CONCLUSIONS ABOUT HISTORICAL PERSPECTIVES INCLUDING THE LIGHT SHED BY THE CONSTITUENT ASSEMBLY DEBATES

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.

L. CONCLUSIONS ABOUT HISTORICAL PERSPECTIVES INCLUDING THE LIGHT SHED BY THE CONSTITUENT 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 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 SubCommittee also approved that there must be universal adult franchise guaranteed by the Constitution. The election was to be free, secret and periodic. Most importantly, the Fundamental Rights Sub-Committee in 11 (2021) 8 SCC 1 52 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 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 Minority Sub-Committee also made a report that the Election Commission 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. Ambedkar, however, specifically opined that in order that election may be free in the real sense of the word, they shall be taken 53 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 itself among the provisions providing for Fundamental Rights. Shri 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’s Constitution, 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, particularly by Shri Kunzuru and Professor Shiben Lal Saxena, and it was thereupon, that Shri K.M. Munshi 54 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 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 should abuse the right to appoint. Shri H.V. Pataskar felt Article 289(2) sufficed. The thought which comforted the Member was not merely some 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 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 55 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, that is that the Parliament should be authorised to make provisions for these 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 a quasiindependent 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 of either an incompetent or unfair official, becoming and running the Election Commission. In particular, Dr. Ambedkar foresaw the danger of the Election 56 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, 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 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 inserted. 32. We understand the historical perspective, and the deliberations of the Fundamental Rights Sub-Committee, the Drafting Committee and the other Sub-Committees 57 and, finally, of the Constituent Assembly itself, to be as follows: A golden thread runs through these proceedings. All the Members were of the clear view that election must be 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 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 Members. Right to Vote was, to begin with, considered so sacrosanct that it was originally 58 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 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 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 surrounding Article 324, was that he felt sorry that he did not have time to circulate the amendments. 59 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 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 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.