in the Indian Audit and Accounts Department and the
administrative powers of the Comptroller and Auditor General
shall be such as may be prescribed by rules made by the President
G after consultation with the Comptroller and Auditor General
(6) The Administrative expenses of the office of the Comptroller
and Auditor General, including all salaries, allowances and pensions
payable to or in respect of pensions serving in that office, shall be
charged upon the Consolidated Fund of India.”
H
ANOOP BARANWAL v. UNION OF INDIA 59
[K. M. JOSEPH, J.]

41. As far as the appointment of the Comptroller and Auditor A
General is concerned, it is governed by Article 148 (1) and the Founding
Fathers have provided beyond the pale of any doubt that the appointment
of the Comptroller and Auditor General, vital and indispensable as he is
for the affairs of the nation, his appointment is to be made by the President.
The safeguard, however, considered suitable to ensure his independence
B
has been declared by providing that the CAG can be removed only in
like manner and on like grounds as a Judge of the Supreme Court. In
stark contrast, Article 324 (2) has, while it has provided for the
appointment of the Chief Election Commissioner and the Election
Commissioners by the President, it has been made subject to a law to be
made by the Parliament.No such provision is provided in Article 148 (1). C
We cannot be oblivious to the fact that this is apart from providing for
the safeguard in the first proviso to Article 324 (5) that the Chief Election
Commissioner shall not be removed except in like manner and like grounds
as a Judge of Supreme Court of India. Still further, there is a third
distinguishing feature between the Chief Election Commissioner and the
D
CAG again located in the first proviso to Article 324 (5). It is declared
that the conditions of service of the Chief Election Commissioner shall
not be varied to his disadvantage after his appointment. The Chief Election
Commissioner and Election Commissioners stand on a far higher pedestal
in the constitutional scheme of things having regard to the relationship
between their powers, functions and duties and the upholding of the E
democratic way of life of the nation, the upkeep of Rule of Law and the
very immutable infusion of life into the grand guarantee of equality under
Article 14.
42. Article 187 provides for a Secretariat for the State Legislature.
Except for the difference in the Legislative Body being the State F
Legislature and the Governor taking the place of the President, it mirrors
Article 98 of the Constitution.
43. Article 229 deals with Officers, servants and expenses of
High Court. There cannot be any valid comparison between the Chief
Election Commissioner and the Election Commissioners contemplated G
under Article 324 (2) and the Officers and servants of the High Court.
The very fact that Officers covered by Article 229 (2) are not extended
any protection against removal, itself not merely furnishes a significant
starting point but may itself be conclusive of the dissimilarity between
H
60 SUPREME COURT REPORTS [2023] 9 S.C.R.

A the persons associated with the Central Election Commission and the
employees covered by Article 229 (2).
44. Article 229(2) deals with the Officers, expense and servants
of the High Court. Since Article 229 is pari materia with Article 146
(2), we would find merit in the same rationale, which we have furnished
B for not comparing the employees with the persons governed by Article
324 (2).
45. Article 243 (k) is part of Part IX of the Constitution, which
was inserted by the Constitution (Seventy Third) Amendment Act, 1992.
Part IX deals with the panchayats. Article 243 (k) reads as follows:
C
“243K. Elections to the Panchayats The superintendence, direction
and control of the preparation of electoral rolls for, and the conduct
of, all elections to the Panchayats shall be vested in a State Election
Commission consisting of a State Election Commissioner to be
appointed by the Governor.
D
(2) Subject to the provisions of any law made by the Legislature
of a State the conditions of service and tenure of office of the
State Election Commissioner shall be such as the Governor may
by rule determine: Provided that the State Election Commissioner
shall not be removed from his office except in like manner and on
E
the like ground as a Judge of a High Court and the conditions of
service of the State Election Commissioner shall not be varied to
his disadvantage after his appointment.
(3) The Governor of a State shall, when so requested by the State
F Election Commission, make available to the State Election
Commission such staff as may be necessary for the discharge of
the functions conferred on the State Election Commission by clause
(1).
(4) Subject to the provisions of this Constitution, the Legislature
G of a State may, by law, make provision with respect to all matters
relating to, or in connection with, elections to the Panchayats.”
46. Article 243(k)(1) contemplates the appointment of the State
Election Commissioner to be made by the Governor. Article 243(k)(2)
contemplates that the conditions of service and the tenure of the State
H Election Commissioner is to be such as may be made by the Governor
ANOOP BARANWAL v. UNION OF INDIA 61
[K. M. JOSEPH, J.]

by Rule and this is, however, made subject to the provisions of any law A
made by the Legislature of a State. It is, no doubt, again true that the
Parliament, while inserting Article 243K, has partly insulated the State
Election Commissioner by providing that he shall not be removed from
Office except in like manner and on like ground as a Judge of the High
Court. Similarly, in the proviso to Article 243K(2), the conditions of service
B
of the State Election Commissioner cannot be varied to his disadvantage
after his appointment. It must be noticed that Parliament was aware of
the mandate of Article 324(2) when it inserted Article 243. Parliament
has carefully chosen not to provide for the making of any law as regards
the appointment of the State Election Commissioner. In fact, this may
leave no choice for a Court to step-in and provide for the matter of C
appointment as regards the State Election Commissioner. However, we
need not explore the matter further having regard to the stark contrast
between Article 243K on the one hand and Article 324(2) on the other.
As far as the conditions and tenure forming the subject matter of a law
to be made by the Legislature of the State, we would think that in keeping
D
with the position and the subject matter of Article 243K(2), it may not be
apposite to project Article 243K(2) as a premise to reject the request of
the petitioners to place the interpretation on Article 324(2), if it is otherwise
justified.
47. Article 338(2) provides that subject to the provisions of any E
law made by Parliament, the National Commission for Scheduled Caste
was to consist of a Chairman, Vice-Chairman and three other Members
and the conditions of service and tenure of Office, were to be such as
the President, may by Rule, determine. An identical provision is contained
in Article 338A(2) as regards National Commission for Scheduled Tribes.
Not unnaturally, in Article 338B(2), similar provisions are contained in F
regard to National Commission for Backward Classes. What is, however,
pertinent to notice is Article 338(3). It provides:
“The Chairperson, the Vice-Chairperson and other Members of
the Commission shall be appointed by the President by warrant
under his hand and seal.” G

Identical provisions have been made vide Article 338A and Article
338B.
48. We would notice that pertinently, Articles 338, 338A and 338B
contemplates a law to regulate the conditions of service and tenure of H
62 SUPREME COURT REPORTS [2023] 9 S.C.R.

A the Members of the National Commission for Scheduled Castes,
Scheduled Tribes and Backward Classes. Article 324(5) contemplates a
law being made to regulate the conditions of service and the tenure of
Office of the Election Commissioners. Most pertinently, Parliament has
enacted the 1991 Act, as contemplated in Article 324(5). It is, when it
comes to providing for the appointment of the Election Commissioners,
B
which was clearly in the contemplation of the Founding Fathers that no
law has been made. The old regime continues. In regard to the Members
of the National Commissions, covered by Articles 338, 338A and 338B,
the Constitution is clear that the appointment is to be made by President.

C 49. Article 367(3) deals with the meaning of a foreign State for
the purpose of the Constitution and after declaring it to be ‘any State’
other than India, makes it, subject to a proviso, which declares that
subject to the provisions of any law made by Parliament, the President
may, by order, declare any State not to be a foreign State for such
purposes, as may be specified in the Order. The matter is governed fully
D by the Constitution (Declaration as to Foreign States) Order, 1950. Apart
from the apparent absence of any imperative need for a law, the matter
is governed by an Order, which is issued under the Constitution, which
itself would be of a statutory nature and also issued under an enabling
provision of the Constitution itself.
E No further discussion is needed to conclude that Article 324(2) is
unique in its setting and purpose.
N. DEVELOPMENTS AFTER 26 JANUARY 1950; THE
CHIEF ELECTION COMMISSIONERS AND THE
ELECTION COMMISSIONERS WHO WERE APPOINTED
F AND THEIR TERMS
50. In the year 1951, Shri Sukumar Sen was appointed as the first
Chief Election Commissioner of India. He was a Civil Servant and a
former Chief Secretary of the State of West-Bengal. His term was to
last for eight years and two hundred and seventy-three days. Shri Kalyan
G
Sundaram, the second Chief Election Commissioner, again a Civil Servant,
the first Law Secretary and who also chaired the Indian Law Commission
for the period from 1968 to 1971, was appointed as Chief Election
Commissioner on 20.12.1958 and his term terminated on 30.09.1967. It
is noteworthy that his term also lasted eight years and two hundred and
H eighty-four days.
ANOOP BARANWAL v. UNION OF INDIA 63
[K. M. JOSEPH, J.]

51. The Government of India (Transaction of Business) Rules, A
1961 have been referred to by the parties. Insofar as it is relevant, we
may notice them. Under Rule 8, the cases to be submitted to the Prime
Minister and President, are described as all cases of the nature specified
in the Third Schedule. In the Third Schedule, Serial No.22 describes
appointment, resignation and removal of the Chief Election Commissioner
B
and other Election Commissioners in Column 1 under the heading ‘nature
of cases’. Article 324 is referred to, under the Column ‘authority to
whom the matter is submitted, it is indicated ‘the Prime Minister and the
President’.
52. Shri S.P. Sen Verma was the third Chief Election Commissioner C
and he was appointed on 01.10.1967 and he continued till 30.09.1972
(his term lasted for five years). Shri Nagendra Singh, a Civil Servant
and a Member of the Constituent Assembly and who, later on, became
the Judge of the International Court of Justice, had a short tenure as the
fourth Chief Election Commissioner from 01.10.1972 to 06.02.1973 (his
term lasted for one hundred and twenty-eight days). The fifth Chief D
Election Commissioner was Shri T. Swaminathan, who was also a Civil
Servant, having become a Cabinet Secretary as well and his stint as
Chief Election Commissioner was from 07.02.1973 to 17.06.1977 (his
term lasted for four years and ten days). Shri S.L. Shakdher was
appointed as the Sixth Chief Election Commissioner. He was also a Civil E
Servant and Secretary General of the Lok Sabha. His term commenced
on 18.06.1977 and expired on 17.06.1982 (his term lasted for four years
and three hundred and sixty-four days). Shri R. K. Trivedi, the Seventh
Chief Election Commissioner, was also a Civil Servant, and he had a
term of three years and one hundred and ninety-six days. Shri R.V.S.
Perishastri was the Eighth Chief Election Commissioner. He was the F
Secretary to Government and his term lasted from 01.01.1986 till
25.11.1990. It was for the first time that Election Commissioners, two in
number, viz., Shri V. S. Seigell and Shri S. S. Dhanoa came to be appointed
as Election Commissioners on 16.10.1989. However, as we shall see in
greater detail, the Notification dated 16.10.1989 came to be rescinded G
on 01.01.1990. The same came to be challenged by Shri S.S. Dhanao
and it culminated in the Judgment of this Court reported in S.S. Dhanoa
v. Union of India and Others12. A Committee known as the Goswami
Committee, made certain recommendations. On its heels, Parliament
12
(1991) 3 SCC 567
H
64 SUPREME COURT REPORTS [2023] 9 S.C.R.

A passed an Act titled ‘The Chief Election Commissioner and other
Commissioners (Conditions of Service) Act, 1991 (hereinafter referred
to as, ‘the 1991 Act’). It is noteworthy that this is the law made by
Parliament and relatable to Article 324(5), which contemplated a law
made by Parliament regulating conditions of service of the Chief Election
Commissioner and the Election Commissioners. Smt. V.S. Ramadevi,
B who had the shortest tenure as the ninth Chief Election Commissioner
was drawn from the Civil Services. Her term lasted for sixteen days.
The Tenth Chief Election Commissioner was none other than Shri T. N.
Sheshan, who was the Eighteenth Cabinet Secretary of India and had a
term of six years commencing from 12.12.1990 till 11.12.1996. The 1991
C Act came to be amended, initially, by an Ordinance, and later, by a law
made by Parliament, the Ordinance being published on 01.10.1993. Shri
M.S. Gill and Shri G.V.G. Krishnamurthy were appointed as Election
Commissioners, w.e.f., 01.10.1993. The amendment and the appointments
came to be challenged by Shri T. N. Seshan, the Chief Election
Commissioner and others and the challenge was repelled by a Constitution
D Bench of this Court and the Judgment is reported in T.N. Seshan,(supra).
We would observe that what was essentially contemplated by founding
Fathers was an Election Commission, which was to consist of a permanent
figure, viz., the Chief Election Commissioner and such Election
Commissioners, as may be necessary. For nearly forty years after the
E adoption of the Constitution of India, there were only Chief Election
Commissioners. After the Judgment in T.N.Seshan (supra), it will be
noticed that thereafter, the Election Commission of India became a team
consisting of the Chief Election Commissioner and the two Election
Commissioners. With the term ofShri T. N. Seshan coming to an end
11.12.1996, the trend began of appointing the Election Commissioners
F as Chief Election Commissioners. Thus, Shri M.S. Gill became the Chief
Election Commissioner. Shri M.S. Gill was also a Civil Servant. He served
as Chief Election Commissioner for a period of four years and sixty-
nine days, i.e., from 12.12.1996 till 13.06.2001. Shri G.V.G. Krishnamurthy
continued till 30.09.1999 (nearly six years) as Election Commissioner.
Shri James Michael Lyngdoh became an Election Commissioner in the
G year 1997 and was made the Chief Election Commissioner on 14.06.2001,
on the expiry of the term of Shri M.S. Gill, and he continued till 07.02.2004
(the term lasted two years and two hundred and sixty-nine days).
Thereafter, we may notice, for the period 2000 to 2022, the details of the
Election Commissioners and the Chief Election Commissioners and the
H length of the tenure, which is as follows:
ANOOP BARANWAL v. UNION OF INDIA 65
[K. M. JOSEPH, J.]

A

B

C

D

E

O. A CLOSER LOOK AT S.S. DANOA (SUPRA), THE 1991
ACT AND T.N. SESHAN (SUPRA)
53. It was on 07.10.1989 that the President, in exercise of his
powers under Clause 2 of Article 324 of the Constitution, fixed the number F
of Election Commissioners as two. This was to continue until further
orders. Later on, on 16.10.1989, two persons of which, one was Shri
S.S. Dhanoa, were appointed as the Election Commissioners. It was for
the first time after Independence that Election Commissioners were
appointed, thereby making the Election Commission of India a multi-
Member Commission. In other words, till 16.10.1989, the Chief Election G
Commissioner constituted the Election Commission of India. The multi-
Member Commission was, however, a short-lived affair. In less than
three months’ time, on 01.01.1990, exercising power under Article 324(2),
the President notified, with immediate effect, the rescinding of the
Notification dated 07.10.1989, by which Notification, the two posts of H
66 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Election Commissioner had been created. Another Notification rescinding
the Notification dated 16.10.1989, by which the two Election
Commissioners were appointed, came to be issued. The latter
Notifications came to be challenged by Shri S.S. Dhanoa before this
Court. A Bench of two learned Judges dismissed the Writ Petition. This
Court took the view, inter alia, that the framers of the Constitution did
B
not want to give same status to the Election Commissioners as was
conferred on the Chief Election Commissioner. In the course of this
Judgment in S.S. Dhanoa v. Union of India and others13, this Court,
inter alia, observed as follows:
“17. … There is no doubt that there is an important distinction
C between the Council of Ministers and the Election Commission in
that whereas the Prime Minister or 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
D 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
E 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. …”
(Emphasis supplied)

F 54. We may notice paragraph 18, dealing with the manner in which
a multi-Member Commission must act. Thereafter, the Court went on to
find that there was really no need to have appointed the Election
Commissioners and, still further made the following observations:
“26. There is no doubt that two heads are better than one, and
G particularly when an institution like the Election Commission is
entrusted with vital functions, and is armed with exclusive
uncontrolled powers to execute them, it is both necessary and
desirable that the powers are not exercised by one individual,
however, all-wise he may be. It ill conforms the tenets of the
13
H (1991) 3 SCC 567
ANOOP BARANWAL v. UNION OF INDIA 67
[K. M. JOSEPH, J.]

democratic rule. It is true that the independence of an institution A
depends upon the persons who man it and not on their number. A
single individual may sometimes prove capable of withstanding all
the pulls and pressures, which many may not. However, when
vast powers are exercised by an institution which is accountable
to none, it is politic to entrust its affairs to more hands than one. It
B
helps to assure judiciousness and want of arbitrariness. The fact,
however, remains that where more individuals than one, man an
institution, their roles have to be clearly defined, if the functioning
of the institution is not to come to a naught.”
(Emphasis supplied)
C
55. The Court found that it was not a case of removal of the
Election Commissioners within the meaning of the second proviso to
Article 324(5).
56. This led to certain changes in the 1991 Act. The changes
were introduced through an Ordinance published in the Gazette of India D
on 01.10.1993. It, inter alia, provided for a new Chapter III, which
contemplates that as far as possible, all business shall be transacted
unanimously (Section 10(2) of the 1991 Act). Section 10(3) provides
that subject to Section 10(2), in case of difference of opinion, the matter
is to be decided according to the opinion of the majority. This, it must be
noticed, was introduced in the context of the observations in S.S. Dhanoa E
(supra). By the Ordinance dated 01.10.1993, other far-reaching changes
were introduced, which, inter alia, provided for bringing the Election
Commissioners substantially on par with the Chief Election Commissioner.
The Chief Election Commissioner, it must be noticed, under the 1991
Act, was to be paid a salary equal to the Judge of the Supreme Court. F
The Election Commissioner was to be paid the salary equal to the Judge
of the High Court. After the amendment, they stand equated. The 1991
Act also provided that the Chief Election Commissioner would be entitled
to continue in Office till the age of 65 years whereas the Election
Commissioner was to continue in Office till he attains the age of 62
years. The age of superannuation of the Chief Election Commissioner G
and the Election Commissioner was brought on par by the Ordinance
insofar as both were entitled to continue for a period of six years subject
to their liability to vacate Office should they attain the age of 65 years
before the expiry of six years from the date on which they assumed
Office. However, under the first proviso to Article 324(5), the Chief H
68 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Election Commissioner can be removed from his Office only in the
manner and on the like grounds as the Judge of the Supreme Court of
India. The first proviso also prohibits the conditions of service of the
Chief Election Commissioner being varied to his disadvantage after his
appointment. In the matter of the removal of the Election Commissioner
or a Regional Commissioner the second proviso to Article 324(5) provides
B
the safeguard for the Election Commissioner or a Regional Commissioner
that they cannot be removed except on the recommendation of the Chief
Election Commissioner. On 01.10.1993, again, in exercise of the powers
under Article 324(2), the President fixed until further orders, the number
of Election Commissioners other than the Chief Election Commissioner
C at two. Two Election Commissioners also came to be appointed w.e.f.
01.10.1993. The Ordinance, which had been passed on 01.10.1993,
became Act No. 4 of 1994 on 04.01.1994. This led to certain Writ Petitions
being filed calling in question the Ordinance including at the instance of
Shri T.N. Seshan, who, it must be noticed, was appointed earlier on
12.12.1990 as the Chief Election Commissioner. He challenged the
D
Ordinance on various grounds. Matters engaged the attention of the
Constitution Bench and its decision is reported in T.N. Seshan, Chief
Election Commissioner of India v. Union of India and others 14. The
Constitution Bench, we may notice, made the following observations:
“10. The Preamble of our Constitution proclaims that we are a
E Democratic Republic. Democracy being the basic feature of our
constitutional set-up, there can be no two opinions 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-
F makers that the responsibility to hold free and fair elections in the
country should be entrusted to an independent body which would
be insulated from political and/or executive interference. It is
inherent in a democratic set-up that the agency which is entrusted
the task of holding elections to the legislatures should be fully
insulated so that it can function as an independent agency free
G from external pressures from the party in power or executive of
the day. This objective is achieved by the setting up of an Election
Commission, a permanent body, under Article 324(1) of the
Constitution. The superintendence, direction and control of the
entire election process in the country has been vested under the
14
H (1995) 4 SCC 611
ANOOP BARANWAL v. UNION OF INDIA 69
[K. M. JOSEPH, J.]

said clause in a commission called the Election Commission. Clause A
(2) of the said article then provides for the constitution of the
Election Commission by providing that it shall consist of the CEC
and such number of ECs, if any, as the President may from time
to time fix. It is thus obvious from the plain language of this clause
that the Election Commission is composed of the CEC and, when
B
they have been appointed, the ECs. The office of the CEC is
envisaged to be a permanent fixture but that cannot be said of the
ECs as is made manifest from the use of the words “if any”. Dr
Ambedkar while explaining the purport of this clause during the
debate in the Constituent Assembly said:
“Sub-clause (2) says that there shall be a Chief Election C
Commissioner and such other Election Commissioners as the
President may, from time to time appoint. There were two
alternatives before the Drafting Committee, namely, either to have
a permanent body consisting of four or five members of the Election
Commission who would continue in office throughout without any D
break, or to permit the President to have an ad hoc body appointed
at the time when there is an election on the anvil. The Committee
has steered a middle course. What the Drafting Committee
proposes by sub-clause (2) is to have permanently in office one
man called the Chief Election Commissioner, so that the skeleton
machinery would always be available.” E

It is crystal clear from the plain language of the said clause (2)
that our Constitution-makers realised the need to set up an
independent body or commission which would be permanently in
session with at least one officer, namely, the CEC, and left it to
the President to further add to the Commission such number of F
ECs as he may consider appropriate from time to time. Clause
(3) of the said article makes it clear that when the Election
Commission is a multi-member body the CEC shall act as its
Chairman. What will be his role as a Chairman has not been
specifically spelt out by the said article and we will deal with this G
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.”
H
70 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 57. This Court went on to disagree with certain parts of the
Judgment in S.S. Dhanoa (supra). The Court, inter alia, held that the
Election Commission of India can be a single-Member Body or a multi-
Member Body. It was further held as follows:
“16. While it is true that under the scheme of Article 324 the
B conditions of service and tenure of office of all the functionaries
of the Election Commission have to be determined by the President
unless determined by law made by Parliament, it is only in the
case of the CEC that the first proviso to clause (5) lays down that
they cannot be varied to the disadvantage of the CEC after his
appointment. Such a protection is not extended to the ECs. But it
C must be remembered that by virtue of the Ordinance the CEC
and the ECs are placed on a par in the matter of salary, etc. Does
the absence of such provision for ECs make the CEC superior to
the ECs? The second ground relates to removability. In the case
of the CEC he can be removed from office in like manner and on
D the like ground as a Judge of the Supreme Court whereas the
ECs can be removed on the recommendation of the CEC. That,
however, is not an indicia for conferring a higher status on the
CEC. To so hold is to overlook the scheme of Article 324 of the
Constitution. It must be remembered that the CEC is intended to
be a permanent incumbent and, therefore, in order to preserve
E and safeguard his independence, he had to be treated differently.
That is because there cannot be an Election Commission without
a CEC. That is not the case with other ECs. They are not intended
to be permanent incumbents. Clause (2) of Article 324 itself
suggests that the number of ECs can vary from time to time. In
F the very nature of things, therefore, they could not be conferred
the type of irremovability that is bestowed on the CEC. If that
were to be done, the entire scheme of Article 324 would have to
undergo a change. In the scheme of things, therefore, the power
to remove in certain cases had to be retained. Having insulated
the CEC from external political or executive pressures, confidence
G was reposed in this independent functionary to safeguard the
independence of his ECs and even RCs by enjoining that they
cannot be removed except on the recommendation of the CEC.
This is evident from the following statement found in the speech
of Shri K.M. Munshi in the Constituent Assembly when he
H supported the amended draft submitted by Dr Ambedkar:
ANOOP BARANWAL v. UNION OF INDIA 71
[K. M. JOSEPH, J.]

“We cannot have an Election Commission sitting all the time during A
those five years doing nothing. The Chief Election Commissioner
will continue to be a whole-time officer performing the duties of
his office and looking after the work from day to day but when
major elections take place in the country, either Provincial or
Central, the Commission must be enlarged to cope with the work.
B
More members therefore have to be added to the Commission.
They are no doubt to be appointed by the President. Therefore, to
that extent their independence is ensured. So there is no reason to
believe that these temporary Election Commissioners will not have
the necessary measure of independence.”
Since the other ECs were not intended to be permanent appointees C
they could not be granted the irremovability protection of the CEC,
a permanent incumbent, and, therefore, they were placed under
the protective umbrella of an independent CEC. This aspect of
the matter escaped the attention of the learned Judges who
decided Dhanoa case [(1991) 3 SCC 567] . We are also of the D
view that the comparison with the functioning of the executive
under Articles 74 and 163 of the Constitution in paragraph 17 of
the judgment, with respect, cannot be said to be apposite.”
(Emphasis supplied)
58. Dealing with the argument that as the Chief Election E
Commissioner is designated as the Chairman, it put him on a higher
pedestal, this Court, inter alia, held as follows:
“19. … The function of the Chairman would, therefore, be to
preside over meetings, preserve order, conduct the business of
the day, ensure that precise decisions are taken and correctly F
recorded and do all that is necessary for smooth transaction of
business. The nature and duties of this office may vary depending
on the nature of business to be transacted but by and large these
would be the functions of a Chairman. He must so conduct himself
at the meetings chaired by him that he is able to win the confidence G
of his colleagues on the Commission and carry them with him.
This a Chairman may find difficult to achieve if he thinks that
others who are members of the Commission are his subordinates.
The functions of the Election Commission are essentially
administrative but there are certain adjudicative and legislative
functions as well. The Election Commission has to lay down certain H
72 SUPREME COURT REPORTS [2023] 9 S.C.R.

A policies, decide on certain administrative matters of importance
as distinguished from routine matters of administration and also
adjudicate certain disputes, e.g., disputes relating to allotment of
symbols. Therefore, besides administrative functions it may be
called upon to perform quasi-judicial duties and undertake
subordinate legislation-making functions as well. See Mohinder
B
Singh Gill v. Chief Election Commr [(1978) 1 SCC 405 : (1978)
2 SCR 272] . We need say no more on this aspect of the matter.”
59. Still further, we may notice the following discussion, which
brings out the rationale for treating the Chief Election Commissioner
differently from the Elections Commissioners:
C
“21. We have pointed out the distinguishing features from Article
324 between the position of the CEC and the ECs. It is essentially
on account of their tenure in the Election Commission that certain
differences exist. We have explained why in the case of ECs the
removability clause had to be different. The variation in the salary,
D etc., cannot be a determinative factor otherwise that would oscillate
having regard to the fact that the executive or the legislature has
to fix the conditions of service under clause (5) of Article 324.
The only distinguishing feature that survives for consideration is
that in the case of the CEC his conditions of service cannot be
E varied to his disadvantage after his appointment whereas there is
no such safeguard in the case of ECs. That is presumably because
the posts are temporary in character. But even if it is not so, that
feature alone cannot lead us to the conclusion that the final word
in all matters lies with the CEC. Such a view would render the
position of the ECs to that of mere advisers which does not emerge
F from the scheme of Article 324.”
(Emphasis supplied)
60. It is clear that the founding fathers intended that the elections
in the country must be under the superintendence, direction and control
G 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
H
ANOOP BARANWAL v. UNION OF INDIA 73
[K. M. JOSEPH, J.]

Commissioner. As we have noticed, it is on 16.10.1989 that the first two A
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
B
Commissioner.
61. The appointees have been bureaucrats drawn from the Civil
Services. Article 324(5) deals with the conditions of service and tenure
of Office of the Election Commissioners and the Regional
Commissioners. Till Parliament made any law with regard to the same,
the founding fathers clothed the President with power to lay down the C
conditions of service and tenure of Office by Rule. It is to lay down the
conditions of service and tenure of Office that Parliament has enacted
the 1991 Act. The first proviso to sub-Article 324(5) acts as a guarantee
against the removal of the Chief Election Commissioner except on like
grounds and a similar manner a Judge of the Supreme Court can be D
removed. The conditions of service of the Chief Election Commissioner
shall not be varied to his disadvantage after his appointment. This means
that Parliament cannot, nor can the Government by Rule, either remove
the Chief Election Commissioner, except by impeaching him in the manner
provided for the removal of a Judge of Supreme Court nor can Parliament
make law nor Government a Rule to vary the conditions of service of E
the Chief Election Commissioner to his disadvantage, after he is appointed.
The first proviso to Article 324(5) operates as a singular insulation to
protect the Chief Election Commissioner from either being arbitrarily
removed or his conditions of service being varied to his disadvantage.
But as contemplated by the founding fathers, protection against arbitrary F
removal or protection againstvarying of conditions of the appointment
were not the sole safeguards.Far more vital was the appointment of the
‘right man’ and the need to take it out of the exclusive hands of the
executive.
P. THE CLAMOUR FOR REFORMS G
62. In the year 1990, the Government of India constituted a
Committee under the Chairmanship of the then Law Minister, Shri Dinesh
Goswami and it is hereinafter referred to as the ‘Goswami Committee’.
It made several recommendations relating to electoral reforms. The
Committee, inter alia, recommended as follows: H
74 SUPREME COURT REPORTS [2023] 9 S.C.R.

A “CHAPTER II
Electoral Machinery
1.Set up of multi-member Commission
1. The Election Commission should be a multi-member body with
three members.
B 2. The Chief Election Commissioner should be appointed by the
President in consultation with the Chief Justice of India and the
Leader of the Opposition (and in case no Leader of Opposition is
available, the consultation should be with the Leader to the largest
opposition group in the Lok Sabha).
C 3. The consultation process should have a statutory backing.
4. The appointment of other two Election Commissioners should
be made in consultation with Chief Justice of India, the Leader of
the Opposition (in case no Leader of Opposition is available, the
consultation should be with the Leader to the largest opposition
D group in the Lok Sabha) and the Chief Election Commissioner.
5. The appointment of Regional Commissioners for different zones
is not favoured. Such appointments should be made only as and
when necessary and not on a permanent footing.
2. Steps for securing independence of the Commission
E 6. The protection of salary and other allied matters relating to the
Chief Election Commissioner and the Election Commissioners
should be provided for in the Constitution itself on the analogy of
the provisions in respect of the Chief Justice and Judges of the
Supreme Court. Pending such measures being taken, a
parliamentary law should be enacted.
F
7. The expenditure of the Commission should continue to be ‘voted’
as of now.
8. The Chief Election Commissioner and the Election
Commissioners should be made ineligible not only for any
appointment under the Government but also to any office including
G the office of Governor appointment to which is made by the
President.
9. The tenure of the Chief Election Commissioner and other
Election Commissioners should be for a term of five years or
sixty-five years of age, whichever is later and they should in no
H
ANOOP BARANWAL v. UNION OF INDIA 75
[K. M. JOSEPH, J.]

case continue in office beyond sixty-five years and for more than A
ten years in all.”
63. In the year 1991, Parliament enacted the Election Commission
(Conditions of Service of Election Commissioners and Transaction of
Business) Act, 1991. Section 3 provides, as it stands, that there shall be
paid to the Chief Election Commissioner and other Election B
Commissioners a salary, which is equal to the salary of the Judge of the
Supreme Court. Section 4 deals with the term of Office and reads as
follows:
“4. Term of office. —The Chief Election Commissioner or an
Election Commissioner shall hold office for a term of six years C
from the date on which he assumes his office:
Provided that where the Chief Election Commissioner or an
Election Commissioner attains the age of sixty-five 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: D
Provided further that the Chief Election Commissioner or an
Election Commissioner may, at any time, by writing under his hand
addressed to the President, resign his office.
Explanation.—For the purpose of this section, the term of six years
in respect of the Chief Election Commissioner or an Election E
Commissioner holding office immediately before the
commencement of this Act, shall be computed from the date on
which he had assumed office.”
64. Section 5 deals with the leave available to both the Chief
Election Commissioner or an Election Commissioner. The power to grant F
relief or refuse leave to them vests with the President. Section 6 deals
with their right to pension. Section 7 deals with the right to subscribe to
the general provident fund. Section 8 provides for other conditions of
service:
“8. Other conditions of service.—Save as otherwise provided in G
this Act, the conditions of service relating to travelling allowance,
provision of rent-free residence and exemption from payment of
income-tax on the value of such rent-free residence, conveyance
facilities, sumptuary allowance, medical facilities and such other
conditions of service as are, for the time being, applicable to a
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76 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Judge of the Supreme Court under Chapter IV of the Supreme
Court Judges (Conditions of Service) Act, 1958 (41 of 1958) and
the rules made thereunder, shall, so far as may be, apply to the
Chief Election Commissioner and other Election Commissioners.”
65. Under Section 9, the business of the Election Commissioner is
B to be transacted in accordance with the 1991 Act. Section 10 provides
for disposal of business by Election Commission, it reads as follows:
“10. Disposal of business by Election Commission. — (1) The
Election Commission may, by unanimous decision, regulate the
procedure for transaction of its business as also allocation of its
C business amongst the Chief Election Commissioner and other
Election Commissioners.
(2) Save as provided in sub-section (1), all business of the Election
Commission shall, as far as possible, be transacted unanimously.
(3) Subject to the provisions of sub-section (2), if the Chief Election
D Commissioner and other Election Commissioners differ in opinion
on any matter, such matter shall be decided according to the opinion
of the majority.”
66. In the year 1993, the Government of India constituted, what is
known as the ‘Vohra Committee’. It made certain recommendations in
E regard to the CBI and the IB. Five years thereafter, in 1998, Government
of India appointed a Committee under the Chairmanship of Shri Indrajit
Gupta Committee on State funding of elections. The Committee submitted
its Report in December, 1998. The conclusion and summary of the
recommendations are found in Chapter 9 and they include various
F recommendations relating to funding of political parties.
67. In the year 2002, a National Commission for reviewing the
work of the Constitution, under the Chairmanship of the Former Chief
Justice of India, M.N. Venkatachaliah, made 58 recommendations
involving amendments to the Constitution, 86 recommendations relating
to legislative measures and the rest involved Executive action. In relation
G
to electoral processes and political parties, various recommendations
were made by the Commission. One of the recommendations, which is
of relevance to the cases before us is as follows:
“The Chief Election Commissioner and the other Election
Commissioners should be appointed on the recommendation of a
H
ANOOP BARANWAL v. UNION OF INDIA 77
[K. M. JOSEPH, J.]

Body consisting of the Prime Minister, Leader of the Opposition A
in the Lok Sabha, the Leader of the Opposition in the Rajya Sabha,
the Speaker of the Lok Sabha and the Deputy Chairman of the
Rajya Sabha. It was further recommended that similar procedure
should be adopted in the case of appointment of the State Election
Commissioners.”
B
68. In the year 2004, the Election Commission of India, on
02.08.2004 made certain proposal on electoral reforms to the Government
of India. The proposals included affidavits to be filed by candidates on
criminal antecedents, their assets, etc. The aspect about criminalisation
of politics is noted as an issue being raised by the Commission from
1998 onwards. The Commission was of the opinion that keeping a person C
accused of a serious criminal charge and where the Court had framed
charges, out of the electoral arena, would be a reasonable restriction in
greater public interest. Among the various reforms it proposed, we notice
the following:
“12. COMPOSITION OF ELECTION COMMISSION AND D
CONSTITUTIONAL PROTECTION OF ALL MEMBERS OF
THE COMMISSION AND INDEPENDENT SECRETARIAT
FOR THE COMMISSION
Election Commission of India is an independent constitutional body
created by the Constitution of India vide Article 324. Clause (I) of E
Article 324 has vested the superintendence, direction and control
of the preparation of 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 of India
in the Election Commission. F
Under Clause (2) of Article 324, the Election Commission shall
consist of the Chief Election Commissioner and such number of
other Election Commissioners, if any, as the President may from
to time fix and the appointment of the Chief Election Commissioner
and Election Commissioners shall, subject to the provisions of any G
law made in that behalf by Parliament, be made by the President.
The President has, by Order dated 1.10.1993 under Clause (2) of
Article 324, fixed the number of Election Commissioners as two
until further orders.
H
78 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Although the Constitution permits the President to fix the number
of Election Commissioners at any number without any limit, it is
felt that in the interest of smooth and effective functioning of the
Election Commission, the number of Election Commissioners
should not be unduly large and should remain as two as presently
fixed, in addition to the Chief Election Commissioner. The three-
B
member body is very effective in dealing with the complex
situations that arise in the course of superintending, directing and
controlling the electoral process, and allows for quick responses
to developments in the field that arise from time to time and require
immediate solution. Increasing the size of this body beyond the
C existing three-member body would, in the considered opinion of
the Commission, hamper the expeditious manner in which it has
necessarily to act for conducting the elections peacefully and in a
free and fair manner.
In order to ensure the independence of the Election Commission
D and to keep it insulated from external pulls and pressures, Clause
(5) of Article 324 of the Constitution, inter alia, provides that the
Chief Election Commissioner shall not be removed from his office
except in like manner and on like grounds as a Judge of the
Supreme Court. However, that Clause (5) of Article 324 does not
provide similar protection to the Election Commissioners and it
E merely says that they cannot be removed from office except on
the recommendation of the Chief Election Commissioner. The
provision, in the opinion of the Election Commission, is inadequate
and requires an amendment to provide the very same protection
and safeguard in the matter of removability of Election
F Commissioners from office as is available to the Chief Election
Commissioner.
The independence of the Election Commission upon which the
Constitution makers laid so much stress in the Constitution would
be further strengthened if the Secretariat of the Election
G Commission consisting of officers and staff at various levels is
also insulated from the interference of the Executive in the matter
of their appointments, promotions, etc., and all such functions are
exclusively vested in the Election Commission on the lines of the
Secretariats of the Lok Sabha, and Rajya Sabha, Registries of the
Supreme Court and High Courts, etc. Independent Secretariat is
H
ANOOP BARANWAL v. UNION OF INDIA 79
[K. M. JOSEPH, J.]

vital to the functioning of the Election Commission as an A
independent constitutional authority. In fact, the provision of
independent Secretariat to the Election Commission has already
been accepted in principle by the Goswami Committee on Electoral
Reforms and the Government had, in the Constitution (Seventieth
Amendment) Bill, 1990, made a provision also to that effect. That
B
Bill was, however, withdrawn in 1993 as the Government proposed
to bring in a more comprehensive Bill.”
(Emphasis supplied)
69. As regards expenses of Election Commission, we find the
following complaint and solution: C
“13. EXPENSES OF ELECTION COMMISSION TO BE
TREATED AS CHARGED
The Commission had sent a proposal that the expenditure of the
Commission should be charged on the Consolidated Fund of India.
The Government had moved in the 10th Lok Sabha “The Election D
Commission (Charging of Expenses on the Consolidated Fund of
India) Bill, 1994” with the objective of providing for the salaries,
allowances and pension payable to the Chief Election
Commissioner and other Election Commissioners and the
administrative expenses including salaries, allowances and pension E
of the staff of the Election Commission to be expenditure charged
upon the Consolidated Fund of India. Similar provisions already
exist in respect of the Supreme Court, Comptroller & Auditor
General and the Union Public Service Commission, which are,
like the Election Commission, independent constitutional bodies.
To secure its independent functioning the Commission is of the F
opinion that the Bill, which lapsed with the dissolution of the 10th
Lok Sabha in 1996, needs reconsideration.”
70. The next milestone to be noticed is the Second Administrative
Reforms Commission Report made in January, 2007. The Commission
consisted of Shri Veerappa Moily, the then Law Minister, as its G
Chairperson and five other Members.We find the following in the
summary of its recommendations, inter alia. It recommended that the
Collegium headed by the Prime Minister, with the Speaker of the Lok
Sabha, the leader of the Opposition in the Lok Sabha, the Law Minister
and the Deputy Chairman of the Rajya Sabha, as Members, should make
H
80 SUPREME COURT REPORTS [2023] 9 S.C.R.

