Election Laws: Constitution of India – Arts. 324(2), 32 and 142 – Appointment of Chief Election Commissioner and Election 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 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 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 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 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 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 there commendation of the Chief Election Commissioner – There is equality otherwise, which exists between the Chief Election Commissioner and the Election Commissioners in various matters –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 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 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 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 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 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 an otherwise independent Body to its knees, by starving it off or cutting off the requisite financial wherewithal and resources required 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 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 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 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 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 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, 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 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 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 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.