TaxTMI 
TaxTMI 
1995 (7) TMI 422
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....r, P.R. Seetharaman, Neeta Agrawal, N. Janardhanen, K.R. Nagaraja, E.C. Agrawala, Mahesh Agarwal, Atul Sharma, Purnima Bhat Kak, A.V. Palli and Subramanian Swamy, Advs. (Party-in-Person) for Respondent in C.A. No. 504/94 For Appearing Parties: Nukul Mudgal, Indu Malhotra, Shirin Khajuria, A. Subhashini, P. Parmeswaran, Sushil Prakash, A. Subba Rao, Navin Prakash and R.B. Misra, K.V. Vishwanathan, Advs. JUDGMENT: A.M. Ahmadi, C.J.I. 1. The President of India, in exercise of powers conferred upon him by clause (1) of Article 123 of the Constitution of India, promulgated an Ordinance (No. 32 of 1993) entitled "The Chief Election Commissioner and other Election Commissioners (Condition of Service) Amendment Ordinance, 1993" (hereinafter called 'the Ordinance') to amend "The Chief Election Commissioner and other Commissioners (Condition of Service) Act, 1991" (hereinafter called "the Act'). This Ordinance was published in the Gazette of India on October 1, 1993. Before we notice the amendments made in the 1991 Act, by the said Ordinance it may be appropriate to notice the provisions of the 1991 Act. As the long title of the Act suggests it lays down the conditions of service....
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.... 324 of the Constitution of India. Consequent. Changes were also made elsewhere. In sub-section (1) of section 3, after the words "Chief Election Commissioner", the words "and other Election Commissioners" came to be inserted with the result they came to be placed at par in regard to salary payable to them and sub-section (2) came to be omitted. In section 4 the first proviso came to be substituted as under : "Provided that where the Chief Election Commissioner or an Election Commissioner affairs the age of 65 years before the expiry of the said term of six years, he shall vacate his office on the date on which he attains the said age." 2. Thus the age of superannuation of both the CEC and the ECs was fixed at 65 years. If they attain the age of 65 years before completing their tenure of six years they would in view of the proviso have to vacate office on attaining the age of 65 years. In Section 6, sub-section (2), after the words "Chief Election Commissioner" the words "or an Election Commissioner" came to be inserted and for the words "sub-section (4)" the words "sub-section (3)" came to be substituted. It further provided for the deletion of sub- section (3) and for....
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....s and directing rule to issue in all of them, in the writ petition filed by the CEC notice on the application for interim stay as well as for production of documents was ordered to issue and an ad- interim order to the following effect was passed: "Until further orders, to ensure smooth and effective working of the Commission and also to avoid confusion both in the administration as well as in the electoral process, we direct that the Chief Election Commissioner shall remain in complete overall control of the Commission's work. He may ascertain the views of other Commissioners or such of them as he chooses, on the issues that may come up before the Commission from time to time. However, he will not be bound their views. It is also made clear that the Chief Election Commissioner alone will be entitled to issue instructions to the Commission's staff as well as to the outside agencies and that no other Commissioner will issue such instructions." 5. By a subsequent order dated 15.12.1993, after hearing the learned Attorney General for the Union of India and the learned Advocates General for the States of Maharashtra and West Bengal, the Court directed that all the S....
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....at the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment: Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. (6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1)." 8. The abridged factual matrix on which the constitutional validity of the Ordinance (now Act) and the consequential orders and appointments of the ECs have been questioned in the above petitions may be broadly indicated at this stage as follows: The present ECE claims that after his appointment on 12.12.1990 he insisted on strict compliance with the model Code of Conduct by all political parties and candidates for ele....
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....ECs, Mr. M.S. Gill & Mr. G.V.G. Krishnamurthy as wholly misconceived. It is contended on behalf of the Union Government that various advisory bodies had from time to time called for a multi- member body had any connection with the alleged discomfiture of the ruling party at the centre on account of the stiff attitude of the CEC. It is further stated that the multi- member body would not have been able to function without a supporting statute providing for dealing with different situations likely to arise in the course of transaction of business. The Ordinance was framed keeping in view the observations made in this regard by this Court in the case of S.S. Dhanoa Vs. U.O.T. & Ors. (1991) 3 SCC 567. It is strongly denied that the changes in the law were made malafide with a view to laming the CEC into submission or to erode his authority by providing that, in the event of a difference of opinion, the majority view would prevail. It is contended that the plain language of Article 324(2) envisages a multi-member Commission and, therefore, any exercise undertaken to achieve that objective would be consistent with the scheme of the said constitutional provision and could, therefore, neve....