A recommendations for consideration of the President for appointment of
the Chief Election Commissioner and the Election Commissioners. In
the year 2010, the Ministry of Law and Justice, Government of India,
had constituted a Committee on Electoral Reforms. The Report, it made,
in the year 2010 indicates the background which led to the constitution
of the Committee. Reference is made to various earlier Reports as also
B
the efforts being made by the Election Commission. It made various
recommendations relating to electoral reforms. Under the head
‘measures for Election Commission’, an update on the Election
Commission’s recommendations, includes the following:
“
C

D

E

F

G

H
ANOOP BARANWAL v. UNION OF INDIA 81
[K. M. JOSEPH, J.]

71. In regard to appointment of Chief Election Commissioner and A
other Election Commissioners, we notice the following remarks:
“

B

C

(Emphasis supplied)”
72. In the year 2015, Law Commission of India, in its Two Hundred D
and Fifty Fifth Report dated 12.03.2015, dealing with the electoral reforms
in India, made various recommendations in regard to strengthening the
Office of the Election Commission of India. After referring to Article
324(2), the fact of the appointments being discussed in the Constituent
Assembly, Article 324(2) leaving it to the Parliament to legislate, the
recommendation of the Goswami Committee in 1990, we find the E
following discussion:
“6.10.4 This was followed by the introduction of the Constitution
(Seventieth Amendment) Bill 1990, which was introduced in the
Rajya Sabha on 30th May 1990 providing that the CEC would be
appointed by the President after consultation with the Chairman F
of the Rajya Sabha, the Speaker of the Lok Sabha, and the Leader
of the Opposition (or the leader of the largest party) in the Lok
Sabha. The CEC was further made a part of the consultative
process in the appointment of the Election Commissioners.
However, on 13th June 1994, the Government moved a motion to
G
withdraw the Bill, which was finally withdrawn with the leave of
the Rajya Sabha on the same day.
6.10.5 Consequently, in the absence of any Parliamentary law
governing the appointment issue, the Election Commissioners are
appointed by the government of the day, without pursuing any
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82 SUPREME COURT REPORTS [2023] 9 S.C.R.

A consultation process. This practice has been described as requiring
the Law Ministry to get the file approved by the Prime Minister,
who then recommends a name to the President. Thus, there is no
concept of collegium and no involvement of the opposition.
6.10.6 The Commissioners are appointed for a six year period, or
B up to the age of 65 years, whichever is earlier. Further, there are
no prescribed qualifications for their appointment, although
convention dictates that only senior (serving or retired) civil
servants, of the rank of the Cabinet Secretary or Secretary to the
Government of India or an equivalent rank, will be appointed. The
Supreme Court in Bhagwati Prashad Dixit Ghorewala v Rajiv
C Gandhi rejected the contention that the CEC should possess
qualifications similar to that of a Supreme Court judge, despite
being placed on par with them in terms of the removal process.”
73. We find that under the caption ‘Comparative Practices’, the
Report contains the following discussion:
D
“(ii) Comparative practices
6.11.1 An examination of comparative practices is instructive. In
South Africa, the Independent Electoral Commission comprises
of five members, including one judge. They are appointed by the
E President on the recommendations of the National Assembly,
following nominations by a National Assembly inter-party
committee, which receives a list of at least eight candidates. This
list of (at least) eight nominees is recommended by the Selection
Committee, which has four members being, the President of the
Constitutional Court; a representative of the Human Rights
F Commission and the Commission on Gender Equality each; and
the Public Prosecutor.
6.11.2 In Ghana too, the seven member Election Commission is
appointed by the President on the advice of the Council of State,
with the Chairman and two Deputy Chairmen having permanent
G tenure.
6.11.3 In Canada, the Chief Electoral Officer of “Elections
Canada” is appointed by a House of Commons resolution for a
non-renewable ten-year term, and to protect their independence
from the government, he/she reports directly to Parliament.In the
H United States, the six Federal Election Commissioners are
ANOOP BARANWAL v. UNION OF INDIA 83
[K. M. JOSEPH, J.]

appointed by the President with the advise and consent of the A
Senate. The Commissioners can be members of a political party,
although not more than three Commissioners can be members of
the same party.
6.11.4 In all these cases thus, it is clear that the appointment of
the Election Commissioners or the electoral officers is a B
consultative process involving the Executive/Legislature/other
independent bodies.”
74. Thereafter, under the caption ‘the Recommendation’, we find
the following:
“(iii) Recommendations C

6.12.1 Given the importance of maintaining the neutrality of the
ECI and to shield the CEC and Election Commissioners from
executive interference, it is imperative that the appointment of
Election Commissioners becomes a consultative process.
D
6.12.2 To this end, the Commission adapts the Goswami
Committee’s proposal with certain modifications. First, the
appointment of all the Election Commissioners (including the CEC)
should be made by the President in consultation with a three-
member collegium or selection committee, consisting of the Prime
Minister, the Leader of the Opposition of the Lok Sabha (or the E
leader of the largest opposition party in the Lok Sabha in terms of
numerical strength) and the Chief Justice of India. The Commission
considers the inclusion of the Prime Minister is important as a
representative of the current government.
6.12.3 Second, the elevation of an Election Commissioner should F
be on the basis of seniority, unless the three member collegium/
committee, for reasons to be recorded in writing, finds such
Commissioner unfit.
6.12.4 Such amendments are in consonance with the appointment
process in Lokpal and Lokayuktas Act, 2013, the Right to G
Information Act, 2005 and the Central Vigilance Commission Act,
2003.
6.12.5 Pursuant to Article 324(2), an amendment can be brought
to the existing Election Commission (Conditions of Service of
Election Commissioners and Transaction of Business) Act, 1991 H
84 SUPREME COURT REPORTS [2023] 9 S.C.R.

A to amend the title and insert a new Chapter 1A on the appointment
of Election Commissioners and the CEC as follows:
• Act and Short Title: The Act should be renamed the “Election
Commission (Appointment and Conditions of Service of Election
Commissioners and Transaction of Business) Act, 1991”.
B • The short title should state, “An Act to determine the appointment
and conditions of service of the Chief Election Commissioner and
other Election Commissioners and to provide for the procedure
for transaction of business by the Election Commission and for
matters connected therewith or incidental thereto.”
C • Chapter I-A – Appointment of Chief Election Commissioner
and Election Commissioners.
2A. Appointment of Chief Election Commissioner and Election
Commissioners – (1) The Election Commissioners, including the
Chief Election Commissioners, shall be appointed by the President
D by warrant under his hand and seal after obtaining the
recommendations of a Committee consisting of:
(a) the Prime Minister of India – Chairperson
(b) the Leader of the Opposition in the House of the People –
Member
E
c) the Chief Justice of India – Member
Provided that after the Chief Election Commissioner ceases to
hold office, the senior-most Election Commissioner shall be
appointed as the Chief Election Commissioner, unless the
F Committee mentioned in sub-section (1) above, for reasons to be
recorded in writing, finds such Election Commissioner to be unfit.
Explanation: For the purposes of this sub-section, “the Leader of
the Opposition in the House of the People” shall, when no such
Leader has been so recognised, include the Leader of the single
G largest group in opposition of the Government in the House of the
People.”
75. In regard to the aspect about the permanent and independent
Secretariat of the Election Commission of India, it was noticed that to
give effect to the Goswami Committee recommendation, the Constitution
H Seventieth Amendment Bill, 1990 was introduced on 30.05.1990 and
ANOOP BARANWAL v. UNION OF INDIA 85
[K. M. JOSEPH, J.]

that it was subsequently withdrawn in 1993 in view of the changed A
composition of the Election Commission of India, on it becoming a multi-
Member Body pursuant to the 1991 Act and on the ground that the Bill
needed some amendments. The Bill, however, the Law Commission
noticed, was never introduced. Thereafter, the Law Commission referred
to the recommendations of the Election Commission itself for seeking
B
appointment of an independent Secretariat. The Law Commission,
accordingly, recommended insertion of Article 324(2A), inter alia,
providing for a separate, independent and permanent secretarial staff
for the Election Commission. In regard to the need for equating the two
Election Commissioners with the Chief Election Commissioner and noting
that Election Commissioners were clearly superior to the Regional C
Commissioners, the Law Commission recommended changes in Article
324(5) as well. The amended Article 324, as proposed by the Law
Commission of India, in its Report, reads as follows:
“324. Superintendence, direction and control of elections to be
vested in an Election Commission. -(1) The superintendence, D
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) E

(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
appointment of the Chief Election Commissioner and other Election
Commissioners shall, subject to the provisions of any law made in F
that behalf by Parliament, be made by the President.
(2A) (1): The Election Commission shall have a separate
independent and permanent secretarial staff.
(2) The Election Commission may, by rules prescribed by it, G
regulate the recruitment, and the conditions of service of persons
appointed, to its permanent secretarial staff.
(3) When any other Election Commissioner is so appointed the
Chief Election Commissioner shall act as the Chairman of the
Election Commission.
H
86 SUPREME COURT REPORTS [2023] 9 S.C.R.

A (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
B
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 Regional
Commissioners shall be such as the President may by rule
C determine;
Provided that the Chief Election Commissioner and any other
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 andthe conditions of service of the Chief Election
D Commissioner and any other Election Commissioner shall not be
varied to his disadvantage after his appointment:
Provided further that a Regional Commissioner shall not be
removed from office except on the recommendation of the Chief
Election Commissioner.
E
(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).”
F
76. There is a newspaper Report of The Hindu dated 04.06.2012,
which appears to project the demand of Shri L.K. Advani, that a Collegium
be put in place for appointment to the Constitutional Body and taking the
stand that the present system of appointment did not inspire confidence
among the people. There is also a reference to the Report of the Citizens
G Commission of Elections. It appears to be prepared by the former Judge
of this Court Shri Madan B. Lokur and Shri Wajahat Habibullah, a former
Chief Information Commissioner. In the said Report, we find the Article
‘Are Elections in India Free and Fair’ by Shri M.G. Devasahayan. Under
the head ‘ECI – functioning an autonomy’, we find the following criticism:
H
ANOOP BARANWAL v. UNION OF INDIA 87
[K. M. JOSEPH, J.]

“ A
ECI has plenipotentiary powers drawn from Article 324 of
the Constitution of India to conduct free and fair election.
In addition, Supreme Court has ruled: “when Parliament or
any State Legislature made valid law relating to, or in
connection to elections, the Commission, shall act in B
conformity with, not in violation of such provisions, but where
such law is silent, Article 324 is a reservoir of power to act
for the avowed purpose of pushing forward a free and fair
election with expedition…”.
But ECI is just not using such powers, because ECs are C
the appointees of the Government of the day and not through
an independent process of collegium. The case of one
dissenting EC, who was side-lined and then eased out has
caused irretrievable damage to ECI’s independence and
integrity!
This compromises the autonomy of the ECI and creates D
doubts about the neutrality of the CEC and the ECs, and
consequently, the neutrality of the Commission itself. This
poses serious danger to the fairness and integrity of not
only the elections, but democracy itself…”
(Emphasis supplied) E
77. In the year 2016, we find the following proposed electoral
reforms essentially related to Article 324(5), being proposals made by
the Election Commission itself.
“Clause (5) of Article 324 of the Constitution provides that the
Chief Election Commissioner shall notbe removed from his office F
except in the same manner and on the same grounds as a Judge
of theSupreme Court. The Chief Election Commissioner and the
two Election Commissioners enjoy thesame decision making
powers which is suggestive of the fact that their powers are at
par with eachother. However, Clause (5) of Article 324 of the
G
Constitution does not provide similar protection to theElection
Commissioners and it merely says that they cannot be removed
from office except on therecommendation of the Chief Election
Commissioner.
The reason for giving protection to a Chief Election Commissioner
as enjoyed by a Supreme Court Judge in matters of removability H
88 SUPREME COURT REPORTS [2023] 9 S.C.R.

A from office was in order to ensure the independence of
Commissionfrom external pulls and pressure. However, the
rationale behind not affording similar protection toother Election
Commissioners is not explicable. The element of ‘independence’
sought to be achieved under the Constitution is not exclusively for
an individual alone but for the whole institution. Thus, the
B
independence of the Commission can only be strengthened if the
Election Commissioners are also provided with the same protection
as that of the Chief ElectionCommissioner.
Proposed amendment
The present constitutional guarantee is inadequate and requires
C
an amendment to provide the sameprotection and safeguard in
the matter of removability of Election Commissioners as is available
tothe Chief Election Commissioner.”
Q. SEPARATION OF POWERS AND JUDICIAL
ACTIVISM
D
78. In I. C. Golak Nath and Others v. State of Punjab and
Another,15 Justice Subba Rao held speaking for this Court:
“It (the Constitution) demarcates their jurisdiction minutely and
expects them to exercise their respective powers without
overstepping their limits. They should function within the spheres
E
allotted to them. No authority created under the Constitution is
supreme; the Constitution is supreme and all the authorities function
under the supreme law of the land.”
79. What is this jurisdiction which is demarcated? Justice
R.S.Pathak speaking for the Bench in Bandhua Mukti Morcha v. Union
F of India and Others16 held:
“It is a common place that while the Legislature enacts the law
the Executive implements it and the Court interpret it and, in doing
so, adjudicates on the validity of executive action and, under our
Constitution, even judges the validity of the legislation itself.”
G The question would arise as to whether the powers/functions are
cast in stone or whether the aforesaid powers/functions can legitimately
be exercised/discharged by the other organs. We may in this regard
again advert to what this Court held in the aforesaid case (supra):
15
AIR 1967 SC 1643
H 16
(1984) 3 SCC 161
ANOOP BARANWAL v. UNION OF INDIA 89
[K. M. JOSEPH, J.]

“And yet it is well recognized that in a certain sphere the Legislature A
is possessed of judicial power, the executive possesses a measure
of both legislative and judicial functions, and the court, in its duty
of interpreting the law, accomplishes in its perfect action in a
marginal degree of legislative exercise. Nonetheless a fine and
delicate balance is envisaged under our Constitution between these
primary institutions of the State.” B

80. The High Courts and this Court make Rules under the power
granted to them. No doubt, they will be acting as delegates of the
Legislature but the exercise of power in such cases would be legislative
in nature. When an Ordinance is made under Article 123 by the Executive,
that is, the Union of India, it is a case of the Executive exercising legislative C
power.When Parliament adjudges a man guilty of contempt of itself and
punishes him, the proceedings are informed by the attribute of judicial
power.
81. It cannot be disputed that there is no strict demarcation or
separation of powers in India unlike the position obtaining in the United D
States of America and Australia.(See In Re. Delhi Laws Act,
191217).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 (See E
Madras Bar Association v. Union of India18. Justice Y.V.Chandrachud,
as His Lordship then was, speaking in Indira Nehru Gandhi v. Raj
Narain & Ors.19 held inter alia as follows:
“But the principle of separation of powers is not a magic formula
for keeping the three organs of the State within the strict confines F
of their functions.”
82. Separation of powers as understood as prevailing in India
constitutes a part of the basic structure of the Constitution of India (See
His Holiness Kesavananda Bharati Sripadagalvaru v. State of
Kerala and Another20) and I.R. Coelho (Dead) by LRs v. State of G
T.N. 21
17
AIR 1951 SC 332
18
2021 SCC OnLine SC 463
19
(1975) Suppl. SCC 1
20
(1973) 4 SCC 225
21
(2007) 2 SCC 1 H
90 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 83. In Indian Aluminium Co. and others v. State of Kerala and
others22, this Court, while dealing with the alleged encroachment by the
Legislature of the boundaries set by the Doctrine of Separation of Powers
laid down, inter alia, as follows:
“(1) The adjudication of the rights of the parties is the essential
B judicial function. Legislature has to lay down the norms of conduct
or rules which will govern the parties and the transactions and
require the court to give effect to them;
(2) The Constitution delineated delicate balance in the exercise
of the sovereign power by the legislature, executive and judiciary;
C (3) In a democracy governed by the rule of law, the legislature
exercises the power under Articles 245 and 246 and other
companion articles read with the entries in the respective lists in
the Seventh Schedule to make the law which includes power to
amend the law.
D (4) Courts in their concern and endeavour to preserve judicial
power equally must be guarded to maintain the delicate balance
devised by the Constitution between the three sovereign
functionaries. In order that the rule of law permeates to fulfil
constitutional objectives of establishing an egalitarian social order,
E the respective sovereign functionaries need free play in their joints
so that the march of social progress and order remains unimpeded.
The smooth balance built with delicacy must always be maintained;”
84. Apart from the power to make subordinate legislation as a
delegate of the Legislature, do the superior courts make law or is it
F entirely tabooed? In other words, when the court decides a lis, is the
function of the court merely to apply law to the facts as found or do
courts also make law? The theory that the courts cannot or do not make
laws is a myth which has been exploded a long while ago. We may only
in this regard refer to what Justice S.B. Sinha opined on behalf of this
Court in the decision reported in State of U.P. v. Jeet S. Bisht23:
G
“77. Separation of powers is a favourite topic for some of us.
Each organ of the State in terms of the constitutional scheme
performs one or the other functions which have been assigned to

22
(1996) 7 SCC 637
23
H (2007) 6 SCC 586
ANOOP BARANWAL v. UNION OF INDIA 91
[K. M. JOSEPH, J.]

the other organ. Although drafting of legislation and its A
implementation by and large are functions of the legislature and
the executive respectively, it is too late in the day to say that the
constitutional court’s role in that behalf is non-existent. The judge-
made law is now well recognised throughout the world. If one is
to put the doctrine of separation of power to such a rigidity, it
B
would not have been possible for any superior court of any country,
whether developed or developing, to create new rights through
interpretative process.
78. Separation of powers in one sense is a limit on active
jurisdiction of each organ. But it has another deeper and more
relevant purpose: to act as check and balance over the activities C
of other organs. Thereby the active jurisdiction of the organ is
not challenged; nevertheless there are methods of prodding to
communicate the institution of its excesses and shortfall in duty.
Constitutional mandate sets the dynamics of this communication
between the organs of polity. Therefore, it is suggested to not D
understand separation of powers as operating in vacuum.
Separation of powers doctrine has been reinvented in modern
times.
83. If we notice the evolution of separation of powers doctrine,
traditionally the checks and balances dimension was only E
associated with governmental excesses and violations. But in
today’s world of positive rights and justifiable socialand
economic entitlements, hybrid administrative bodies, private
functionaries discharging public functions, we have to perform
the oversight function with more urgency and enlarge the field
of checks and balances to include governmental inaction. F
Otherwise we envisage the country getting transformed into a state
of repose. Social engineering as well as institutional engineering
therefore forms part of this obligation.”
(Emphasis supplied)
G
85. Separation of powers is part of the basic structure of the
Constitution of India. Equally, judicial review has been recognised 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
H
92 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 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
B
is not observing the limits set by the Constitution.
86. While it may be true that the Constitution is supreme and all
disputes must finally attain repose under the aegis of the Constitution, in
one sense the final arbiter of what is the law must be the court. While it
may be true that by removing the text forming the premise for a judicial
C verdict, the lawgiver may revisit the judgment, it is not open to the
legislature to don the robes of a Judge and arrogate to itself the judicial
function. 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
D same time legitimate balance being struck by 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.
87. Creative judicial activism has been a subject of both
E controversy reaching brickbats as also bouquets to the courts. Under
the Constitution which clothes both citizens and persons with fundamental
rights besides tasking the State with the achieving of goals declared in
the Directive Principles, judicial activism as opposed to a mere passive
role may be the much-needed choice. Judicial activism, however, must
have a sound juridical underpinning and cannot degenerate into a mere
F exercise of subjectivism.
88. The learned Solicitor General is right therefore that judicial
restraint may be a virtue in the elevated region of constitutional law.
Being the grundnorm, it is indeed a rarefied field where the court must
tread wearily (See Divisional Manager, Aravali Golf Club and
G Another v. Chander Hass and Another24). This Court indeed has
admonished against the court itself running the Government. In Asif
Hameed v. State of J & K,25 no doubt this court refers to the following
observations of Frankfurter, J. in para 18:
24
(2008) 1 SCC 683
25
H (1989) Suppl.2 SCC 364
ANOOP BARANWAL v. UNION OF INDIA 93
[K. M. JOSEPH, J.]

“All power is, in Madison’s phrase, “of an encroaching nature”. A
Judicial power is not immune against this human weakness. It
also must be on guard against encroaching beyond its proper
bounds, and not the less so since the only restraint upon it is self-
restraint....
Rigorous observance of the difference between limits of power B
and wise exercise of power — between questions of authority
and questions of prudence — requires the most alert appreciation
of this decisive but subtle relationship of two concepts that too
easily coalesce. No less does it require a disciplined will to adhere
to the difference. It is not easy to stand aloof and allow want of
wisdom to prevail to disregard one’s own strongly held view of C
what is wise in the conduct of affairs. But it is not the business of
this Court to pronounce policy. It must observe a fastidious regard
for limitations on its own power, and this precludes the court’s
giving effect to its own notions of what is wise or politic. That
self-restraint is of the essence in the observance of the judicial D
oath, for the Constitution has not authorized the judges to sit in
judgment on the wisdom of what Congress and the executive
branch do.”
89. In the work “Judicial Activism” in India by SP Sathe, the learned
author in the chapter ‘Legitimacy of Judicial Activism’ observes: - E
“Legitimacy of Judicial Activism
The realist school of jurisprudence exploded the myth that the
judges merely declared the pre-existing law or interpreted it and
asserted that the judges made the law. It stated that the law was
what the courts said it was. This is known as legal scepticism and F
was really a reaction to Austin’s definition of law as a command
of the political sovereign. According to analytical jurisprudence a
court merely found the law or merely interpreted the law. The
American realist school or jurisprudence asserted that the judges
made law, though interstitially. Jerome Frank, Justice Holmes, G
Cardozo, and Llewellyn were the chief exponents of this school.
The Indian Supreme Court not only makes law, as understood in
the sense of the realist jurisprudence, but actually has started
‘legislating’ exactly in the way in which a legislature legislates.
Judicial law-making in the realist sense in what the Court does
H
94 SUPREME COURT REPORTS [2023] 9 S.C.R.

A when it expands the meanings of the words ‘personal liberty’ or
‘due process of law’ or ‘freedom of speech and expression’. When
the Court held that a commercial speech (advertisement) was
entitled to the protection of freedom of speech and expression, it
was judicial law-making in the realist sense. Similarly, the basic
structure doctrine or the parameters for reviewing the President’s
B
action under article 356 or the wider meanings of the words ‘life’,
‘liberty’, and ‘procedure established by law’ in article 21 of the
Constitution by the Supreme Court are instances of judicial law-
making in the realist sense.
When, however, the Court lays down guidelines for inter-country
C adoption, against sexual harassment of working women at the
workplace, or for abolition of child labour, it is not judicial law-
making in the realist sense these are instances of judicial
excessivism that fly in the face of the doctrine of separation of
powers. The doctrine of separation of powers envisages that the
D legislature should make law, the executive should execute it, and
the judiciary should settle disputes in accordance with the existing
law. In reality such watertight separation exists nowhere and is
impracticable. Broadly it means that one organ of the State should
not perform a function that essentially belongs to another organ.
While law-making through interpretation and expansion of the
E meanings of open-textured expressions such as ‘due process of
law’, ‘equal protection of law’, or ‘freedom of speech and
expression’ is a legitimate judicial function, the making of an entirely
new law, which the Supreme Court has been doing through
directions in the above-mentioned cases, is not a legitimate judicial
F function. True, the Court has not supplanted but has merely
supplemented the legislature through such directions. It has said
in each case that it legislated through directions only because no
law existed to deal with situations such as inter-country adoption
or sexual harassment of working women and that its direction
could be replaced by legislation of the legislature.”
G
90. In the work, “The Nature of the Judicial Process” by Benjamin
N. Cardozo, in the lecture, “The Method of Sociology - The Judge as a
Legislator.” Justice Cardozo observes under the following subject: -
“THE JUDGE AS A LEGISLATOR
H
ANOOP BARANWAL v. UNION OF INDIA 95
[K. M. JOSEPH, J.]

…No doubt the limits for the judge are narrower. He legislates A
only between gaps. He fills the open spaces in the law. How far
he may go without travelling beyond the walls of the interstices
cannot be staked out for him upon a chart. He must learn it for
himself as he gains the sense of fitness and proportion that comes
with years of habitude in the practice of an art. Even within the
B
gaps, restrictions not easy to define, but felt, however impalpable
they may be, by every judge and lawyer, hedge and circumscribe
his action. They are established by the traditions of the centuries,
by the example of other judges, his predecessors and his colleagues,
by the collective judgment of the profession, and by the duty of
adherence to the pervading spirit of the law. C
…The process, being legislative, demands the legislator’s wisdom.
…Customs, no matter how firmly established, are not law, they
say, until adopted by the courts. Even statues are not law because
the courts must fix their meaning. That is the view of Gray in his
“Nature and Sources of the Law.” “The true view, as I submit,” D
he says, “is that the Law is what the Judges declare; that statues,
precedents, the opinions of learned experts, customs and morality
are the sources of the Law.” So, Jethro Brown in a paper on
“Law and Evolution,” tells us that a statue, till construed, is not
real law. It is only “ostensible” law, Real law, he says, is not found E
anywhere except in the judgment of a court…
..They have the right to legislate within gaps, but often there are
no gaps. We shall have a false view of the landscape if we look at
the waste spaces only, and refuse to see the acres already sown
and fruitful.. F
..The judge, even when he is free, is still not wholly free. He is not
to innovate at pleasure. He is not a knight-errant, roaming at will
in pursuit of his own ideal of beauty or of goodness. He is to draw
his inspiration from consecrated principles. He is not to yield to
spasmodic sentiment, to vague and unregulated benevolence. He G
is to exercise a discretion informed by tradition, methodized by
analogy, disciplined by system, and subordinated to “the primordial
necessity of order in the social life.” Wide enough in all conscience
is the field of discretion that remains.”
(Emphasis Supplied)
H
96 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 91. Close to the aspect of separation of powers, is controversial
subject of judicial activism. In the work “Judicial Activism, Authority,
Principles and Policy in The Judicial Method” by Hon’ble Justice Michael
Kirby, we find of particular interest, the following:
“The acute needs of the developing countries of the
B Commonwealth have sometimes produced an approach to
constitutional interpretation that is unashamedly described as
“activist”, including by judges themselves. Thus in India, at least
in most legal circles, the phrase “judicial activism” is not viewed
as one of condemnation. So urgent and numerous are the needs
of that society that anything else would be regarded by many –
C including many judges and lawyers – as an abdication of the final
court’s essential constitutional role.
One instance may be cited from Indian experience: the expansion
of the traditional notion of standing to sue in public interest litigation.
The Indian Supreme Court has upheld the right of prisoners, the
D poor and other vulnerable groups to enlist its constitutional
jurisdiction by simply sending a letter to the Court. This might not
seem appropriate in a developed country. Yet it appears perfectly
adapted to the nation to which the Indian Constitution speaks.
Lord Chief Justice Woolf recently confessed to having been
E astounded at first by the proactive approach of the Indian Supreme
Court in this and other aspects. However, he went on:
“…I soon realised that if that Court was to perform its essential
role in Indian society, it had no option but to adopt the course it did
and I congratulate it for the courage it has shown.””
F (Emphasis Supplied)
92. Unlike demands of a formal democracy, the hallmark of a
substantive democracy and if we may say so, a liberal democracy must
be borne in mind. Democracy is inextricably intertwined with power to
the people. The ballot, is more potent than the most powerful gun.
G Democracy facilitates a peaceful revolution at the hands of the common
man if elections are held in a free and fair manner. Elections can be
conflated with a non-violent coup capable of unseating the most seemingly
powerful governing parties, if they do not perform to fulfil the aspirations
of the governed. Democracy is meaningful only if the sublime goals
enshrined in the preamble to the Constitution receive the undivided
H
ANOOP BARANWAL v. UNION OF INDIA 97
[K. M. JOSEPH, J.]

attention of the rulers, namely, social, political and economic justice. The A
concepts of liberty, equality and fraternity must not be strange bedfellows
to the ruling class. Secularism, a basic feature of the Constitution must
inform all actions of the State, and therefore, cannot be spurned but
must be observed in letter and spirit. Democracy can be achieved only
when the governing dispensation sincerely endeavours to observe the
B
fundamental rights in letter and spirit. Democracy also, needless to say,
would become fragile and may collapse, if only lip service is paid to the
rule of law. We cannot be oblivious to the fact that the founding fathers
have contemplated that not only must India aspire for a democratic form
of government and life but it is their unambiguous aim that India must be
a Democratic Republic.The conventional definition of a ‘Republic’ is C
that it is a Body Polity, in which, the Head of State is elected. However,
the republican character of our democracy also means that the majority
abides by the Constitution ensuring rights granted under it and also pursues
goals enshrined in it. A brute majority generated by a democratic process
must conform to constitutional safeguards and the demands of
D
constitutional morality. A Democratic Republic contemplates that
majoritarian forces which may be compatible with a democracy, must
be counter balanced by protection accorded to those not in the majority.
When we speak about the minority, the expression is not to be conflated
with or limited to linguistic or religious minorities. These are aspects
which again underly the need for an independent election commission. E
93. It may be true that the resort to courts is not a remedy for all
ills in a society (see Common Cause v. Union of India and Others26)
We are equally cognizant that the courts must not try to run aGovernment
nor behave like emperors. We also take notice of the following words of
this Court in Divisional Manager, Aravali Golf Club and Another v. F
Chander Hass and Another,27 where the merit of exercising judicial
restraint has been emphasized.
“33. Judicial restraint is consistent with and complementary to
the balance of power among the three independent branches of
the State. It accomplishes this in two ways. First, judicial restraint G
not only recognises the equality of the other two branches with
the judiciary, it also fosters that equality by minimising inter-branch

26
(1996) 1 SCC 753
27
(2008) 1 SCC 683
H
98 SUPREME COURT REPORTS [2023] 9 S.C.R.

A interference by the judiciary. In this analysis, judicial restraint may
also be called judicial respect, that is, respect by the judiciary for
the other coequal branches. In contrast, judicial activism’s
unpredictable results make the judiciary a moving target and thus
decreases the ability to maintain equality with the co-branches.
Restraint stabilises the judiciary so that it may better function in a
B
system of inter-branch equality.”
“34. Second, judicial restraint tends to protect the independence
of the judiciary. When courts encroach into the legislative or
administrative fields almost inevitably voters, legislators and other
elected officials will conclude that the activities of judges should
C be closely monitored. If judges act like legislators or administrators
it follows that judges should be elected like legislators or selected
and trained like administrators. This would be counterproductive.
The touchstone of an independent judiciary has been its removal
from the political or administrative process. Even if this removal
D has sometimes been less than complete, it is an ideal worthy of
support and one that has had valuable effects.”
“38. The moral of this story is that if the judiciary does not exercise
restraint and overstretches its limits there is bound to be a reaction
from politicians and others. The politicians will then step in and
E curtail the powers, or even the independence, of the judiciary (in
fact the mere threat may do, as the above example demonstrates).
The judiciary should, therefore, confine itself to its proper sphere,
realising that in a democracy many matters and controversies are
best resolved in non-judicial setting.”

F However, we may also listen to the following words.
“39. We hasten to add that it is not our opinion that judges should
never be “activist”. Sometimes judicial activism is a useful adjunct
to democracy such as in the School Segregation and Human Rights
decisions of the US Supreme Court vide Brown v. Board of
G Education [347 US 483 : 98 L Ed 873 (1954)],
Miranda v. Arizona [384 US 436 : 16 L Ed 2d 694 (1966)],
Roe v. Wade [410 US 113 : 35 L Ed 2d 147 (1973)] , etc. or the
decisions of our own Supreme Court which expanded the scope
of Articles 14 and 21 of the Constitution. This, however, should be
resorted to only in exceptional circumstances when the situation
H
ANOOP BARANWAL v. UNION OF INDIA 99
[K. M. JOSEPH, J.]

forcefully demands it in the interest of the nation or the poorer A
and weaker sections of society but always keeping in mind that
ordinarily the task of legislation or administrative decisions is for
the legislature and the executive and not the judiciary.”
(Emphasis Supplied)
94. A Constitution Bench Judgment reported in State of T.N. v. B
State of Kerala and another 28 summarised its conclusions on the
constitutional principles relating to separation of powers as follows:
“126.1. Even without express provision of the separation of
powers, the doctrine of separation of powers is an entrenched
principle in the Constitution of India. The doctrine of separation C
of powers informs the Indian constitutional structure and it is an
essential constituent of rule of law. In other words, the doctrine of
separation of power though not expressly engrafted in the
Constitution, its sweep, operation and visibility are apparent from
the scheme of Indian Constitution. Constitution has made D
demarcation, without drawing formal lines between the three
organs—legislature, executive and judiciary. In that sense, even
in the absence of express provision for separation of powers, the
separation of powers between the legislature, executive and
judiciary is not different from the Constitutions of the countries
which contain express provision for separation of powers. E

126.2. Independence of courts from the executive and legislature
is fundamental to the rule of law and one of the basic tenets of
Indian Constitution. Separation of judicial power is a significant
constitutional principle under the Constitution of India.
F
126.3. Separation of powers between three organs—the
legislature, executive and judiciary—is also nothing but a
consequence of principles of equality enshrined in Article 14 of
the Constitution of India. Accordingly, breach of separation of
judicial power may amount to negation of equality under Article
14. Stated thus, a legislation can be invalidated on the basis of G
breach of the separation of powers since such breach is negation
of equality under Article 14 of the Constitution.”
R. IS THE RIGHT TO VOTE A STATUTORY RIGHT OR
A CONSTITUTIONAL RIGHT?
28
(2014) 12 SCC 696 H
100 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 95. The right to vote is not a civil right. A Bench of six learned
Judges in N.P. Ponnuswami v. Returning_Officer, Namakkal,29 in the
context of Article 329(b) held that the right to vote was a creature of a
statute or a special law and must be subject to limitations imposed by it.
The matter arose from a challenge to the rejection of the nomination
maintained in a writ petition and the question which substantially arose
B
was the impact of Article 329(b). No doubt, the court examined Part
XV of the Constitution and about Articles 325 and 326, the Court held as
follows:
“The other two Articles in Part XV i.e. Article 325 and 326 deal
with two matters of principle to which the Constitution framers
C have attached much importance. They are (1) Prohibition against
dis crimination in the preparation of, or eligibility for inclusion in,
the electoral rolls, on grounds of religion, race, caste, sex or any
of them; and (2) adult sufferage.”
The Court really was not concerned with the question as to whether
D Article 326 provided for a Constitutional right to vote.
96. In Jyoti Basu and Others. Debi Ghosal and Others30, the
Court was dealing with a challenge to the High court rejecting an
application in an Election Petition to strike out the names of certain parties
from the array of parties. The Court inter alia held that Article 326
E provides for elections to be held on the basis of adult franchise. Thereafter,
the Court held as follows:
“7. The nature of the right to elect, the right to be elected and the
right to dispute an election and the scheme of the constitutional
and statutory provisions in relation to these rights have been
F explained by the Court in N.P. Ponnuswami v. Returning
Officer, Namakkal Constituency [(1952) 1 SCC 94 : AIR 1952
SC 64 : 1952 SCR 218 : 1952 SCJ 100] and Jagan
Nath v. Jaswant Singh [AIR 1954 SC 210 : 1954 SCR 892 : 1954
SCJ 257] . We proceed to state what we have gleaned from what
G has been said, so much as necessary for this case.
8. A right to elect, fundamental though it is to democracy, is,
anomalously enough, neither a fundamental right nor a common
law right. It is pure and simple, a statutory right. So is the right to
29
AIR 1952 SC 64
30
H 1982 (1) SCC 691
ANOOP BARANWAL v. UNION OF INDIA 101
[K. M. JOSEPH, J.]

be elected. So is the right to dispute an election. Outside of statute, A
there is no right to elect, no right to be elected and no right to
dispute an election.”
(Emphasis supplied)
97. Mohan Lal Tripathi vs. District Magistrate, Raibraally and
others31 was a case wherein the appellant who was elected directly B
under Section 43 of the U.P. Municipalities Act was removed by a no-
confidence motion. It was his contention that his removal was
undemocratic as it was sought to be done by a smaller and different
body than the one that elected him. It is in these facts that the court inter
alia held as follows: C
“..But electing representatives to govern is neither a ‘fundamental
right’ nor a ‘common right’ but a special right created by the
statutes or a ‘political right’ or ‘privilege’ and not a ‘natural[‘,
absolute’ or ‘vested right’.
This Court was not dealing with the impact of Article 326. It D
followed the judgement in N.P. Ponnuswamy (supra).
98. In Rama Kant Pandey v. Union of India32, a Bench of three
learned judges was dealing with a petition challenging the validity of the
Representation of the People (Amendment Ordinance) Act, 1992 on the
ground of violation of Articles 14, 19 and 21. Section 52 providing for E
countermanding of polls was amended. It was in the context of the said
challenge, the Court noted that the right to vote or to stand as a candidate
for election was neither a fundamental nor civil right. It purported to
follow the views which originated in Ponnuswamy case (supra).
99. In Anukul Chandra Pradhan, Advocate Supreme Court v. F
Union of India and others33, a Bench of three learned Judges, while
dealing with a challenge to Section 62(5) of the 1951 Act, on the ground
that it violated Article 14 and 21 of the Constitution, upheld Section 62(5).
We may only notice the following views expressed by the Court:
“5. There are provisions made in the election law which exclude G
persons with criminal background of the kind specified therein,
from the election scene as candidates and voters. The object is to
31
(1992) 4 SCC 80
32
(1993) 2 SCC 438
33
(1997) 6 SCC 1 H
102 SUPREME COURT REPORTS [2023] 9 S.C.R.

A prevent criminalisation of politics and maintain probity in elections.
Any provision enacted with a view to promote this object must be
welcomed and upheld as subserving the constitutional purpose.
The elbow room available to the legislature in classification depends
on the context and the object for enactment of the provision. The
existing conditions in which the law has to be applied cannot be
B
ignored in adjudging its validity because it is relatable to the object
sought to be achieved by the legislation. Criminalisation of politics
is the bane of society and negation of democracy. It is subversive
of free and fair elections which is a basic feature of the
Constitution. Thus, a provision made in the election law to promote
C the object of free and fair elections and facilitate maintenance of
law and order which are the essence of democracy must, therefore,
be so viewed. More elbow room to the legislature for classification
has to be available to achieve the professed object.”
100. The Court also found other reasons to justify the provision. It
D was noted that permitting every person in prison to vote, would lead to a
resource crunch in terms of police force required to facilitate the right.
The Court also went on to hold that the Right to Vote is also subject to
limitations imposed by the Statute. The specific question, as to whether
it constituted a Constitutional Right under Article 326, as such, was not
presented for adjudication.
E
101. In Shyamdeo Pd. Singh v. Nawal Kishore Yadav34, a Bench
of three learned judges while dealing with a case arising out of an election
petition had this to say about Article 326:
“9. Article 326 of the Constitution is founded on the doctrine of
F adult suffrage. It provides that every person who is a citizen of
India and who is not less than 18 years of age on such date as
may be fixed in that behalf by or under any law made by the
appropriate legislature and is not otherwise disqualified under the
Constitution or any law made by the appropriate legislature on the
ground of non-residence, unsoundness of mind, crime or corrupt
G or illegal practice, shall be entitled to be registered as a voter at
any such election. This Article clearly contemplates law being
enacted by an appropriate legislature providing for qualifications
and disqualifications subject to which a citizen of India not less
than 18 years of age shall be entitled to be registered as a voter
34
H (2000) 8 SCC 46
ANOOP BARANWAL v. UNION OF INDIA 103
[K. M. JOSEPH, J.]

and exercise his right to franchise. Article 327 provides for law A
being made by Parliament subject to the provisions of the
Constitution with respect to all matters relating to or in connection
with elections to either House of Parliament or to the House or
either House of the Legislature of a State which law may include
provisions for the preparation of electoral rolls, the delimitation of
B
constituencies and all other matters necessary for securing the
due constitution of such House or Houses.
102. The Court, inter alia, after referring to Section 62 of the
1951 Act, held as follows:
“… A person who is not entered in the electoral roll of any C
constituency is not entitled to vote in that constituency thoughhe
may be qualified under the Constitution and the law to exercise
the right to franchise. To be entitled to cast a ballot the person
should be entered in the electoral roll…”
It was further held: D
“15. A perusal of the abovesaid provisions leads to certain
irresistible inferences. Article 326 of the Constitution having
recognised the doctrine of adult suffrage has laid down
constitutional parameters determinative of the qualifications and
disqualifications relating to registration as a voter at any election. E
The two Articles, i.e., Article 326 and Article 327 contemplate
such qualifications and disqualifications being provided for, amongst
other things, by the appropriate legislature. The fountain source
of the 1950 Act and the 1951 Act enacting provisions on such
subject are the said two Articles of the Constitution. The provisions
of Section 16 of the 1950 Act and Section 62 of the 1951 Act read F
in juxtaposition go to show that while Section 16 of the 1950 Act
provides for “disqualifications for registration” in an electoral roll,
(qualifications having been prescribed by Section 27 thereof),
Sections 62 of the 1951 Act speaks of “right to vote” which right
is to be determined by reference to the electoral roll of the G
constituency prepared under the 1950 Act. The eligibility for
registration of those enrolled having been tested by reference to
Section 16 or Section 27 of the Act, as the case may be, and the
electoral roll having been prepared, under the 1950 Act if a person
is or becomes subject to any of the disqualifications provided in
H
104 SUPREME COURT REPORTS [2023] 9 S.C.R.

