Constitution of India: Clause (1) of Art. 123.

Promulgation of Ordinance Exercise of Power by the President, under Art 123(1) of the Constitution of India Ordinance (No. 32 of 1993) entitled "The Chief Election Commissioner & other Election Commissioners (Conditions of Service) Amendment Ordinance 1993", amended, substituted, and inserted certain provisions to the "Chief Election Commissioner & other Commissioners (Condition of Service) Act 1991"-Determining the conditions of service of the Chief Election Commissioner and other Election Commissioners and to provide for the procedure for transaction of the business by the Election Commission and for matters connected therewith or incidental thereto.

Constitution of India-Art 324.

Superintendence, direction and control of elections to be vested in an Election Commission Exercise of Powers under Art. 324(2), of the Constitution of India-Number of Election Commissioner, beside the CEC was fixed at two-By subsequent notification, two ECs were appointed-Validity of the Ordinance, notifications and the consequential orders and appointments- Whether arbitrary and ultra vires the Constitution.

Interpretation of clause 2 of Article 324-Whether envisages a multi- member Election Commission. Distinction between CEC and other ECs- Whether essentially on account of their tenure-By virtue of Ordinance, CEC and ECs are placed at par in the matter of salary etc.

First proviso to clause (5) of Art. 324-Whether the type of irremovability conferred on the Chief Election Commissioner is an indicia for conferring a higher status on him vis-a-vis the other Election Commissioners in a multi-member body-Whether Chief Election Commission is obliged to act as its Chairman Function of Election Commissioner-Whether merely advisory-Idea of exclusive decision making power in the Chief Election Commissioner Not conducive to democratic principles.

The Chief Election Commissioner and other Election Commissioners (Condition of Service) Ordinance, (now Act) 1993.

Chapter III of the Chief Election Commissioner and other Election Commissioners (Condition of Service) Act, 1993, Sec. 9, 10-Constitutional validity of Question of legislative competence Clauses 2 and 5 of Article 324, contemplates and expressly provides a statute for appointment of Election Commissioners and for their conditions of service-Hence provisions to that effect cannot be challenged as unconstitutional.

Status of Chief Election Commissioner-Whether akin to a judge of the Supreme Court of India-The position of Chief Election Commission in the Warrant of precedence-Whether requires reconsideration-Government should not confer equivalence or interfere with the Warrant of Precedence, if it is likely to affect the position of High Court and Supreme Court Judges, however pressing the demand may be, without first seeking the views of the Chief Justice of India.

By an amendment Ordinance (now Act) entitled "The Chief Election Commissioner and other Election Commissioners (Condition of Service) Ordinance, 1993." (hereinafter referred to as the Ordinance) the "Chief Election Commissioner and other Commissioners (Condition of Service Act) 1991" was sought to be amended and accordingly the number of Election Commissioners, besides the Chief Election Commissioner was F fixed two. Subsequently, in exercise of its powers under Clause 2 Art. 324, the President of India, by notification dated 1.10.1993 appointed the two Election Commissioners.

The validity of the said Ordinance as well as the consequential notification was assailed by the incumbent Chief Election Commissioner and another, as being arbitrary and unconstitutional. Writ Petitions were filed in the Supreme Court for a declaration that the ordinance was arbitrary, ultra vires the Constitution and hence void and also for quashing the said notification and the appointments of the two Election Com- missioners.

In support of the petitions, it was contended that (a) The intention behind issuing the ordinance was purely malafide, in order to sideline the Chief Election Commissioner and to erode his authority, so that the ruling party at the centre could extract favourable orders by using the services of the newly appointed Election Commissioner. (b) Article 324 of the Constitution, does not give any power to the Parliament to frame rules for transaction of business of the Election Commission. Hence, Sec. 9 and 10 of the ordinance are inconsistent with the scheme underlying article 324 and therefore ultra vires the Constitution. Also the provisions laid down by the said Sections are arbitrary and unworkable, (C) The notification fixing the number of Election Commissioners at two is arbitrary and violative of Article 14 of the Constitution.

The respondents on the other hand, resisted the petitions contending that:

(a) The language of Article 324(2) envisages a multi- member Com- mission and therefore, any excise undertaken to achieve that objective would be consistent with the scheme of the said constitutional provision and could therefore never be branded as malafide or ultra vires the Constitution. (b) The decision to convert the Election Commission into a multi member body had not connection with the alleged discomfiture of the ruling party at the centre on account of the stiff attitude of the Chief Election Commissioner. (c) The Ordinance was framed keeping in view the observations made by this Court in the case of S.S. Dhanoa v. Union of India and Ors., [1991] 3 SCC 567. (d) A multi- member body would not have been able to function without a supporting statute providing for, dealing with different situations likely to arisen the course of transaction of its business. A provision that lays down the rule of majority in the event of a difference of opinion amongst its members is, therefore consistent with the democratic principles and can never be described as arbitrary or ultra vires Article 14 of the Constitution.