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.... as the President may, from time to time appoint. There were two alternatives before the Drafting Committee, namely, either to have a permanent, body consisting of four or five members of the Election Commission who would continue in office throughout without any break, or to permit the President to have an ad hoc body appointed at the time when there is an election on the anvil. The Committee has steered a middle course. What the Drafting Committee Proposes by sub-clause (2) is to have permanently in office one man called the Chief Election Commissioner, so that the skeleton machinery would always be available." 13. 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 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 s....
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....lating the CEC by the first proviso to clause (5), the ECs and the RCs have been assured independence of functioning by providing that they cannot be removed except on the recommendation of the CEC. of course, the recommendation for removal must be based on intelligible, and cogent considerations which would have relation to efficient functioning of the Election Commission. That is so because this privilege has been conferred on the CEC to ensure that the ECs as well as the RCs are not at the mercy of political or executive bosses of the day. It is necessary to relise that this check on the executive's power to remove is built into the second proviso to clause (5) to safeguard the independence of not only these functionaries but the Election Commission as a body. If, therefore, the power were to be exercisable by the CEC as per his whim and caprice, the CEC himself would become an instrument of oppression and would destroy the independence of the ECs and the RCs if they are required to function under the threat of the CEC recommending their removal. It is, therefore, needless to emphasise that the CEC must exercise this power only when there exist valid reasons which are conduc....
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....spute, and indeed there never was, that the Election Commission must be an independent body. It is also clear from the scheme of Article 324 that the said body shall have the CEC as a permanent incumbent and under clause (2) such number of other ECs, if any, as the President may deem appropriate to appoint. The scheme of Article 324, therefore, is that there shall be a permanent body to be called the Election Commission with a permanent incumbent to be called the CEC. The Election Commission can therefore be a single-member body or a multi-member body if the President considers it necessary to appoint one or more ECs. Up to this point there is no difficulty. The argument that a multi-member Election Commission would be unworkable and should not, therefore, be appointed must be stated to be rejected. Our Constitution-makers have provided for a multi- member body. They saw the need to provide for such a body. If the submission that a multi-member body would be unworkable is accepted it would tantamount to destroying or nullifying clauses (2) and (3) of Article 324 of the Constitution. Strong reliance was, however, placed on Dhanoa's case to buttress the argument. The facts of tha....
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.... whether this aspect of the matter was justiciable. It was further found as a fact that the petitioner's and his colleague's attitude was not cooperative and had it not been for the sagacity and restraint shown by the CEC, the work of the Commission would have come to a standstill and the Commission would have been rendered inactive. It is for this reason that the court observed that no one need shed tears on the posts being abolished (vide paragraphs 20, 23, 24 and 25 of the judgment.). The Court, therefore, upheld the Presidential notifications rescinding the creation of the two posts of ECs and the appointments of the petitioner and his colleague thereon. Notwithstanding this bitter experience, the Division Bench made the observations in paragraph 26 extracted hereinbefore, with which we are in respectful agreement. We cannot overlook the fact that when the Constitution-makers provided for a multi-member Election Commission they were not oblivious of the fact that there may not be agreement on all points, but they must have expected such high ranking functionaries to resolve their differences in a dignified manner. It is the constitutional duty of all those who are required ....
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....tenure of office of the Election Commissioners, a distinction is made between the Chief Election Commissioner on the one hand and Election Commissioners and Regional Commissioners on the other. Whereas the conditions of service and tenure of office of all are to be such as the President may, by rule determine, a protection is given to the Chief Election Commissioner in that his conditions of service shall not be varied to his disadvantage after his appointment, and he shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court. These protections are not available either to the Election Commissioners or to the Regional Commissioners. Their conditions of service can be varied even to their disadvantage after their appointment and they can be removed on the recommendation of the Chief Election Commissioner, although not otherwise. It would thus appear that in these two respects not only the Election Commissioners are not on par with the Chief Election Commissioner, but they are placed on par with the Regional Commissioners although the former constitute the Commission and the latter do not and are only appointed to assist the Comm....