A clauses (a), (b) and (c) of sub-section (1) of Section 16, two
consequences may follow. His name may forthwith be struck off
the electoral roll, in which the name is included, under sub-section
(2) of Section 16 of the 1950 Act. Even if the name is not so
struck off yet the person is disqualified from exercising right to
vote at the election by virtue of sub-section (2) of Section 62 of
B
the 1951 Act. The qualifications prescribed for enrolment in the
electoral roll as provided by clause (b) of sub-section (5) of Section
27 of the 1950 Act are: (i) ordinary residence in a teachers’
constituency, (ii) being engaged in the relevant educational
institution for a total period of at least three years within the six
C years immediately before the qualifying date. The inquiry into
availability of these eligibility qualifications, under the Scheme of
the 1950 Act is to be made at the time of preparation of the electoral
roll or while entering or striking out a name in or from the electoral
roll. Section 62 of the 1951 Act does not provide that a person
who is not qualified to be enrolled as an elector in the electoral roll
D
shall not be entitled to vote at the election. To put it briefly a
disqualification under Section 16 of the 1950 Act has a relevance
for and a bearing on the right to vote under Section 62 of the 1951
Act but being not qualified for enrolment in the electoral roll under
Section 27 of the 1950 Act has no relevance for or bearing on the
E right to vote at an election under Section 62 of the 1951 Act. That
is the distinction between a “disqualification” and “not being
qualified”.
It is, however, relevant to notice that the case arose from a
challenge to the result of an election held to a legislative council and
F Section 27 referred to dealt with legislative councils and not legislative
assemblies.
103. In Union of India v. Assn. for Democratic Reforms 35, the
High Court gave certain directions to the Election Commission on the
basis that the right of the voter to make the right choice depended upon
G the availability of information about the past of the candidates and it
must be disclosed to the voters. This Court found that for the health of
democracy and fair elections and for ensuring the purity of elections and
having regard to the width of the jurisdiction of the Election Commission
under Article 324 (1) of the Constitution, the directions given by the
35
(2002) 5 SCC 294
H
ANOOP BARANWAL v. UNION OF INDIA 105
[K. M. JOSEPH, J.]

High court was justified. This Court however issued certain directions A
which modified the directions of the High Court. It is in the context of
these facts, the Court,inter alia, held as follows:
“46 (7). Under our Constitution, Article 19(1)(a) provides for
freedom of speech and expression. Voter’s speech or expression
in case of election would include casting of votes, that is to B
say, voter speaks out or expresses by casting vote. For this
purpose, information about the candidate to be selected is a must.
Voter’s (little man — citizen’s) right to know antecedents including
criminal past of his candidate contesting election for MP or MLA
is much more fundamental and basic for survival of
democracy. The little man may think over before making his choice C
of electing law-breakers as law-makers.”
104. The directions led to the insertion of Sections 33A and 33B.
Under Section 33B, it was inter alia provided thatnotwithstanding any
judgment, no candidate was liable to disclose or furnish any such
information in respect of his election which is not required to be disclosed D
or furnished under the Representation of the People Act, 1951 or the
rules made thereunder. In People’s Union for civil Liberties (PUCL)
and Another vs. Union of India and Another 36 Justice M.B. Shah
while dealing with the nature of the right to vote, inter alia held that “the
right of the voter to know the bio data of the candidate was the foundation E
of democracy”. It was concluded by the learned judge that Section 33B
of the amended Act was illegal and invalid. Justice P. Venkatarama Reddi
in the same case went on hold as follows:
“With great reverence to the eminent Judges, I would like to clarify
that the right to vote, if not a fundamental right, is certainly a F
constitutional right. The right originates from the Constitution and
in accordance with the constitutional mandate contained in Article
326, the right has been shaped by the statute, namely the RP Act.
That, in my understanding, is the correct legal position as regards
the nature of the right to vote in elections to the House of the
People and Legislative Assemblies. It is not very accurate to G
describe it as a statutory right, pure and simple. Even with this
clarification, the argument of the learned Solicitor-General that
the right to vote not being a fundamental right, the information
36
(2003) 4 SCC 399
H
106 SUPREME COURT REPORTS [2023] 9 S.C.R.

A which at best facilitates meaningful exercise of that right cannot
be read as an integral part of any fundamental right, remains to be
squarely met. Here, a distinction has to be drawn between the
conferment of the right to vote on fulfilment of requisite criteria
and the culmination of that right in the final act of expressing
choice towards a particular candidate by means of ballot. Though
B
the initial right cannot be placed on the pedestal of a fundamental
right, but, at the stage when the voter goes to the polling booth
and casts his vote, his freedom to express arises. The casting of
vote in favour of one or the other candidate tantamounts to
expression of his opinion and preference and that final stage in
C the exercise of voting right marks the accomplishment of freedom
of expression of the voter. That is where Article 19(1)(a) is
attracted. Freedom of voting as distinct from right to vote is thus
a species of freedom of expression and therefore carries with it
the auxiliary and complementary rights such as right to secure
information about the candidate which are conducive to the
D
freedom. None of the decisions of this Court wherein the proposition
that the right to vote is a pure and simple statutory right was
declared and reiterated, considered the question whether the
citizen’s freedom of expression is or is not involved when a citizen
entitled to vote casts his vote in favour of one or the other
E candidate.”
(Emphasis supplied)
Justice D.M. Dharmadhikari also agreed with the following
conclusion No.2 at para 123 which contains the judgment of Justice P.
Venkatarama Reddi:
F
“(2) The right to vote at the elections to the House of the People
or Legislatives Assembly is a constitutional right but not merely a
statutory right; freedom of voting as distinct from right to vote is a
facet of the fundamental right enshrined in Article 19(1)(a). the
casting of vote in favour of one or the other candidate marks the
G accomplishment of freedom of expression of the voter.”
105. In Kuldip Nayar and Others v. Union of India and
Others37, the question which actually fell for consideration was the validity
of a certain amendment which came into force on 28.08.2003. By the
37
(2006) 7 SCC 1
H
ANOOP BARANWAL v. UNION OF INDIA 107
[K. M. JOSEPH, J.]

Amendment, the requirement of domicile in the State concerned for A
being elected to the Council of States was deleted. The Constitution
Bench in the course of its judgment referred to PUCL (supra) and the
court observed as follows:
“361. The argument of the petitioners is that the majority view
in People’s Union for Civil Liberties [(2003) 4 SCC 399] , B
therefore, was that a right to vote is a constitutional right besides
that it is also a facet of fundamental right under Article 19(1)(a)
of the Constitution.
362. We do not agree with the above submission. It is clear that a
fine distinction was drawn between the right to vote and the
freedom of voting as a species of freedom of expression, while C
reiterating the view in Jyoti Basu v. Debi Ghosal [(1982) 1 SCC
691] that a right to elect, fundamental though it is to democracy, is
neither a fundamental right nor a common law right, but pure and
simple, a statutory right.
363. Even otherwise, there is no basis to contend that the right to D
vote and elect representatives of the State in the Council of States
is a constitutional right. Article 80(4) merely deals with the manner
of election of the representatives in the Council of States as an
aspect of the composition of the Council of States. There is nothing
in the constitutional provisions declaring the right to vote in such E
election as an absolute right under the Constitution.”
106. It will be noticed that the Council of States is not the same as
the House of the People within the meaning of Article 326. We cannot
overlook the following observations:
“448. It shows that the right to vote in “free and fair elections” is
F
always in terms of an electoral system prescribed by national
legislation. The right to vote derives its colour from the right
to “free and fair elections”; that the right to vote is empty without
the right to “free and fair elections”. It is the concept of “free and
fair elections” in terms of an electoral system which provides
content and meaning to the “right to vote”. In other words, “right G
to vote” is not (sic) an ingredient of the free and fair elections. It
is essential but not the necessary ingredient.”
107. In K. Krishna Murthy v. Union of India38, a Constitution
Bench was dealing with the constitutional validity of certain aspects of
38
(2010) 7 SCC 202 H
108 SUPREME COURT REPORTS [2023] 9 S.C.R.

A the reservation policy in regard to the composition of elected local self-
government institutions. The Bench relied upon M.M. Tripathi case
(supra) and observed as follows:
“..It is a well-settled principle in Indian Law, that the right to vote
and contest elections does not have the status of fundamental
B rights. Instead, they are in the nature of legal rights which can be
controlled though legislative means…”
108. The request of the petitioner therein to reconsider the
precedent wherein the right of political participation was categorised as
statutory right was turned down. No doubt, this case was not dealing
C with elections to the House of the People or the State Legislature.
109. In People’s Union for Civil Liberties v. Union of India39,
[the second PUCL case], a Bench of three learned Judges recognised
the right of the person to express his disapproval of the candidates who
stood for election by pressing a button which would indicate ‘none of the
D above’ (NOTA). In the course of this judgment dealing with the first
PUCL judgment (supra), the Court held as follows:
“After a careful perusal of the verdicts of this Court in Kuldip
Nayar [(2006) 7 SCC 1], Assn. for Democratic Reforms [(2002)
5 SCC 294] and People’s Union for Civil Liberties [(2003) 4
SCC 399] , we are of the considered view that Kuldip
E
Nayar [(2006) 7 SCC 1] does not overrule the other two decisions
rather it only reaffirms what has already been said by the aforesaid
two decisions. The said paragraphs recognise that right to vote is
a statutory right and also in People’s Union for Civil
Liberties [(2003) 4 SCC 399] it was held that “a fine distinction
F was drawn between the right to vote and the freedom of voting
as a species of freedom of expression”. Therefore, it cannot be
said that Kuldip Nayar [(2006) 7 SCC 1] has observed anything
to the contrary. In view of the whole debate of whether these two
decisions were overruled or discarded because of the opening
line in para 362 of Kuldip Nayar [(2006) 7 SCC 1] i.e. “We do
G
not agree with the above submissions” we are of the opinion that
this line must be read as a whole and not in isolation. The contention
of the petitioners in Kuldip Nayar [(2006) 7 SCC 1] was that
majority view in People’s Union for Civil Liberties [(2003) 4
39
(2013) 10 SCC 1
H
ANOOP BARANWAL v. UNION OF INDIA 109
[K. M. JOSEPH, J.]

SCC 399] held that right to vote is a constitutional right besides A
that it is also a facet of the fundamental right under Article 19(1)(a)
of the Constitution. It is this contention on which the Constitution
Bench did not agree too in the opening line in para 362 and thereafter
went on to clarify that in fact in People’s Union for Civil
Liberties [(2003) 4 SCC 399], a fine distinction was drawn
B
between the right to vote and the freedom of voting as a species
of freedom of expression. Thus, there is no contradiction as to the
fact that right to vote is neither a fundamental right nor a
constitutional right but a pure and simple statutory right. The same
has been settled in a catena of cases and it is clearly not an issue
in dispute in the present case. With the above observation, we C
hold that there is no doubt or confusion persisting in the Constitution
Bench judgment of this Court in Kuldip Nayar [(2006) 7 SCC 1]
and the decisions in Assn. for Democratic Reforms [(2002) 5
SCC 294] and People’s Union for Civil Liberties [(2003) 4 SCC
399] do not stand impliedly overruled.”
D
(Emphasis supplied)
S. ARTICLE 326 DEMYSTIFIED
110. Article 326 reads as follows:
“326. Elections to the House of the People and to the Legislative E
Assemblies of States to be on the basis of adult suffrage.—The
elections to the House of the People and to the Legislative
Assembly of every State shall be on the basis of adult suffrage;
that is to say, every person who is a citizen of India and who is not
less than 2 [eighteen years] of age on such date as may be fixed
in that behalf by or under any law made by the appropriate F
Legislature and is not otherwise disqualified under this Constitution
or any law made by the appropriate Legislature on the ground of
non-residence, unsoundness of mind, crime or corrupt or illegal
practice, shall be entitled to be registered as a voter at any such
election.” G
111. It is necessary to notice Articles 327 and 328:
“327. Power of Parliament to make provision with respect to
elections to Legislatures.—Subject to the provisions of this
Constitution, Parliament may from time to time by law make
provision with respect to all matters relating to, or in connection H
110 SUPREME COURT REPORTS [2023] 9 S.C.R.

A with, elections to either House of Parliament or to the House or
either House of the Legislature of a State including the preparation
of electoral rolls, the delimitation of constituencies and all other
matters necessary for securing the due constitution of such House
or Houses.”
B “328. Power of Legislature of a State to make provision with
respect to elections to such Legislature.—Subject to the provisions
of this Constitution and in so far as provision in that behalf is not
made by Parliament, the Legislature of a State may from time to
time by law make provision with respect to all matters relating to,
or in connection with, the elections to the House or either House
C of the Legislature of the State including the preparation of electoral
rolls and all other matters necessary for securing the due
constitution of such House or Houses.”
112. We may proceed to decode Article 326. In the first part, the
Constitution provides that election to the House of the People and to the
D Legislative Assembly of every State, shall be on the basis of adult
suffrage. This is followed by the words, which is intended to expound
what ‘adult suffrage’ means. The Founding Fathers have, in unmistakable
terms, declared that elections to the two Legislative Bodies in question,
shall be thrown open to participation to every person, who is:
E I.
a) A citizen of India;
b) Is not less than eighteen years of age. The condition
must be fulfilled as regards the qualification with
reference to ‘such date’;
F II. ‘Such date’ is to be as specified in or under a law made by
the appropriate Legislature. The appropriate Legislature
would mean, Parliament in the case of elections to the
House of People and the Legislative Assembly of the
concerned State, in the case of the Legislative Assembly;
III. The person, who is a citizen and not less than eighteen years
G
as on the date as indicated in the law, as aforesaid, Article
326 continues to declare must not be disqualified under the
Constitution or any law made by the appropriate Legislature.
IV. The appropriate Legislature can make a law providing for
a disqualification, however, only as provided in Article 326
H itself. In other words, Article 326 has limited the power of
ANOOP BARANWAL v. UNION OF INDIA 111
[K. M. JOSEPH, J.]

the Legislature concerned in the matter of stipulating A
disqualifications. What are those disqualifications, which
can be stipulated by a law?
V. The disqualifications, which can be provided by a law are
as follows:
a. Non-residence; B
b. Unsoundness of mind;
c. Crime;
d. Corrupt practice;
C
e. Illegal practice;
VI. Moving forward, and proceeding on the basis that a person
is a citizen and is not less than eighteen years on the relevant
date and is not disqualified in terms of what we have indicated
just herein before, viz., under any of the grounds indicated
as ‘a’ to ‘e’, then Article 326 declares that such person D
shall be entitled to be registered as a voter at any such
election. The words ‘any such election’ would mean
elections either to the House of the People or the House of
the Legislative Assembly. We again reiterate that all
conditions being present, as we have referred to with E
reference to Article 326, the person becomes entitled to be
registered as a voter.
113. Accordingly, it is that Parliament enacted in 1950, The
Representation of Peoples Act, 1950 (hereinafter referred to as ‘the
1950 Act’). Part III provides for electoral rolls for Assembly F
Constituencies. Section 14(b), as substituted w.e.f. 01.03.1956, defines
‘qualifying date’:
“”Qualifying date”, in relation to the preparation or revision of
every electoral roll under this Part, means the 1st day of January
of the year in which it is so prepared or revised:” G
114. We are omitting reference to the proviso as it related only to
the year 1989. Section 15 of the 1950 Act declares that for every
constituency, there must be an electoral roll prepared under the said Act
under the supervision, direction and control of the Election. Section 16
provides as follows:
H
112 SUPREME COURT REPORTS [2023] 9 S.C.R.

A “16. Disqualifications for registration in an electoral roll.—(1) A
person shall be disqualified for registration in an electoral roll if
he—
(a) is not a citizen of India; or
(b) is of unsound mind and stands so declared by a competent
B court; or
(c) is for the time being disqualified from voting underthe provisions
of any law relating to corrupt practices and other offences in
connection with elections.

C (2) The name of any person who becomes so disqualifiedafter
registration shall forthwith be struck off the electoral roll in which
it is included:
Provided that the name of any person struck off the electoral roll
of a constituency by reason of a disqualification under clause (c)
D of sub-section (1) shall forthwith be re-instated in that roll if
suchdisqualification is, during the period such roll is in force,
removed under any law authorising such removal.”
115. With effect from 30.12.1958, Section 19 of the 1950 Act
reads as follows:
E “19. Conditions of registration. — Subject to the foregoing
provisions of this Part, every person who —
(a) is not less than eighteen years of age on the qualifying date,
and
(b) is ordinarily resident in a constituency,
F
shall be entitled to be registered in the electoral roll for that
constituency.”
116. It will be clear, therefore, that the requirement of minimum
age of eighteen years, as provided in Article 326, is to be determined
G with reference to such date, as may be fixed by or under any law, is to
be understood as the qualifying date and it is to be understood as the 1st
day of January of the year, in which the electoral roll is prepared or
revised.
117. Section 20 deals with the meaning of ‘ordinarily resident’. It
provides for various circumstances in which a person shall not be deemed
H
ANOOP BARANWAL v. UNION OF INDIA 113
[K. M. JOSEPH, J.]

to be ordinarily resident as also circumstances in which he is deemed to A
be ordinarily resident. Article 326 read with the provisions in the 1950
Act, which we have indicated, together provide the disqualifications for
a person to be not included in an electoral roll. Before the deletion of the
words ‘and illegal’ in Section 16(c), it provided for corrupt and illegal
practices, which were relatable to the last part of Article 326. However,
B
the words ‘illegal practices’ have been omitted by Act 58 of 1960 w.e.f.
26.12.1960. Apparently, being relatable to ‘crime’, to be found in Article
326, Section 16(c) declares that a person may be disqualified for
registration in the electoral roll on the basis of other offences in connection
with elections.This means that a person would be disqualified for
registration in the electoral roll, if he is disqualified under any law relating C
to corrupt practices or any other offence in connection with elections.
118. In 1951, Parliament enacted The Representation of the People
Act, 1951 (hereinafter referred to as, ‘the 1951 Act’).
119. Thereunder, the word ‘election’ has been defined in Section
2(d) to mean ‘an election to fill a seat or seats in either House of D
Parliament or in the House or either House of the Legislature of a State.
Section 2(e) defines the word ‘elector’ to mean ‘in relation to a
constituency means a person whose name is entered in the electoral
roll of that constituency for the time being in force and who is not
subject to any of the disqualifications mentioned in section 16 of E
the Representation of the People Act, 1950 (43 of 1950)’. Under
Part II, Chapter I deals with qualifications for membership of Parliament.
Chapter II deals with qualifications for membership of State Legislatures.
Chapter III of the 1951 Act provides for disqualifications for membership
of Parliament and State Legislatures. Section 8, falling in Chapter III,
deals with disqualification upon conviction for certain offences. Various F
offences are enumerated with the conditions attached therein. Section
8A deals with disqualification for membership, for both Parliament and
State Legislatures, on the ground of corrupt practices. Section 11A, as it
stands, reads:
“11A. Disqualification arising out of conviction and corrupt G
practices.— (1) If any person, after the commencement of this
Act,—
is convicted of an offence punishable under section 171E or section
171F of the Indian Penal Code (45 of 1860), or under section 125
H
114 SUPREME COURT REPORTS [2023] 9 S.C.R.

A or section 135 or clause (a) of sub-section (2) of section 136 of
this Act,
he shall, for a period of six years from the date of the conviction
or from the date on which the order takes effect, be is qualified
for voting at any election.
B (2) Any person disqualified by a decision of the President under
sub-section (1) of section 8A for any period shall be disqualified
for the same period for voting at any election.
(3) The decision of the President on a petition submitted by any
person under sub-section (2) of section 8A in respect of any
C disqualification for being chosen as, and for being, a member of
either House of Parliament or of the Legislative Assembly or
Legislative Council of a State shall, so far as may be, apply in
respect of the disqualification for voting at any election incurred
by him under clause (b) of sub-section (1) of section 11A of this
D Act as it stood immediately before the commencement of the
Election Laws (Amendment) Act, 1975 (40 of 1975), as if such
decision were a decision in respect of the said disqualification for
voting also.”
120. It is to be noted that Section 11A falls in Chapter IV, which
deals with disqualifications for voting. Chapter IXA of the Indian Penal
E
Code, 45 of 1860 deals with offences relating to elections. Undue
influence at elections, personation at elections and bribery, are made
punishable offences and are offences relating to elections.
121. In the 1951 Act, Chapter IV deals with ‘The poll’. Section
62 deals with the Right to Vote. It reads as follows:
F
“62. Right to vote.—
(1) 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
G constituency.
(2) No person shall vote at an election in any constituency if he is
subject to any of the disqualifications referred to in section 16 of
the Representation of the People Act, 1950 (43 of 1950).
(3) No person shall vote at a general election in more than one
H constituency of the same class, and if a person votes in more than
ANOOP BARANWAL v. UNION OF INDIA 115
[K. M. JOSEPH, J.]

one such constituency, his votes in all such constituencies shall be A
void.
(4) No person shall at any election vote in the same constituency
more than once, notwithstanding that his name may have been
registered in the electoral roll for the constituency more than once,
and if he does so vote, all his votes in that constituency shall be B
void.
(5) No person shall vote at any election if he is confined in a
prison, whether under a sentence of imprisonment or transportation
or otherwise, or is in the lawful custody of the police:
Provided that nothing in this sub-section shall apply to a person C
subjected to preventive detention under any law for the time being
in force.
(6) Nothing contained in sub-sections (3) and (4) shall apply to a
person who has been authorised to vote as proxy for an elector
under this Act in so far as he votes as a proxy for such elector.” D
122. Section 62(1) of the 1951 Act means the following:
A person, who is not entered in the electoral roll of a constituency,
shall not be entitled to vote in that constituency. On the other hand,
every person, who is, for the time being, entered in the electoral roll of
E
any constituency, is declared entitled to vote in the constituency. Section
62(2) then proceeds to declare that no person shall vote at an election in
any constituency, if he is subject to any of the disqualifications referred
to in Section 16 of the 1950 Act. In our view, the meaning of the Section
62(1) read with Section 62(2) is the following:
F
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.
123. Section 62(3) forbids a person, who may find his name in the G
electoral roll of more than one constituency of the same class, from
casting his vote in more than one constituency. In such an eventuality,
notwithstanding the fact that his name is so included, if he votes in more
than one constituency, his ballot will be void in regard to all the
constituencies in which he casts his vote. H
116 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 124. Equally, under Section 62(4), if his name is included more
than once in the electoral roll of the same constituency and should he
cast his vote more than once, all the votes in regard to the said constituency
are declared void.
125. Section 62(5) enacts a prohibition against the person casting
B his vote, if he is confined to a prison. This would mean that while a
person’s name may be included in an electoral roll, which would entitle
him, ordinarily, to cast his vote, however, Section 62(5) deprives him of
his right to cast his vote, when he is so confined. We have noticed that
the validity of this provision has been upheld in Anukul (supra). Also,
we find the same view taken in Chief Election Commissioner and
C Others v. Jan Chaukidar (Peoples Watch) and Others40, wherein
this Court has upheld the validity of Section 62(5). A person may be so
confined, if he is under a sentence of imprisonment or transportation or
otherwise or if he is in the custody of police. We may, at this juncture,
notice one feature. Article 326, undoubtedly, provides for adult suffrage.
It declares that if a person is a citizen and is above eighteen years of age
D
and he is not disqualified as provided in Article 326 by or under any law,
then, such person shall be entitled to have his name entered in the electoral
roll. It does not expressly say that he shall have the right to cast his vote.
The right to cast the vote, as such, is expressly conferred under Section
62(1), undoubtedly, on a person, whose name is entered in the electoral
E roll. We have already noticed the interplay of Section 62(1) and Section
62(2). Equally, we may notice that even if a person is included in the
electoral roll, if he is in confinement in a prison, it would not entitle him
or rather it would disentitle him to cast his vote. In other words, while
ordinarily, 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
F the law as we have noticed. The mere inclusion of a person’s name
more than once in an electoral roll in a constituency, it has been declared,
also would not entitle him to vote more than once [See Section 62(4)].
Equally, inclusion of a person’s name in the electoral roll of more than
one constituency, would not entitle a person to cast his vote, in terms of
G such inclusion in more than one constituency [See Section 62(3)]. No
doubt, we do notice that this Court has issued notice in a case, which
involves a challenge to Section 62(5) of the 1951 Act.
126. Section 16(1)(b) of the 1950 Act, provides for disqualification
for a person of unsound mind to be registered in an electoral roll. There
40
H (2013) 7 SCC 507
ANOOP BARANWAL v. UNION OF INDIA 117
[K. M. JOSEPH, J.]

is a condition, which is that, he must be so declared by a competent A
court. Unsoundness of mind is also to be found in Article 326 as a
disqualification. Section 16(1)(c) of the 1950 Act, it is to be noticed,
disqualifies a person for registration in an electoral roll, if he is for the
time being disqualified from voting under any law relating to corrupt
practices and other offences in connection with elections. If such a person
B
is included in such electoral roll, his name is to be struck off from the
electoral roll [See Section 16(2)]. Section 11A of the 1951 Act provides
for disqualifications from voting. We have already noticed its contents.
127. In Desiya Murpokku Dravida Kazhagam (DMDK) and
another v. Election Commission of India41, dealing with the validity of
the Symbols Order 1968, providing for recognition and allotment based C
on the criteria mentioned therein, Justice Chelameswar authored a dissent.
In the course of his dissent, the learned Judge, after adverting to Articles
81 and 170, which respectively provided for the composition of the Lok
Sabha and the Legislative Assemblies, and, more particularly, that the
Members of the said Legislative Bodies, would be chosen by direct D
elections and after adverting to Articles 325 and 326, held as follows:
“98. The cumulative effect of all the abovementioned provisions
is that the Lok Sabha and the Legislative Assemblies are to consist
of members, who are to be elected by all the citizens, who are of
18 years of age and are not otherwise disqualified, by a valid law, E
to be voters. Thus, a constitutional right is created in all citizens,
who are 18 years of age to choose (participate in the electoral
process) the members of the Lok Sabha or the Legislative
Assemblies. Such a right can be restricted by the appropriate
legislature only on four grounds specified under Article 326.”
F
128. In this regard, we may also notice the Judgment of this Court
in Rajbala and others v. State of Haryana and others42. Therein a
Bench of two learned Judges was dealing with the constitutionality of
the Haryana Panchayati Raj (Amendment) Act, 2015, under which,
certain categories of person were rendered incapable of contesting
elections. One such category was persons who did not possess specified G
educational qualifications. Justice Chelameswar speaking for the Bench,
held as follows:
41
(2012) 7 SCC 340
42
(2016) 2 SCC 445
H
118 SUPREME COURT REPORTS [2023] 9 S.C.R.

A “31. The right to vote of every citizen at an election either to the
Lok Sabha or to the Legislative Assembly is recognised under
Articles 325 and 326 subject to limitations (qualifications
and disqualifications) prescribed by or under the Constitution.
On the other hand, the right to vote at an election either to the
Rajya Sabha or to the Legislative Council of a State is confined
B
only to Members of the electoral colleges specified under Articles
80(4) and (5) and Articles 171(3)(a), (b), (c) and (d) [ “171. (3) Of
the total number of members of the Legislative Council of a
State—(a) as nearly as may be, one-third shall be elected by
electorates consisting of members of municipalities, district boards
C and such other local authorities in the State as Parliament may by
law specify;(b) as nearly as may be, one-twelfth shall be elected
by electorates consisting of persons residing in the State who have
been for at least three years graduates of any university in the
territory of India or have been for at least three years in possession
of qualifications prescribed by or under any law made by
D
Parliament as equivalent to that of a graduate of any such
university;(c) as nearly as may be, one-twelfth shall be elected by
electorates consisting of persons who have been for at least three
years engaged in teaching in such educational institutions within
the State, not lower in standard than that of a secondary school,
E as may be prescribed by or under any law made by Parliament;(d)
as nearly as may be, one-third shall be elected by the members of
the Legislative Assembly of the State from amongst persons who
are not members of the Assembly;(e) the remainder shall be
nominated by the Governor in accordance with the provisions of
clause (5).”] respectively. In the case of election to the Rajya
F
Sabha, the electoral college is confined to elected members of
Legislative Assemblies of various States and representatives of
Union Territories [ “80. (4) The representatives of each State in
the Council of States shall be elected by the elected members of
the Legislative Assembly of the State in accordance with the
G system of proportional representation by means of the single
transferable vote.”]. In the case of the Legislative Council, the
electoral college is divided into four parts consisting of: (i) members
of various local bodies specified under Article 171(3)(a); (ii) certain
qualified graduates specified under Article 171(3)(b); (iii) persons
engaged in the occupation of teaching in certain qualified institutions
H
ANOOP BARANWAL v. UNION OF INDIA 119
[K. M. JOSEPH, J.]

described under Article 171(3)(c); and (iv) Members of the A
Legislative Assembly of the State concerned. Interestingly, persons
to be elected by the electors falling under any of the
abovementioned categories need not belong to that category, in
other words, need not be a voter in that category. [G.
Narayanaswami v. G. Pannerselvam, (1972) 3 SCC 717, pp. 724-
B
25, para 14:”14. Whatever may have been the opinions of
Constitution-makers or of their advisers, whose views are cited in
the judgment under appeal, it is not possible to say, on a perusal of
Article 171 of the Constitution, that the Second Chambers set up
in nine States in India were meant to incorporate the principle of
what is known as ‘functional’ or ‘vocational’ representation which C
has been advocated by Guild-Socialist and Syndicalist Schools of
Political Thought. Some of the observations quoted above, in the
judgment under appeal itself, militate with the conclusions reached
there. All that we can infer from our constitutional provisions is
that additional representation or weightage was given to persons
D
possessing special types of knowledge and experience by enabling
them to elect their special representatives also for Legislative
Councils. The concept of such representation does not carry with
it, as a necessary consequence, the further notion that the
representative must also possess the very qualifications of those
he represents.”]” E
129. Thereafter the Court also held as follows:
“38. We, therefore, proceed on the basis that, subject to restrictions
mentioned above, every citizen has a constitutional right to elect
and to be elected to either Parliament or the State Legislatures.”
F
130. Still further, the Court held as follows:
“The right to vote at an election to the Lok Sabha or the Legislative
Assembly can only be subjected to restrictions specified in Article
326. It must be remembered that under Article 326, the authority
to restrict the right to vote, can be exercised by the appropriate G
Legislature.”
131. What are the incidents of a legal right? In Salmond on
Jurisprudence, we find the following discussion about the characteristics
of a legal right:
H
120 SUPREME COURT REPORTS [2023] 9 S.C.R.

A “(1) It is vested in a person who may be distinguished as the
owner of the right, the subject of it, the person entitled, the person
of inherence.
(2) It avails against a person, upon whom lies the correlative
duty. He may be distinguished as the person bound, or as the
B subject of the duty, or as the person of incidence.
(3) It obliges the person bound to an act or omission in favour of
the person entitled. This may be termed the content of the right.
(4) The act or omission relates to some thing (in the widest sense
of that word), which may be termed the object or subject-matter
C of the right.
(5) Every legal right has a title, that is to say, certain facts or
events by reason of which the right has become vested in its
owner.”

D 132. Article 168 of the Constitution reads as follows:
“168. Constitution of Legislatures in States
(1) For every State there shall be a Legislature which shall consist
of the Governor, and
(a) in the States of Bihar, Madhya Pradesh, Maharashtra,
E Karnataka and Uttar Pradesh, two houses:
(b) in other States, one House
(2) Where there are two Houses of the Legislature of a State,
one shall be known as the Legislative Council and the other as the
F Legislative Assembly, and where there is only one House, it shall
be known as the Legislative Assembly.”
133. A perusal of Article 168(2) would lead us to the following
inevitable conclusion:
Wherever there are two Houses in a Legislature of a State, one is
G designated as Legislative Assembly and the other is called a Legislative
Council. In States, where there is only one House, it will be called the
Legislative Assembly. So, it is that Article 170 deals with the composition
of Legislative Assemblies whereas Article 171 deals with the composition
of Legislative Councils. We may bear in mind that Section 27 of the
H 1950 Act[referred to in Shyamdeo Pd. Singh (supra)] actually deals
ANOOP BARANWAL v. UNION OF INDIA 121
[K. M. JOSEPH, J.]

with the preparation of electoral roll for the Legislative Council and not A
the Legislative Assembly. We make this observation only to remind
ourselves that there is a distinction between the Legislature of a State
and Legislative Assembly. Article 168 deals with the constitution of the
Legislatures of the States. Apart from the Governor, a Legislative
Assembly, when there is only one House, would be the other constituent
B
part of the Legislature of the State. Therefore, Article 326 deals with
the House of the People, and the Legislative Assembly. It does not deal
with Legislative Councils. As far as Article 327 is concerned, it deals
with power of Parliament to make law with respect to all matters or
relating to election in connection to either House of Parliament. Equally,
Parliament can make law in regard to either House of the Legislature of C
a State, including the preparation of electoral roll. However, there is a
caveat. Article 327 begins with the words ‘subject to the provisions of
this Constitution’. This would mean that Article 327 is subject to Article
326. Therefore, since Article 326 provides for the specific heads of
disqualification in regard to election to the House of the People and to
D
the Legislative Assembly, the power to make law under Article 327 may
not be available, overcoming the limitation as regards the grounds of
disqualification enumerated in Article 326. This limitation is found even
in Article 328, which deals with the powers of the State Legislature.
134. Undoubtedly, the Founding Fathers contemplated conferring
the right to participate in elections to the House of People and the E
Legislative Assemblies on all citizens, who were of a certain age. The
right was, however, subject to the condition that they were not to be
disqualified. The disqualifications, again, were, however, limited to what
was contained in Article 326. The disqualifications, no doubt, were to be
expressly provided by a law to be made by the appropriate Legislature.The F
disqualification or rather qualification included the aspect of residence.
Section 20 of the 1950 Act elaborates upon the concept of residence.
Likewise, in the matter of corrupt practices and other crimes in connection
with elections, within the meaning of Section 16(c) of the 1950 Act, the
matter is to be regulated by the law.
G
135. Having noticed all the relevant provisions and bearing in mind
the characteristics of a legal right, we find as follows:
Since every legal right, which would include a Constitutional Right,
[as the Constitution is also law though the grundnorm and not law for the
purpose of Article 13,] must have a title, we must ascertain whether a H
122 SUPREME COURT REPORTS [2023] 9 S.C.R.

A citizen of India, who is not less than eighteen years, as, on the ‘qualifying
date’, as found by us, has a right. Since, the title to a legal right means,
“the facts or events, by reason of which, the rights become vested in its
owner”, who is the person of inherence, we will explore, whether Article
326 contains the facts and reasons and whether it also contains the
content of a Right. In keeping with the mandate of Article 326, Parliament
B
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, we would find
C that, 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
D Article 326, indeed, has a right, which can be said to be a Constitutional
Right, which may be right subject to the restriction. Section 62(1) of the
1951 Act, as we have noticed, 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.
E 136. The mere fact that for the creation of a Right, one needs to
lean on certain facts, which may consist of a law, which, in turn, is in the
main respects dictated to by the constitutional provision, may not detract
from the existence of a Right. Article 19 confers fundamental freedoms,
which are understood as Fundamental Rights. The Fundamental Rights
F can be regulated by law made under Article 19(2) to Article 19(6). Could
it be said that, in view of the power to regulate the Fundamental Right,
no right exists?We are conscious that in the case of Fundamental Rights
under Article 19, it could be said that the Right exists and it is only made
subject to a law, which may be made. However, could it be said that
whenever a law is made by Parliament, acting even within the boundaries
G of Article 326, by amending or adding to the disqualifications, even if it
be limited by the disqualifications declared in Article 326, that such a law
could be described as falling foul of the Constitution, as contained in
Article 326?
137. Take for instance, a new corrupt practice is added by law.
H Would it be vulnerable on the ground that it takes away the Constitutional
ANOOP BARANWAL v. UNION OF INDIA 123
[K. M. JOSEPH, J.]

right under Article 326? We would think that it may not. What would be A
the position if the Legislature had not provided for any corrupt practice
or a crime as a disqualification. Then there would be no such
disqualification.However, the appropriate Legislature is also limited in
the matter of the disqualifications by Article 326. In that sense, it could
be said that Article 326 provides a constitutional right, subject to
B
restrictions which the law provides for, which must finally be traced to
its shores. Section 62(1) of the 1950 Act provides the fulfilment of the
goal of adult suffrage guaranteed in Article 326. Article 326(3) and Article
326(4) are only meant to provide against the misuse of the right. Section
62(2) is clearly reconcilable with Article 326. Section 62(5) again appears
to be a restriction. C
138. In regard to Article 326, we may observe, when the Founding
Fathers clearly created a right on the citizen, who was an adult, (the age
was originally 21 years and it was lowered to 18 years), to have his
name entered in the electoral roll unless he has incurred disqualifications,
which, in turn, were limited to those mentioned in Article 326, they were D
to be provided by law. It is clear that a law necessarily had to be made.
The law was, indeed, made as we have noted by the 1950 and 1951
Acts, providing for the true contours of the disqualification limited to
what was provided in Article 326. Imagine a situation, if Parliament had
not passed 1950 and 1951 Acts, it would have led to a situation where
the foundational democratic process of holding elections to the House of E
the People and the Legislative Assemblies would have been rendered
impossible. A law had to be made and it was made. Not making the law
would have led to a constitutional breakdown. We make these remarks
to remind ourselves that treating the Constitution as the grundnorm,
providing the very edifice of the State and the Legal System, the making F
of the law by the Legislative Body, which is a power entrusted to the
Legislative Branch, may come with a duty. A conferment of legislative
power, as is done under Article 245 read with Article 246 of the
Constitution, is not to be confused with the making of the law under
Article 326. The conferment of a legislative power under Article 245
read with Article 246 is the essential legislative powers in terms of the G
separation of power envisaged broadly under the Constitution.
139. We have noticed that we cannot and we need not finally
pronounce on this aspect, in view of the fact that a Constitution Bench
of this Court, which we have noticed in Kuldip Nayar (supra) has
proceeded to hold that there is no Constitutional Right. H
124 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 140. What is important is that the Court noted in Anukul (supra)
that holding of free and fair elections constitute a basic feature of the
Constitution and approved of the view apparently that the Right to Elect
is fundamental to democracy [See Jyoti Basu (supra)].
141. Even if it is treated as a statutory right, which, at any rate,
B 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. We would for the purpose of the lis in question
rest content to proceed on the said basis.
C T. DEMOCRACY AND THE IMPORTANCE OF
ELECTIONS
142. Dr. B.R. Ambedkar made the following pertinent observations
regarding democracy in the course of his speech in the Constituent
Assembly on 25.11.1949:
D “What we must do is not to be content with mere political
democracy. We must make our political democracy a social
democracy as well. Political democracy cannot last unless there
lies at the base of it a social democracy. What does social
democracy mean? It means a way of life which recognizes liberty,
E equality and fraternity as the principles of life. These principles
— liberty, equality and fraternity — are not to be treated as
separate items in a trinity. They form a union of trinity in the
sense that to divorce one from the other is to defeat the very
purpose of democracy. Liberty cannot be divorced from equality,
equality cannot be divorced from liberty. Nor can liberty and
F equality be divorced from fraternity. Without equality, liberty would
produce the supremacy of the few over the many. Equality without
liberty would kill individual initiative. Without fraternity, liberty and
equality could not become a natural course of things. It would
require a constable to enforce them. We must begin by
G acknowledging the fact that there is complete absence of two
things in Indian society. One of these is equality. On the social
plane, we have in India a society based on the principle of graded
inequality, which means elevation for some and degradation for
others. On the economic plane, we have a society in which there
are some who have immense wealth as against many who live in
H abject poverty.
ANOOP BARANWAL v. UNION OF INDIA 125
[K. M. JOSEPH, J.]

