ANOOP BARANWAL V UOI

FACTS:
In Anoop Baranwal vs Union of India – The 5-judge Constitution Bench of K.M.
Joseph*, Ajay Rastogi**, Bose, Hrishikesh Roy and C.T. Ravikumar, JJ has settled the
dispute revolving around appointment of members of the Election Commission of India
(ECI) and has held that the Chief Election Commissioner and Election Commissioners
shall appointed by the President on the advice of a 3-member committee consisting of: the
Prime Minister of India; the leader of opposition in Lok Sabha or 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 . The Court made
clear that this norm will continue to hold good till a law is made by Parliament.

JUDGES: K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T.
Ravikumar

PRAYER:
It was prayed that: A Committee of five, comprising the Prime Minister, the leader of the
Opposition or of the single largest party in the Lok Sabha, the Chief Justice of India, the
Speaker of the Lok Sabha, and an eminent jurist selected by the first four to recommend
suitable candidates, is to be appointed for appointment to the Election Commission.
Qualifications be declared, which include citizenship of India, and that a person should have
completed between 45 years and 61 years and the person should have impeccable integrity
and high moral character. The individual must have never had affiliation either directly or
indirectly to any political party. The person appointed must have been a Member of the IAS
or the IPS or a Judge of the High Court. The Election Commissioners must be irremovable
except after following the procedure in the first proviso. An independent Secretariat must be
established.
ISSUE:
whether appointment of CEC solely by executive violative of art 14 and art 324(2)

PETITIONOR ARGUMENT:
Out of 12 unelected constitutional authorities it is only for Election commission and national
commission for scheduled caste where qualifications and eligibility are not laid down by
constitution.
RESPONDENTS ARGUMENT:
Judicial Intervention in this matter will cause violence to delicate separation of power

JUDGEMENT:
Until the Parliament makes a law in consonance with Article 324(2) of the Constitution, the
following guidelines shall be in effect:
We declare that the appointment of the Chief Election Commissioner and the Election
Commissioners shall be made on the recommendations made by a three-member
Committee comprising of (1) the Prime Minister,
(2) Leader of the Opposition of the Lok Sabha and in case no Leader of
Opposition is available, the Leader of the largest opposition party in the Lok
Sabha in terms of numerical strength and the
(3) Chief Justice of India.
(2) It is desirable that the grounds of removal of the Election Commissioners shall be the
same as that of the Chief Election Commissioner that is on the like grounds as a Judge of the
Supreme Court subject to the “recommendation of the Chief Election Commissioner” as
provided under the second proviso to Article 324(5) of the Constitution of India.
(3) The conditions of service of the Election Commissioners shall not be varied to his
disadvantage after appointment.

Referring to the Goswami Committee Report of 1990 and the 255th Law Commission
Report, the Bench held the President should appoint the Chief Election Commissioner and
Election Commissioners based on the advice of
 the Prime Minister,
 the Leader of the Opposition in the Lok Sabha,
 and the Chief Justice of India.

In his concurring judgment, Justice Ajay Rastogi added that the grounds for removing
Election Commissioners should be the same as those for the Chief Election Commissioner
(which is the same as a Judge of the Supreme Court). He reasoned that Election
Commissioners must also be free from ‘all external political interference’ like the Chief
Election Commissioner, so the same provisions must be extended to them.
 Majority opined that art 326( RIGHT TO VOTE is a constitutional right subject to
restrictions which law provide for. Restrictions in 326 are only to avoid misuse.
However, majority said that it cannot be indifference to judicial propriety.
 Sec 62(1) of Representation 1961 act also provide right to vote
  five judges on the bench were unanimous that the right to vote should be a
constitutional right, but four of them stopped short of issuing a judicial
declaration in this regard, deferring to judicial discipline and propriety.
 While justices KM Joseph, Aniruddha Bose, Hrishikesh Roy and CT
Ravikumar cited the 2006 judgment in the Kuldip Nayar case to exercise
restraint against overruling a judgment by a bench of coordinate strength,
justice Ajay Rastogi said that it is time for the constitution bench to declare
that the right to vote is a fundamental right
 DISSENT
– 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.