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....ry from time to time. In the very nature of things, therefore, they could not be conferred the type of irremovability that is bestowed on the CEC. If that were to be done, the entire scheme of Article 324 would have to undergo a change. In the scheme of things, therefore, the power to remove in certain cases had to be retained. Having insulated the CEC from external political or executive pressures, confidence was reposed in this independent functionary to safeguard the independence of his ECs and even RCs by enjoining that they cannot be removed except on the recommendation of the CEC. This is evident from the following statement found in the speech of Shri K.M. Munshi in the Constituent Assembly when he supported the amended draft submitted by Dr. Ambedkar: "We cannot have an Election Commission sitting all the time during those five years doing nothing. The Chief Election Commissioner will continue to be a whole-time officer performing the duties of his office and looking after the work from day to day but when major elections take place in the country, either Provincial or Central, the Commission must be enlarged to cope with the work. More members therefore have to be....
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....r in the matter of their rights, authority and powers. Proceeding further in paragraph 18 it was said: "18. It is further an acknowledged rule of transacting business in a multi-member body that when there is no express provision to the contrary, the business has to be carried on unanimously. The rule to the contrary such as the decision by majority, has to be laid down specifically by spelling out the kind of majority -- whether simple, special, of all the members or of the members present and voting etc. In a case such as that of the Election Commission which is not merely an advisory body but an executive one, it is difficult to carry on its affairs by insisting on unanimous decisions in all matters. Hence, a realistic approach demands that either the procedure for transacting business is spelt out by a statute or a rule either prior to or simultaneously with the appointment of the Election Commissioners or that no appointment of Election Commissioners is made in the absence of such procedure. In the present case, admittedly, no such procedure has been laid down. 24. We must hasten to add that the accuracy of the statement that in a multi-member body the rule of unan....
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....he nature of business to be transacted but by and large these would be the functions of a Chairman. He must so conduct himself at the meetings chaired by him that he is able to win the confidence of his colleagues on the Commission and carry them with him. This a Chairman may find difficult to achieve if he thinks that others who are members of the Commission are his subordinates. The functions of the Election Commission are essentially administrative but there are certain adjudicative and legislative functions as well. The Election Commission has to lay down certain policies, decide on certain administrative matters of importance as distinguished from routine matters of administration and also adjudicate certain disputes, e.g., disputes relating to allotment of symbols. Therefore, besides administrative functions it may be called upon to perform quasi-judicial duties and undertake subordinate legislation making functions as well. See M.S. Gill vs. Chief Election Commissioner (1978) 2 SCR 272. We need say no more on this aspect of the matter. 26. There can be no doubt that the Election Commission discharges a public function. As pointed out earlier, the scheme of Article 324 cle....
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....Election Commission will transact its business. Section 9 merely states that the business of the Commission shall be transacted in accordance with the provisions of the Act. Section 10 has three sub-sections. Sub-section (1) says that the Election Commission may, by unanimous decision, regulate the procedure for transaction of its business and for allocation of its business among the CEC and the ECs. It will thus be seen that the legislature has left it to the Election Commission to finalise both the matters by a unanimous decision. Sub-section (2) says that all other business, save as provided in sub-section (1), shall also be transacted unanimously, as far as is possible. It is only when the CEC and the Ecs cannot reach a unanimous decision in regard to its business that the decision has to be by majority. It must be realised that the Constitution- makers preferred to remain silent as to the manner in which the Election Commission will transact its business, presumably because they thought it unnecessary and perhaps even improper to provide for the same having regard to the level of personnel it had in mind to man the Commission. They must have depended on the sagacity and wisdom....
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....not consider it necessary to go through various decisions on this point. 30. The argument that the impugned provisions constitute a fraud on the Constitution inasmuch as they are designed and calculated to defeat the very purpose of having an Election Commission is begging the question. While in a democracy every right thinking citizen should be concerned about the purity of the election process - this Court is no less concerned about the same as would be evident from a series of decisions - it is difficult to share the inherent suggestion that the ECs would not be as concerned about it. And to say that the CEC would have to suffer the humiliation of being overridden by two civil servants is to ignore the fact that the present CEC was himself a civil servant before his appointment as CEC. 31. The Election Commission is not the only body which is a multi-member body. The Constitution also provides for other public institutions to be multi-member bodies. For example, the Public Service Commission. Article 315 provides for the setting up of a Public Service Commission for the Union and every State and Article 316 contemplates a multi-member body with a Chairman. Article 338 prov....