On January 26, 1950, we are going to enter into a life of A
contradictions. In politics we will have equality and in social and
economic life we will have inequality. In politics we will be
recognizing the principle of one man, one vote and one vote, one
value. In our social and economic life we shall, by reason of our
social and economic structure, continue to deny the principle of
B
one man, one value. How long shall we continue to live this life of
contradictions? How long shall we continue to deny equality in
our social and economic life? If we continue to deny it for long,
we will do so only by putting our political democracy in peril. We
must remove this contradiction at the earliest possible moment or
else those who suffer from inequality will blow up the structure of C
political democracy which we have so laboriously built up.”
143. In Indira Nehru Gandhi Smt. v. Raj Narain and another
143, this Court adverted to the importance of elections in a democracy
as follows:
“198. … Democracy postulates that there should be periodical D
elections, so that people may be in a position either to re-elect the
old representatives or, if they so choose, to change the
representatives and elect in their place other representatives.
Democracy further contemplates that the elections should be free
and fair, so that the voters may be in a position to vote for E
candidates of their choice. Democracy can indeed function only
upon the faith that elections are free and fair and not rigged and
manipulated, that they are effective instruments of ascertaining
popular will both in reality and form and are not mere rituals
calculated to generate illusion of defence to mass opinion. Free
and fair elections require that the candidates and their agents should F
not resort to unfair means or malpractices as may impinge upon
the process of free and fair elections. Even in the absence of
unfair means and malpractices, some times the result of an election
is materially affected because of the improper rejection of ballot
papers. …” G
144. Aharon Barak, President of Supreme Court of Israel in his
book ‘The Judge in a Democracy’ articulates concepts about democracy
succinctly. He says the following while answering the difficult question
as to what is democracy:
43
1975 Supp SCC 1 H
126 SUPREME COURT REPORTS [2023] 9 S.C.R.

A “What is democracy? According to my approach, democracy is a
rich and complex normative concept. It rests on two bases. The
first is the sovereignty of the people. This sovereignty is exercised
in free elections, held on a regular basis, in which the people choose
their representatives, who in turn represent their views. This aspect
of democracy is manifested in majority rule and in the centrality
B
of the legislative body through which the people’s representatives
act.
This is a formal aspect of democracy. It is of central importance,
since without if the regime is not democratic.
C The second aspect of democracy is reflected in the rule of values
(other than the value of majority rule) that characterize democracy.
The most important of these values are separation of powers, the
rule of law, judicial independence, human rights, and basic principles
that reflect yet other values (such as morality and justice), social
objectives (such as the public peace and security), and appropriate
D ways of behavior (reasonableness, good faith). This aspect of
democracy is the rule of democratic values. This is a substantive
aspect of democracy. It too is of central importance. Without it, a
regime is not democratic.
Both aspects, the formal and the substantive, are necessary for
E democracy. They are “nuclear characteristics.” I discussed them
in one case, holding that “these characteristics are based ... upon
the recognition of the sovereignty of the people manifested in
free and egalitarian elections; recognition of the nucleus of human
rights, among them dignity and equality, the existence of separation
F of powers, the rule of law, and an independent judiciary.”
(Emphasis Supplied)
145. He dilates on the qualities that inform a substantive democracy
as follows: -
“Democracy is not satisfied merely by abiding by proper elections
G
and legislative supremacy. Democracy has its own internal morality
based on the dignity and equality of all human beings. Thus, in
addition to formal requirements (elections and the rule of the
majority), there are also substantive requirements. These are
reflected in the supremacy of such underlying democratic values
H and principles as separation of powers, the rule of law, and
ANOOP BARANWAL v. UNION OF INDIA 127
[K. M. JOSEPH, J.]

independence of the judiciary. They are based on such fundamental A
values as tolerance, good faith, justice, reasonableness, and public
order. Above all, democracy cannot exist without the protection
of individual human rights – rights so essential that they must be
insulated from the power of the majority.
Democracy is not just the law of rules and legislative supremacy; B
it is a multidimensional concept. It requires recognition of both the
power of the majority and the limitations on that power.”
(Emphasis Supplied)
146. On the topic of Change and Stability and elaborating on ‘The
Dilemma of Change’, the learned Judge writes: - C
“The Dilemma of Change
The need for change presents the judge with a difficult dilemma,
because change sometimes harms security, certainty, and stability.
The judge must balance the need for change with the need for
stability. Professor Roscoe Pound expressed this well more than D
eighty years ago: “Hence all thinking about law has struggled to
reconcile the conflicting demands of the need of stability and of
the need of change. Law must be stable and yet it cannot stand
still.”
Stability without change is degeneration. Change without stability E
is anarchy. The role of a judge is to help bridge the gap between
the needs of society and the law without allowing the legal system
to degenerate or collapse into anarchy. The judge must ensure
stability with change, and change with stability. Like the eagle in
the sky, which maintains its stability only when it is moving, so too
is the law stable only when it is moving. Achieving this goal is F
very difficult. The life of the law is complex. It is not mere logic.
It is not mere experience. It is both logic and experience together.
The progress of case law throughout history must be cautious.
The decision is not between stability or change. It is a question of
the speed of the change. The decision is not between rigidity or
flexibility. It is question of the degree of flexibility.” G

(Emphasis Supplied)
147. In S.R. Chaudhuri v. State of Punjab and Others,44, this
Court had to deal with the question whether the person who was not a
44
(2001) 7 SCC 126 H
128 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Member of the Assembly and who failed to get himself elected during
the period of six consecutive months, after appointment as Minister, could
be reappointed as Minister without being elected after the expiry of the
period of six consecutive months.The decision involved the interpretation
of Article 164, and in particular, Article 164 (4) of the Constitution of
India. Article 164 reads as follows.
B
“164. Other provisions as to Ministers. — (1) The Chief Minister
shall be appointed by the Governor and the other Ministers shall
be appointed by the Governor on the advice of the Chief Minister,
and the Ministers shall hold office during the pleasure of the
Governor:
C
Provided that in the States of Bihar, Madhya Pradesh and Orissa,
there shall be a Minister in charge of tribal welfare who may in
addition be in charge of the welfare of the Scheduled Castes and
Backward Classes or any other work.

D (2) The Council of Ministers shall be collectively responsible to
the Legislative Assembly of the State.
(3) Before a Minister enters upon his office, the Governor shall
administer to him the oaths of office and of secrecy according to
the forms set out for the purpose in the Third Schedule.
E (4) A Minister who for any period of six consecutive months is
not a member of the Legislature of the State shall at the expiration
of that period cease to be a Minister.
(5) The salaries and allowances of Ministers shall be such as the
Legislature of the State may from time to time by law determine
F and, until the Legislature of the State so determines, shall be as
specified in the Second Schedule.”
A Bench of three Learned Judges of this Court disapproving of
the resort to repeated appointments without the Minister getting elected
held as follows:
G “21. Parliamentary democracy generally envisages
(i) representation of the people, (ii) responsible government,
and (iii) accountability of the Council of Ministers to the
Legislature. The essence of this is to draw a direct line of authority
from the people through the Legislature to the executive. The
H character and content of parliamentary democracy in the ultimate
ANOOP BARANWAL v. UNION OF INDIA 129
[K. M. JOSEPH, J.]

analysis depends upon the quality of persons who man the A
Legislature as representatives of the people. It is said that
“elections are the barometer of democracy and the contestants
the lifeline of the parliamentary system and its set-up”.”
“33. Constitutional provisions are required to be understood and
interpreted with an object-oriented approach. A Constitution must B
not be construed in a narrow and pedantic sense. The words used
may be general in terms but, their full import and true meaning,
has to be appreciated considering the true context in which the
same are used and the purpose which they seek to achieve.
Debates in the Constituent Assembly referred to in an earlier part
of this judgment clearly indicate that a non-member’s inclusion in C
the Cabinet was considered to be a “privilege” that
extends only for six months, during which period the member must
get elected, otherwise he would cease to be a Minister. It is a
settled position that debates in the Constituent Assembly may be
relied upon as an aid to interpret a constitutional provision because
D
it is the function of the court to find out the intention of the framers
of the Constitution. We must remember that a Constitution is not
just a document in solemn form, but a living framework for the
Government of the people exhibiting a sufficient degree of cohesion
and its successful working depends upon the democratic spirit
underlying it being respected in letter and in spirit. The debates E
clearly indicate the “privilege” to extend “only” for six months.””
(Emphasis supplied)
148. In B.R. Kapur v. State of T.N. and Another,45 interpreting
Article 164 again a Constitution Bench which also relied upon Constituent
Assembly Debates held that a non-legislator could become a Chief F
Minister or Minister under Article 164 only if he had the qualification for
membership of the legislative body and was also not disqualified within
the meaning of Article 191. Of relevance to the cases before us are the
following observations of Justice G.B. Pattanaik which are as follows: -
“In a democracy, constitutional law reflects the value that people G
attach to orderly human relations, to individual freedom under the
law and to institutions such as Parliament, political parties, free
elections and a free press.
xxxx xxxx xxxx
45
(2001) 7 SCC 231 H
130 SUPREME COURT REPORTS [2023] 9 S.C.R.

A The said Constitution occupies the primary place. Notwithstanding
the fact, we have a written constitution, in course of time, a wide
variety of rules and practices have evolved which adjust operation
of the Constitution to changing conditions.
xxxx xxxx xxxx
B Many important rules of constitutional behaviour, which are
observed by the Prime Minister and Ministers, members of the
Legislature, Judges and civil servants are contained neither in Acts
nor in judicial decisions. But such rules have been nomenclatured
by the constitution-writers to be the rule of “the positive morality
C of the constitution” and sometimes the authors provide the name
to be “the unwritten maxims of the constitution” — rules of
constitutional behaviour, which are considered to be binding by
and upon those who operate the Constitution but which are not
enforced by the law courts nor by the presiding officers in the
House of Parliament.”
D
(Emphasis supplied)
149. In B.P. Singhal v. Union of India and Another46, dealing
with Article 156(1) which declares that a Governor shall hold office
during the pleasure of the President. This Court held after declaring that
E the Governor is not an agent of the ruling party at the Centre, as follows:-
“71. When a Governor holds office during the pleasure of the
Government and the power to remove at the pleasure of the
President is not circumscribed by any conditions or restrictions, it
follows that the power is exercisable at any time, without assigning
F any cause. However, there is a distinction between the need for a
cause for the removal, and the need to disclose the cause for
removal. While the President need not disclose or inform the cause
for his removal to the Governor, it is imperative that a cause must
exist.”
As regards the Limitations/ Restrictions on the exercise of removal
G
of Governor, this Court observed as follows: -
“(iv)Limitations/Restrictions upon the power under Article
156(1) of the Constitution of India
46
(2010) 6 SCC 331
H
ANOOP BARANWAL v. UNION OF INDIA 131
[K. M. JOSEPH, J.]

48. We may now examine whether there are any express or A
implied limitations or restrictions on the power of removal of
Governors under Article 156(1). We do so keeping in mind the
following words of Holmes, J.:
“… the provisions of the Constitution are not mathematical
formulas having their essence in their form; they are organic, living B
institutions… The significance is vital, nor formal; it is to be gathered
not simply by taking the words and a dictionary, but by considering
their origin and the line of their growth” (see Gompers v. United
States [58 L Ed 1115 : 233 US 604 (1913)] , L Ed p. 1120).”
(Emphasis supplied) C
U. POWERS, FUNCTIONS AND JURISDICTION OF
THE ELECTION COMMISSION OF INDIA
150. Article 324 is a plenary provision clothing the Election
Commission with the entire responsibility to hold the National and State
elections and carries with it the necessary powers to discharge its D
functions. However, the Commission cannot act against a law framed
by Parliament or the State Legislature. The power of the Commission is
also subject to norms of fairness and it cannot act arbitrarily. The action
cannot be mala fide. Article 324 governs in matters not covered by
legislation. Being a high functionary who is expected to function fairly E
and legally if he does otherwise, the courts can veto the illegal action
(See Mohinder Singh Gill and Another v. Chief Election Commissioner,
New Delhi and Others,47).
151. The Election Commission under Article 324 can postpone an
election on the basis of the opinion that there existed disturbed conditions F
in the State or some area of the State thus making of holding free and
fair elections not possible. The court followed the views in the Mohinder
Singh Gill case (supra) that democracy depends on the man as much as
on the Constitution [See Digvijay Mote v. Union of India and
Others48]. The Election Commission is endowed with the power to
recognise political parties and to decide disputes arising among them.It G
can also adjudicate controversies between splinter groups within a political
party. The Commission has been found to have the power to issue the
symbols order. This right has been traced to Article 324 [(See All Party
47
(1978) 1 SCC 405)
48
(1993) 4 SCC 175
H
132 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Hill Leaders Conference Shillong v. Captain W.A. Sangma and Others49,
and Kanhiya Lal Omar v. R.K. Trivedi and Others50)].
152. Recognising the magnitude of the exercise involved in ensuring
free and fair elections, this Court declared that in case of conflict of
opinion between the Election Commission and the Government, as to
B the adequacy of the machinery to deal with the state of law and order,
the assessment of the Election Commission was to prima facie prevail.
This Court, no doubt, also observed that a mutually acceptable
coordinating machinery may be put in place (see Election Commission
of India v. State of T.N and Others51).
C 153. While dealing with the power of the Election Commission to
requisition such staff “for election duty” and disagreeing with the
Commission that it could requisition the service of the employees of the
State Bank of India, this Court declared that the election commission did
not have untrammelled power. The power must be traced to the
Constitution or a law (see Election Commission of India v. State Bank
D of India Staff Association Local Head Office Unit, Patna and
Others 52).
154. The Election Commission has power to issue directions for
the conduct of elections requiring the political parties to submit the details
of the expenditure incurred or authorised by them for the purpose of the
E election of their respective candidates. This power was traced to the
words “conduct of elections” [SeeCommon Cause (A Registered
Society) v. Union of India and Others53].
155. All powers though not specifically provided but necessary
for effectively holding the elections are available to the Election
F Commission. [See Election Commission of India v. Ashok Kumar and
Others 54].
156. Article 324 is a reservoir of power to be used for holding
free and fair elections. The Commission as a creature of the Constitution
may exercise it in an infinite variety of situations. In a democracy, the
G electoral process plays a strategic role. The commission can fill up the
49
(1977) 4 SCC 161
50
(1985) 4 SCC 628
51
(1995) Suppl. 3 SCC 379
52
(1995) suppl.2 SCC 13
53
(1996) 2 SCC 752
54
H (2000) 8 SCC 216
ANOOP BARANWAL v. UNION OF INDIA 133
[K. M. JOSEPH, J.]

vacuum by issuing directions until there is a law made. This was laid A
down in the context of directions aimed at securing information about
the candidates [See Union of India v. Association for Democratic
Reforms and Others 55].
157. Following a spate of violence in the State of Gujarat and
upon the dissolution of the Assembly, the Commission took the view that B
it may not be possible to hold the election though Article 174(1) mandated
that there shall not be more than six months in between the last session
of the assembly and the first meeting of the next session. After finding
that Article 174 did not apply to a dissolved assembly as was indeed the
case, this Court reiterated that the words ‘superintendence, control,
direction as also ‘the conduct of all elections’ were the broadest terms. C
This court also found that if there is no free and fair periodic election, it
is the end of democracy.[See (2000) 8 SCC 237]. The said judgment
was rendered while answering a reference made to this Court under
Article 143 of the Constitution.
158. The Election Commission has the power to lay down a certain D
benchmark to be achieved by a party in State politics before it could be
recognised as a political party [See Desiya Murpokku Dravida
Kazhagam (DMDK) v. Election Commission of India and Others 56].
Justice J. Chelameswar wrote a dissenting opinion.
159. While dealing with the aspect of jurisdiction of the Election E
Commission under Section 10A of the 1951 Act to ascertain whether
there has been a failure to lodge true, correct and genuine accounts of
bona fide election expenditure and that it did not exceed the maximum
limit, the Election Commission has been found to have overarching powers
and it has been described as a ‘guardian of democracy’.In this regard, F
we notice the following words of this Court in Ashok Shankarrao
Chavan v. Madhavrao Kinhalkar 57 :
“67. In this context, we also keep in mind the Preamble to the
Constitution which in liberal words states that the People of India
having solemnly resolved to constitute India into a Sovereign G
Socialist Secular Democratic Republic and to secure to all citizens
justice, liberty, equality and fraternity. In such a large democratic
country such as ours, if purity in elections is not maintained, and
55
(2002) 5 SCC 294
56
(2012) 7 SCC 340
57
(2014) 7 SCC 99 H
134 SUPREME COURT REPORTS [2023] 9 S.C.R.

A for that purpose when the Constitution makers in their wisdom
thought it fit to create an authority, namely, the Election
Commission and invested with it the power of superintendence,
control and also to issue directions, it must be stated that such
power invested with the said constitutional authority should not be
a mere empty formality but an effective and stable one, in whom
B
the citizens of this country can repose in and look upon to ensure
that such unscrupulous elements and their attempts to enter into
political administration of this vast country are scuttled. In that
respect, since the ruling of this vast country is always in the hands
of the elected representatives of the people, the enormous powers
C of the Election Commission as the guardian of democracy should
be recognised. It is unfortunate that those who are really interested
in the welfare of society and who are incapable of indulging in
any such corrupt practices are virtually side-lined and are treated
as totally ineligible for contesting the elections.”
D (Emphasis supplied)
160. Under Article 103(2) and Article 192(2), the President and
the Governor are to act on the opinion of the Election Commission as
regards the question of disqualification of the Member of Parliament
and of the Legislature of a State, respectively. This is the advisory
E jurisdiction of the Election Commission. It exercises vast administrative
powers. Further, the Election Commission discharges quasi-judicial
functions also.
V. THE IMPACT OF ARTICLE 329(b)
161. Article 329 (b) declares as follows:
F
“(b) no election to either House of Parliament or to the House or
either House of the Legislature of a State shall be called in question
except by an election petition presented to such authority and in
such manner as may be provided for by or under any law made
by the appropriate Legislature.”
G
162. Regarding the impact of Article 329(b), a Bench of three
learned judges after an exhaustive review of the earlier case law has set
down the following summary of conclusions in the case of Election
Commission of India v. Ashok Kumar 58:
58
(2000) 8 SCC 216
H
ANOOP BARANWAL v. UNION OF INDIA 135
[K. M. JOSEPH, J.]

“31. The founding fathers of the Constitution have consciously A
employed use of the words “no election shall be called in question”
in the body of Section 329(b) and these words provide the
determinative test for attracting applicability of Article 329(b). If
the petition presented to the Court “calls in question an election”
the bar of Article 329(b) is attracted. Else it is not.
B
32. For convenience sake we would now generally sum up our
conclusions by partly restating what the two Constitution Benches
have already said and then adding by clarifying what follows
therefrom in view of the analysis made by us hereinabove:
(1) If an election, (the term election being widely interpreted so C
as to include all steps and entire proceedings commencing from
the date of notification of election till the date of declaration of
result) is to be called in question and which questioning may have
the effect of interrupting, obstructing or protracting the election
proceedings in any manner, the invoking of judicial remedy has to
be postponed till after the completing of proceedings in elections. D

(2) Any decision sought and rendered will not amount to “calling
in question an election” if it subserves the progress of the election
and facilitates the completion of the election. Anything done
towards completing or in furtherance of the election proceedings
cannot be described as questioning the election. E

(3) Subject to the above, the action taken or orders issued by
Election Commission are open to judicial review on the well-settled
parameters which enable judicial review of decisions of statutory
bodies such as on a case of mala fide or arbitrary exercise of
power being made out or the statutory body being shown to have F
acted in breach of law.
(4) Without interrupting, obstructing or delaying the progress of
the election proceedings, judicial intervention is available if
assistance of the court has been sought for merely to correct or
smoothen the progress of the election proceedings, to remove the G
obstacles therein, or to preserve a vital piece of evidence if the
same would be lost or destroyed or rendered irretrievable by the
time the results are declared and stage is set for invoking the
jurisdiction of the court.
H
136 SUPREME COURT REPORTS [2023] 9 S.C.R.

A (5) The court must be very circumspect and act with caution
while entertaining any election dispute though not hit by the bar of
Article 329(b) but brought to it during the pendency of election
proceedings. The court must guard against any attempt at
retarding, interrupting, protracting or stalling of the election
proceedings. Care has to be taken to see that there is no attempt
B
to utilise the court’s indulgence by filing a petition outwardly
innocuous but essentially a subterfuge or pretext for achieving an
ulterior or hidden end. Needless to say that in the very nature of
the things the court would act with reluctance and shall not act,
except on a clear and strong case for its intervention having been
C made out by raising the pleas with particulars and precision and
supporting the same by necessary material.
33. These conclusions, however, should not be construed as a
summary of our judgment. These have to be read along with the
earlier part of our judgment wherein the conclusions have been
D elaborately stated with reasons.”
163. We would, therefore, find that the Election Commission of
India has been charged with the duty and blessed with extraordinary
powers to hold elections to both Parliament and state legislatures from
time to time.This is an enormous task.The power it possesses under
E Article 324 is plenary. It is only subject to any law which may be made
by Parliament or by the State Legislature. Undoubtedly, the Election
Commission is duty bound to act in a fair and legal manner. It must
observe the provisions of the Constitution and abide by the directions of
the Court. The same being done, it can draw upon a nearly infinite reservoir
of power. Once the poll is notified,[which again is a call to be taken by
F the Election Commission itself, and indeed capable of being misused and
the subject of considerable controversy, if bias or subservience to the
powersthat be, isbetrayed], it assumes unusual powers. Its writ lies across
Governments over the length and breadth of the country. Officers of the
Government who come under its charge become subject to the
G superintendence of the Commission. The fate of the political parties and
its candidates, and therefore, of democracy itself to a great measure is
allowed to rest in the hands of the Election Commission. While there
may be officers who assist the Commission, vitally important decisions
have to be taken by those at the helm of the affairs. It is the Chief
Election Commissioner and the Election Commissioners at whose table
H
ANOOP BARANWAL v. UNION OF INDIA 137
[K. M. JOSEPH, J.]

the buck must stop.It is in this scenario, we bear in mind that when a A
decision is taken in the process of the holding of the poll, that subject to
proceedings which are initiated in courts which conduce to the effective
holding of the poll, any proceeding which seeks to bring the election
process under a shadow is tabooed. The significance of this aspect is
that it adds to the enormity of the powers and responsibilities of the
B
Election Commission. Awaiting the outcome of the poll to question the
election before the tribunal may result in many illegal, unfair and mala
fide decisions by the Election Commission passing muster for the day.
Once the election results are out, the matter is largely reduced to a fait
accompli.In fact, many a time an omission or a delayin taking a decision
can itself be fatal to the holding of a free and fair poll. The relief C
vouchsafed in an election petition may not by itself provide a just solution
to the conduct of election in an illegal, mala fide or unfair manner.These
observations have a direct connection with the question with which we
are concerned with, namely, the need to take the appointment of the
members of the Election commission out of the exclusive hands of the
D
executive, namely, the party which not unnaturally has an interest in
perpetuating itself in power.
W. PURSUIT OF POWER; A MEANS TO AN END OR
AN END IN ITSELF?
164. The basic and underlying principle central to democracy is E
power to the people through the ballot. Abrahim Lincoln declared
democracy to be Government of the people, by the people and for the
people. A political party or a group or a coalition assumes reigns of
governance. The purpose of achieving power is to run the Government.
No doubt, the Government must be run in accordance with the dictate of
the Constitution and the laws. Political parties not unnaturally come out F
with manifestos containing a charter of promises they intend to keep.
Without attaining power, men organised as political parties cannot achieve
their goals. Power becomes, therefore, a means to an end. The goal can
only be to govern so that the lofty aims enshrined in the directive principles
are achieved while observing the fundamental rights as also the mandate G
of all the laws. What is contemplated is a lawful Government. So far so
good. What, however, is disturbing and forms as we understand the
substratum of the complaints of the petitioner is the pollution of the stream
or the sullying of the electoral process which precedes the gaining of
power. Can ends justify the means? There can be no doubt that the
H
138 SUPREME COURT REPORTS [2023] 9 S.C.R.

A strength of a democracy and its credibility, and therefore, its enduring
nature must depend upon the means employed to gain power being as
fair as the conduct of the Government after the assumption of power by
it.The assumption of power itself through the electoral process in the
democracy cannot and should not be perceived as an end. The end at
any rate cannot justify the means. The means to gain power in a
B
democracy must remain wholly pure and abide by the Constitution and
the laws. An unrelenting abuse of the electoral process over a period of
time is the surest way to the grave of the democracy. Democracy can
succeed only in so far as all stakeholders uncompromisingly work at it
and the most important aspect of democracy is the very process, the
C electoral process, the purity of which alone will truly reflect the will of
the people so that the fruits of democracy are truly reaped. The essential
hallmark of a genuine democracy is the transformation of the ‘Ruled’
into a citizenry clothed with rights which in the case of the Indian
Constitution also consist of Fundamental Rights, which are also being
freely exercised and the concomitant and radical change of the ruler
D
from an ‘Emperor’ to a public servant. With the accumulation of wealth
and emergence of near monopolies or duopolies and the rise of certain
sections in the Media, the propensity for the electoral process to be
afflicted with the vice of wholly unfair means being overlooked by those
who are the guardians of the rights of the citizenry as declared by this
E Court would spell disastrous consequences.
X. RULE OF LAW; FUNDAMENTAL RIGHTS AND AN
INDEPENDENT ELECTION COMMISSION
165. The cardinal importance of a fiercely independent, honest,
competent and fair Election Commission must be tested on the anvil of
F the rule of law as also the grand mandate of equality. We expatiate.
Rule of law is the very bedrock of a democratic form of governance. It
simply means that men and their affairs are governed by pre-announced
norms.It averts a democratic Government brought to power by the
strength of the ballot betraying their trust and lapsing into a Government
G 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 which we
have described which must be possessed by an Election Commission is
H
ANOOP BARANWAL v. UNION OF INDIA 139
[K. M. JOSEPH, J.]

indispensable for an unquestionable adherence to the guarantee of equality A
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
B
unquestionably breaches the mandate of Article 14. Political parties must
be viewed as organisations representing the hopes and aspirations of its
constituents, who are citizens. The electorate are ordinarily, supporters
or adherents of one or the other political parties. We may note that the
recognition of NOTA, by this Court enabling a voter to express his distrust
for all the candidates exposes the disenchantment with the electoral C
process which hardly augurs well for a democracy. Therefore, any action
or omission by the Election Commission in holding the poll which treats
political parties with an uneven hand, and what is more, in an unfair or
arbitrary manner would be anathema to the mandate of Article 14, and
therefore, cause its breach. There is an aspect of a citizen’s right to vote
D
being imbued with the fundamental freedom under Article 19(1)(a). The
right of the citizen to seek and receive information about the candidates
who should be chosen by him as his representative has been recognised
as a fundamental right [SeePublic Interest Foundation (supra)]. The
Election Commissioners including the Chief Election Commissioner
blessed with nearly infinite powers and who are to abide by E
thefundamental rights must be chosen not by the Executive exclusively
and particularly without any objective yardstick.
Y. THE SYMBOLS ORDER; THE MODEL CODE OF
CONDUCT
166. Apart from the 1950 and 1951 Acts, the Code of Election F
Rules, 1961 came to be made. In the year 1968,The Election Symbols
(Reservation and Allotment) Order, 1968[hereinafter referred to as, ‘the
Symbols Order’] came to be made by Notification dated 31.08.1968, in
exercise of powers conferred under Article 324 of the Constitution read
with Section 29A of the 1951 Act and Rules 5 and 10 of the Conduct of G
Elections Rules. The Symbols Order deals with allotment and classification
of symbols. Political parties are broadly divided into recognised political
parties or unrecognised political parties. A recognised party may be a
national party or a state party. Conditions for recognition of a party as
national party and state party are separately laid down. Paragraph-15 of
the Symbols Order reads as follows: H
140 SUPREME COURT REPORTS [2023] 9 S.C.R.

A “15. Power of Commission in relation to splinter groups or rival
sections of a recognised political party–
When the Commission is satisfied on information in its possession
that there are rival sections or groups of a recognised political
party each of whom claims to be that party, the Commission may,
B after taking into account all the available facts and circumstances
of the case and hearing such representatives of the sections or
groups and other persons as desire to be heard, decide that one
such rival section or group or none of such rival sections or groups
is that recognised political party and the decision of the Commission
shall be binding on all such rival sections or groups.”
C
167. Paragraph-16 deals with power of the Commission in case
of amalgamation of two political parties.
168. In the very same year, that is 1968, a Model Code of Conduct
also came to be issued. As of date, a large body of norms, forming part
of the Model Code of Conduct, have been put in place. The Model Code
D of Conduct for Guidance of Political Parties and Candidates provides,
inter alia, as follows:
“1. No party or candidate shall include in any activity which may
aggravate existing differences or create mutual hatred or cause
tension between different castes and communities, religious or
E linguistic.
xxx xxx xxx
3. There shall be no appeal to caste or communal feelings for
securing votes. Mosques, Churches, Temples or other places of
worship shall not be used as forum for election propaganda.
F
4. All parties and candidates shall avoid scrupulously all activities
which are “corrupt practices” and offences under the election
law, such as bribing of voters, intimidation of voters, impersonation
of voters, canvassing within 100 meters of polling stations, holding
public meetings during the period of 48 hours ending with the hour
G fixed for the close of the poll, and the transport and conveyance
of voters to and from polling station.”
169. Thereafter, it proceeds to deal with meetings, processions,
polling day conduct. In regard to the party in power, we find the following
as part of the Model Code of Conduct. Part VII of the Model Code of
H Conduct, inter alia, reads as follows:
ANOOP BARANWAL v. UNION OF INDIA 141
[K. M. JOSEPH, J.]

“VII. Party in Power A
The party in power whether at the Centre or in the State or States
concerned, shall ensure that no cause is given for any complaint
that it has used its official position for the purposes of its election
campaign and in particular –
XXXX XXXX XXXX B

1. (b) Government transport including official air-crafts, vehicles,
machinery and personnel shall not be used for furtherance of the
interest of the party in power;
XXXX XXXX XXXX C
3. Rest houses, dak bungalows or other Government
accommodation shall not be monopolized by the party in power or
its candidates and such accommodation shall be allowed to be
used by other parties and candidates in a fair manner but no party
or candidate shall use or be allowed to use such accommodation D
(including premises appertaining thereto) as a campaign office or
for holding any public meeting for the purposes of election
propaganda;
4. Issue of advertisement at the cost of public exchequer in the
newspapers and other media and the misuse of official mass media
E
during the election period for partisan coverage of political news
and publicity regarding achievements with a view to furthering
the prospects of the party in power shall be scrupulously avoided.
5. Ministers and other authorities shall not sanction grants/
payments out of discretionary funds from the time elections are
F
announced by the Commission; and”
There are other aspects relating to Election Manifestos. There is
a clear need for a fearless and independent Election Commission of
India to give full effect to these salutary principles.
170. Paragraph-16A of the Symbols Order inserted by Notification G
dated 18.02.1994, reads as follows:
“16A. Power of Commission to suspend or withdraw recognition
of a recognised political party for its failure to observe Model
Code of Conduct or follow lawful directions and instructions of
the Commission- H
142 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Notwithstanding anything in this Order, if the Commission is
satisfied on information in its possession that a political party,
recognised either as a National party or as a State party under the
provisions of this Order, has failed or has refused or is refusing or
has shown or is showing defiance by its conduct or otherwise (a)
to observe the provisions of the ‘Model Code of Conduct for
B
Guidance of Political Parties and Candidates’ as issued by the
Commission in January, 1991 or as amended by it from time to
time, or (b) to follow or carryout the lawful directions and
instructions of the Commission given from time to time with a
view to furthering the conduct of free, fair and peaceful elections
C or safeguarding the interests of the general public and the
electorate in particular, the Commission may, after taking into
account all the available facts and circumstances of the case and
after giving the party reasonable opportunity of showing cause in
relation to the action proposed to be taken against it, either suspend,
subject to such terms as the Commission may deem appropriate,
D
or withdraw the recognition of such party as the National Party
or, as the case may be, the State Party.”
(Emphasis supplied)
171. In Abhiram Singh v. C.D. Commachen (DEAD) by Legal
E Representatives and others59, a Bench of seven learned Judges of this
Court had to interpret the word ‘his’ in Section 123 of the Representation
of the People Act. By a 4:3 majority, this Court held that the word ‘his’
in Section 123(3) of the Representation of the People Act, 1951, for the
purpose of maintaining the purity of the electoral process, must be given
a broad and purposive interpretation so that any appeal made to an elector
F by a candidate or his agent or by any other person with the consent of
the candidate or his election agent, to vote or refrain from voting, inter
alia, on the grounds of religion and caste, would constitute a corrupt
practice. Dr. T.S. Thakur, C.J., wrote a concurring Judgment and we
find it apposite to notice the following passage from his Judgment on the
G importance of India being a secular country and about according any
particular religion, special privileges, being a violation of the basic principles
of democracy:
“35. At the outset, we may mention that while considering the
mischief sought to be suppressed by clauses (2), (3) and (3-A) of
59
H (2017) 2 SCC 629
ANOOP BARANWAL v. UNION OF INDIA 143
[K. M. JOSEPH, J.]

Section 123 of the Act, this Court observed in Ziyauddin A
Burhanuddin Bukhari v. Brijmohan Ramdass Mehra [Ziyauddin
Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC
17, decided by a Bench of three learned Judges.] that the historical,
political and constitutional background of our democratic set-up
needed adverting to. In this context, it was said that our
Constitution-makers intended a secular democratic republic where B
differences should not be permitted to be exploited. …
62. … Dr Radhakrishnan, the noted statesman/philosopher had
to say about India being a secular State in the following passage:
“When India is said to be a secular State, it does not mean that
we reject reality of an unseen spirit or the relevance of religion to C
life or that we exalt irreligion. It does not mean that secularism
itself becomes a positive religion or that the State assumes divine
prerogatives. Though faith in the Supreme is the basic principle of
the Indian tradition, the Indian State will not identify itself with or
be controlled by any particular religion. We hold that no one religion
should be given preferential status, or unique distinction, that no D
one religion should be accorded special privileges in national life
or international relations for that would be a violation of the basic
principles of democracy and contrary to the best interests of religion
and Government. This view of religious impartiality, of
comprehension and forbearance, has a prophetic role to play E
within the national and international life. No group of citizens shall
arrogate to itself rights and privileges, which it denies to others.
No person should suffer any form of disability or discrimination
because of his religion but all like should be free to share to the
fullest degree in the common life. This is the basic principle
involved in the separation of church and State.” F
(Emphasis supplied)”
172. The Model Code of Conduct, the views of this Court about
appeal to religion, being a corrupt practice, and paragraph-16A of the
Symbols Order, empowering the Commission to act in the face of
defiance, constitute a powerful weapon in the hands of an independent G
and impartial Election Commission. Placing the exclusive power to appoint
with the Executive, hardly helps.
173. In regard to the Symbols Order, this Court in Shri Sadiq Ali
and another v. Election Commission of India, New Delhi and others60,
60
(1972) 4 SCC 664 H
144 SUPREME COURT REPORTS [2023] 9 S.C.R.

A upheld the vires of the Symbols Order. This Court, inter alia, and held as
follows:
“40 … The Commission is an authority created by the Constitution
and according to Article 324, the superintendence, direction and
control of the electoral rolls for and the conduct of elections to
B Parliament and to the Legislature of every State and of elections
to the office of President and Vice-President shall be vested in
the Commission. The fact that the power of resolving a dispute
between two rival groups for allotment of symbol of a political
party has been vested in such a high authority would raise a
presumption, though rebuttable, and provide a guarantee, though
C not absolute but to a considerable extent, that the power would
not be misused but would be exercised in a fair and reasonable
manner.”
174. It is further found that when the Commission issues directions,
it does so on its own behalf and not as a delegate of some other Authority.
D This was on the construction of Article 324(1).
175. This Court upheld the power of the Election Commission of
India to rescind its Order according recognition to a political party, even
without elections having been held in all the States in the country [See
Janata Dal (Samajwadi) v. Election Commission of India61].
E
176. In Indian National Congress (I) v. Institute of Social
Welfare and others62, no doubt, this Court took the view that the Election
Commission has not been conferred with the express power to deregister
a political party registered under Section 29A, on the ground that it violated
the Constitution or any undertaking given to the Election Commission at
F the time of its registration. This Court went on to hold also that while
exercising its power to register a political party under Section 29A, the
Commission acts quasi-judicially. The Court also set out the three
exceptional cases where the Commission could review its Order for
registering a political party. It includes obtaining registration by practicing
G fraud or forgery. We may notice that under Paragraph-16A of the Symbols
Order, the Commission has been empowered to suspend or withdraw
the recognition of a party as a national or a state party, after giving a
reasonable opportunity. One of the grounds on which it can be so done is
61
(1996 (1) SCC 235
62
(2002) 5 SCC 685
H
ANOOP BARANWAL v. UNION OF INDIA 145
[K. M. JOSEPH, J.]

refusal or defiance, apart from failure to observe the provisions of the A
Model Code of Conduct for Guidance. Therefore, after 1994, enormous
powers have been conferred on the Election Commission to ensure
compliance with the Model Code of Conduct for Guidance of Political
Parties issued by the Election Commission in 1991 or as amended by it
from time to time. The power can also be exercised under Paragraph-
B
16A in regard to failure or defiance in the matter of following lawful
directions and instructions by the Commission.
177. In Subramanian Swamy v. Election Commission of India
through its Secretary63, this Court held that the purpose of making the
Symbols Order was to maintain the purity of elections. The Court
highlighted the duty of the Election Commission to hold free, fair and C
clean elections.
178. Paragraph-18 of the Symbols Order reads as follows:
“18. Power of Commission to issue instructions and directions.
The Commission, may issue instructions and directions- D
(a) for the clarification of any of the provisions of this Order;
(b) for the removal of any difficulty which may arise in relation to
the implementation of any such provisions; and
(c) in relation to any matter with respect to the reservation and
E
allotment of symbols and recognition of political parties, for which
this Order makes no provision or makes insufficient provision,
and provision is in the opinion of the Commission necessary for
the smooth and orderly conduct of elections.”
179. Dealing with the ambit of paragraph-18, this Court held, inter
F
alia, in Edapaddi K. Palaniswami v. T.T.V. Dhinakaran and others64,
as follows:
“24. Indeed, allotment of an election symbol cannot be claimed as
a fundamental right as much as contesting election is not, as
observed in Jyoti Basu v. Debi Ghosal [Jyoti Basu v. Debi
Ghosal, (1982) 1 SCC 691] . It is a statutory right. It is also well G
settled that the Election Commission has plenary powers and could
exercise the same to ensure free and fair elections. Clause 18 of

63
(2008) 14 SCC 318
64
(2019) 18 SCC 219 H
146 SUPREME COURT REPORTS [2023] 9 S.C.R.

