ARTICLES IN THE CONSTITUTION, WHICH EMPLOY THE WORDS ‘SUBJECT TO ANY LAW’ TO BE MADE BY PARLIAMENT AS CONTAINED IN ARTICLE 324
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.104 OF 2015
ANOOP BARANWAL … PETITIONER
VERSUS
UNION OF INDIA … RESPONDENT
WITH
WRIT PETITION(CIVIL) NO. 1043 OF 2017
WRIT PETITION(CIVIL) NO.569 OF 2021
AND
WRIT PETITION(CIVIL) NO.998 OF 2022
J U D G M E N T
K.M. JOSEPH, J.
M. ARTICLES IN THE CONSTITUTION, WHICH EMPLOY THE WORDS ‘SUBJECT TO ANY LAW’ TO BE MADE BY PARLIAMENT AS CONTAINED 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 canvassed by the 60 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. 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 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 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 61 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 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 142 cannot produce the impact, which Article 324(2) is capable of producing and, what is more, vouchsafed by the debates in the Constituent Assembly. 38. Article 145 uses the expression ‘subject to the provisions of 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: “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 62 Justice of India or such other Judge or 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 (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 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 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 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 63 be any valid comparison between the employees of the Supreme Court and the members of the Election 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 (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 (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 (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 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 64 of any State after he has ceased to hold his office (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 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.” 41. As far as the appointment of the Comptroller and Auditor 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 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 65 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). 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 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 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. 66 42. Article 187 provides for a Secretariat for the State Legislature. Except for the difference in the Legislative Body being the State 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 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 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 for not comparing the employees with the persons governed by Article 324(2). 67 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: “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. (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 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 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 of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats.” 68 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 Election Commissioner is to be such as maybe made by the Governor by Rule and this is, however, made subject to the provisions of any law 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 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 appointment as regards 69 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 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 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 regard to National Commission for Backward 70 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.” 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 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, 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 71 Constitution is clear that the appointment is to be made by President. 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 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. No further discussion is needed to conclude that Article 324(2) is unique in its setting and purpose.