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....h his decision to announce general elections for the State Assemblies for Madhya Pradesh, Uttar Pradesh, Rajasthan, Himachal Pradesh and the National Capital Territory of Delhi as the party was not ready for the same. According to the CEC he had also spurned the request made through the Lieutenant Governor of Delhi by the said party for postponement of the Delhi elections. According to him, emissaries were sent by the said party at the Centre to him but he did not oblige and he even look serious exception regarding the conduct of the Governor of Uttar Pradesh, Shri Moti Lal Vohra, for violating the model Code of Conduct. Since the ruling party at the Centre failed in all its attempts to prevail upon to him, it decided to convert the Election Commission into a multi-member body and, after having the Ordinance issued by the President, the impugned notifications appointing the two ECs were issued. The extraodinary haste with which all this was done while the CEC was at Pune and the urgency with which one of the appointees Shri M.S. Gill was called to Delhi by a special aircraft betrayed the keenness on the part of the ruling party to install the two newly appointed ECs. The CEC descri....
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....as issued and two ECs were appointed to associate with the CEC. The deponent contends that this was a bona fide exercise and it was unfortunate that a high ranking official like the CEC had alleged that one of the ECs had been appointed because he was a close friend of the Prime Minister, an allegation which was unfounded. It is therefore denied that the Ordinance and the subsequent notifications appointing the two ECs were intended to sideline the CEC and erode his authority. The Government bona fide followed the earlier reports and the observations made in Dhanoa's case to which a reference has already been made. It is, therefore, contended that Sections 9 and 10 do not suffer from any vice as alleged by the CEC. The two ECs have also filed their counter affidavits denying these allegations. Shri G.V.G. Krishnamurthy, Respondent No.3 in the CEC's petition, has pointed out that the CEC had made unprecedented demands, for example, (i) to be equated with Supreme Court Judges, and had pressurised the Government that he be ranked along with Supreme Court Judge in the Warrant of Precedence, (ii) the powers of contempt of court be conferred upon the Election Commission, (iii) th....
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....r decision-making. 36. There is no doubt that when the Constitution was framed the Constitution-makers considered it necessary to have a permanent body headed by the CEC. Perhaps the volume of work and the complexity thereof could be managed by a single- member body. At the same time it was realised that with the passage of time it may become necessary to have a multi- member body. That is why express provision was made in that behalf in clause (2) of Article 324. It seems that for about two decades the need for a multi-member body was not felt. But the issue was raised and considered by the Joint Committee which submitted a report in 1972. Since no action was taken on that report the Citizens for Democracy, a non- governmental organisation, appointed a committee headed by Shri Tarkunde, a former Judge of the Bombay High Court, which submitted its report in August 1974. Both these bodies favoured a multi-member Commission but no action was taken and, after a full, when the Janata Dal came to power, a committee was appointed which submitted a report in May 1990. That committee also favoured a multi-member body. Prior to that, in 1989 a multi-member Commission was constituted but ....
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....decisions if it is suspected that he has political ambitions, in the absence of any provision, such as, Article 319 of the Constitution. The CEC is, it would appear, totally oblivious to sense of decorum and discretion that his high office requires even if the cause is laudable. 38. That takes us to the question of legislative competence. The contention is that since Article 324 is silent, Parliament expected the Commission itself to evolve its own procedure for transacting its business and since the CEC was the repository of all power to be exercised by the Commission falling within the scope of its activity, it did not see the need to engraft any procedure for transacting its business. If the Election Commission at any time saw the need for it, it would itself evolve its procedure but Parliament cannot do so and hence Sections 9 and 10 are unconstitutional. Except the legislation specifically permitted by clauses (2) and (5) of Art. 324 and Articles 327 and 328, Part XV of the Constitution does not conceive of a law by Parliament on any other matter and hence the impugned legislation is unconstitutional. 39. Now it must be noticed at the outset that both clauses (2) and (5)....
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....roviso to Article 125(2). But does that confer the status of a Supreme Court Judge on the CEC? It appears from the D.O. No.193/34/92 dated July 23, 1992 addressed to the then Home Secretary, Shri Godbole, the CEC had suggested that the position of the CEC in the Warrant of Precedence needed reconsideration. This issue he seems to have raised in his letter to the Prime Minister in December 1991. It becomes clear from Shri Godbole's reply dated July 25, 1992, that the CEC desired that he be placed at No.9 in the Warrant of Precedence at which position the Judges of the Supreme Court figured. It appears from Shri Godbole's reply that the proposal was considered but it was decided to maintain the CEC's position at No.11 along with the Comptroller and Auditor General of India and the Attorney General of India. However, during the course of the hearing of these petitions it was stated that the CEC and the Comptroller and Auditor General of India were thereafter placed at No.9A. At our request the learned Attorney General placed before us the revised Warrant of Precedence which did reveal that the CEC had climbed to position No.9A along with the Comptroller and Auditor General....