A the Symbols Order predicates the facet of such plenary power to
be exercised by the Election Commission. Clause 18 reads thus :
“18. Power of Commission to issue instructions and
directions.—The Commission, may issue instructions and
directions—
B (a) for the clarification of any of the provisions of this Order;
(b) for the removal of any difficulty which may arise in relation to
the implementation of any such provisions; and
(c) in relation to any matter with respect to the reservation and
C allotment of symbols and recognition of political parties, for which
this Order makes no provision or makes insufficient provision,
and provision is in the opinion of the Commission necessary for
the smooth and orderly conduct of elections.”
25. The Election Commission in the past has exercised plenary
D powers under Para 18 for issuing interim directions regarding
allocation of common symbols to the two factions, when the dispute
under the Symbols Order was still pending before it. It was argued
that the Election Commission cannot do so once it had finally
decided the dispute. There is no difficulty in agreeing with the
proposition that once the dispute had been finally decided by ECI,
E the question of invoking powers under Para 18 by it (ECI) would
not arise. However, if the dispute is pending enquiry before ECI
or the final decision of ECI is sub judice in the proceedings before
the constitutional court, providing for an equitable arrangement in
the interests of free and fair elections and to provide equal level
F playing field to all concerned, would be a just and fair
arrangement.”
180. The above observations indicate the width of the powers
available to the Election Commission.
181. In Public Interest Foundation and others v. Union of India
G and others65, a Constitution Bench was invited but refused to add or
prescribe disqualifications for contesting the elections other than what
was prescribed by the Constitution and the Parliament. In this regard, an
appeal made to the existence of plenary power under Article 324 did not
pass muster. The attempt was to persuade the Court to direct the Election
65
H (2019) 3 SCC 224
ANOOP BARANWAL v. UNION OF INDIA 147
[K. M. JOSEPH, J.]

Commission to disallow a candidate from contesting on the ground that A
charges have been framed for heinous and/or grievous offences. It was
found that the Parliament had the exclusive legislative power to lay down
the disqualifications for the membership of the Legislative Body. It is
apposite that we, however, notice the following:
“28. An essential component of a constitutional democracy is its B
ability to give and secure for its citizenry a representative form of
government, elected freely and fairly, and comprising of a polity
whose members are men and women of high integrity and morality.
This could be said to be the hallmark of any free and fair
democracy.”
C
182. This Court, thereafter, quoted from the Goswami Committee
on Electoral Reforms, wherein the Committee bemoaned the role of
money and muscle power at elections and rapid criminalisation of politics,
greatly encouraging evils of booth capturing, rigging and violence. It is
important that we notice paragraph-30:
D
“30. Criminalisation of politics was never an unknown phenomenon
in the Indian political system, but its presence was seemingly felt
in its strongest form during the 1993 Mumbai bomb blasts which
was the result of a collaboration of a diffused network of criminal
gangs, police and customs officials and their political patrons. The
tremors of the said attacks shook the entire nation and as a result E
of the outcry, a commission was constituted to study the problem
of criminalisation of politics and the nexus among criminals,
politicians and bureaucrats in India. The report of the Committee,
Vohra Committee Report, submitted by Union Home Secretary,
N.N. Vohra, in October 1993, referred to several observations F
made by official agencies, including Central Bureau of
Investigation, Intelligence Bureau, Research and Analysis Wing,
who unanimously expressed their opinion on the criminal network
which was virtually running a parallel government. The Committee
also took note of the criminal gangs who carried out their activities
under the aegis of various political parties and government G
functionaries. The Committee further expressed great concern
regarding the fact that over the past few years, several criminals
had been elected to local bodies, State Assemblies and Parliament.
The Report observed:
H
148 SUPREME COURT REPORTS [2023] 9 S.C.R.

A “3.2. … In the bigger cities, the main source of income relates to
real estate — forcibly occupying lands/buildings, procuring such
properties at cheap rates by forcing out the existing occupants/
tenants etc. Over time, the money power thus acquired is used
for building up contacts with bureaucrats and politicians and
expansion of activities with impunity. The money power is used to
B
develop a network of muscle-power which is also used by the
politicians during elections.”
And again:
“3.3. … The nexus between the criminal gangs, police,
C bureaucracy and politicians has come out clearly in various parts
of the country. The existing criminal justice system, which was
essentially designed to deal with the individual offences/crimes, is
unable to deal with the activities of the mafia; the provisions of
law in regard economic offences are weak…”

D 183. We are tempted to quote the following observations by Shri
C. Rajagopalachari, made way back in 1922, which has been referred to
by the Constitution Bench in Public Interest Foundation (supra):
“40. …
“… ‘Elections and their corruption, injustice and tyranny of wealth,
E and inefficiency of administration, will make a hell of life as soon
as freedom is given to us….’””
184. The Court, in Public Interest Foundation (supra), elaborately
quoted from the Two Hundred and Forty-Fourth Report of the Law
Commission of India on Electoral Disqualifications. This Court also
F reiterated the role and, thereafter, the powers of the Election Commission.
The Court went on to observe that:
“115. …The best available people, as is expected by the democratic
system, should not have criminal antecedents and the voters have
a right to know about their antecedents, assets and other aspects.
G We are inclined to say so, for in a constitutional democracy,
criminalisation of politics is an extremely disastrous and lamentable
situation. The citizens in a democracy cannot be compelled to
stand as silent, deaf and mute spectators to corruption by projecting
themselves as helpless. The voters cannot be allowed to resign to
their fate. The information given by a candidate must express
H
ANOOP BARANWAL v. UNION OF INDIA 149
[K. M. JOSEPH, J.]

everything that is warranted by the Election Commission as per A
law. Disclosure of antecedents makes the election a fair one and
the exercise of the right of voting by the electorate also gets
sanctified. …”
185. Thereafter, the Constitution Bench went on to hold as follows:
“116. Keeping the aforesaid in view, we think it appropriate to B
issue the following directions which are in accord with the decisions
of this Court:
116.1. Each contesting candidate shall fill up the form as provided
by the Election Commission and the form must contain all the
particulars as required therein. C

116.2. It shall state, in bold letters, with regard to the criminal
cases pending against the candidate.
116.3. If a candidate is contesting an election on the ticket of a
particular party, he/she is required to inform the party about the D
criminal cases pending against him/her.
116.4. The political party concerned shall be obligated to put up
on its website the aforesaid information pertaining to candidates
having criminal antecedents.
116.5. The candidate as well as the political party concerned shall E
issue a declaration in the widely circulated newspapers in the
locality about the antecedents of the candidate and also give wide
publicity in the electronic media. When we say wide publicity, we
mean that the same shall be done at least thrice after filing of the
nomination papers.
F
117. These directions ought to be implemented in true spirit and
right earnestness in a bid to strengthen the democratic set-up.
There may be certain gaps or lacunae in a law or legislative
enactment which can definitely be addressed by the legislature if
it is backed by the proper intent, strong resolve and determined
will of right-thinking minds to ameliorate the situation. It must also G
be borne in mind that the law cannot always be found fault with
for the lack of its stringent implementation by the authorities
concerned. Therefore, it is the solemn responsibility of all
concerned to enforce the law as well as the directions laid down
by this Court from time to time in order to infuse the culture of H
150 SUPREME COURT REPORTS [2023] 9 S.C.R.

A purity in politics and in democracy and foster and nurture an
informed citizenry, for ultimately it is the citizenry which decides
the fate and course of politics in a nation and thereby ensures that
“we shall be governed no better than we deserve”, and thus,
complete information about the criminal antecedents of the
candidates forms the bedrock of wise decision-making and
B
informed choice by the citizenry. Be it clearly stated that informed
choice is the cornerstone to have a pure and strong democracy.
118. We have issued the aforesaid directions with immense
anguish, for the Election Commission cannot deny a candidate to
contest on the symbol of a party. A time has come that Parliament
C must make law to ensure that persons facing serious criminal
cases do not enter into the political stream. It is one thing to take
cover under the presumption of innocence of the accused but it is
equally imperative that persons who enter public life and participate
in law making should be above any kind of serious criminal
D allegation. It is true that false cases are foisted on prospective
candidates, but the same can be addressed by Parliament through
appropriate legislation. The nation eagerly waits for such legislation,
for the society has a legitimate expectation to be governed by
proper constitutional governance. The voters cry for systematic
sustenance of constitutionalism. The country feels agonised when
E money and muscle power become the supreme power. Substantial
efforts have to be undertaken to cleanse the polluted stream of
politics by prohibiting people with criminal antecedents so that
they do not even conceive of the idea of entering into politics.
They should be kept at bay.”
F It would appear that the grant of relief would have resulted in the
rewriting of the provision.
Z. INDEPENDENCE; A STERLING AND INDISPENSABLE
ATTRIBUTE

G THE CONCEPT OF LEGITIMATE POWER OF RECIPROCITY
186. What is independence? Independence is a value, which is
only one of the elements in the amalgam of virtues that a person should
possess. The competence of a man is not to be conflated with fierce
independence. A person may be excellent, i.e., at his chosen vocation.
H
ANOOP BARANWAL v. UNION OF INDIA 151
[K. M. JOSEPH, J.]

He may be an excellent Administrator. He may be honest but the quality A
of independence transcends the contours of the qualities of professional
excellence, as also the dictates of honesty. We may, no doubt, clarify
that, ordinarily, honesty would embrace the quality of courage of
conviction, flowing from the perception of what is right and what is
wrong. Irrespective of consequences to the individual, an honest person
B
would, ordinarily, unrelentingly take on the high and mighty and
perseverein the righteous path. An Election Commissioner is answerable
to the Nation. The people of the country look forward to him so that
democracy is always preserved and fostered. We may qualify the above
observations by stating that true independence of a Body of persons is
not to be confused with sheer unilateralism. This means that the Election C
Commission must act within the Constitutional framework and the laws.
It cannot transgress the mandate of either and still claim to be
independent. Riding on the horse of independence, it cannot act in an
unfair manner either. Independence must be related, finally, to the question
of ‘what is right and what is wrong’. A person, who is weak kneed
D
before the powers that be, cannot be appointed as an Election
Commissioner. A person, who is in a state of obligation or feels indebted
to the one who appointed him, fails the nation and can have no place in
the conduct of elections, forming the very foundation of the democracy.
An independent person cannot be biased. Holding the scales evenly,
even in the stormiest of times, not being servile to the powerful, but E
coming to the rescue of the weak and the wronged, who are otherwise
in the right, would qualify as true independence. Upholding the
constitutional values, which are, in fact, a part of the Basic Structure,
and which includes, democracy, the Rule of Law, the Right to Equality,
secularism and the purity of elections otherwise, would, indeed, proclaim
F
the presence of independence. Independence must embrace the ability
to be firm, even as against the highest. Not unnaturally, uncompromising
fearlessness will mark an independent person from those who put all
they hold dear before their Karma. It is in this context that we feel
advised to refer to the following discussion in Supreme Court Advocates-
on-Record Assn. and another v. Union of India66: G
“310. A little personal research resulted in the revelation of the
concept of the “legitimate power of reciprocity” debated by
Bertram Raven in his article — “The Bases of Power and the
Power/Interaction Model of Interpersonal Influence” (this
66
(2016) 5 SCC 1 H
152 SUPREME COURT REPORTS [2023] 9 S.C.R.

A article appeared in Analyses of Social Issues and Public Policy,
Vol. 8, No. 1, 2008, pp. 1-22). In addition to having dealt with
various psychological reasons which influenced the personality of
an individual, reference was also made to the “legitimate power
of reciprocity”. It was pointed out that the reciprocity norm
envisaged that if someone does something beneficial for another,
B
the recipient would feel an obligation to reciprocate (“I helped
you when you needed it, so you should feel obliged to do this for
me.” — Goranson and Berkowitz, 1966; Gouldner, 1960). In the
view expressed by the author, the inherent need of power is
universally available in the subconscious of the individual. On the
C satisfaction and achievement of the desired power, there is a similar
unconscious desire to reciprocate the favour.”
It is important that the appointment must not be overshadowed by
even a perception, that a ‘yes man’ will decide the fate of democracy
and all that it promises. Certainty, the darkest apprehensions of the
D founding fathers as buttressed by the reports and other materials,
unerringly point to the imperative need to act.
AA. THE APPOINTMENT OF SHRI ARUN GOEL: A
TRIGGER OR A MERE ASIDE?
187. An application was filed by the petitioner in W.P. No. 569 of
E 2021 to seek interim relief to provide for appointment to fill a vacancy of
Election Commissioner which had arisen on 15.05.2022 by a Committee.
The Bench commenced hearing of these cases on 17.11.2022. The matter
stood posted to 22.11.2022.It would appear that on 18.11.2022, the
vacancy of Election Commissioner came to be filled up by the
F appointment of one Shri Arun Goel. This appointment was attacked by
Shri Prashant Bhushan, learned Counsel appearing for the petitioner, by
contending that when the petitioner had moved an application, seeking
interim relief relating to appointment, it was not open to the respondent-
Union to make the appointment. This Court thereupon called upon the
respondent to produce the files relating to the appointment. We perused
G the note as also the file. It is therein, inter alia, stated that a vacancy in
the post of Election Commissioner arose upon the appointment of Shri
Rajiv Kumar as the Chief Election Commissioner w.e.f. 15.05.2022. No
specific law has been made under Article 324. A convention is put
forward, which consisted of appointing senior Members of the Civil
H Services, other serving or retired Officers of the rank of Secretary to
ANOOP BARANWAL v. UNION OF INDIA 153
[K. M. JOSEPH, J.]

the Government of India/Chief Secretary of State Government. The A
convention further comprised of the appointment of the senior-most
Election Commissioner as the Chief Election Commissioner so far. We
found, undoubtedly, from the perusal of the files that the respondent was
aware of the pendency of Writ Petition (Civil) No. 104 of 2015 apart
from the other Writ Petitions. The appointment has been made apparently
B
on the basis that there was no hinderance to the making of the
appointment. Approval was sought on 18.11.2022 for the appointment of
one Election Commissioner. On the very same day, drawing upon the
database of IAS Officers, serving and retired, in the position of Secretary
to the Government of India, it was accessed. We found four names,
which included at the top of the list, the present appointee. Three other C
names were also considered by the Minister of Law and Justice. One of
the Officers was from Andhra Pradesh and belonged to the 1983 Batch.
The third Officer empanelled belonged to the Telangana State and he
belonged to the 1983 Batch and the fourth Officer belonged to the Tamil
Nadu cadre and belonged to the 1985 Batch. The present appointee
D
belonged to the Punjab Cadre and was of the 1985 Batch. On the same
day, i.e., on 18.11.2022, a Note was seen put-up, wherein the Law
Minister had suggested the panel of four names for the consideration of
the Prime Minister and the President. Therein also, the absence of a law
and the convention, which we have already referred to, has been noted.
We further find that three of the Officers mentioned had superannuated E
during the last two years or so. The appointee, it was noted was to
superannuate in the month of December, 2022 and had taken voluntary
retirement, was found to be the youngest of the four Members of the
panel. It was recommended to the Prime Minister that considering his
experience, age, profile and suitability, the current appointee may be
F
considered.On the very same day again, the Prime Minister
recommended the name of the present appointee. We notice further
that, on the same day again, an application is seen made by the appointee
in regard to voluntary retirement and accepting the same, again, w.e.f.,
18.11.2022, and waiving the three months period required for acting on
the request of voluntary retirement, the Officer’s request for voluntary G
retirement came to be accepted by the Competent Authority. Not coming
as a surprise, on the same day, his appointment as Election Commissioner
was also notified. We are a little mystified as to how the officer had
applied for voluntary retirement on 18.11.2022, if he was not in the know
about the proposal to appoint him. Whether that be,we notice that
H
154 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 18.11.2022 was a Friday and very next day, after the Court had directed
the case to be listed to 22.11.2022, for considering the matter.
188. In regard to this appointment, the salient features may be
noticed. The vacancy was subsisting from 15.05.2022. The Constitution
Bench held a preliminary hearing on 17.11.2022. It was while so on the
B next day, i.e., 18.11.2022, when an interim application was also pending
consideration, all the procedures commencing with the proposal,
processing of the same at the hands of the Minister for Law, the further
recommendations of the concerned Officers, the recommendation of
the Prime Minister, the acceptance of the application of the appointee
seeking voluntary retirement, waiving the three months period and the
C appointment by the President under Article 324(2), which came to be
notified, took place in a single day. No doubt, there was no interim Order,
restraining such appointment but, at the same time, I.A. No. 63145 of
2021 in Writ Petition (Civil) No. 569 of 2021, seeking a direction to make
appointment to the vacant post by an independent Body, was pending
D consideration. Shri Prashant Bhushan would seek the invalidation of the
appointment itself on the said score.
189. Since the Constitution Bench has been constituted to consider
the need for a different method of appointment of the Chief Election
Commissioner and the Election Commissioners, the procedure involved
E in the appointment as has been followed throws up certain pertinent
questions. Appointment is, admittedly, made from a panel of Senior Civil
Servants, both retired and serving. Learned Attorney General would
contend that the appointment is made from a panel of Officers. The
current appointee was due to retire on 31.12.2022. From the date of
birth of the other three persons, who formed the panel, we find that one
F of the persons had superannuated, apparently, in the year 2020. Another
Officer, whose name figured in the panel had also superannuated in the
year 2020. The only other Officer, who was considered with the appointee,
had also superannuated in the year 2020. As on 18.11.2022, if any of the
three were considered and appointed, they would have had a tenure of
G less than three years. This is for the reason that, under Section 4 of the
1991 Act, an Election Commissioner is entitled to a term of six years,
subject, however, to the condition that the Officer would have to vacate
the Office upon his reaching the age of 65 years. In fact, even the
appointed Officer was due to retire on 31.12.2022, at the age of sixty
years. He would have a term of a little over five years, on the basis of
H
ANOOP BARANWAL v. UNION OF INDIA 155
[K. M. JOSEPH, J.]

the appointment made on 18.11.2022. He would be appointed not as a A
Chief Election Commissioner but as an Election Commissioner. Both
the Chief Election Commissioner and the Election Commissioner, as per
Section 4 of the 1991 Act, are to be appointed for a term of six years.
190. This brought up the question of Section 4, declaring a fixed
term of six years from the date of assumption of Office, for a Chief B
Election Commissioner and an Election Commissioner, being observed
in its breach. The learned Attorney General would respond as follows.
He pointed out that since the time, when the Election Commission became
a multi-Member team, a convention has grown up of making appointments
of persons, initially as Election Commissioners and the senior-most
Election Commissioner, unless considered unfit, is appointed as the Chief C
Election Commissioner. As far as Section 4, declaring that the Chief
Election Commissioner and the Election Commissioner are to be appointed
for a term of six years and the appointments falling foul of the said
mandate, the learned Attorney General would point out that the term of
the Election Commissioner and the term as Chief Election Commissioner, D
for those who are appointed as the Chief Election Commissioner, is
aggregated. In view of the first proviso to Section 4 of the 1991 Act, a
shortfall, in terms of the six years stint, may occur. But it is pointed out
that as far as possible, appointments are being made so as to fulfil the
requirements of the law. In view of the operation of the proviso, resulting
in a compulsory and premature vacating of the Office by the incumbent E
on attaining the age of 65 years, the term may not last for the full six
years, even on the combination of the two appointments, viz., firstly as
Election Commissioner and later as Chief Election Commissioner. The
learned Attorney General would point out that this Court should not be
detained by the said aspect, when the question, which this Court is F
concerned with, is different. As far as the criticism launched, both by
Shri Prashant Bhushan and Shri Gopal Sankaranarayanan, that the panel
which was considered, betrayed sheer arbitrariness and reinforced the
grievance and the complaint of the Writ Petitioners that an undeniable
case is made out for this Court to step in and grant relief so that a fair
procedure for selection and appointment is laid down, till a law is made G
by the Parliament, the learned Attorney General would point out that
Civil Servants or IAS Officers are by dint of the experience gathered in
the course of their careers, ideally suited for appointment as Election
Commissioners and Chief Election Commissioners. They have
experience in the matter of the conduct of the elections at different H
156 SUPREME COURT REPORTS [2023] 9 S.C.R.

A stages of their career. They operate as observers in States other than
their cadre States. The Election Commission is not to be conflated with
the Chief Election Commissioner and the Election Commissioners. The
Commission functions as a large team. It is in this regard that Officers
of the Civil Services are impeccably poised for being considered under
Article 324(2), it is pointed out.
B
191. The learned Attorney General would point out that that the
panel of Officers, is born out of the database of serving and retired IAS
Officers in the position of Secretaries to the Government of India.
192. When it was pointed out that it remained a mystery to the
C Court that incongruous with the unambiguous mandate of Section 4 of
the 1991 Act, all the panellists were either retired (3 out of four) and the
person finally appointed was himself appointed, when he had less than a
month for his 60th birthday, it was submitted that the Court must bear in
mind that the panel was drawn up from the database of Officers in the
rank of Secretaries to the Government of India, both serving and retired,
D and drawn up by the Ministry of Law and Justice. When it was further
queried as to why the respondent did not appear to exhibit any anxiety to
ascertain whether there were Officers, who could be appointed who
would be assured the full term of six years, in keeping with the mandate
of law, it was submitted that there is a dearth of such Officers.
E 193. Thereupon, it was the contention of both Shri Prashant
Bhushan and Shri Gopal Shankaranarayan that this may not be the case.
It is pointed out by Shri Prashant Bhushan that there are 160 Officers,
who belonged to the 1985 Batch and some of them are younger than
Shri Arun Goel.
F 194. We have noted that the three Officers in the panel were
described and edged out, noting the factum of superannuation. On the
said basis, it was found that the appointee was the youngest. Thereafter
on the basis of his experience, age and suitability, the appointee was
recommended and finally appointed.
G 195. 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 we find 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
H
ANOOP BARANWAL v. UNION OF INDIA 157
[K. M. JOSEPH, J.]

Election Commissioner, the appointee should have a period of six years. A
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
B
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 fulfil 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 C
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
D
complaint of the petitioners. We must make it clear that the observations
are not meant to be an individualised assessment of the appointee, who
we do note, has excellent academic qualifications. But as we have noted
academic excellence which members of the civil service may possess
cannot be a substitute for values such as independence and freedom
frombias from political affiliation. We draw the following conclusions: E
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 F
independence of the Election Commission. The policy of the law is
defeated.
BB. IS THERE A VACUUM IN ARTICLE 324? SHOULD
THE COURT INTERFERE, IF THERE IS ONE?
196. When Article 324(2) provides that the appointment of the G
Chief Election Commissioner and the other Election Commissioners shall,
subject to the provisions of any law, made in that behalf by Parliament,
be made by the President, in view of Article 74, it would, undoubtedly,
mean that the President is bound to make appointments in accordance
with the advice of the Council of Ministers. Taking into consideration
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158 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Article 77 also and, in view of the Rules of Business made, which we
have referred to in paragraph 51 of this Judgment, the appointment, till a
law is made by Parliament, would be made by the President in accordance
with advice of the Prime Minister. It was precisely such an appointment,
which was the cause of unanimous concern to the Members of the
Constituent Assembly, which we have already adverted to.
B
197. The petitioners placed considerable reliance on the Judgment
of this Court rendered in Vineet Narain and others v. Union of India
and another67. No doubt, it is a case where the Court, inter alia, held
as follows:
“49. There are ample powers conferred by Article 32 read with
C Article 142 to make orders which have the effect of law by virtue
of Article 141 and there is mandate to all authorities to act in aid
of the orders of this Court as provided in Article 144 of the
Constitution. In a catena of decisions of this Court, this power has
been recognised and exercised, if need be, by issuing necessary
D directions to fill the vacuum till such time the legislature steps in to
cover the gap or the executive discharges its role. It is in the
discharge of this duty that the IRC was constituted by the
Government of India with a view to obtain its recommendations
after an in-depth study of the problem in order to implement them
by suitable executive directions till proper legislation is enacted.
E The report of the IRC has been given to the Government of India
but because of certain difficulties in the present context, no further
action by the executive has been possible. The study having been
made by a Committee considered by the Government of India
itself as an expert body, it is safe to act on the recommendations
F of the IRC to formulate the directions of this Court, to the extent
they are of assistance. In the remaining area, on the basis of the
study of the IRC and its recommendations, suitable directions can
be formulated to fill the entire vacuum. This is the exercise we
propose to perform in the present case since this exercise can no
longer be delayed. It is essential and indeed the constitutional
G obligation of this Court under the aforesaid provisions to issue the
necessary directions in this behalf. We now consider formulation
of the needed directions in the performance of this obligation.
The directions issued herein for strict compliance are to operate
67
(1998) 1 SCC 226
H
ANOOP BARANWAL v. UNION OF INDIA 159
[K. M. JOSEPH, J.]

till such time as they are replaced by suitable legislation in this A
behalf.”
198. We must, at once, notice, however, that this Court has also
held as follows:
“51. In exercise of the powers of this Court under Article 32 read
with Article 142, guidelines and directions have been issued in a B
large number of cases and a brief reference to a few of them is
sufficient. In Erach Sam Kanga v. Union of India [WP No. 2632
of 1978 decided on 20-3-1979] the Constitution Bench laid down
certain guidelines relating to the Emigration Act. In Lakshmi Kant
Pandey v. Union of India [(1984) 2 SCC 244] (In re, Foreign C
Adoption), guidelines for adoption of minor children by foreigners
were laid down. Similarly in State of W.B. v. Sampat Lal [(1985)
1 SCC 317 : 1985 SCC (Cri) 62 : (1985) 2 SCR 256] , K.
Veeraswami v. Union of India [(1991) 3 SCC 655 : 1991 SCC
(Cri) 734] , Union Carbide Corpn. v. Union of India [(1991) 4
SCC 584] , Delhi Judicial Service Assn. v. State of D
Gujarat [(1991) 4 SCC 406] (Nadiad case), Delhi Development
Authority v. Skipper Construction Co. (P) Ltd. [(1996) 4 SCC
622] and Dinesh Trivedi, M.P. v. Union of India [(1997) 4 SCC
306] guidelines were laid down having the effect of law, requiring
rigid compliance. In Supreme Court Advocates-on-Record E
Assn. v. Union of India [(1993) 4 SCC 441] (IInd Judges case) a
nine-Judge Bench laid down guidelines and norms for the
appointment and transfer of Judges which are being rigidly followed
in the matter of appointments of High Court and Supreme Court
Judges and transfer of High Court Judges. More recently
in Vishaka v. State of Rajasthan [(1997) 6 SCC 241 : 1997 SCC F
(Cri) 932] elaborate guidelines have been laid down for observance
in workplaces relating to sexual harassment of working women.
In Vishaka [(1997) 6 SCC 241 : 1997 SCC (Cri) 932] it was said:
(SCC pp. 249-50, para 11)
“11. The obligation of this Court under Article 32 of the Constitution G
for the enforcement of these fundamental rights in the absence of
legislation must be viewed along with the role of judiciary envisaged
in the Beijing Statement of Principles of the Independence of the
Judiciary in the LAWASIA region. These principles were accepted
by the Chief Justices of Asia and the Pacific at Beijing in 1995 (*)
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160 SUPREME COURT REPORTS [2023] 9 S.C.R.

A (As amended at Manila, 28th August, 1997) as those
representing the minimum standards necessary to be observed in
order to maintain the independence and effective functioning of
the judiciary. The objectives of the judiciary mentioned in the Beijing
Statement are:
B “Objectives of the Judiciary:
10. The objectives and functions of the Judiciary include the
following:
(a) to ensure that all persons are able to live securely under the
rule of law;
C (b) to promote, within the proper limits of the judicial function, the
observance and the attainment of human rights; and
(c) to administer the law impartially among persons and between
persons and the State.”
Thus, an exercise of this kind by the court is now a well-settled
D practice which has taken firm roots in our constitutional
jurisprudence. This exercise is essential to fill the void in the absence
of suitable legislation to cover the field.”
199. It, therefore, becomes necessary for us to undertake a journey
back in time to recapture the views taken by this Court, which has been
referred to in paragraph-51. In Lakshmi Kant Pandey v. Union of
E
India68, this Court was dealing a public interest litigation lodged against
malpractices in trafficking of children in connection with adoption of
Indian children by foreigners living abroad. The Court noted from the
legislative history that though Bills were introduced, including the Adoption
of Children Bill, 1980, besides the earlier Bill in 1972, it had not attained
F a legislative effect. The Court found that inter-country adoption had to
be supported but great care had to be exercised in the matter of giving
children in adoption to foreign parents. The Court referred to, inter alia,
the draft Declaration by the Commission for Social Development at its
twenty-sixth session, besides the guidelines and draft guidelines, which
were approved on 04.09.1982. The Court notes, at paragraph-10, the
G
absence of a law providing for adoption of an Indian child by the foreign
parent. Thereafter, it elaborated on the materials available and finally
proceeded to lay down certain principles and norms which were to be
observed in the matter of giving a child in adoption to foreign parents.
68
(1984) 2 SCC 244
H
ANOOP BARANWAL v. UNION OF INDIA 161
[K. M. JOSEPH, J.]

200. In Union Carbide Corporation and others. v. Union of A
India and others69, one of the questions, which fell for consideration
was whether the Supreme Court had the power under Article 142 to
withdraw to itself, Original Suits pending in the District Court at Bhopal
and dispose of the same in accordance with the settlement. Similarly,
the Court had to deal with the contention that it had no jurisdiction to
B
withdraw the criminal proceedings. This is what, inter alia, the Court
held:
“58. This Court had occasion to point out that Article 136 is worded
in the widest terms possible. It vests in the Supreme Court a plenary
jurisdiction in the matter of entertaining and hearing of appeals by
granting special leave against any kind of judgment or order made C
by a Court or Tribunal in any cause or matter and the powers can
be exercised in spite of the limitations under the specific provisions
for appeal contained in the Constitution or other laws. The powers
given by Article 136 are, however, in the nature of special or
residuary powers which are exercisable outside the purview of D
the ordinary laws in cases where the needs of justice demand
interference by the Supreme Court. (See Durga Shankar
Mehta v. Thakur Raghuraj Singh [(1955) 1 SCR 267 : AIR 1954
SC 520 : 9 ELR 494] ).
xxx xxx xxx E
61. To the extent power of withdrawal and transfer of cases to
the apex Court is, in the opinion of the Court, necessary for the
purpose of effectuating the high purpose of Articles 136 and 142(1),
the power under Article 139-A must be held not to exhaust the
power of withdrawal and transfer. Article 139-A, it is relevant to F
mention here, was introduced as part of the scheme of the
Constitution Forty-second Amendment. That amendment proposed
to invest the Supreme Court with exclusive jurisdiction to determine
the constitutional validity of central laws by inserting Articles 131-
A, 139-A and 144-A. But Articles 131-A and 144-A were omitted
by the Forty-third Amendment Act, 1977, leaving Article 139-A G
intact. That article enables the litigants to approach the apex Court
for transfer of proceedings if the conditions envisaged in that article
are satisfied. Article 139-A was not intended, nor does it operate,
69
(1991) 4 SCC 584
H
162 SUPREME COURT REPORTS [2023] 9 S.C.R.

A to whittle down the existing wide powers under Articles 136 and
142 of the Constitution.”
201. In Delhi Judicial Service Association, Tis Hazari Court,
Delhi v. State of Gujarat and others 70, the question arose in the
following factual context:
B Police Officers assaulted and arrested on flimsy grounds and
handcuffed and tied with a rope, a Chief Judicial Magistrate. The scope
of the Criminal Contempt Jurisdiction fell for consideration.This Court
wished to provide against the recurrence of such instances. The Court
directed the State Government to take immediate steps for review and
C revision of the Police Regulations. In the light of the Commission
appointed, the Court held, inter alia, as follows:
“49. Learned counsel, appearing on behalf of the State of Gujarat
and the police officers, urged that in the present proceedings this
Court has no jurisdiction or power to quash the criminal proceedings
D pending against N.L. Patel, CJM. Elaborating his contention,
learned counsel submitted that once a criminal case is registered
against a person the law requires that the court should allow the
case to proceed to its normal conclusion and there should be no
interference with the process of trial. He further urged that this
Court has no power to quash a trial pending before the criminal
E court either under the Code of Criminal Procedure or under the
Constitution, therefore, the criminal proceedings pending against
Patel should be permitted to continue. Learned Attorney General
submitted that since this Court has taken cognizance of the
contempt matter arising out of the incident which is the subject
F matter of trial before the criminal court, this Court has ample
power under Article 142 of the Constitution to pass any order
necessary to do justice and to prevent abuse of process of the
court. The learned Attorney General elaborated that there is no
limitation on the power of this Court under Article 142 in quashing
a criminal proceeding pending before a subordinate court. Before
G we proceed to consider the width and amplitude of this Court’s
power under Article 142 of the Constitution it is necessary to
remind ourselves that though there is no provision like Section
482 of the Criminal Procedure Code conferring express power
on this Court to quash or set aside any criminal proceedings pending
70
H (1991) 4 SCC 406
ANOOP BARANWAL v. UNION OF INDIA 163
[K. M. JOSEPH, J.]

before a criminal court to prevent abuse of process of the court, A
but this Court has power to quash any such proceedings in exercise
of its plenary and residuary power under Article 136 of the
Constitution, if on the admitted facts no charge is made out against
the accused or if the proceedings are initiated on concocted facts,
or if the proceedings are initiated for oblique purposes. Once this
B
Court is satisfied that the criminal proceedings amount to abuse
of process of court it would quash such proceedings to ensure
justice. In State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC
561 : 1982 SCC (Cri) 283 : (1982) 3 SCR 121] , this Court quashed
first information report and issued direction prohibiting investigation
into the allegations contained in the FIR as the Court was satisfied C
that on admitted facts no offence was made out against the persons
named in the FIR. In Madhavrao Jiwajirao Scindia v.
Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988
SCC (Cri) 234] , criminal proceedings were quashed as this Court
was satisfied that the case was founded on false facts, and the
D
proceedings for trial had been initiated for oblique purposes.
50. Article 142(1) of the Constitution provides that Supreme Court
in exercise of its jurisdiction may pass such decree or make such
order as is necessary for doing complete justice in any ‘cause’ or
‘matter’ pending before it. The expression ‘cause’ or ‘matter’
would include any proceeding pending in court and it would cover E
almost every kind of proceeding in court including civil or criminal.
The inherent power of this Court under Article 142 coupled with
the plenary and residuary powers under Articles 32 and 136
embraces power to quash criminal proceedings pending before
any court to do complete justice in the matter before this Court. If F
the court is satisfied that the proceedings in a criminal case are
being utilised for oblique purposes or if the same are continued on
manufactured and false evidence or if no case is made out on the
admitted facts, it would be in the ends of justice to set aside or
quash the criminal proceedings. It is idle to suggest that in such a
situation this Court should be a helpless spectator. G

51. Mr Nariman urged that Article 142(1) does not contemplate
any order contrary to statutory provisions. He placed reliance on
the Court’s observations in Prem Chand Garg v. Excise
Commissioner, U.P., Allahabad [1963 Supp 1 SCR 885, 899 :
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164 SUPREME COURT REPORTS [2023] 9 S.C.R.

A AIR 1963 SC 996] and A.R. Antulay v. R.S. Nayak [(1988) 2
SCC 602 : 1988 SCC (Cri) 372] , where the Court observed that
though the powers conferred on this Court under Article 142(1)
are very wide, but in exercise of that power the Court cannot
make any order plainly inconsistent with the express statutory
provisions of substantive law. It may be noticed that in Prem Chand
B
Garg [1963 Supp 1 SCR 885, 899 : AIR 1963 SC 996] and Antulay
case [(1988) 2 SCC 602 : 1988 SCC (Cri) 372] observations with
regard to the extent of this Court’s power under Article 142(1)
were made in the context of fundamental rights. Those
observations have no bearing on the question in issue as there is
C no provision in any substantive law restricting this Court’s power
to quash proceedings pending before subordinate court. This
Court’s power under Article 142(1) to do “complete justice” is
entirely of different level and of a different quality. Any prohibition
or restriction contained in ordinary laws cannot act as a limitation
on the constitutional power of this Court. Once this Court has
D
seisin of a cause or matter before it, it has power to issue any
order or direction to do “complete justice” in the matter. This
constitutional power of the Apex Court cannot be limited or
restricted by provisions contained in statutory law. In Harbans
Singh v. State of U.P. [(1982) 2 SCC 101 : 1982 SCC (Cri) 361 :
E (1982) 3 SCR 235, 243] , A.N. Sen, J. in his concurring opinion
observed: (SCC pp. 107-08, para 20)
“Very wide powers have been conferred on this Court for due
and proper administration of justice. Apart from the jurisdiction
and powers conferred on this Court under Articles 32 and 136 of
F the Constitution I am of the opinion that this Court retains and
must retain, an inherent power and jurisdiction for dealing with
any extraordinary situation in the larger interests of administration
of justice and for preventing manifest injustice being done. This
power must necessarily be sparingly used only in exceptional
circumstances for furthering the ends of justice.”
G
No enactment made by Central or State legislature can limit or
restrict the power of this Court under Article 142 of the Constitution,
though while exercising power under Article 142 of the Constitution,
the Court must take into consideration the statutory provisions
regulating the matter in dispute. What would be the need of
H
ANOOP BARANWAL v. UNION OF INDIA 165
[K. M. JOSEPH, J.]

“complete justice” in a cause or matter would depend upon the A
facts and circumstances of each case and while exercising that
power the Court would take into consideration the express
provisions of a substantive statute. Once this Court has taken
seisin of a case, cause or matter, it has power to pass any order or
issue direction as may be necessary to do complete justice in the
B
matter. This has been the consistent view of this Court as would
appear from the decisions of this Court in State of
U.P. v. Poosu [(1976) 3 SCC 1 : 1976 SCC (Cri) 368 : (1976) 3
SCR 1005] ; Ganga Bishan v. Jai Narain [(1986) 1 SCC 75]
; Navnit R. Kamani v. R.R. Kamani [(1988) 4 SCC 387] ; B.N.
Nagarajan v. State of Mysore [(1966) 3 SCR 682 : AIR 1966 C
SC 1942 : (1967) 1 LLJ 698] ; Special Reference No. 1 of
1964 [(1965) 1 SCR 413, 499 : AIR 1965 SC 745] and Harbans
Singh v. State of U.P. [(1982) 2 SCC 101 : 1982 SCC (Cri) 361 :
(1982) 3 SCR 235, 243] Since the foundation of the criminal trial
of N.L. Patel is based on the facts which have already been found
D
to be false, it would be in the ends of justice and also to do complete
justice in the cause to quash the criminal proceedings. We
accordingly quash the criminal proceedings pending before the
Chief Judicial Magistrate, Nadiad in Criminal Cases Nos. 1998 of
1990 and 1999 of 1990.”
202. It issued various guidelines also for the protection of the E
Members of the Subordinate Judiciary. The decision in Supreme Court
Advocates-on-Record Association and others v. Union of India 71
related to the appointment of Judges to the Supreme Court and High
Court and transfer of Judges and Chief Justices.In the majority opinion
of Justice J. S. Verma, we may notice the following: F
“447. When the Constitution was being drafted, there was general
agreement that the appointments of Judges in the superior judiciary
should not be left to the absolute discretion of the executive, and
this was the reason for the provision made in the Constitution
imposing the obligation to consult the Chief Justice of India and G
the Chief Justice of the High Court. This was done to achieve
independence of the Judges of the superior judiciary even at the
time of their appointment, instead of confining it only to the
provision of security of tenure and other conditions of service
71
(1993) 4 SCC 441 H
166 SUPREME COURT REPORTS [2023] 9 S.C.R.