By 4-1, this bench said that it need not finally

pronounce on this aspect since another five-judge
bench in the Kuldip Nayar case has proceeded to hold
that there is no constitutional right to vote.
An argument based on the majority view in PUCL 2003 was put forth before a Constitution
Bench of this Court in Kuldip Nayar and Others v. Union of India and Others113 (hereinafter
“Kuldip Nayar”). It was argued that a right to vote is a constitutional right besides that it is
also a facet of fundamental right under Article 19(1)(a) of the Constitution. The Constitution
bench rejected the argument. It was held: “The argument of the petitioners is that the
majority view in the case of People’s Union for Civil Liberties, therefore, was that a right to
vote is a constitutional right besides that it is also a facet of fundamental right under Article
19(1)(a) of the Constitution. We do not agree with the above submission. It is clear that a
fine distinction was drawn between the right to vote and the freedom of voting as a species
of freedom of expression, while reiterating in Jyoti Basu v. Debi Ghosal (supra) that a right
to elect, fundamental though it is to democracy, is neither a fundamental right nor a
common law right, but pure and simple, a statutory right. Even otherwise, there is no basis
to contend that the right to vote and elect representatives of the State in the Council of
States is a Constitutional right. Article 80(4) merely deals with the manner of election of the
representatives in the Council of States as an aspect of the composition of the Council of
States. There is nothing in the Constitutional provisions declaring the right to vote in such
election as an absolute right under the Constitution

RELATED CASES:
KULDIP NAIR CASE :
53. Recently, in K.S. Puttaswamy v. Union of India [K.S. Puttaswamy v. Union of
India, (2017) 10 SCC 1], one of us (Dr D.Y.
Chandrachud, J.) has opined that constitutional developments have taken place as the
words of the Constitution have been interpreted to deal with new exigencies requiring an
expansive reading of liberties and freedoms to preserve human rights under the Rule of
Law The duty of the constitutional courts to interpret the Constitution opened the path for
succeeding generations to meet the challenges. Be it stated, the Court was dealing with
privacy as a matter of fundamental right.” (Emphasis supplied) In case of Article 324(2), it
was the original understanding itself that law be made. This understanding has received
reinforcement by subsequent developments, including objective reports .

In Vishaka and others v. State of Rajasthan and others72,

N. Kannadasan [N. Kannadasan v. Ajoy Khose, (2009) 7 SCC 1 : (2009) 3 SCC (Civ)
1] .” (emphasis added)
116. It was also held that the selection process of a constitutional post cannot be equated with
the selection process of a bureaucratic functionary. If the Executive is left with the exclusive
discretion to select the candidate, it may destroy the fabric of the constitutional institution.
Ram Kant pandey V UOI
It was In this case it was held that right to vote and right to contest in elections Neither a
fundamental nor civil right.
(Right to vote is considered as a statutory right)

REASONING:
1. Constitutional history shows that the term “subject to the provisions of any law … made
by Parliament” in Article 324(2) carries with it a constitutional expectation that Parliament
would legislate, and the law would guarantee the independence of the EC from executive
control.
2. The present role and functions of the EC make it the body tasked with actualising the
constitutional right to vote, and safeguarding democracy through the conduct of periodic
elections.
3. From [1], we get the proposition that the existing system, where Parliament has not acted,
and the executive controls the appointments process, is contrary to the intention underlying
Article 324.
4. From [2], we get the proposition that the Court has the jurisdiction to step in and devise a
mechanism to protect the rights at issue.
5. From [1] and [2], we get the proposition that the Court’s intervention must (a) remove sole
executive control over the appointments process, and (b) be temporary, until Parliament acts.
Recall that under Article 324, the primary duty to act is with Parliament.
6. Thus, the Court creates a temporary, gap-filling measure, which is appointment by a
committee comprising of the PM, the LOP, and the CJI.

Independence of the ECI to Ensure Fair Elections

The Bench highlighted that the ECI should be independent, and fair and follow the Rule of
Law and the Principle of Equality. They reiterated that the right to vote was integral to a
democracy and that the ECI played a vital role in ensuring the democratic process continues
smoothly. The Bench stressed the need for objective selection of the ECI to ensure
transparency and accountability. This in turn upholds the integrity and independence of the
ECI.
The ECI’s responsibilities—ranging from proper allocation of party symbols, derecognition
of parties, enforcement of the Model Code of Conduct, and penalisation for non-compliance
—are crucial to the election process. Therefore, it is imperative that it functions
independently. The Bench viewed that as long as the Executive made ECI appointments, its
independence was compromised.

