LexANOOP BARANWAL versus UNION OF INDIA
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A B C D E F G H 1 [2023] 9 S.C.R. 1: 2023 INSC 190 1 ANOOP BARANWAL v. UNION OF INDIA (Writ Petition (Civil) No.104 of 2015) MARCH 02, 2023 [K.M. JOSEPH, AJAY RASTOGI, ANIRUDDHA BOSE, HRISHIKESH ROY AND C.T. RAVIKUMAR, JJ.] 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 A B C D E F G H 2 SUPREME COURT REPORTS [2023] 9 S.C.R. 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 the recommendation 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 Commissio
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