A after the appointment was made. It was realised that the
independence of the judiciary had to be safeguarded not merely
by providing security of tenure and other conditions of service
after the appointment, but also by preventing the influence of
political considerations in making the appointments, if left to the
absolute discretion of the executive as the appointing authority. It
B
is this reason which impelled the incorporation of the obligation of
consultation with the Chief Justice of India and the Chief Justice
of the High Court in Articles 124(2) and 217(1). The Constituent
Assembly Debates disclose this purpose in prescribing for such
consultation, even though the appointment is ultimately an executive
C act.”
(Emphasis Supplied)
203. We may at once observe as follows:
We have noticed in the context of the Constituent Assembly
D debates, as also what preceded it in the form of Sub-Committee Reports,
that there was general agreement that a law must be made by Parliament
and the amended draft Article 289 came to be, accordingly, further
amended and approved, leading to the insertion of the words ‘subject to
the law to be made by Parliament’ in Article 324(2). In other words, the
purpose for which the provision was made, as also the imperative need
E to make such a law, has been eloquently articulated in the views of the
Members of the Constituent Assembly. The appointment of Judges of
the Superior Judiciary under the Government of India Act, which
preceded the Constitution, was being made in the absolute discretion of
the Crown. This Court took note of the fact that if left to the absolute
F discretion of the Executive, as the appointing Authority, it may lead to
political considerations in making the appointment. Article 124(2) dealing
with appointments to the Supreme Court and Article 217(1) which deals
with appointments to the High Courts, was to be made based on what
was described as ‘consultations’ in these Articles. It will be again noticed
that Article 324(2), does not provide for consultation with any one and it
G appears to place the power to make appointments, exclusively with the
Executive as the President is bound by the advice of the Prime Minister.
However, it is precisely to guard against the abuse by the exclusive
power being vested with the Executive that instead of a consultative
process being provided, Parliament was to make a law. This clearly was
H the contemplation of the Founding Fathers. This Court proceeded to lay
ANOOP BARANWAL v. UNION OF INDIA 167
[K. M. JOSEPH, J.]

down norms in the absence of any specific guidelines. We may, in this A
regard, notice paragraph-477:
“477. The absence of specific guidelines in the enacted provisions
appears to be deliberate, since the power is vested in high
constitutional functionaries and it was expected of them to develop
requisite norms by convention in actual working as envisaged in B
the concluding speech of the President of the Constituent Assembly.
The hereinafter mentioned norms emerging from the actual
practice and crystallized into conventions — not exhaustive —
are expected to be observed by the functionaries to regulate the
exercise of their discretionary power in the matters of
appointments and transfers.” C

204. We may also indicate that this Judgment provides a situation
where this Court has laid down norms, even in the constitutional realm.
205. It is further of the greatest moment that this Court noted that
it was realised that independence of the Judiciary had to be protected D
not merely after appointment but by the process of appointment. The
Chief Election Commissioner can also be removed only in the same
fashion as a Judge of the Supreme Court. His conditions of service
cannot be varied to his disadvantage. But unlike the Comptroller and
Auditor General, who also enjoys protection after appointment, the
Founding Fathers clearly intended to also provide for an independent E
Election Commission regulating by law, the appointment itself. This is in
place of consultation provided for Judges.
206. In Vishaka and others v. State of Rajasthan and others72,
a Writ Petition was filed for enforcement of Fundamental Rights of
working women under Articles 14, 19 and 21. The complaint in the Writ F
Petition was sexual harassment of working women at work places. An
alleged brutal gangrape of a social worker provided, what may be
described as, an immediate trigger. This Court went on to find that an
incident of sexual harassment violated the Fundamental Rights of General
Equality, under Articles 14 and 15, and a Right to Life and Liberty, under G
Article 21. The Court drew support from the role of the Judiciary in the
Beijing Statement of Principles of the Independence of Judiciary in Law
Asia Region. We may set down the objectives, which the Court drew
upon, inter alia:
72
(1997) 6 SCC 241 H
168 SUPREME COURT REPORTS [2023] 9 S.C.R.

A “Objectives of the Judiciary:
10. The objectives and functions of the Judiciary include the
following:
(a) to ensure that all persons are able to live securely under the
rule of law;
B
(b) to promote, within the proper limits of the judicial function, the
observance and the attainment of human rights; and
(c) to administer the law impartially among persons and between
persons and the State.”

C 207. The Court also drew on an International Convention providing
for elimination of all forms of discrimination against women. Finally, on
the basis of the Principle that when there is no inconsistency between a
Convention and a Domestic Law and there is a void in the Domestic
Law, and bearing in mind the meaning and content of the Fundamental
Rights, the Court went on to lay down elaborate guidelines and norms.
D The norms included as to what constituted sexual harassment, inter alia.
This Court went on to even provide for disciplinary action to be initiated
and a complaint mechanism. The guidelines were, however, made binding
and enforceable in law, until suitable legislation was enacted. The norms
enunciated by this Court, which may have been legislative in nature,
interestingly, held the field for more than fifteen years, when Parliament
E
came out with a law.
208. In Special Reference No. 1 of 1998, Re73 (The Third Judges
case), which no doubt, was a Judgement rendered in a Reference made
under Article 143(1) of the Constitution, one of the contentions was,
whether the expression, both in Articles 217(1) and 222(1), viz.,
F (consultation with the Chief Justice of India required consultation with
the plurality of Judges or the sole opinion of the Chief Justice sufficed),
this Court went on to answer the question that the sole individual opinion
of the Chief Justice would not constitute ‘consultation’. It was also laid
down that the Chief Justice of India must consult four senior-most puisne
G Judges before making appointment to the Supreme Court and High
Courts. No doubt, it could be said that the decisions [the Judges cases]
could be said to have sprouted from the construction of the words used
in the relevant Articles and, in particular, the word ‘consult’. Also, it is
true that Article 124(2) as it stood then, read as follows:
73
H (1998) 7 SCC 739
ANOOP BARANWAL v. UNION OF INDIA 169
[K. M. JOSEPH, J.]

“124(2). Every Judge of the Supreme Court shall be appointed by A
the President by warrant under his hand and seal after consultation
with such of the Judges of the Supreme Court and of High Courts
in the States as the President may deem necessary for the purpose
and shall hold office until he attains the age of sixty-five years:
Provided that in the case appointment of a Judge other than the B
Chief Justice, the Chief Justice of India shall always be consulted:
Provided further that –
(a) A Judge may, by writing under his hand addressed to the
President, resign his office;
C
(b) A judge may be removed from his office in the manner provided
in clause (4).”
(Emphasis supplied)
209. What is of relevance is, however, the elaboration of the
procedure, as regards consultation, and the laying down of norms, which D
were to govern the appointment to the Superior Judiciary. The mandate
to consult four may appear to crystalize a figure not to be found in the
Constitution.
210. In fact, we may observe that the Doctrine of Separation of
Powers has spawned decisions of this Court largely in the context of E
litigation where challenges led to actions by the Legislative Organ,
allegedly contravening the limits set for it. This is not to say that we are
holding that it would be open to the courts to be oblivious to the true role
it is called upon to perform and which flows from the judicial function
that it discharges. As noticed by this Court, however, there is no magic
F
formula and what it all amounts to is, the need to maintain a delicate
balance. While, it is true that, ordinarily, the Court cannot, without anything
more, usurp what is purely a legislative power or function, in the context
of the Constitution, which clothes the citizens with Fundamental Rights
and provides for constitutional goals to be achieved and inertia of the
Legislative Department producing a clear situation, where there exist G
veritable gaps or a vacuum, the Court may not shy away from what
essentially would be part of its judicial function.
211. A Writ Petition was filed under Article 32 of the Constitution
assailing the appointment of certain Ministers despite their involvement
in serious and heinous crimes. The Constitution Bench of this Court in H
170 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Manoj Narula v. Union of India74 went on to refer to the criminalisation
of politics as being an anathema for the sanctity of democracy. Of
immediate interest to this Court, are the following observations:
“Principle of constitutional silence or abeyance
65. The next principle that can be thought of is constitutional
B silence or silence of the Constitution or constitutional abeyance.
The said principle is a progressive one and is applied as a recognised
advanced constitutional practice. It has been recognised by the
Court to fill up the gaps in respect of certain areas in the interest
of justice and larger public interest. Liberalisation of the concept
C of locus standi for the purpose of development of public interest
litigation to establish the rights of the have-nots or to prevent
damages and protect environment is one such feature. Similarly,
laying down guidelines as procedural safeguards in the matter of
adoption of Indian children by foreigners in Laxmi Kant
Pandey v. Union of India [(1987) 1 SCC 66 : 1987 SCC (Cri)
D 33 : AIR 1987 SC 232] or issuance of guidelines pertaining to
arrest in D.K. Basu v. State of W.B. [(1997) 1 SCC 416 : 1997
SCC (Cri) 92 : AIR 1997 SC 610] or directions issued
in Vishaka v. State of Rajasthan [(1997) 6 SCC 241 : 1997 SCC
(Cri) 932] are some of the instances.”
E 212. In Bhanumati and others v. State of U.P. through its
Principal Secretary and others75, pronouncing a State Law providing
for No Confidence Motion as valid, a Bench of this Court, inter alia, held
as follows:
“50. The learned author elaborated this concept further by saying,
F “Despite the absence of any documentary or material form, these
abeyances are real and are an integral part of any Constitution.
What remains unwritten and indeterminate can be just as much
responsible for the operational character and restraining quality
of a Constitution as its more tangible and codified components.”
G (P. 82)
51. Many issues in our constitutional jurisprudence evolved out of
this doctrine of silence. The basic structure doctrine vis-à-vis
Article 368 of the Constitution emerged out of this concept of
74
(2014) 9 SCC 1
75
H (2010) 12 SCC 1
ANOOP BARANWAL v. UNION OF INDIA 171
[K. M. JOSEPH, J.]

silence in the Constitution. A Constitution which professes to be A
democratic and republican in character and which brings about a
revolutionary change by the Seventy-third Constitutional
Amendment by making detailed provision for democratic
decentralisation and self-government on the principle of grass-
root democracy cannot be interpreted to exclude the provision of
B
no-confidence motion in respect of the office of the Chairperson
of the panchayat just because of its silence on that aspect.”
213. In Kalpana Mehta and others v. Union of India and
76
others , a Constitution Bench of this Court, inter alia, held as follows:
“51. The Constitution being an organic document, its ongoing C
interpretation is permissible. The supremacy of the Constitutionis
essential to bring social changes in the national polity evolved with
the passage of time. The interpretation of the Constitution is a
difficult task. While doing so, the constitutional courts are not only
required to take into consideration their own experience over time,
the international treaties and covenants but also keep the doctrine D
of flexibility in mind. It has been so stated in Union of
India v. Naveen Jindal [Union of India v. Naveen Jindal,
(2004) 2 SCC 510].
XXX XXX XXX
E
53. Recently, in K.S. Puttaswamy v. Union of India [K.S.
Puttaswamy v. Union of India, (2017) 10 SCC 1], one of us (Dr
D.Y. Chandrachud, J.) has opined that constitutional developments
have taken place as the words of the Constitution have been
interpreted to deal with new exigencies requiring an expansive
reading of liberties and freedoms to preserve human rights under F
the Rule of Law. It has been further observed that the interpretation
of the Constitution cannot be frozen by its original understanding,
for the Constitution has evolved and must continuously evolve to
meet the aspirations and challenges of the present and the future.
The duty of the constitutional courts to interpret the Constitution G
opened the path for succeeding generations to meet the challenges.
Be it stated, the Court was dealing with privacy as a matter of
fundamental right.”
(Emphasis supplied)
76
(2018) 7 SCC 1 H
172 SUPREME COURT REPORTS [2023] 9 S.C.R.

A In case of Article 324(2), it was the original understanding itself
that law be made. This understanding has received reinforcement by
subsequent developments, including objective reports.
214. Equally, we may notice what this Court, in Manoj Narula
(supra), held as regards constitutional morality:
B “74. The Constitution of India is a living instrument with capabilities
of enormous dynamism. It is a Constitution made for a progressive
society. Working of such a Constitution depends upon the prevalent
atmosphere and conditions. Dr Ambedkar had, throughout the
debate, felt that the Constitution can live and grow on the bedrock
C of constitutional morality. Speaking on the same, he said:
“Constitutional morality is not a natural sentiment. It has to be
cultivated. We must realise that our people have yet to learn it.
Democracy in India is only a top-dressing on an Indian soil,
which is essentially undemocratic.” [Constituent Assembly
D Debates, 1948, Vol. VII, 38.]”
215. We have set down the legislative history of Article 324, which
includes reference to what transpired, which, in turn, includes the views
formed by the members of Sub-Committees, and Members of the
Constituent Assembly. They unerringly point to one conclusion. The
E power of appointment of the Members of the Election Commission, which
was charged with the highest duties and with nearly infinite powers, and
what is more, to hold elections, not only to the Central Legislature but to
all the State Legislatures, was not to be lodged exclusively with the
Executive. It is, accordingly that the words ‘subject to any law to be
made by Parliament’ were, undoubtedly, incorporated.
F
216. No law, however, came to be enacted by Parliament. We
have elaborately referred to the noises and voices eloquently and without
a discordant note being struck, which points to an overpowering
symphony, which calls for the immediate need to fulfil the intention of
the Founding Fathers, starting with the Goswami Committee in the year
G 1990, more than three decades ago, the Two Hundred and Fifty-Fifth
Central Law Commission Report in 2015 and the Reports, both in the
Press and other materials.
217. It may be true that Election Commission of India provide its
services to certain countries. That, however, cannot deflect this Court
H
ANOOP BARANWAL v. UNION OF INDIA 173
[K. M. JOSEPH, J.]

from providing forwhat the Founding Fathers contemplated also and A
advocated by in various reports.
218. It may be true only Chief Election Commissioners were
appointed for the first four decades of the Republic and, thereafter, since
the year 1993, the Election Commission has become a team, which
consists of the Chief Election Commissioner and the two Election B
Commissioners. It may be true that in the sense that the President, acting
on the advice of the Prime Minister, in accordance with the concerned
Rules of Business, has been making appointments.
219. However, it is equally clear that Article 324 has a unique
background. The Founding Fathers clearly contemplated a law by C
Parliament and did not intend the executive exclusively calling the shots
in the matter of appointments to the Election Commission. Seven decades
have passed by. Political dispensations of varying hues, which have held
the reigns of power have not unnaturally introduced a law. A law could,
not be one to perpetuate what is already permitted namely appointment
at the absolute and sole discretion of the Executive. A law, as Gopal D
Sankaranarayanan points out, would have to be necessarily different.
The absence of such a law does create a void or vacuum. This is despite
a chorus of voices even cutting across the political divide urging divesting
of the exclusive power of appointment from the Executive.
220. We have noticed, that while making a law is ordinarily a E
power with the legislative branch and being a power, it cannot be
compelled by a Court, the making of law may be a constitutional
imperative. In the context of Article 326, making of law as contemplated
in Article 326, was an unavoidable necessity. Realising that the statutory
framework was necessary to breathe life into Article 326 and which F
was not to be incongruous with this command, Parliament enacted the
1950 Act and the 1951 Act. The first General Election followed. Making
of law by Parliament as provided for in Article 146 and Article 229
dealing with conditions of service of employees of the Supreme Court
and the High Court respectively, was and is a sheer power and enabling
provision. The context and the purpose signals no imperative need. No G
intention to indeed peremptorily provide for a law as is discernible in the
case of appointment of the members of the Election Commission of
India pervades the Articles. The vacuum in the case of Article 324 (2) is
the absence of the law which Parliament was contemplated to enact.
H
174 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 221. Political 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.
B 222. As long as the party that is voted into power is concerned,
there is, not unnaturally a near insatiable quest to continue in the saddle.
A pliable Election Commission, an unfair and biased overseer of the
foundational exercise of adult franchise, which lies at the heart of
democracy, who obliges the powers that be, perhaps offers the surest
gateway to acquisition and retention of power.
C
223. The values that animated the freedom struggle had to be
brought home to a new generation through the insertion of the provision
relating to fundamental duties. Criminalisation of politics, a huge surge in
the influence of money power, the role of certain sections of the media
where they appear to have forgotten their invaluable role and have turned
D unashamedly partisan, call for the unavoidable and unpostponable filling
up of the vacuum. Even as it is said that justice must not only be done
but seen to be done, the outpouring of demands for an impartial mode of
appointment of the Members require, at the least, the banishing of the
impression, that the Election Commission is appointed by less than fair
E means.
224. We bear in mind the fact that the demand for putting in place
safeguards to end the pernicious effects of the exclusive power being
vested with the Executive to make appointment to the Election
Commission, has been the demand of political parties across the board.
F Once power is assumed, however, the fact of the matter is that, despite
the concerns of the Founding Fathers and the availability of power,
successive governments have, irrespective of their colour, shied away,
from undertaking, what again we find was considered would be done by
Parliament, by the Founding Fathers.

G 225. The electoral scene in the country is not what it was in the
years immediately following the country becoming a Republic.
Criminalisation of politics, with all its attendant evils, has become a
nightmarish reality. The faith of the electorate in the very process, which
underlies democracy itself, stands shaken. The impact of ‘big money’
and its power to influence elections, the influence of certain sections of
H media, makes it also absolutely imperative that the appointment of the
ANOOP BARANWAL v. UNION OF INDIA 175
[K. M. JOSEPH, J.]

Election Commission, which has been declared by this Court to be the A
guardian of the citizenry and its Fundamental Rights, becomes a matter,
which cannot be postponed further.
226. While this Court is neither invited nor if it is invited, would
issue a Mandamus to the Legislature to make a law, as contemplated in
Article 324(2), it may not be the end of the duty of this Court in the B
context of the provision in question. We have already elaborated and
found that core values of the Constitution, including democracy, and
Rule of Law, are being undermined. It is also intricately interlinked with
the transgression of Articles 14 and 19. Each time, on account of a
‘knave’, in the words of Dr. Ambedkar, or again in his words, ‘a person
under the thumb of the Executive’, calls the shots in the matter of holding C
the elections, which constitutes the very heart of democracy, even formal
democracy, which is indispensable for a Body Polity to answer the
description of the word ‘democracy’, is not realised.
227. In the unique nature of the provision, we are concerned with
and the devastating effect of continuing to leave appointments in sole D
hands of the Executive on fundamental values, as also the Fundamental
Rights, we are of the considered view that 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 E
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.
228. Article 148 of the Constitution, dealing with appointment of F
the Comptroller and Auditor General of India, provides that it is to be
made by the President. This is to be contrasted with the appointment of
the Members of the Election Commission in Article 324(2). On a
comparison of both the Articles, the difference is stark and would justify
the petitioners contention that in regard to the appointment of the Members
of the Election Commission, having regard to the overwhelming G
importance and the nearly infinite plenary powers, they have in regard
to the most important aspect of democracy itself, viz., the holding of free
and fair elections, the Founding Fathers have provided for the unique
method of appointment suited to the requirements of the posts in question.
The refusal of Parliament, despite what was contemplated by the Founding H
176 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Fathers, and what is more, the availability of a large number of Reports,
all speaking in one voice, reassures us that even acting within the bounds
of the authority available to the Judicial Branch, we must lay down norms,
which, undoubtedly, must bear life only till Parliament steps in. We have
found, how appointments are being made in our discussion earlier. Our
minds stand fortified that there is an imperative need for the Court to
B
step in.
229. As regards the exact norm, which should be put in place, we
bear in mind the following considerations:
We have before us the various Reports, which we have referred
C to. We would think that, while what must be laid down, must be fair and
reasonable, but it must be what Parliament would or could lay down, if it
were to make a law. Under the Rules of Business made under Article
77, it is acknowledged that the appointment of the Chief Election
Commissioner and the Election Commissioners do not engage the
Cabinet.We take note of the fact that for the appointment to the Director
D of the Central Bureau of Investigation [which is not a constitutional post],
Section 4A of Delhi Special Police Establishment Act, 1946, contemplates
that appointment shall be made by the Central Government on the basis
of recommendation of a committee consisting of the Prime Minister as
the Chairperson, the Leader of the Opposition recognised in the House
E of People, as such, or where there is no such Leader of the Opposition,
then, the Leader of the Single Largest Opposition Party in the House
and the Chief Justice of India or a Judge of the Supreme Court nominated
by him. Similarly, we find, in regard to the appointment of the Chairperson
and Members of the Lokpal, under the Lokpal and Lokayuktas Act,
2013, the Chief Justice is one of the five Members of a Selection
F Committee, in the matter of appointment. We deem it appropriate to
notice Section 4 of the Lokpal and Lokayuktas Act, 2013, which reads
as follows:
“4. (1) The Chairperson and Members shall be appointed by the
President after obtaining the recommendations of a Selection
G Committee consisting of—
(a) the Prime Minister—Chairperson;
(b) the Speaker of the House of the People—Member;
(c) the Leader of Opposition in the House of the People—Member;
H
ANOOP BARANWAL v. UNION OF INDIA 177
[K. M. JOSEPH, J.]

(d) the Chief Justice of India or a Judge of the Supreme Court A
nominated by him—Member;
(e) one eminent jurist, as recommended by the Chairperson and
Members referred to in clauses (a) to (d) above, to be nominated
by the President—Member.
(2) No appointment of a Chairperson or a Member shall be invalid B
merely by reason of any vacancy in the Selection Committee.
(3) The Selection Committee shall for the purposes of selecting
the Chairperson and Members of the Lokpal and for preparing a
panel of persons to be considered for appointment as such,
constitute a Search Committee consisting of at least seven persons C
of standing and having special knowledge and expertise in the
matters relating to anti-corruption policy, public administration,
vigilance, policy making, finance including insurance and banking,
law and management or in any other matter which, in the opinion
of the Selection Committee, may be useful in making the selection D
of the Chairperson and Members of the Lokpal:
Provided that not less than fifty per cent. of the members of the
Search Committee shall be from amongst the persons belonging
to the Scheduled Castes, the Scheduled Tribes, Other Backward
Classes, Minorities and women: E
Provided further that the Selection Committee may also consider
any person other than the persons recommended by the Search
Committee.
(4) The Selection Committee shall regulate its own procedure in a
transparent manner for selecting the Chairperson and Members F
of the Lokpal.
(5) The term of the Search Committee referred to in sub-section
(3), the fees and allowances payable to its members and the manner
of selection of panel of names shall be such as may be prescribed.”
We bear in mind the Report of the Goswami Committee and, what G
is more, the Law Commission Report (Two Hundred and Fifty-
Fifth) and lay down as follows.
230. The appointment of the Chief Election Commissioner and
the Election Commissioners, shall be made by the President on the advice
H
178 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 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.
231. We make it clear that this will be subject to any law to be
B made by Parliament.
CC. AN ELECTION COMMISSIONER ENTITLED TO
SAME PROTECTION AS GIVEN TO CHIEF ELECTION
COMMISSIONER?
232. One of the contentions raised by the petitioners is this Court
C must provide for the same protection to the Election Commissioners as
is available to the Chief Election Commissioners. Even the Report of the
Election Commission itself would appear to endorse the said view and
complaint. We expatiate. It is the contention of the petitioners that when
the Constitution was framed, the Founding Fathers contemplated that
D appointment of Election Commissioners was to be need based and not a
full-time affair. Contrary to the said view, however, a multi-Member
team, is what the Election Commission of India has become, in fact,
since 1993. It is here to stay. The distinction between the Chief Election
Commissioner and the Election Commissioners have been whittled down
considerably by the amendments brought to the 1991 Act. However,
E when it comes to the constitutional protection, it is pointed out that the
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. An attempt has, in fact, been made to persuade this Court
F to hold that, being in the nature of a further proviso, as the words of the
second proviso begin as ‘provided further’, it is only a further protection
to the Election Commissioner or a Regional Commissioner. Thus, it is
pointed out, the Court must adopt the following interpretation. An Election
Commissioner or Regional Commissioner can be removed only in the
like manner and on like grounds as a Judge of the Supreme Court of
G India. A further safeguard is, however, provided to the Election
Commissioner, viz., that he can be removed from Office only on the
recommendation of the Chief Election Commissioner. To appreciate the
argument, we recapture Article 324(5). It reads as follows:
“324(5) Subject to the provisions of any law made by Parliament,
H the conditions of service and tenure of office of the Election
ANOOP BARANWAL v. UNION OF INDIA 179
[K. M. JOSEPH, J.]

Commissioners and the Regional Commissioners shall be such as A
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 B
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.”
233. We decode the said provision as follows: C
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.
Parliament has quickly on the heels of the Goswami Committee, stepped
in with the 1991 Act. We have already noted the terms of the Act as D
subsequently amended. It contemplates salary to be paid, not only to the
Election Commissioner but also to the Chief Election Commissioners,
which is to be equal to the salary of the Judge of the Supreme Court of
India. The term as we have already noticed, both of the Chief Election
Commissioner and the Election Commissioner, was to be six years, subject
E
to the proviso, which we have noticed. It also provides for other aspects
relating to conditions of service. While unanimity of views among the
members is statutorily contemplated in Section 10(1) as a desirable goal,
the inevitable differences of opinion was contemplated and Section 10(3)
has declared that in such an eventuality, it is the opinion of the majority
of the Members, which would prevail. We have already noticed how in F
T.N. Seshan (supra), this has been found to not militate against the Chief
Election Commissioner being given the power to act as the Chairman of
the Commission. 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,
G
we must bear in mind, in law, Article 324 is inoperable without the Chief
Election Commissioner [See T.N. Seshan (supra)]. In law, there may
not be an insuperable obstacle for Parliament to decide to do away with
the post of Election Commissioner. In fact, it happened, as can be seen
in the Judgment in Dhanoa (supra) wherein it was found that the
termination of service of the Election Commissioners following the H
180 SUPREME COURT REPORTS [2023] 9 S.C.R.

A abolition of the posts did not constitute removal of the Election
Commissioner within the meaning of the second proviso to Article 324(5).
More importantly, even on a plain reading of Article 324(5), we are 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. This prayer was
B rejected, in fact, in T.N. Seshan (supra). It is clear as day light that the
first proviso protects the Chief Election Commissioner alone from removal
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
C 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
D envisaged, as against his removal is only that it can be effected only with
the recommendation of the Chief Election Commissioner. We are of the
view that 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
E meant to deal with the categories of persons mentioned therein. In fact,
the acceptance of the argument of the petitioners would involve yet
another consequence, which to our minds, would appear to project an
anomalous result. To put it mildly, if the Election Commissioner is
accorded the protection available under the first proviso to the Chief
Election Commissioner, the result will be as follows. He would be entitled
F to not only claim immunity from removal except on being impeached like
a Judge of the Supreme Court but he would be conferred with a further
protection even after the impeachment or before the impeachment starts,
that the Chief Election Commissioner must also recommend the removal.
We would think that no more need be said and we reject the contention.
However, we only would observe that in the light of the fact that Election
G 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
H as to safeguard and ensure the independence of the Election
ANOOP BARANWAL v. UNION OF INDIA 181
[K. M. JOSEPH, J.]

Commissioners as well. This goes also as regards variation of service A
conditions after appointment.
DD. REGARDING INDEPENDENT SECRETERIAT/
CHARGING EXPENDITURE ON THE CONSOLIDATED
FUND OF INDIA
234. One of the contentions and, therefore, relief sought is, that B
there must be an independent Secretariat to the Election Commission of
India and the its expenditure must be charged on the Consolidated Fund
of India on the lines of the Lok Sabha/Rajya Sabha Secretariat.
235. In this regard, the second respondent (the Election
Commission of India) has filed a counter affidavit in Writ Petition (C)
C
No. 1043 of 2017, in which Writ Petition, the contention and the prayer
have been incorporated. In the Counter Affidavit of the Election
Commission itself, the stand of the Election Commission can be stated in
a nutshell as follows:
It has sent a proposal that the expenditure of the Commission
should be charged on the Consolidated Fund of India. It refers to the D
Election Commission Charging of Expenses on the Consolidated Fund
of India Bill, 1994, which provided for the various items of expenditure
to be charged upon the Consolidated Fund of India. It reiterated its proposal
for an independent Secretariat as also charging of the expenditure on
the Consolidated Fund of India by letter dated 13.04.2012, as also in
E
December, 2016. It has also laid store by the recommendation of the
Law Commission, which inter alia, recommended the insertion of Article
324(2A), which contemplated the Election Commission being provided
with an independent and permanent secretarial staff.
236. There cannot be any doubt that the Election Commission of
India is to perform the arduous and unenviable task of remaining aloof F
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. It would not be unnatural if faced with the
G
prospect of it not being supplied enough funds and facilities, a vulnerable
Commission may cave in to the pressure from the Executive and, thus, it
would result in an insidious but veritable conquest of an otherwise defiant
and independent Commission. This is apart from the fact that cutting off
the much-needed funds and resources will detract from its efficient
functioning. H
182 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 237. No doubt, the stand of the Union of India would appear to be
that these are all matters of policy and no interference is needed or
warranted.
238. We must bear in mind that to elevate it to a constitutional
provision and protection thereunder, maybe a matter, which must engage
B the attention of the Constituent Body. This is again a matter which can
also be provided by way of a law by Parliament. We have no doubt that
there is considerable merit in the complaint of the petitioner, which
apparently, is endorsed by the Election Commission of India itself. We
cannot be oblivious to the need for articulation of details in regard to the
C expenditure, which is a matter of policy, which we refrain from doing.
We 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.
D
EE. THE FINAL RELIEF
239. The Writ Petitions are partly allowed and they are disposed
of as follows:
I. We declare that as far as appointment to the posts of Chief
E 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
F
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
G 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.
H
ANOOP BARANWAL v. UNION OF INDIA 183
[AJAY RASTOGI, J.]

RASTOGI, J. A
1. I have had the advantage of going through the judgment penned
by my brother K.M. Joseph, J. I entirely agree with the conclusions
which my erudite Brother has drawn, based on the remarkable process
of reasoning with my additional conclusion. I wish to add few lines and
express my views not because the judgment requires any further B
elaboration but looking for the question of law that emerge of considerable
importance.
2. For the purpose of analysis, the judgment has been divided into
following sections:
C
I. Reference
II. Election Commission of India
III. Why an independent Election Commission is
necessary
D
A. Working a Democratic Constitution
B. Right to vote
C. Free and fair elections
IV. Constitutional and statutory framework: The E
Constitutional Vacuum
V. The Judgment in TN Seshan
VI. Reports of various Commissions on Manner of
Appointment of Chief Election Commissioner and
Election Commissioners F

VII. Comparative framework - Foundational parameters
VIII. Process of selection of other constitutional/statutory
bodies
IX. Constitutional silence and vacuum- power of the Court G
tolay down guidelines
X. Independence of Election Commissioners
XI. Directions
H
184 SUPREME COURT REPORTS [2023] 9 S.C.R.

A I. Reference
3. This case arises out of a batch of writ petitions, with the initial
petition filed as a public interest litigation by Anoop Baranwal in January
2015. The petitioner raised the issue of the constitutional validity of the
practice of the Union of India to appoint the members of the Election
B Commission. It was argued in the petition that a fair, just, and transparent
method to select the members of the Election Commission is missing.
The petition also referred to several reports, which we will discuss in
due course, to highlight the issue of bringing reforms in the selection of
members of the Election Commission. It was further highlighted that
since the appointment of the members of the Election Commission was
C solely on the advice of the parliamentary executive of the Union, which
leads to arbitrariness and is in violation of Article 14 of the Constitution.
The petition has also suggested that the process of selection of members
of the Election Commission (Chief Election Commissioner/Election
Commissioner) should be transparent and with greater scrutiny,
D accountability and stability as it is for the other constitutional and legal
authorities including Judges of the Supreme Court and High Courts, Chief
Information Commissioner, Chairpersons and Members of the Human
Rights Commission, Chief Vigilance Commissioner, Director of Central
Bureau of Investigation, Lokpal, Members of the Press Council of India.
The writ petition made a prayer for issuing of mandamus to the Union
E Government to make law for ensuring a transparent process of selection
by constituting a neutral and independent committee to recommend the
names of Chief Election Commissioner/Election Commissioners. Vide
order dated 23 October, 2018, a two Judge Bench of this Court
emphasized on the importance of the matter, and referred the matter
under Article 145(3) of the Constitution to the Constitutional Bench. The
F
order is reproduced as follows:
“The matter relates to what the petitioner perceives to be a
requirement of having a full-proof and better system of appointment
of members of the Election Commission.

G Having heard the learned counsel for the petitioner and the learned
Attorney General for India we are of the view that the matter
may require a close look and interpretation of the provisions of
Article 324 of the Constitution of India. The issue has not been
debated and answered by this Court earlier. Article 145 (3) of the
Constitution of India would, therefore, require the Court to refer
H the matter to a Constitution Bench. We, accordingly, refer the
ANOOP BARANWAL v. UNION OF INDIA 185
[AJAY RASTOGI, J.]

question arising in the present proceedings to a Constitution Bench A
for an authoritative pronouncement. Post the matter before the
Hon’ble the Chief Justice of India on the Administrative Side for
fixing a date of hearing.”
4. A couple of similar writ petitions were tagged with the above
petition. On 29 September 2022, this Constitution Bench started the B
hearing of the case. The Bench sat for several days hearing the arguments
of the petitioner side and of the Union government and Election
Commission of India on the respondents’ side.
5. The Union Government has opposed this group of petitions on
the premise that the Court must respect the principle of separation of C
power between different organs of the State and should refrain from
interfering in the selection process of the Election Commission under
Article 324. It was argued by the Union that Article 324 of the Constitution
conferred the power to appoint Election Commissioners solely upon the
Parliament. He made a reference to the Election Commission (Conditions
of Service of Election Commissioners and Transaction of Business) Act, D
1991 (hereinafter being referred to as the “Act 1991”) to emphasize his
point that the Parliament being cautious of its responsibility protected
the condition of service of the Chief Election Commissioner/Election
Commissioners.
6. The learned Attorney General Mr. R. Venkataramani suggested E
that the absence of any law does not mean that a constitutional vacuum
exists, calling for the interference of the Court. It was also argued by
the learned Attorney General that the appointment of the members of
the Election Commission by the President has not damaged the process
of free and fair elections. F
7. The learned Solicitor General Mr. Tushar Mehta argued that if
there are lacunas in the process of selection/appointment of Election
Commission, then it is for the Parliament and not the Court to look into
the issues. The learned counsel further argued that the appointment of
the Election Commissioners is to be made by the President, therefore it G
is not open to the judiciary to interfere with the power of the executive.
Mr. Mehta further argued that there is something called “independence
of the executive” which must not be interfered with. It was also argued
by the counsel for the Election Commission that since the right to vote is
a statutory right and not a fundamental right, so it does not call any
interference for violation of fundamental rights. H
186 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 8. It was raised by the petitioners that the issue of appointment of
Election Commission is linked not just with the right to vote but with the
conception of free and fair elections. Reference was also made to the
selection processes in other jurisdictions to emphasize on the point that a
larger set of parameters or factors play an important role in appointment
of Commissioners. Points were also debated regarding the term of the
B
Chief Election Commissioner/Election Commissioners, and the process
of removal of Election Commissioners. The petitioners further argued
that there must be constitutional safeguards in the term and tenure of
the Election Commissioners, so that they can function independently.
9. This case not only raises certain fundamental questions about
C the interpretation of Article 324 of the Constitution but also forces us to
look at the larger perspective about how the process of selection of
Election Commission is linked with the working of a democracy, the
right to vote, idea of free and fair elections, and the importance of a
neutral and accountable body to monitor elections. This Court ought to
D make a discussion on these interconnected debatable issues raised for
our consideration. All these points are indeed sacrosanct for democracy
and for maintaining the independence of the Election Commission.
II. Election Commission of India
10. Article 324 (1) provides that the power of superintendence,
E direction, and control of the preparation of the electoral rolls for, and the
conduct of, elections to Parliament and to the Legislature of every State
and of elections to the offices of President and Vice-President held under
the Constitution is vested in the Election Commission.
11. As to the composition of the Election Commission, Article
324(2) provides that the Election Commission shall consist of the Chief
F Election Commissioner and such number of other Election
Commissioners, if any, as the President may from time to time fix, and
the appointment of the Chief Election Commissioner and other Election
Commissioners, subject to the provisions of any law made in that behalf
by the Parliament, be made by the President.
G 12. By an order dated 1st October 1993, the President has fixed
the number of Election Commissioners as two, until further orders. The
current composition of the Election Commission is that of Chief Election
Commissioner and two Election Commissioners.
13. Article 324(3) provides that the Chief Election Commissioner
H shall act as the Chairman of the Election Commission.
ANOOP BARANWAL v. UNION OF INDIA 187
[AJAY RASTOGI, J.]

14. As regards the service conditions, Article 324(5) provides that A
subject to the provisions of any law made by Parliament, the conditions
of service and tenure of office of the Election Commissioners and the
Regional Commissioners shall be determined by the rules made by the
President. In exercise of its power under Article 324(5), the Parliament
has enacted the Act 1991.
B
15. The provisos to Article 324(5) provide the mechanism for
removal of Chief Election Commissioner, Election Commissioners, and
Regional Commissioner. The first proviso to Article 324(5) provides 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 C
shall not be varied to his disadvantage after his appointment. Furthermore,
any other Election Commissioner or a Regional Commissioner, according
to the second proviso to Article 324(5), shall not be removed from office
except on the recommendation of the Chief Election Commissioner.
16. The facility of support staffs of the Election Commission has D
been covered under Article 324(6), which provides that 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. E
17. The question that emerges for consideration is what
interpretation needs to be afforded to the above-discussed provisions, so
that the independence of the Election Commission is ensured. Before
dealing with that, we shall deal with the necessity of the independence
which is imperative of the Election Commission. F
III. Why an independent Election Commission is Necessary
A. “Working a Democratic Constitution”1
18. The basic perception of democracy is that it is a government
by the people, of the people, and for the people. “People” is the central
G
axis on which the concept of democracy revolves. The establishment of
democracy has been linked with the idea of welfare of the people. Dr
BR Ambedkar had once noted that democracy means “a form and a
method of government whereby revolutionary changes in the economic
1
Borrowed from the title of the classic book - Granville Austin, Working a Democratic
Constitution: A History of the Indian Experience, Oxford University Press. H
188 SUPREME COURT REPORTS [2023] 9 S.C.R.