223. “Criminalisation of politics, a huge surge in the influence of

money power, the role of certain sections of the media where they
appear to have forgotten their invaluable role and have turned
unashamedly partisan, call for the unavoidable and unpostponable
filling up of the vacuum [of the Commission’s independent
appointments].” VOHRA COMMITTEE provide recommendation
for curtailing criminalisation of politics

 ELECTION COMMISSION CAN COMPLY OR NOT TO COMPLY WITH

DIRECTIONS OF HC BASED ON ITS ASSESMENT as it is an independent body.
 It is further contended that the democracy is a facet of the basic structure of
the Constitution. The appointment of Members of the Election Commission is
being done on the whims and fancies of the Executive. The object of having an
independent Election Commission is defeated. It is further contended that the
Election Commission resolves various disputes between various political
parties including the Ruling Government and other parties. This means that
the Executive cannot be the sole participator.
 12) Anoop Baranwal v. Union of India55 (Delivered on 3-3-2023) Coram: 5-Judge
Bench of Justices K.M. Joseph, Aniruddha Bose, Hrishikesh Roy, C.T. Ravikumar and
Ajay Rastogi Majority judgment by — Justice K. M. Joseph Concurring opinion by
—Justice Ajay Rastogi The Court was called upon to interpret the true effect and
scope of Article 324(2) of the Constitution of India, which relates to appointment,
tenure, and duration of the Chief Election Commissioner (for short “CEC”) and
Election Commissioners (for short “EC”). The matter was referred to the Constitution
Bench in view of Article 145(3) of the Constitution of India, since the reliefs prayed
for in the writ petition related to devising of procedure for the appointment of CEC
and EC till the Parliament makes any law on the said aspect. Court extensively
referred to the Constituent Assembly Debates (“CAD”) to hold that the Election
Commission was envisaged to be an independent entity, free from political clutches,
influences and that Parliament was obligated to make law in the said regard. The
Court also detailed various provisions of the Constitution of India that employ the
phrase/words “subject to any law to be made by Parliament”, to hold that appointment
of CEC and EC, unlike the Comptroller and Auditor General is to be made through a
law duly enacted by the Parliament, and not by the President of India. Court also
traced the history of the Election Commission of India (“ECI”) being headed only by
CEC to start with, but to be enhanced with the addition of ECs. Referring to the
judgment of S.S. Dhanoa v. Union of India56 and T.N. Seshan v. Union of India57, it
was held that the President exercises power of appointing CEC and EC only because
of the absence of such law, awaited to be made by Parliament. ECs enjoy the same
status as that of CEC with the only difference being that whereas CEC is envisaged to
be a permanent fixture, ECs can be variable in their strength, maybe, cannot be
conferred the type of irremovability that is bestowed on the CEC. The other CECs are
placed under the protective umbrella of the independent CEC. Referring to various
Committee Reports, the Court underscored that the independence of the ECI can only
be strengthened if the ECs are also provided with the same protection of office and
tenure as the CEC. The Court then examined the concept of “separation of powers”
and “judicial activism“; right to vote being a constitutional right, more than the
statutory right; importance of independent elections in a democracy; powers, function,
and jurisdiction of the Election Commission of India, wherein it not only exercises
administrative powers but also plenary quasi-judicial powers. The Court also
elaborated the necessity of an independent Election Commission for preserving and
protecting the fundamental rights of citizenry and strengthening rule of law and that
ECI cannot be left to be controlled by a “yes man”. The court then analysed the
irregularities in the appointment of EC Mr Arun Goyal and if there is a vacuum in the
implementation of Article 324, whether the court should interfere by resorting to
judicial activism. Referring to the long line of judgments on the powers of the
Supreme Court in the said regard, especially in Vineet Narain v. Union of India58,
Union Carbide Corpn. v. Union of India59, Vishaka v. State of Rajasthan60, Court
held that where there exists veritable gaps or vacuum or failure on the part of
Parliament to discharge its obligatory duty of framing a law, the court may not shy
away from what essentially would be part of its judicial function. The Court can issue
appropriate directions and guidelines to fill up the vacuum till a law is duly enacted in
terms of Article 324(2). Accordingly acting on the recommendations of Goswami
Committee Report, as also the 255th Law Commission Report, directions were issued
for appointment of CECs and ECs through a three-member Committee comprising the
Prime Minister, leader of opposition and the Chief Justice of India. A permanent
Secretariat separately for the ECI and charging its expenditure to the Consolidated
Fund of India be established so that ECI becomes truly independent. Concurring
opinion Concurring opinion by Mr Justice Ajay Rastogi also discussed the law and
necessity of an independent and impartial ECI for the perseverance of rule of law and
democracy of the country. However, in his concurring opinion and the final directions,
an additional direction was included which pertained to be in accordance with the
further direction on the grounds for removal of ECs. The protection of office and
tenure be the same and akin to CEC, that is on the grounds as the Judge of the
Supreme Court, subject to recommendation of a CEC as provided under second
proviso to Article 325 of the Constitution of India. The reference to the larger Bench
was accordingly answered with the aforesaid directions....