A and social life of the people are brought about without bloodshed.” 2
Democracy is thus linked with the realization of the aspirations of the
people.
19. According to the celebrated philosopher John Dewey,
“Democracy is not simply and solely a form of government, but a social
B and personal ideal”, in other words, it is not only a property of political
institutions but of a wide range of social relationships.3 Democracy is
thus about collective decision-making. The principles of democracy have
been held as a part of the basic structure of the Constitution.4
20. The Indian Constitution establishes a constitutional democracy.
The Preamble to the Constitution clearly lays down the vision and creates
C an outline of the structure of democracy that India envisaged to be, right
at the moment of independence. The Preamble to the Indian Constitution
begins with the phrase “We, the People of India”. This clearly indicates
that the foundations of the future of the Indian Constitution and democracy
begin with the people of India at the core. The phrase also means that
D the people of India would be in a deciding position to choose the
governments they want. The phrase also highlights that the structures of
governance which were being created by the Constitution were supposed
to act towards the welfare of the people. The Preamble provides that
the people of India have resolved to constitute India into a “SOVEREIGN
SOCIALIST SECULAR DEMOCRATIC REPUBLIC”. Each term in
E this phrase defined the collective vision of not only the founders of the
Indian Constitution but also the collective destiny of the people of India.
These words also denote the kind of democratic structures that we were
going to create. The word “DEMOCRATIC” in the Preamble is
interlinked with the words preceding and succeeding it, that is
F “SOVEREIGN”, “SOCIALIST”, “SECULAR”, “REPUBLIC”. The
Preamble also provides that the people of India are securing for its citizens
“JUSTICE social, economic and political”. The word “JUSTICE”
manifests the vision of undoing hundreds of years of injustice that was
prevalent on Indian soil. Justice was to be based on three components:
social, economic, and political.
G
21. Democracy was established in India to fulfill the goals which
have been significantly encapsulated in the terms of the Preamble. The
2
Babasaheb Ambedkar: Writings and Speeches, Vol. 17 Part III, page 475
3
https://plato.stanford.edu/entries/dewey-political/
4
His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Another,
H (1973) 4 SCC 225
ANOOP BARANWAL v. UNION OF INDIA 189
[AJAY RASTOGI, J.]

institutions which were set up were given a role and duty to fulfill the A
task as enshrined in the Preamble and the Constitution. While the three
main pillars of the State rest on the legislature, executive, and judiciary
have their designated roles, the Constitution framers were also visionary
in the sense that they envisaged the creation of other institutions, which
would be independent in nature and would facilitate the working of the
three pillars by either demanding accountability or by taking on roles B
which would maintain the faith of the people in the three pillars of
democracy. The Election Commission of India is one such institution
that has been created through the text of the Constitution. It is
constitutionally an independent body. The role of the Election Commission
of India is to ensure that the democratic process in India does not come C
to a standstill. The task conferred on the Election Commission is
enormous. It has to ensure that periodical elections keep on happening.
22. India has chosen a system of direct elections. This means that
elections are supposed to happen at regular intervals where the people
of India directly participate by exercising their right to vote. The
D
Constitution also provides for elections where the representatives of the
people are chosen by an indirect method. These include the elections for
the post of President and Vice-President and the members of State
Legislative Councils. The task to maintain the sanctity of the elections is
supposed to be carried out by the Election Commission in a fair, transparent
and impartial manner, and without any bias or favour. The Election E
Commission has been given a wide range of powers towards
“superintendence, direction, and control” over the conduct of all
elections to Parliament and the Legislature of every State and of elections
to the offices of President and Vice-President held under this
Constitution. The three words “superintendence”, “direction”, and
“control” have not been defined in the Constitution but were used in a F
sense to give the widest responsibility to the Election Commission. In
that sense, the Election Commission becomes one of the most important
as well as central institutions for preserving and promoting the democratic
process and the structures of democracy on Indian soil. The role of the
Election Commission takes much more relevance given the fact that G
how the Indian society and polity used to traditionally behave. As a chief
architect of the constitution, Dr. B.R. Ambedkar once said “Democracy
in India is only a top-dressing on an Indian soil, which is essentially
undemocratic.”5
5
Constituent Assembly Debates, 4 November 1948, http://164.100.47.194/loksabha/
writereaddata/cadebatefiles/C04111948.html H
190 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 23. The Election Commission performs its role to ensure that every
person in the society is able to participate in the process of elections to
select the government. Therefore, the Election Commission in its working
needs to demonstrate the highest degree of transparency and
accountability. The decisions taken by the Election Commission need to
generate the trust of the people so that the sanctity of the democratic
B
process is maintained. If the Election Commission starts showing any
arbitrary decision-making, then the resulting situation would not just create
doubt on the members of the Election Commission of being biased but
would create fear in the minds of the common citizens that the democratic
process is being compromised. Therefore, the Election Commission needs
C to be independent and fully insulated from any external or internal
disrupting environment. The working of the Commission has to generate
confidence in the minds of the people. In a country like India, where
millions of people still struggle to fulfill their basic needs, it is their right
to vote which gives them hope that they would elect a government that
would help them in crossing the boundaries of deprivation. If this power
D
is compromised or taken away even by one slight bad decision or biases
of the members of the Election Commission, it would undoubtedly attack
the very basic structure of Indian democracy. The Indian democracy
has succeeded because of the people’s faith and participation in the
electoral process as well as the everyday work of the institution. As a
E constitutional court of the world’s largest democracy, we cannot allow
the dilution of people’s faith in democratic institutions. The country gained
and adopted democracy after decades of struggle and sacrifices, and
the gains received by us cannot be given away because the institutions
still continue to operate in an opaque manner.
F 24. A nine-judge bench of this Court in the case of K.S.
Puttaswamy and Another v. Union of India and Others6 held:
“Opacity enures to the benefit of those who monopolize scarce
economic resources. On the other hand, conditions where civil
and political freedoms flourish ensure that governmental policies
G are subjected to critique and assessment. It is this scrutiny which
sub-serves the purpose of ensuring that socio-economic benefits
actually permeate to the underprivileged for whom they are meant.
Conditions of freedom and a vibrant assertion of civil and political
rights promote a constant review of the justness of socio-economic
6
H (2017) 10 SCC 1
ANOOP BARANWAL v. UNION OF INDIA 191
[AJAY RASTOGI, J.]

programmes and of their effectiveness in addressing deprivation A
and want. Scrutiny of public affairs is founded upon the existence
of freedom.”
25. 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 B
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.
26. Democracy is not an abstract phenomenon. It has been given C
effect by a range of processes. The perception and trust in institutions
are important parameters on which the working of democracy is assessed.
The success of democracy, thus, depends on the working of institutions
that support the pillars of the structure of democracy.
27. Accountability of institutions provides legitimacy not only to D
the institutions themselves, but also to the very idea of democracy. That
is to say, if the institutions are working in a fair and transparent manner,
then the citizens would be assured that democracy is working. In that
sense, democracy is a means to check on officeholders and administrators
and to call them to account. Therefore, the norms and rules governing
these institutions cannot be arbitrary or lack transparency. E

28. 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. F
B. Right to Vote
29. The working of democracy depends on whether the people
can decide the fate of the elected form of government. It depends on
the choices which people make in different ways. This choice of people
G
cannot be compromised, as their mandate in elections changes the
destinies of government. India is democratic because the people govern
themselves. It is a republic because the government’s power is derived
from its people. Through the electoral process and voting, citizens
participate in democracy. By voting, citizens take part in the public affairs
of the country. Thus, citizens by voting enjoy their right to choose the H
192 SUPREME COURT REPORTS [2023] 9 S.C.R.

A composition of their government. It is their choice, and their ability to
participate. A nine-judge bench in the case of K.S. Puttaswamy (Supra)
held:
“... it must be realised that it is the right to question, the right to
scrutinize and the right to dissent which enables an informed
citizenry to scrutinize the actions of government. Those who are
B
governed are entitled to question those who govern, about the
discharge of their constitutional duties including in the provision of
socio-economic welfare benefits. The power to scrutinize and to
reason enables the citizens of a democratic polity to make informed
decisions on basic issues which govern their rights.”
C 30. The right to vote is now widely recognized as a fundamental
human right.7 However, this was not always the case. The history of the
adult franchise tells us that it was limited to the privileged in society.8 It
took several decades of struggles by marginalized communities to gain
the right to vote. The right to vote is so intrinsic to the practice of
democracy.
D
31. It has been argued by the counsel for the Election Commission
of India, that the right to vote is merely a statutory right, and since no
fundamental right is violated, it does not call the attention of this Court.
This Court does not agree with the view argued by the Election
Commission. Furthermore, it becomes necessary to look at the Constituent
E Assembly Debates to examine the scope of the right to vote.
32. The demand for the adult franchise was consistently raised
by several Indian leaders. In their drafts prepared for the consideration
of the Constituent Assembly, Dr. BR Ambedkar9 and KT Shah10 had
proposed the incorporation of the right to vote in the fundamental rights
portion. This proposal was initially endorsed in the initial draft report of
F the Fundamental Rights Sub-Committee, which was a part of the
Advisory Committee of the Constituent Assembly. 11 The draft provision
also included a sub-clause on an independent Election Commission.
Reproduced as follows:
7
https://www.ohchr.org/en/elections
8
G BR Ambedkar, “Evidence before the Southborough Committee”, in Babasaheb
Ambedkar: Writings and Speeches, published by Government of India, Vol. 1, pages
243-278
9
BR Ambedkar, “States & Minorities”, in Babasaheb Ambedkar: Writings and Speeches,
published by Government of India, Vol. 1., pages 381-541
10
B. Shiva Rao, The Framing of India’s Constitution, Select Documents, Vol. 2, at Page
54 (hereinafter “Shiva Rao”)
H 11
Shiva Rao, at pages 137 & 139 (dated 03.04.1947)
ANOOP BARANWAL v. UNION OF INDIA 193
[AJAY RASTOGI, J.]

1. “Every citizen not below 21 years of age shall have the A
right to vote at any election to the Legislature of the Union
and any unit thereof, or, where the Legislature is bicameral,
to the lower chamber of the Legislature, subject to such
disqualifications on the ground of mental incapacity, corrupt
practice or crime as may be imposed, and subject to such
qualifications relating to residence within the appropriate B
constituency, as may be required by or under the law.
2. The law shall provide for free and secret voting and for
periodical elections to the Legislature.
3. The superintendence, direction and control of all elections C
to the Legislature whether of the Union or the unit, including
the appointment of Election Tribunals shall be vested in an
Election Commission for the Union or the unit, as the case
may be, appointed in all cases, in accordance with the law
of the Union.”
33. This shows that the Framers envisaged that the right to vote D
must be accompanied by a provision establishing the Election
Commission. Constitutional Adviser B.N. Rau’s note on the draft provision
explains the inclusion of the right to vote as a fundamental right: “Clause
12. This secures that the right to vote is not refused to any citizen
who satisfies certain conditions. The idea of an Election Commission E
to supervise, direct and control all elections is new.”12
34. KT Shah however objected to the idea of a centralized Election
Commission. He argued that, “if adopted, would be a serious infringement
of the rights of Provincial Autonomy; and as such, I think it ought to be
either dropped or reworded, so as not to prejudice the rights of the
F
Provincial Legislature to legislate on such subjects.”13 The clause on
right to vote and the creation of the Election Commission as part of the
fundamental rights was then accepted by a majority vote by the
Fundamental Rights Sub-Committee.14 The clause was then forwarded
to the Advisory Committee in the “Report of the Sub-Committee on
Fundamental Rights” dated April 16, 1947.15 G
12
Shiva Rao, page 148
13
ibid, page 155
14
Ibid, page 164
15
Ibid, p. 173. Furthermore, the ground for contrary views was only that the right was
being extended the States/units. See “Minutes Of Dissent To The Report” dated April
17-20, 1947 by KM Panikkar, page 187 H
194 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 35. The draft prepared by the Fundamental Rights Sub-Committee
was examined by the Minorities Sub-Committee to see if any rights
proposed needed to be “amplified or amended” to protect minority rights.16
In the Minutes of the Meeting of the Minorities Sub-Committee dated
April 17, 1947, there were two suggestions on the fundamental right to
vote and Election Commission. S.P.Mukherjeeproposed, “Minorities
B
should be adequately represented on the Election Commissions
proposed for the Union and the units”. 17 Jairamdas Daulatram
suggested that “such bodies should be made neutral so that they may
inspire confidence among all parties and communities. Separate
representation for the minorities may not be workable.”18 It was also
C decided by the Minorities Sub-Committee on April 18, 1947 “to mention
in [their] report that the Election Commission should be an independent
quasi-judicial body.”19
36. After the clause on the right to vote passed by the Fundamental
Rights Sub-Committee and the Minorities Sub-Committee reached for
D consideration before the Advisory Committee, there was a serious debate
on whether to keep the clause in the fundamental rights chapter or not.
Dr. Ambedkar argued for retaining it as a fundamental right. 20 He stated:
“… so far as this committee is concerned my point is that we
should support the proposition that the committee is in favour of
E adult suffrage. The second thing we have guaranteed in this
fundamental right is that the elections shall be free and the elections
shall be by secret voting. It shall be by periodical elections... The
third proposition which this fundamental clause enunciates is that
in order that elections may be free in the real sense of the word,
they shall be taken out of the hands of the Government of the day,
F and that they should be conducted by an independent body which
we may here call an Election Commission.”21
37. But this view was disagreed with by several members of the
Advisory Committee. They had an apprehension that such a clause may
be objected to in the Constituent Assembly by the representatives of the
G 16
ibid, page 199
17
ibid, page 201
18
ibid, page 201
19
ibid, page 205
20
ibid, page 247
21
ibid, page 249-250
H
ANOOP BARANWAL v. UNION OF INDIA 195
[AJAY RASTOGI, J.]

Princely States.22 C. Rajagopalachari expressed that the future method A
of elections was not clear, and hence it was not right to keep a detailed
clause on the franchise in the fundamental rights. He said:
“My only point is whether it is proper to deal with this as a
fundamental right or whether we should leave it, or a greater part
of it, for the consideration of the whole Assembly. I submit we B
cannot take it for granted that the Union Legislature shall be elected
by the direct vote from all citizens from all India. It may be a
Federation Constitution. It may be indirectly elected. The
Government of the Union may be formed indirectly, so that we
cannot assume that every adult or any one whatever the description
may be, shall have a direct vote to the Legislature. We cannot lay C
down a proposition here without going into those details. We cannot
therefore deal with the subject at all now. Whether there is going
to be direct election or indirect election, that must be settled first.”23
(sic)
38. Dr. Ambedkar tried to resolve the opposition to this clause by D
arguing that:
“My reply is that this document or report will go before the
Constituent Assembly. There will be representatives of the States;
there will be representatives of the Muslim League. We shall hear
from them what objection they have to adult suffrage. If the whole E
Constituent Assembly is convinced that while it may be advisable
to have adult suffrage for British India, for reasons of some special
character, the Indian States cannot have adult suffrage, and there
must be some sort of a restricted suffrage, it will be still open to
the Constituent Assembly to modify our proposals.”24 F
39. Govind Ballabh Pant explained the reason why there was a
concern regarding inclusion of the right to vote in the fundamental rights
chapter. He said:
“The only apprehension is that some people belonging to the States
may prick the bubble and say that their rights have been interfered G
with and so on. They may not be represented. We will have what
we desire.”25
22
Statement of Sardar Patel, p. 249
23
ibid, page 250
24
ibid, page 250
25
251 H
196 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 40. In response to Pant, the following reply was given by Dr
Ambedkar:
“While we are anxious that the Indian States should come in, we
shall certainly stick to certain principles and not yield simply to
gather the whole lot of them in our Constitution.”26
B 41. As an alternative, Govind Ballabh Pant suggested that “this
very clause is sent to the Constituent Assembly, not as part of these
fundamental rights, but included in the letter of the Chairman to the
effect that we recommend to the Constituent Assembly the following
principles in regard to the framing of the Constitution.”27 While Dr.
C Ambedkar insisted on his view, the majority of members of the Advisory
Committee including Sardar Patel adopted Pant’s suggestion.28
42. Accordingly, in the “Minutes of the Meetings of the Advisory
Committee” dated April 21, 1947, it was noted: “Clause 13 to be deleted
from the fundamental rights, but it should be recommended by the
D Chairman in his report to the Constituent Assembly on behalf of the
committee, that it be made a part of the Union Constitution.”29 In his
letter addressed to the President of the Constituent Assembly, Sardar
Patel presented the interim report of the Advisory Committee, while
also noting that: “While agreeing in principle with this clause, we
recommend that instead of being included in the list of fundamental rights,
E it should find a place in some other part of the Constitution.”30
43. What emerges from this discussion is that there was an initial
agreement among the members of the fundamental rights sub-committee
and the minority rights sub-committee that there needs to be a clause in
the fundamental rights chapter which should provide for the right to
F vote; and the task to conduct free and fair elections, there shall be an
independent body called the Election Commission.However, the clause
was not retained by the Advisory Committee as a fundamental right
because it was apprehended that the princely states might not agree to
the Union Constitution if that clauseis retained, as India was going through
G a historical period of unification where negotiations were being made
with the princely states to become part of a united India. Despite this,
26
ibid, page 251
27
ibid, page 251
28
ibid, page 251-52
29
ibid, page 288
30
ibid, page 296
H
ANOOP BARANWAL v. UNION OF INDIA 197
[AJAY RASTOGI, J.]

the Founders retained the right to vote as a constitutional right by A
recommending that it should find a place in the text of the constitution.
44. On 16 June 1949, Dr. B.R. Ambedkar moved the following
clause, providing for the adult franchise:
“289-B: Elections to the House of the People and to the
Legislative Assemblies of states to be on the basis of adult B
suffrage: The elections to the House of the People and to the
Legislative Assembly of every State shall be on the basis of adult
suffrage; that is to say, every citizen, who is not less than twenty-
one years of age on such date as may be fixed in this behalf by or
under any law made by the appropriate Legislature and is not C
otherwise disqualified under this Constitution or any law made by
the appropriate Legislature on the ground of nonresidence,
unsoundness of mind, crime or corrupt or illegal practice, shall be
entitled to be registered as a voter at any such election.”31
45. The clause was adopted, which later became Article 326 of D
the Constitution.
46. 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 E
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.
47. However, the judgments of this Court adopted a restricted F
view of the right to vote for a number of decades. In N.P. Ponnuswami
v. Returning Officer, Namakkal Constituency and Others 32
(hereinafter “N.P. Ponnuswami”), a bench of six judges of this Court
was dealing with the question whether the High Court under Article 226
can have jurisdiction to interfere with the order of the Returning Officer
by reason of the provisions of Article 329(b) of the Constitution. While G
the Court was examining the contours of Article 329(b), it also made the
31
CONSTITUENT ASSEMBLY OF INDIA DEBATES (PROCEEDINGS)- VOLUME
VIII Thursday, the 16th June 1949, Available at:
http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C16061949.html
32
1952 SCR 218
H
198 SUPREME COURT REPORTS [2023] 9 S.C.R.

A following observation: “The right to vote or stand as a candidate for
election is not a civil right but is a creature of statute or special law and
must be subject to the limitations imposed by it.”
48. A different view was adopted by a Constitution Bench of this
Court in the case of Mohindhr Singh Gill and Another v. Chief
B Election Commissioner, New Delhi and Others. 33 (hereinafter
“Mohindhr Singh Gill”). The Bench was called on to interpret Articles
324 and 329(b) of the Constitution. It noted:
“The most valuable right in a democratic polity is the ‘little man’s’
little pencil-marking, accenting and dissenting, called his vote....
C Likewise, the little man’s right, in a representative system of
Government to rise to Prime Ministership or Presidentship by use
of the right to be candidate cannot be wished away by calling it of
no civil moment. If civics mean anything to self-governing citizenry,
if participatory democracy is not to be scuttled by law.... The
straightaway conclusion is that every Indian has a right to elect
D and be elected and this is constitutional as distinguished from a
common law right and is entitled to cognizance by Courts, subject
to statutory Regulations.”
49. However, a subsequent decision of a two-judge bench in Jyoti
Basu and Others v. Debi Ghosal and Others34 (hereinafter “Jyoti
E Basu”) relied upon the position taken by N.P. Ponnuswami (Supra).
The two-judge bench was dealing with the specific question who may
be joined as a party to an election petition, but went to observe:
“A right to elect, fundamental though it is to democracy, is,
anomalously enough, neither a fundamental right nor a Common
F Law Right. It is pure and simple, a statutory right. So is the right
to be elected. So is the right to dispute an election. Outside of
statute, there is no right to elect, no right to be elected and no right
to dispute and election. Statutory creations they are, andtherefore,
subject tostatutory limitation.”
G 50. While the above three decisions made statements of the right
to vote, the issue of interpretation of Article 326, dealing with adult
franchise, had not arisen in these cases. Therefore, the statements made
cannot be treated as an authority on the subject.
33
(1978) 1 SCC 405
34
H (1982) 1 SCC691
ANOOP BARANWAL v. UNION OF INDIA 199
[AJAY RASTOGI, J.]

51. In the case of Union of India v. Association for Democratic A
Reforms and Another 35 (hereinafter “ADR”), this Court was
considering whether there is a right of the voter to know about the
candidates contesting election. Holding in affirmative, it was held:
“In democracy, periodical elections are conducted for having
efficient governance for the country and for the benefit of citizens B
- voters. In a democratic form of government, voters are of utmost
importance. They have right to elect or re- elect on the basis of
the antecedents and past performance of the candidate. The voter
has the choice of deciding whether holding of educational
qualification or holding of property is relevant for electing or re-
electing a person to be his representative...” C

(emphasis added)
52. Amendments were made to ROP Act after ADR judgment.
Whether the amendments followed the mandate laid down in ADR were
scrutinized by a three-judge bench case of People’s Union for Civil D
Liberties (PUCL) and Another v. Union of India and Another 36
(hereinafter “PUCL 2003”). This Courtre-examined the issue of
whether a voter has any fundamental right to know the antecedents/
assets of a candidate contesting the election under Article 19(1)(a). An
argument was made before this Court that a voter does not have such a
right, as there is no fundamental right to vote from which the right to E
know the antecedents of a candidate arises. While the three judges(M.B.
Shah, Venkatarama Reddi, D.M. Dharmadhikari, JJ.) unanimously agreed
that the voters have a right under Article 19(1)(a) to know the antecedents
of a candidate, there was a difference on whether the scope of the right
to vote. F
53. Referring to N.P. Ponnuswamiand Jyoti Basu judgments,
Justice MB Shah held that “there cannot be any dispute that the right to
vote or stand as a candidate for election and decision with regard to
violation of election law is not a civil right but is a creature of statute or
special law and would be subject to the limitations envisaged therein.” G
He held that, “Merely because a citizen is a voter or has a right to elect
his representative as per the [ROP] Act, his fundamental rights could
not be abridged, controlled or restricted by statutory provisions except
35
(2002) 5 SCC 294
36
(2003) 4 SCC 399 H
200 SUPREME COURT REPORTS [2023] 9 S.C.R.

A as permissible under the Constitution.” He stated that whether the right
to vote is a statutory right or not does not have any implication on the
right to know antecedents, which is a part of fundamental right under
Article 19(1)(a). He however also held that democracy based on adult
franchise is part of the basic structure of the Constitution, and that the
right of adults to take part in the election process either as a voter or a
B
candidate could only be restricted by a valid law which does not offend
constitutional provisions.
54. Justice Venkatarama Reddi emphasized on the right to vote,
and held:
C “The right to vote for the candidate of one’s choice is of the essence
of democratic polity. This right is recognized by our Constitution
and it is given effect to in specific form by the Representation of
the People Act. The Constituent Assembly debates reveal that
the idea to treat the voting right as a fundamental right was dropped;
nevertheless, it was decided to provide for it elsewhere in the
D Constitution. This move found its expression in Article 326…”
55. He disagreed with the views expressed in N.P.
Ponnuswamiand Jyoti Basu, and held:
“the right to vote, if not a fundamental right, is certainly a
E constitutional right. The right originates from the Constitution and
in accordance with the constitutional mandate contained in Article
326, the right has been shaped by the statute, namely, R.P. Act.
That, in my understanding, is the correct legal position as regards
the nature of the right to vote in elections to the House of people
and Legislative Assemblies. It is not very accurate to describe it
F as a statutory right, pure and simple.”
56. Justice Venkatarama Reddi then distinguished the constitutional
right to vote with the act of giving vote/freedom of voting. He held:
“a distinction has to be drawn between the conferment of the
right to vote on fulfillment of requisite criteria and the culmination
G
of that right in the final act of expressing choice towards a particular
candidate by means of ballot. Though the initial right cannot be
placed on the pedestal of a fundamental right, but, at the stage
when the voter goes to the polling booth and casts his vote, his
freedom to express arises. The casting of vote in favour of one or
H
ANOOP BARANWAL v. UNION OF INDIA 201
[AJAY RASTOGI, J.]

the other candidate tantamounts to expression of his opinion and A
preference and that final stage in the exercise of voting right marks
the accomplishment of freedom of expression of the voter. That
is where Article 19(1)(a) is attracted. Freedom of voting as distinct
from right to vote is thus a species of freedom of expression and
therefore carries with it the auxiliary and complementary rights
B
such as right to secure information about the candidate which are
conducive to the freedom. None of the decisions of this Court
wherein the proposition that the right to vote is a pure and simple
statutory right was declared and reiterated, considered the question
whether the citizen’s freedom of expression is or is not involved
when a citizen entitled to vote casts his vote in favour of one or C
the other candidate…”
In his conclusions, he noted:
“The right to vote at the elections to the House of people or
Legislative Assembly is a constitutional right but not merely a
statutory right; freedom of voting as distinct from right to vote is a D
facet of the fundamental right enshrined in Article 19(1)(a). The
casting of vote in favour of one or the other candidate marks the
accomplishment of freedom of expression of the voter.”
57. Justice DM Dharmadhikari expressed his agreement with the
view taken by Justice Venkatarama Reddi, thus making it a majority E
decision holding that the right to vote is a constitutional right. Even Justice
Shah had held that the right of adults to take part in the election process
as a voter could only be restricted by a valid law which does not offend
constitutional provisions.
58. An argument based on the majority view in PUCL 2003 was F
put forth before a Constitution Bench of this Court in Kuldip Nayar
and Others v. Union of India and Others37(hereinafter “Kuldip
Nayar”). It was argued that a right to vote is a constitutional right besides
that it is also a facet of fundamental right under Article 19(1)(a) of the
Constitution. The Constitution bench rejected the argument. It was held: G
“The argument of the petitioners is that the majority view in the
case of People’s Union for Civil Liberties, therefore, was that a
right to vote is a constitutional right besides that it is also a facet
of fundamental right under Article 19(1)(a) of the Constitution.
37
(2006) 7 SCC 1
H
202 SUPREME COURT REPORTS [2023] 9 S.C.R.

A We do not agree with the above submission. It is clear that a fine
distinction was drawn between the right to vote and the freedom
of voting as a species of freedom of expression, while reiterating
the view in Jyoti Basu v. Debi Ghosal (supra) that a right to elect,
fundamental though it is to democracy, is neither a fundamental
right nor a common law right, but pure and simple, a statutory
B
right.
Even otherwise, there is no basis to contend that the right to vote
and elect representatives of the State in the Council of States is a
Constitutional right. Article 80(4) merely deals with the manner
of election of the representatives in the Council of States as an
C aspect of the composition of the Council of States. There is nothing
in the Constitutional provisions declaring the right to vote in such
election as an absolute right under the Constitution.”
59. The Constitution Bench in Kuldip Nayar seems to have missed
the point that Justice Venkatarama Reddi’s opinion in PUCL 2003 that
D the right to vote is a constitutional right was explicitly concurred by Justice
Dharmadhikari. Therefore, Kuldip Nayar’s view that PUCL 2003
considered the right to vote/elect as a statutory right does not seem to
portray the correct picture.
60. In Desiya Murpokku Dravida Kazhagam and Another v.
E Election Commission of India,38 a three-judge bench was considering
a challenge to the constitutional validity of the amendment of the Election
Symbols (Reservation and Allotment) Order, 1968, which mandated that
in order to be recognized as a State party in the State, a political party
would have to secure not less than 6% of the total valid votes polled in
F the State and should also have returned at least 2 members to the
Legislative Assembly of the State. The counsel for the Election
Commission of India in the case had argued that since the right to vote
was a statutory right, it could not be questioned by way of a writ petition.
The majority by 2:1 upheld the amendment. However, Justice
Chelameswar wrote a dissenting opinion. The dissenting judge also
G addressed the counsel for the Election Commission of India that the
right to vote is merely a statutory right. He held:
“The right to elect flows from the language of Articles 81 and 170
r/w Articles 325 and 326. Article 326 mandates that the election to the
38
H 2009 (16) SCC 781
ANOOP BARANWAL v. UNION OF INDIA 203
[AJAY RASTOGI, J.]

Lok Sabha and legislative Assemblies shall be on the basis of Adult A
Suffrage, i.e., every citizen, who is of 18 years of age and is not otherwise
disqualified either under the Constitution or Law on the ground specified
in the Article Shall Be entitled to be registered as a voter. Article 325
mandates that there shall be one general electoral roll for every territorial
constituency. It further declares that no person shall be ineligible for
B
inclusion in such electoral roll on the grounds only of religion, race, caste,
sex, etc. Articles 81 and 170 mandate that the members of the Lok
Sabha and Legislative Assembly are required to be Chosen by Direct
Election from the territorial constituencies in the States. The States are
mandated to be divided into territorial constituencies under Articles 81(2)
(b) and 170(2)17. The cumulative effect of all the above mentioned C
provisions is that the Lok Sabha and the Legislative Assemblies are to
consist of members, who are to be elected by all the citizens, who are of
18 years of age and are not otherwise disqualified, by a valid law, to be
voters. Thus, a Constitutional right is created in all citizens, who are 18
years of age to choose (participate in the electoral process) the members
D
of the Lok Sabha or the Legislative Assemblies. Such a right can be
restricted by the appropriate Legislature only on four grounds specified
under Article 326.”
61. Justice Chelameswar also clarified that the question whether
the right to vote or contest at any election to the Legislative Bodies
created by the Constitution did not arise in the case of N.P. Ponnuswami, E
which is cited as an authority on the right to vote. He noted:
“With due respect to their Lordships, I am of the opinion that both
the statements (extracted above) are overbroad statements made
without a complete analysis of the scheme of the Constitution
regarding the process of election to the Legislative Bodies adopted F
in subsequent decisions as a complete statement of law. A classical
example of the half truth of one generation becoming the whole
truth of the next generation.”
62. The majority decision in this case did not record any
disagreement regarding the conclusion that the right to participate in the G
electoral process, either as a voter or as a candidate, is a constitutional
right.
63. In 2013, the correctness of ADR and PUCL 2003 was doubted
before a three judge-bench of this Court in People’s Union for Civil
H
204 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Liberties and Another v. Union of India and Another 39(PUCL
2013). In this case, the validity of certain rules of the Conduct of Election
Rules, 1961 to the extent that these provisions violate the secrecy of
voting which is fundamental to the free and fair elections. It was put
forward that the Constitution bench judgment in Kuldip Nayar created
a doubt on ADR and PUCL 2003. The three-judge bench in PUCL
B
2013 held that “Kuldip Nayar does not overrule the other two decisions
rather it only reaffirms what has already been said by the two aforesaid
decisions”. However, the three-judge bench went on to note that:
“… there is no contradiction as to the fact that right to vote is
neither a fundamental right nor a Constitutional right but a pure
C and simple statutory right. The same has been settled in a catena
of cases and it is clearly not an issue in dispute in the present
case.”
64. While the scope of the right to vote was not before PUCL
2013, but it went on to observe that the right to vote is only a statutory
D right. But, the three-judge bench in PUCL 2013 followed ADR and
PUCL 2003 to reiterate that “[t]he casting of the vote is a facet of the
right of expression of an individual and the said right is provided
under Article 19(1)(a) of the Constitution of India”, and therefore, a prima
facie case existed for the exercise of jurisdiction of this Court under
E Article 32. The bench concluded that:
“No doubt, the right to vote is a statutory right but it is equally vital
to recollect that this statutory right is the essence of democracy.
Without this, democracy will fail to thrive. Therefore, even if the
right to vote is statutory, the significance attached with the right is
F massive. Thus, it is necessary to keep in mind these facets while
deciding the issue at hand.”
65. A clarity on the status of the right to vote was given in the
judgment in Raj Bala v. State of Haryana and Others.40 Justice
Chelameswar and Justice Sapre gave separate concurring opinions. After
G analysing the previous decisions of this Court, Justice Chelameswar came
to the conclusion that “every citizen has a constitutional right to elect
and to be elected to either Parliament or the State legislatures.” Justice
Sapre reiterated the view taken in PUCL 2003 that the “right to vote”
is a constitutional right but not merely a statutory right.
39
(2013) 10 SCC 1
H 40
(2016) 1 SCC 463
ANOOP BARANWAL v. UNION OF INDIA 205
[AJAY RASTOGI, J.]

66. What emerges from this detailed discussion is that there has A
been a conflicting view on the status of the right to vote. This gives an
opportunity for us to authoritatively hold that the right to vote is not just
a statutory right. In our view, we must look beyond that. Our decision to
analyse the contours of the right to vote is facilitated by the reasoning
provided by the nine-judge bench in K.S. Puttaswamy. In that case, a
B
plea was made that since privacy was not included as a fundamental
right in the original Constitution, it cannot be declared a fundamental
right. The bench rejected this argument, and held:
“it cannot be concluded that the Constituent Assembly had
expressly resolved to reject the notion of the right to privacy as an
integral element of the liberty and freedoms guaranteed by the C
fundamental rights... The interpretation of the Constitution cannot
be frozen by its original understanding. The Constitution has
evolved and must continuously evolve to meet the aspirations and
challenges of the present and the future.”
67. In the instant case, the provision on adult franchise is in Article D
326 of the Constitution. An analysis of Constituent Assembly Debates
shows that it was initially considered as a fundamental right in the
proceedings of the Advisory Committee. The only reason why it was
shifted from fundamental rights status to another constitutional provision
was that the founders did not want to offend the Princely States, with E
whom they were negotiating to be a part of a united India. Otherwise,
they had stressed the importance of the right to vote and universal adult
franchise. Seventy-five years after Independence, we have the
opportunity to realize their absolute vision by recognizing what they could
not due to socio-political circumstances of their time. When the
Constitution came into force, what were known as Princely States F
became a part of India, and accepted direct elections as a method of
choosing the government. These areas have now been included in
different states. Therefore, there has been no objection to the right to
vote.
68. The right to take part in the conduct of public affairs as a G
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 H
206 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 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.41 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
B
with these provisions. We therefore declare the right to vote in direct
elections as a fundamental right, subject to limitations laid down in Article
326. This Court has precedents to support its reasoning. In Unnikrishnan
J.P. and Others v. State of Andhra Pradesh and Others,42 this
Court read Article 45 and 46 along with Article 21 to hold that the right
C to education is a fundamental right for children between the age group
of 6-14.
69. Now that we have held that 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
D 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.
E C. Free and Fair Elections
70. Democracy works when the citizens are given a chance to
decide the fate of the ruling government by casting their vote in periodical
elections. The faith of the citizens in the democratic processes is ensured
by conducting free and fair elections through an independent and neutral
F agency.
71. Free and fair elections have been enshrined as a precedent
for the working of democracy in global conventions and rights-based
frameworks. The Universal Declaration of Human Rights 1948
recognizes that:
G “1. Everyone has the right to take part in the government of his
country, directly or through freely chosen representatives.
2. Everyone has the right of equal access to public service in his
country.
41
https://journals.library.brandeis.edu/index.php/caste/article/view/282/63
H 42
(1993)1 SCR594
ANOOP BARANWAL v. UNION OF INDIA 207
[AJAY RASTOGI, J.]

3. The will of the people shall be the basis of the authority of A
government; this will shall be expressed in periodic and genuine
elections which shall be by universal and equal suffrage and shall
be held by secret vote or by equivalent free voting procedures.”43
72. Article 25 of the International Covenant on Civil and Political
Rights provides: B
“Every citizen shall have the right and the opportunity, without
any of the distinctions mentioned in article 2 and without
unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through
freely chosen representatives; C

(b) To vote and to be elected at genuine periodic elections which
shall be by universal and equal suffrage and shall be held by secret
ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service D
in his country.”
73. India is committed to these international frameworks. This
Court has previously read India’s obligation to international frameworks
to recognise new areas of constitutional discourse, which are explicitly
not covered by the provisions of the Constitution or where there is a
E
constitutional vacuum.44 But free and fair elections have been recognised
as an essential feature of the democratic apparatus by the judgments of
this Court as well.
74. In Indira Nehru Gandhi Smt v. Shri Raj Narain and
Another,45 Justice HR Khanna held in his opinion:
F
“All the seven Judges [in Kesavananda Bharti case] who
constituted the majority were also agreed that democratic set-up
was part of the basic structure of the Constitution. Democracy
postulates that there should be periodical election, so that people
may be in a position either to re-elect the old representatives or, if
they so choose, to change the representatives and elect in their G
place other representative. Democracy further contemplates that
the elections should be free and fair, so that the voters may be in
43
Article 21, Universal Declaration of Human Rights
44
Vishakha v. State of Rajasthan, AIR 1997 SC 3011
45
AIR 1975 SC 2299 H
208 SUPREME COURT REPORTS [2023] 9 S.C.R.

A a position to vote for candidates of their choice. Democracy can
indeed function only upon the faith that elections are free and fair
and not rigged and manipulated, that they are effective instruments
of ascertaining popular will both in reality and form and are not
mere rituals calculated to generate illusion of deference to mass
opinion. Free and fail elections require that the candidates and
B
their agents should not resort to unfair means or malpractices as
may impinge upon the process of free and fair elections.”
75. For conducting free and fair elections, an independent body in
the form of Election Commission is a must. In Mohindhr Singh Gill, a
Constitution Bench was called to interpret Article 324 and Article 329(b)
C of the Constitution. emphasized on the connection between elections
and the role of the Election Commission. Justice Krishna Iyer (speaking
for Chief Justice Beg, Justice Bhagwati, and himself) stated:
“Democracy is government by the people. It is a continual
participative operation, not a cataclysmic, periodic exercise. The
D little man, in his multitude, marking his vote at the poll does a
social audit of his Parliament plus political choice of this proxy.
Although the full flower of participative Government rarely
blossoms, the minimum credential of popular Government is appeal
to the people after every term for a renewal of confidence. So
E we have adult franchise and general elections as constitutional
compulsions. “The right of election is the very essence of the
constitution” (Junius). It needs little argument to hold that the heart
of the Parliamentary system is free and fair elections periodically
held, based on adult franchise, although social and economic
democracy may demand much more.”
F
76. It was emphasized by Justice Krishna Iyer:
“The Election Commission is an institution of central importance
and enjoys far-reaching powers and the greater the power to affect
others’ right or liabilities the more necessary the need to hear.”
G 77. Justice PK Goswami in his concurring opinion (for himself &
PN Singhal) held:
“Elections supply the visa viva to a democracy. It was, therefore,
deliberately and advisedly thought to be of paramount importance
that the high and independent office of the Election Commission
H should be created under the Constitution to be in complete charge
ANOOP BARANWAL v. UNION OF INDIA 209
[AJAY RASTOGI, J.]

of the entire electoral process commencing with the issue of the A
notification, by the President to the final declaration of the result.”
78. Justice Goswami further emphasized on the need of
independence of the Election Commission in the following words:
“The Election Commission is a high-powered and independent
body which is irremovable from office except in accordance with B
the provisions of the Constitution relating” to the removal of Judges
of the Supreme Court and is intended by the framers of the
Constitution, to be kept completely free from any pulls and
pressures that may be brought through political influence in a
democracy run on party system.” C
79. The importance of periodical elections was also emphasized
in the Constitution Bench decision in Manoj Narula v. Union of India,46
which held:
“In the beginning, we have emphasized on the concept of
democracy which is the corner stone of the Constitution. There D
are certain features absence of which can erode the fundamental
values of democracy. One of them is holding of free and fair
election by adult franchise in a periodical manner… for it is the
heart and soul of the parliamentary system.”
80. Thus, the role of the Election Commission is integral to E
conducting free and fair elections towards the working of democracy. It
is the duty and constitutional obligation of this Court to protect and nurture
the independence of the Election Commission.
IV. Constitutional and statutory framework: The
Constitutional Vacuum F
81. Article 324 of the Constitution provides that superintendence,
direction and control of elections shall be vested in an Election
Commission. Clause 1 of Article 324 provides:
“The superintendence, direction and control of the preparation of
the electoral rolls for, and the conduct of, all elections to Parliament G
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).”
46
(2014) 9 SCC1 H
210 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 82. The composition of the Election Commission is provided under
Clause (2) of Article 324. It provides:
“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
B appointment of the Chief Election Commissioner and other Election
Commissioners shall, subject to the provisions of any law made in
that behalf by Parliament, be made by the President.”
83. Article 324(3) states that the Chief Election Commissioner
shall act as the Chairman of the Election Commission.
C 84. Clause (5) of Article 324 deals with conditions of service and
tenure of office of the Election Commissioner. It provides that:
“Subject to the provisions of any law made by Parliament, the
conditions of service and tenure of office of the Election
Commissioners and the Regional Commissioners shall be such as
D 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
E appointment: Provided further that any other Election
Commissioner or a Regional Commissioner shall not be removed
from office except on the recommendationof theChief
ElectionCommissioner.”
85. What comes out of this provision is that the Office of the
F Chief Election Commissioner stands on a higher constitutional pedestal,
as he is given equivalence to a Judge of the Supreme Court in matters of
removal. The other thing which comes out is that “the conditions of
service of the Chief Election Commissioner shall not be varied to his
disadvantage after his appointment.” That is to say, the independence
cannot be indirectly diluted by creating unwarranted conditions of service.
G Lastly, a wide discretion has been vested with the Chief Election
Commissioner to seek removal of any other Election Commissioner or a
Regional Commissioner.
86. It has been argued before us that there exists a constitutional
vacuum in the method of selection of the Chief Election Commissioner
H and other Election Commissioners, and nothing has been provided under
ANOOP BARANWAL v. UNION OF INDIA 211
[AJAY RASTOGI, J.]

Article 324. It has been argued that as the Executive (through President) A
is making these appointments, it reduces the independence of the Election
Commission. Furthermore, it was pointed out that the term and tenure of
the Election Commissioners also need to be streamlined in order to ensure
absolute independence of the Election Commission and to prevent any
arbitrary or biased decision to be taken by the Chief Election
B
Commissioner.
87. It has been argued by the learned Attorney General that the
conditions of service and tenure of the Chief Election Commissioner
and Election Commissioners is already governed by the Act, 1991.
88. The Act provides “the conditions of service of the Chief C
Election Commissioner and other Election Commissioners to provide for
the procedure and for transaction of business by the Election Commission
and for matters] connected therewith or incidental thereto”. The Act
deals with salary (Section 3), tenure/term of office (Section 4), leave
(Section 5), pension (Section 6), and other conditions of service (Section
8). D

89. The term of office provided under Section 4 for the Chief
Election Commissioner or an Election Commissioner is “of six years
from the date on which he assumes his office”, subject to the proviso
that “where the Chief Election Commissioner or an Election Commissioner
attains the age of sixty-five years before the expiry of the said term of E
six years, he shall vacate his office on the date on which he attains the
said age”. Section 4 thus does not provide a mandatory 6 years of term.
90. An analysis of the provisions of the Act also indicates that
there is nothing provided in terms of the selection process of the Chief
Election Commissioner or the Election Commissioners. Thus, what F
emerges from this discussion is that both Article 324 and the Act, 1991
are silent on the selection process of the Chief Election Commissioner
and the Election Commissioners. There also appears to be a lacunae in
ensuring independence as the Actindirectly provides a discretion to the
Executive to appoint someone close to retirement at the age of 65 as the G
Chief Election Commissioner or the Election Commissioner, and thus
will not be able to take the full term of 6 years.
91. We need to look at the Constituent Assembly Debates to
examine the level of independence which was expected from the Election
Commission. Moving the draft Article on the Election Commission before
H
212 SUPREME COURT REPORTS [2023] 9 S.C.R.

A the Constituent Assembly on 15 June 1949, Dr BR Ambedkar explained
the vision behind the provision was independence from the executive in
conducting elections. Dr Ambedkar said:
“... the House affirmed without any kind of dissent that in the
interests of purity and freedom of elections to the legislative bodies,
B it was of the utmost importance that they should be freed from
any kind of interference from the executive of the day… Therefore,
so far as the fundamental question is concerned that the election
machinery should be outside the control of the executive
Government, there has been no dispute. What Article 289 does is
to carry out that part of the decision of the Constituent Assembly.
C It transfers the superintendence, direction and control of the
preparation of the electoral rolls and of all elections to Parliament
and the Legislatures of States to a body outside the executive to
be called the Election Commission. That is the provision contained
in sub-clause (1).”47
D 92. The reason behind having a permanent office of Chief Election
Commissioner was explained by Dr Ambedkar as follows:
“What the Drafting Committee proposes by sub-clause (2) is to
have permanently in office one man called the Chief Election
Commissioner, so that the skeleton machinery would always be
E available. Elections no doubt will generally take place at the end
of five years; but there is this question, namely that a bye-election
may take place at any time. The Assembly may be dissolved before
its period of five years has expired. Consequently, the electoral
rolls will have to be kept up to date all the time so that the new
election may take place without any difficulty. It was therefore
F felt that having regard to these exigencies, it would be sufficient if
there was permanently in session one officer to be called the
Chief Election Commissioner, while when the elections are coming
up, the President may further add to the machinery by appointing
other members to the Election Commission.”
G 93. The above statement suggests that the office of the Chief
Election Commissioner requires a kind of permanency, which may be
fulfilled by having someone with a stable full term as the Chief Election
Commission.
47
Constituent Assembly Debates, 15 June 1949,
H http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C15061949.html
ANOOP BARANWAL v. UNION OF INDIA 213
[AJAY RASTOGI, J.]

94. Regarding the conditions of service, Dr Ambedkar said: A
“So far as clause (4) is concerned, we have left the matter to the
President to determine the conditions of service and the tenure of
office of the members of the Election Commission, subject to one
or two conditions, that the Chief Election Commissioner shall not
be liable to be removed except in the same manner as a Judge of B
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 Election
Commission should be irremovable by the executive by a mere
fiat. We have therefore given the Chief Election Commissioner C
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 matter to the President as to the
circumstances under which he would deem fit to remove any D
other member of the Election Commission; subject to one condition
that-the Chief Election Commissioner must recommend that the
removal is just and proper.”
95. However, Shibban Lal Saxena pointed out that the draft
provision may favour the Executive in the appointment of the Chief E
Election Commissioner and the Election Commissioners, and therefore
appealed for a change in the provision. He argued:
“If the President is to appoint this Commission, naturally it means
that the Prime Minister appoints this Commission. He will appoint
the other Election Commissioners on his recommendations. Now,
this does not ensure their independence. Of course once he is F
appointed, he shall not be removable except by 2/3rd majority of
both Houses. That is certainly something which can instill
independence in him, but it is quite possible that some party in
power who wants to win the next election may appoint a staunch
party-man as the Chief Election Commissioner. He is removable G
only by 2/3rd majority of both Houses on grave charges, which
means he is almost irremovable. So what I want is this that even
the person who is appointed originally should be such that he should
be enjoying the confidence of all parties his appointment should
be confirmed not only by majority but by two-thirds majority of
H
214 SUPREME COURT REPORTS [2023] 9 S.C.R.

A both the Houses…Of course, there is a danger when one party is
in huge majority. Still, if he does appoint a party-man, and the
appointment comes up for confirmation in a joint session, even a
small opposition or even a few independent members can down
the Prime Minister before the bar of public opinion in the world.”
B 96. On 16 June 1949, Hirday Nath Kunzru echoed a similar
sentiment, and also highlighted the issues regarding the removal of the
Election Commissioners. He said:
“Here two things are noticeable: the first is that it is only the Chief
Election Commissioner that can feel that he can discharge his
duties without the slightest fear of incurring the displeasure of the
C executive, and the second is that the removal of the other Election
Commissioners will depend on the recommendations of one man
only, namely the Chief Election Commissioner. However
responsible he may be it seems to me very undesirable that the
removal of his colleagues who will occupy positions as.responsible
D as those of judges of the Supreme Court should depend on the
opinion of one man. We are anxious, Sir, that the preparation of
the electoral rolls and the conduct of elections should be entrusted
to people who are free from political bias and whose impartiality
can be relied upon in all circumstances. But, by leaving a great
deal of power in the hands of the President we have given room
E for the exercise of political influence in the appointment of the
Chief Election Commissioner and the other Election
Commissioners and officers by the Central Government. The Chief
Election Commissioner will have to be appointed on the advice of
the Prime Minister, and, if the Prime Minister suggests the
F appointment of a party-man, the President will have no option but
to accept the Prime Minister’s nominee, however unsuitable he
may be on public grounds.”
97. He warned thus:
“If the electoral machinery is defective or is not efficient or is
G worked by people whose integrity cannot be depended upon,
democracy will be poisoned at the source; nay, people, instead of
learning from elections how they should exercise their vote, how
by a judicious use of their vote they can bring about changes in
the Constitution and reforms in the administration, will learn only
how parties based on intrigues can be formed and what unfair
H methods they can adopt to secure what they want.”
ANOOP BARANWAL v. UNION OF INDIA 215
[AJAY RASTOGI, J.]

98. Dr Ambedkar agreed with the points made by Saksena and A
Kunzru, and said:
“...with regard to the question of appointment I must confess that
there is a great deal of force in what my Friend Professor Saksena
said that there is no use making the tenure of the Election
Commissioner a fixed and secure tenure if there is no provision in B
the Constitution to prevent either a fool or a knave or a person
who is likely to be under the thumb of the Executive. My
provision—I must admit—does not contain anything to provide
against nomination of an unfit person to the post of the Chief
Election Commissioner or the other Election Commissioners…”
C
99. The solution which Dr Ambedkar gave was that the Constituent
Assembly should adopt as “Instrument of Instructions to the President”,
which may consist of the guidelines according to which the President
has to make the appointments. He said:
“The Drafting Committee had paid considerable attention to this
D
question because as I said it is going, to be one of our greatest
headaches and as a viamedia it was thought that if this Assembly
would give or enact what is called an Instrument of Instructions
to the President and provide therein some machinery which it
would be obligatory on the President to consult before making
any appointment, I think the difficulties which are felt as resulting… E
may be obviated and the advantage which is contained therein
may be secured.”
100. He, however, added that since he was unsure whether the
Assembly would adopt his suggestion of Instrument of Instructions, he
suggested an amendment to the effect that “The appointment of the F
Chief Election Commissioner and other Election Commissioners shall,
subject to the Provisions of any law made in this behalf by Parliament,
be made by the President.” This is incorporated currently in Article
324(2). The idea behind this amendment was that the “law made in this
behalf by Parliament” would address the concerns and fear raised by
members of the Constituent Assembly that the Executive should not G
have the exclusive say in the appointment of the Chief Election
Commissioner and the Election Commissioners. However, we find that
the Act, 1991 does not cover any aspect highlighted in the Constituent
Assembly. It is for this reason that this Court needs to lay down certain
broader parameters to fill the constitutional/legislative gap. H
216 SUPREME COURT REPORTS [2023] 9 S.C.R.

A V. The Judgment in TN Seshan
101. It would be relevant to quote the following excerpt from the
Constitution-bench judgment of this Court in T.N. Seshan, Chief Election
Commissioner of India v. Union of India and Others48:
“10. The Preamble of our Constitution proclaims that we are a
B Democratic Republic. Democracy being the basic feature of our
constitutional set-up, there can be no two opinions 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-
C makers that the responsibility to hold free and fair elections in the
country should be entrusted to an independent body which would
be insulated from political and/or executive interference. It is
inherent in a democratic set-up that the agency which is entrusted
the task of holding elections to the legislatures should be fully
insulated so that it can function as an independent agency free
D from external pressures from the party in power or executive of
the day.”
102. In that case, a petition challenged the validity of “The Chief
Election Commissioner and other Election Commissioners (Condition of
Service) Amendment Ordinance, 1993” (hereinafter called ‘the
E Ordinance’) to amend the Act, 1991. While upholding the amendment,
the court discussed the role of the election commission being a multi
member body and the relation between CEC and other ECs. Some
important points highlighted were as follows:
“The ECs and the RCs have been assured independence of
F functioning by providing that they cannot be removed except on
the recommendation of the CEC. Of course, the recommendation
for removal must be based on intelligible, and cogent considerations
which would have relation to efficient functioning of the Election
Commission. That is so because this privilege has been conferred
on the CEC to ensure that the ECs as well as the RCs are not at
G the mercy of political or executive bosses of the day…. If,
therefore, the power were to be exercisable by the CEC as per
his whim and caprice, the CEC himself would become an
instrument of oppression and would destroy the independence of
48
(1995) 4 SCC 611
H
ANOOP BARANWAL v. UNION OF INDIA 217
[AJAY RASTOGI, J.]

the ECs and the RCs if they are required to function under the A
threat of the CEC recommending their removal. It is, therefore,
needless to emphasise that the CEC must exercise this power
only when there exist valid reasons which are conducive to efficient
functioning of the Election Commission.”
Held further: B
“15. We have already highlighted the salient features regarding
the composition of the Election Commission. We have pointed
out the provisions regarding the tenure, conditions of service,
salary, allowances, removability, etc., of the CEC, the ECs and
the RCs. The CEC and the ECs alone constitute the Election C
Commission whereas the RCs are appointed merely to assist
the Commission…”
Furthermore:
“17. Under clause (3) of Article 324, in the case of a multi-
member Election Commission, the CEC “shall act” as the D
Chairman of the Commission. As we have pointed out earlier,
Article 324 envisages a permanent body to be headed by a
permanent incumbent, namely, the CEC. The fact that the CEC
is a permanent incumbent cannot confer on him a higher status
than the ECs for the simple reason that the latter are not
intended to be permanent appointees. Since the Election E
Commission would have a staff of its own dealing with matters
concerning the superintendence, direction and control of the
preparation of electoral rolls, etc., that staff would have to
function under the direction and guidance of the CEC and hence
it was in the fitness of things for the Constitution-makers to F
provide that where the Election Commission is a multi-member
body, the CEC shall act as its Chairman. That would also ensure
continuity and smooth functioning of the Commission.”
Also, held:
“21. We have pointed out the distinguishing features from G
Article 324 between the position of the CEC and the ECs. It is
essentially on account of their tenure in the Election Commission
that certain differences exist. We have explained why in the
case of ECs the removability clause had to be different. The
variation in the salary, etc., cannot be a determinative factor
H
218 SUPREME COURT REPORTS [2023] 9 S.C.R.

A otherwise that would oscillate having regard to the fact that
the executive or the legislature has to fix the conditions of
service under clause (5) of Article 324. The only distinguishing
feature that survives for consideration is that in the case of the
CEC his conditions of service cannot be varied to his
disadvantage after his appointment whereas there is no such
B
safeguard in the case of ECs. That is presumably because the
posts are temporary in character. But even if it is not so, that
feature alone cannot lead us to the conclusion that the final
word in all matters lies with the CEC. Such a view would render
the position of the ECs to that of mere advisers which does not
C emerge from the scheme of Article 324.”
(emphasis added)
103. The judgment in T.N. Seshan did not directly consider the
issues which are before this Bench. Furthermore, the observations made
in T.N. Seshan indicate that the Election Commissioners were not mere
D advisors, but have a crucial constitutional role.
VI.Reports of Various Commissions on Manner of
Appointment of Chief Election Commissioner and Election
Commissioners:
A. Dinesh Goswami Commission, 199049
E
“Appointment of CEC
1. The appointment of the Chief Election Commissioner should
be made by the President in consultation with the Chief Justice
of India and the Leader of the Opposition (and in case no
Leader of the opposition is available, the consultation should
F be with the leader of the largest opposition group in the Lok
Sabha).
2. The consultation process should have a statutory backing.
3. The appointment of the other two Election Commissioners
should be made in consultation with the Chief Justice of India,
G
Leader of the Opposition (in case the Leader of the opposition
is not available, the consultation should be with the leader of
49
Dinesh Goswami Commission (1990), Chapter II, Electoral Machinery, pg. 9, 10,
Available at:
https://adrindia.org/sites/default/files/
Dinesh%20Goswami%20Report%20on%20Electoral%20Reforms.pdf
H
ANOOP BARANWAL v. UNION OF INDIA 219
[AJAY RASTOGI, J.]

the largest opposition group in the Lok Sabha) and the Chief A
Election Commissioner.”
B. National Commission to Review the Working of
Constitution-Report (2002) 50
“(62) The Chief Election Commissioner and the other Election
Commissioners should be appointed on the recommendation of a B
body consisting of the Prime Minister, Leader of the Opposition in
the Lok Sabha, Leader of the Opposition in the Rajya Sabha, the
Speaker of the Lok Sabha and the Deputy Chairman of the Rajya
Sabha. Similar procedure should be adopted in the case of
appointment of State Election Commissioners. [Para 4.22]” C
C. Election Commission of India Proposed Reforms
(2004) 51
“The independence of the Election Commission upon which the
Constitution makers laid so much stress in the Constitution would
be further strengthened if the Secretariat of the Election D
Commission consisting of officers and staff at various levels is
also insulated from the interference of the Executive in the matter
of their appointments, promotions, etc., and all such functions are
exclusively vested in the Election Commission on the lines of the
Secretariats of the Lok Sabha, and Rajya Sabha, Registries of the
Supreme Court and High Courts, etc. The Independent Secretariat E
is vital to the functioning of the Election Commission as an
independent constitutional authority. In fact, the provision of an
independent Secretariat to the Election Commission has already
been accepted in principle by the Goswami Committee on Electoral
Reforms and the Government had, in the Constitution (Seventieth F
Amendment) Bill, 1990, made a provision also to that effect. That
Bill was, however, withdrawn in 1993 as the Government proposed
to bring in a more comprehensive Bill.”
50
National Commission to Review the Working of Constitution-Report (2002) Para
4.22, pg. 14 , Available at:
https://www.thehinducentre.com/multimedia/archive/03091/ncrwc_3091109a.pdf
G
51
Election Commission of India Proposed Reforms (2004), 12. COMPOSITION OF
ELECTION COMMISSION AND CONSTITUTIONAL PROTECTION OF ALL
MEMBERS OF THE COMMISSION AND INDEPENDENT SECRETARIAT FOR
THE COMMISSION, Pg. 14, 15, available at:
https://prsindia.org/files/bills_acts/bills_parliament/2008/
bill200_20081202200_Election_Commission_Proposed_Electoral_Reforms.pdf H
220 SUPREME COURT REPORTS [2023] 9 S.C.R.

A D. Report of Second Administrative Reform Commission
(2009) 52
“In recent times, for statutory bodies such as the National Human
Rights Commission (NHRC) and the Central Vigilance
Commission (CVC) , appointment of Chairperson and Members
B are made on the recommendations of a broad based Committee.
Given the far reaching importance and critical role of the Election
Commission in the working of our democracy, it would certainly
be appropriate if a similar collegium is constituted for selection of
the Chief Election Commissioner and the Election Commissioners.”

C E. Background Paper on Electoral Reform, Ministry of
Law & Justice (2010)53
“Recommendation
Clause (5) of Article 324 of the Constitution, inter alia, provides
that the Chief Election Commissioner shall not be removed from
D his office except in like manner and on like grounds as a Judge of
the Supreme Court. However, Clause (5) of Article 324 does not
provide similar protection to the Election Commissioners and it
only says that they cannot be removed from office except on the
recommendation of the Chief Election Commissioner. The
provision, in the opinion of the Election Commission, is inadequate
E and requires an amendment to provide the very same protection
and safeguard in the matter of removability of Election
Commissioners from office as is provided to the Chief Election
Commissioner. The Election Commission recommends that
constitutional protection be extended to all members of the Election
F Commission.
The Election Commission also recommends that the Secretariat
of the Election Commission, consisting of officers and staff at
various levels is also insulated from the interference of the
Executive in the matter of their appointments, promotions, etc.,
and all such functions are exclusively vested in the Election
G
Commission on the lines of the Secretariats of the Lok Sabha,
52
Report of Second Administrative Reform Commission (2009), Pg. 79, Available at:
https://darpg.gov.in/en/arc-reports
53
Background Paper on Electoral Reform, Ministry of Law & Justice (2010), 6.3
Measures for Election Commission, pg. 19, Available at:
https://lawmin.gov.in/sites/default/files/bgp_0.doc
H
ANOOP BARANWAL v. UNION OF INDIA 221
[AJAY RASTOGI, J.]

and Rajya Sabha, Registries of the Supreme Court and High Courts A
etc.
The third recommendation of the Election Commission is that its
budget be treated as “Charged” on the Consolidated Fund of
India.”
F. Law Commission of India Report, 2015 (255th Report)54 B
104. Taking note of the important role played by the Election
Commission of India i.e., the task of conducting elections throughout the
country, the Law Commission in its 255th Report emphasized that the
Commission should be completely insulated from political pressure or
executive interference to maintain the purity of elections, inherent in a C
democratic process, and recommended:
“Appointment of Chief Election Commissioner and Election
Commissioners – (1) The Election Commissioners, including the
Chief Election Commissioners, shall be appointed by the President
by warrant under his hand and seal after obtaining the
recommendations of a Committee consisting of: (a) the Prime D
Minister of India – Chairperson (b) the Leader of the Opposition
in the House of the People – Member (c) the Chief Justice of
India – Member
Provided that after the Chief Election Commissioner ceases to
hold office, the senior-most Election Commissioner shall be E
appointed as the Chief Election Commissioner, unless the
Committee mentioned in sub-section (1) above, for reasons to be
recorded in writing, finds such Election Commissioner to be unfit.
Explanation: For the purposes of this sub-section, “the Leader of
the Opposition in the House of the People” shall, when no such
F
Leader has been so recognised, include the Leader of the single
largest group in opposition of the Government in the House of the
People.”
105. The Law Commission also recommended the formation of
an independent and permanent Secretariat staff for Election Commission
and suggested that: G

54
255th LAW COMMISSION OF INDIA REPORT, 2015, Chapter VI-
STRENGTHENING THE OFFICE OF THE ELECTION COMMISSION OF INDIA,
Available at:
https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/
08/2022081635.pdf H
222 SUPREME COURT REPORTS [2023] 9 S.C.R.

A “The Election Commission shall have a separate independent and
permanent secretarial staff. The Election Commission may, by
rules prescribed by it, regulate the recruitment, and the conditions
of service of persons appointed, to its permanent secretarial staff.”
106. These reports clearly indicate the need for reforms in the
working of the Election Commission, in particular in the process of
B
selection and removal of the members of the Election Commission.
VII. Comparative framework - Foundational parameters
107. An examination of practice for appointment of the head of
election-conducting bodies across the world shows some trends that
include amongst others, the inclusion of members of the opposition. In
C most jurisdictions, such appointments are a consultative process, involving
members/ nominees of both the ruling party and the opposition party.
The presence of opposition in various critical decision-making processes
of governance is a sine qua non for a healthy democracy. It not only
provides a system of accountability of the ruling party but also ensures a
much-crucial deliberative process. This, in turn, plays a pivotal role in
D
preserving the true essence of democracy by raising the concerns of the
people of the country. In addition, some jurisdictions also have
Constitutional functionaries such as Speakers of the house of Parliament/
Legislature, and Judges of the Highest Court in the country in a multi-
member Committee. Relevant details of electoral bodies of some
E countries are as follows:

F

G

55
Constitution of Islamic Republic of Pakistan, available at :
https://drive.google.com/file/d/1TMpGdvhpYXMh07ZQoS_SDxwQoH_C8itF/
H view?usp=sharing
ANOOP BARANWAL v. UNION OF INDIA 223
[AJAY RASTOGI, J.]

A

B

C

D

E

F

G

56
Constitution of the People’s Republic of Bangladesh, Available at:
https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/33095/73768/F-2125404014/
BGD33095%20Eng2.pdf
H
224 SUPREME COURT REPORTS [2023] 9 S.C.R.

A

B

C

D

E

F

G

57
Commonwealth Electoral Act,1918 available at: https://www.legislation.gov.au/
Details/C2022C00074
58
Canada Election Act, available at: https://laws-lois.justice.gc.ca/eng/acts/E-2.01/page-
H 2.html#docCont
ANOOP BARANWAL v. UNION OF INDIA 225
[AJAY RASTOGI, J.]

A

B

C

D

E

F

G

59
Constitution of Sri Lanka-
https://drive.goo gle.com/file/d/1W5j3D_8CUiYjox8t8eUSlg7SFifjmebK/
view?usp=sharing H
226 SUPREME COURT REPORTS [2023] 9 S.C.R.

A

B

C

D

E

F

G

60
FEDERAL ELECTION CAMPAIGN ACT OF 1971, available at:
https://www.govinfo.gov/content/pkg/COMPS-985/pdf/COMPS-985.pdf
61
Constitution of Nepal, Available at:
https://lawcommission.gov.np/en/wp-content/uploads/2021/01/Constitution-of-
H Nepal.pdf
ANOOP BARANWAL v. UNION OF INDIA 227
[AJAY RASTOGI, J.]

A

B

C

D

E

F

G

62
Electoral Commission Act 51 of 1996, available at:
https://www.gov.za/sites/default/files/gcis_document/201409/act51of1996.pdf

H
228 SUPREME COURT REPORTS [2023] 9 S.C.R.

A

B

C

D

E

F

G

H
ANOOP BARANWAL v. UNION OF INDIA 229
[AJAY RASTOGI, J.]

A

B

C

D

E

F
VIII. Process of Selection of other Constitutional/Statutory
Bodies
108. Various state institutions supporting constitutional democracy
have an independent mechanism for the appointment of its heads and
members. The same is carried out with an object to keep them insulated
from any external influence that allows them to remain neutral to carry G
on the assigned functions. Table showing the position of various authorities
is as follows:
63
https://www.electoralcommission.org.uk/who-we-are-and-what-we-do/about-us/
commissioners/our-commissioners
H
230 SUPREME COURT REPORTS [2023] 9 S.C.R.

A

B

C

D

E

F

G

H
ANOOP BARANWAL v. UNION OF INDIA 231
[AJAY RASTOGI, J.]

A

B

C

D

E

F

G

H
232 SUPREME COURT REPORTS [2023] 9 S.C.R.

A

B

C

D

E

F

G

H
ANOOP BARANWAL v. UNION OF INDIA 233
[AJAY RASTOGI, J.]

A

B

C

D

E

F

G

H
234 SUPREME COURT REPORTS [2023] 9 S.C.R.

A

B

C

D

E

F

G

H
ANOOP BARANWAL v. UNION OF INDIA 235
[AJAY RASTOGI, J.]

A

B

C

D

E

F

G

H
236 SUPREME COURT REPORTS [2023] 9 S.C.R.

A

B

C

D

E

F

G

H
ANOOP BARANWAL v. UNION OF INDIA 237
[AJAY RASTOGI, J.]

IX. Constitutional Silence and Vacuum: Power of the Court A
to lay guidelines
109. 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 a jurisprudence, where it has
exercised its power under Article 142 to fill legislative gaps.64 Reference
can also be made to the speech given by Dr B.R. Ambedkar in the B
Constituent Assembly on 4 November 1948, where he noted that the
Drafting Committee had tried to include detailed processes to avoid the
misuse of power. Dr Ambedkar was emphasizing on a constitutional
design which would prevent arbitrariness by laying down legal procedures
to regulate power.65
C
110. This Court has laid down guidelines in order to fill the legislative
gap on a number of occasions. In Lakshmi Kant Pandey v Union of
India,66 in the absence of statutory enactment for the adoption of Indian
children by foreign parents, their Court laid down safeguards to prevent
malpractice by social organizations and private adoption agencies.
Directions were provided in Kumari Madhuri Patil and Another v D
Addl. Commissioner, Tribal Development and Others67for issuance
and early scrutiny of social status certificates (showing that a person
belongs to SC/ST community) for admission in educational institutions
or for employment. This Court laid down guidelines for autonomy of
CBI and other special investigating agencies in the case of Vineet Narain
and Others v Union of India and Another.68 In the case of Vishaka E
and Others v State of Rajasthan and Others,69 this Court laid down
guidelines to ensure prevention of sexual harassment of women at
workplace. Another judgment in this regard is Vishwa Jagriti Mission
Through President v Central Govt. Through Cabinet Secretary
and Others,70 where a two-judge bench of this Court laid down
guidelines for educational institutes to prevent the menace of ragging. F

64
Krishnan RH and Bhaskar A, “Article 142 of the Indian Constitution: On the Thin
Line between Judicial Activism and Restraint” in Salman Khurshid and others (eds),
Judicial Review: Process, Powers, and Problems (Essays in Honour of Upendra Baxi)
(Cambridge University Press 2020)
65
https://www.hindustantimes.com/opinion/ambedkars-constitutionalism-speaks-to- G
contemporary-times-101637851829964.html
66
AIR 1984 SC 469
67
(1994) 6 SCC 241
68
(1998) 1 SCC 226
69
AIR 1997 SC 3011
70
(2001) 6 SCC 577
H
238 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 111. This Court in the case of Prakash Singh and Others v
Union of India and Others,71 after studying various committee reports
on police reforms, laid down certain directions in the nature of police
reforms to be operative until the new Police Act is to be framed. It is
necessary to quote the following excerpt from the judgment:
“It is not possible or proper to leave this matter only with an
B
expression of this hope and to await developments further. It is
essential to lay down guidelines to be operative till the new
legislation is enacted by the State Governments. Article 32 read
with Article 142 of the Constitution empowers this Court to issue
such directions, as may be necessary for doing complete justice
C in any cause or matter. All authorities are mandated by Article
144 to act in aid of the orders passed by this Court….In the
discharge of our constitutional duties and obligations having regard
to the aforenoted position, we issue the following directions to the
Central Government, State Governments and Union Territories
for compliancetill framing of the appropriate legislations.”
D 112. This Court has also laid down guidelines to streamline and
facilitate the institutional apparatus and procedural system. In the case
of Laxmi v Union of India and Others,72 this Court intervened to
prevent cases of acid violence, and laid down guidelines on sale of acid
and the treatment of victims of acid attack. A three-judge bench decision
in Shakti Vahini v Union of India and Others73 issued guidelines to
E check unlawful interference by Khap panchayat in interfaith and inter
caste marriages. The Court held:
“To meet the challenges of the agonising effect of honour crime,
we think that there has to be preventive, remedial and punitive
measures and, accordingly, we state the broad contours and the
F modalities with liberty to the executive and the police administration
of the concerned States to add further measures to evolve a robust
mechanism for the stated purposes.”
113. 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
G in. This has been done in exercise of the plenary power of this Court
under Article 142 of the Constitution.

71
(2006) 8 SCC 1
72
(2014) 4 SCC 427
73
(2018) 7 SCC 192
H
ANOOP BARANWAL v. UNION OF INDIA 239
[AJAY RASTOGI, J.]

114. Our decision is therefore to lay down parameters or guidelines A
for the selection process for the appointment of the Chief Election
Commissioner and the Election Commissioner. This decision is supported
by the two-judge judgment in State of Punjab v. Salil Sabhlok and
Others.74 In this case, it was pointed out that no parameters or guidelines
have been laid down in Article 316 of the Constitution for selecting the
Chairperson of the Public Service Commission and no law has been B
enacted on the subject with reference to Schedule VII List II Entry 41
of the Constitution. In his concurring opinion, Justice Madan Lokur, for
the bench, relied on Mohindhr Singh Gill case to reiterate that:
“... wide discretion is fraught with tyrannical potential even in
high personages. Therefore, the jurisprudence of prudence C
demands a fairly high degree of circumspection in the selection
and appointment to a constitutional position having important and
significant ramifications.”
115. Justice Lokur also analysed the previous judgments of this
Court on judicial review of the selection process, and noted:
D
“115. In Centre for PIL [Centre for PIL v. Union of India, (2011)
4 SCC 1 : (2011) 1 SCC (L&S) 609] this Court struck down the
appointment of the Central Vigilance Commissioner while
reaffirming the distinction between merit review pertaining to the
eligibility or suitability of a selected candidate and judicial review
pertaining to the recommendation-making process.… E
Acknowledging this, this Court looked at the appointment of the
Central Vigilance Commissioner not as a merit review of the
integrity of the selected person, but as a judicial review of the
recommendation-making process relating to the integrity of the
institution. It was made clear that while the personal integrity of
the candidate cannot be discounted, institutional integrity is the F
primary consideration to be kept in mind while recommending a
candidate. It was observed that while this Court cannot sit in appeal
over the opinion of HPC, it can certainly see whether relevant
material and vital aspects having nexus with the objects of the
Act are taken into account when a recommendation is made.
This Court emphasised the overarching need to act for the good G
of the institution and in the public interest. Reference in this context
was made to N. Kannadasan [N. Kannadasan v. Ajoy Khose,
(2009) 7 SCC 1 : (2009) 3 SCC (Civ) 1] .” (emphasis added)
74
(2013) 5 SCC 1
H
240 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 116. It was also held that the selection process of a constitutional
post cannot be equated with the selection process of a bureaucratic
functionary. If the Executive is left with the exclusive discretion to select
the candidate, it may destroy the fabric of the constitutional institution.
This Court held:

B “A constitutional position such as that of the Chairperson of a
Public Service Commission cannot be equated with a purely
administrative position—it would be rather facetious to do so.
While the Chief Secretary and the Director General of Police are
at the top of the ladder, yet they are essentially administrative
functionaries. Their duties and responsibilities, however onerous,
C cannot be judged against the duties and responsibilities of an
important constitutional authority or a constitutional trustee, whose
very appointment is not only expected to inspire confidence in the
aspirational Indian but also project the credibility of the institution
to which he or she belongs. I am, therefore, unable to accept the
view that the suitability of an appointee to the post of Chairperson
D of a Public Service Commission should be evaluated on the same
yardstick as the appointment of a senior administrative
functionary… The Chairperson takes the oath of allegiance to
India and to the Constitution of India—not an oath of allegiance
to the Chief Minister. An appointment to that position cannot be
taken lightly or on considerations other than the public interest.
E Consequently, it is not possible to accept the contention that the
Chief Minister or the State Government is entitled to act only on
the perceived suitability of the appointee, over everything else,
while advising the Governor to appoint the Chairperson of the
Public Service Commission. If such a view is accepted, it will
destroy the very fabric of the Public Service Commission.” (para
F 119 and 125)
117. It was concluded that the Court can frame guidelines till the
Legislature steps in. To quote:
“136. In the light of the various decisions of this Court adverted to
above, the administrative and constitutional imperative can be met
G only if the Government frames guidelines or parameters for the
appointment of the Chairperson and Members of the Punjab Public
Service Commission. That it has failed to do so does not preclude
this Court or any superior court from giving a direction to the
State Government to conduct the necessary exercise within a
specified period. Only because it is left to the State Legislature to
H
ANOOP BARANWAL v. UNION OF INDIA 241
[AJAY RASTOGI, J.]

consider the desirability or otherwise of specifying the qualifications A
or experience for the appointment of a person to the position of
Chairperson or Member of the Punjab Public Service Commission,
does not imply that this Court cannot direct the executive to frame
guidelines and set the parameters.This Court can certainly issue
appropriate directions in this regard, and in the light of the
experience gained over the last several decades coupled with the B
views expressed by the Law Commission, the Second
Administrative Reform Commission and the views expressed by
this Court from time to time, it is imperative for good governance
and better administration to issue directions to the executive to
frame appropriate guidelines and parameters based on the
indicators mentioned by this Court. These guidelines can and should C
be binding on the State of Punjab till the State Legislature exercises
its power.” (emphasis added)
118. That Article 324(2) refers to the appointment of the Chief
Election Commissioner and other Election Commissioners which shall,
subject to the provisions of any law made in that behalf by Parliament, D
be made by the President. It contemplates that the Parliament makes a
law laying down the procedure of selection for appointment of the Chief
Election Commissioner and other Election Commissioners, but such law
has not been made by the Parliament, even after 73 years since the
adoption 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 E
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, F
till the Legislature steps in.
X. Independence of Election Commissioners
119. 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 G
insulated from the executive interference. This is envisaged under the
proviso to Article 324(5) which reads:
“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 H
242 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 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.”
B 120. There are two procedural safeguards available regarding
the removal of the CEC: (i) shall not be removed from his office except
in like manner and on the like grounds as a Judge of the Supreme Court;
(ii) the conditions of service of the Chief Election Commissioner shall
not be varied to his disadvantage after his appointment. However, second
proviso to Article 324(5) postulates that the removal of the Election
C Commissioners could be made only on the recommendation of the Chief
Election Commissioner. The protection available to the Chief Election
Commissioners is not available to other Election Commissioners. 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
D Commission.
121. A note titled “Proposed Electoral Reforms” (2004)75
prepared and published by the Election Commission of India
itselfrecommended that:
“In order to ensure the independence of the Election Commission
E and to keep it insulated from external pulls and pressures, Clause
(5) of Article 324 of the Constitution, inter alia, provides that the
Chief Election Commissioner shall not be removed from his office
except in like manner and on like grounds as a Judge of the
Supreme Court. However, that Clause (5) of Article 324 does not
provide similar protection to the Election Commissioners and it
F merely says that they cannot be removed from office except on
the recommendation of the Chief Election Commissioner. The
provision, in the opinion of the Election Commission, is inadequate
and requires an amendment to provide the very same protection
and safeguard in the matter of removability of Election
G 75
Election Commission of India Proposed Reforms (2004), Pg. 14, 15, available at:
https://prsindia.org/files/bills_acts/bills_parliament/2008/
bill200_20081202200_Election_Commission_Proposed_Electoral_Reforms.pdf
76
Background Paper on Electoral Reform, Ministry of Law & Justice (2010), 6.3
Measures for Election Commission, pg. 19, Available at: https://lawmin.gov.in/sites/
default/files/bgp_0.doc
H
ANOOP BARANWAL v. UNION OF INDIA 243
[AJAY RASTOGI, J.]

Commissioners from office as is available to the Chief Election A
Commissioner.” (emphasis added)
122. The above recommendation was reiterated in the
Background Paper on Electoral Reform (2010)76 prepared by the
Union Ministry of Law and Justice, in co-sponsorship of Election
Commission of India states:
B
“Recommendation
Clause (5) of Article 324 of the Constitution, inter alia, provides
that the Chief Election Commissioner shall not be removed from
his office except in like manner and on like grounds as a Judge of
the Supreme Court. However, Clause (5) of Article 324 does not
C
provide similar protection to the Election Commissioners and it
only says that they cannot be removed from office except on the
recommendation of the Chief Election Commissioner. The
provision, in the opinion of the Election Commission, is inadequate
and requires an amendment to provide the very same protection
and safeguard in the matter of removability of Election D
Commissioners from office as is provided to the Chief Election
Commissioner. The Election Commission recommends that
constitutional protection be extended to all members of the Election
Commission.
The Election Commission also recommends that the Secretariat
of the Election Commission, consisting of officers and staff at E
various levels is also insulated from the interference of the
Executive in the matter of their appointments, promotions, etc.,
and all such functions are exclusively vested in the Election
Commission on the lines of the Secretariats of the Lok Sabha,
and Rajya Sabha, Registries of the Supreme Court and High Courts
etc. F
The third recommendation of the Election Commission is that its
budget be treated as “Charged” on the Consolidated Fund of
India.”
(emphasis added)
G
123. The office of the Election Commission is an independent
constitutional body which has been vested with the powers of
superintendence, direction and control of the preparation of electoral
rolls and the conduct of all parliamentary and State Legislatures’ elections
and that of the office of President and Vice-President in terms of Article
324(1) of the Constitution. In terms of Article 324(2), the office of Election H
244 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Commission comprises of Chief Election Commissioner and “such
number of other Election Commissioners, if any, as the President
may from time to time fix”and by an Order dated 01 October, 1993, the
President has fixed the number of Election Commissioners to two until
further orders. Since 1993, it is a multi-member Commission with equal
participation in transacting the business of the Election Commission as
B provided under Chapter III of the Act, 1991 to ensure the smooth and
effective functioning of the Election Commission.
124. Article 324(5) of the Constitution is intended to ensure the
independence of the Election Commission free from all external political
interference and, thus, expressly provides that the removal of the Chief
C Election Commission from office shall be in like manner as on the grounds
as of a Judge of the Supreme Court. Nevertheless, a similar procedure
has not been provided for other Election Commissioners under second
proviso to Article 324(5) of the Constitution. The other conditions of the
service of Chief Election Commissioner/other Election Commissioners
have been protected by the Legislature by the Act 1991.
D 125. 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
E hour and advisable, in my view, 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.
XI. Directions
F 126. Until the Parliament makes a law in consonance with Article
324(2) of the Constitution, the following guidelines shall be in effect:
(1) We declare that the appointment of the Chief Election
Commissioner and the Election Commissioners shall be
made on the recommendations made by a three-member
G 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
H Commissioners shall be the same as that of the Chief
ANOOP BARANWAL v. UNION OF INDIA 245
[AJAY RASTOGI, J.]

Election Commissioner that is on the like grounds as a Judge A
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.
B

Bibhuti Bhushan Bose Writ petitions partly allowed.
(Assisted by : Shubhansh Thakur and
Shubhanshu Das, LCRAs)

C

D

E

F

G

H