Judgments

ANOOP BARANWAL VS  UNION OF INDIA : CASE SUMMARY

The Supreme Court in Anoop Baranwal Vs Union of India (2023)9SCR1 directed that Chief Election Commissioner and other Election Commissioners have to appointed on the recommendation of a Committee consisting of Prime Minister, the Leader of the Opposition or the Lok Sabha and in case no leader of Opposition is available, the leader of largest opposition party in Lok Sabha in terms of numerical strength and the Chief Justice of India.

FACTS OF THE CASE

Four Writ Petitions were filed before the Supreme Court seeking a fair, just and transparent process of selection by constituting a neutral and independent body to recommend the names  for appointment of the member to the Election Commission under Article 324(2) of the Constitution of India. The matter was referred to Constitution Bench for authoritative interpretation.

FINDINGS OF THE SUPREME COURT

Article 324 provides that the Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of law made in that behalf by Parliament, be made by the President.

The Supreme Court after surveying several other authorities under the Constitution noted that Article 324 (2) is unique in its setting and purpose.

The Supreme Court observed that in catena of cases it has been held that right to vote is neither a fundamental right but a pure and simple statutory right. Even if it is treated as a statutory right, it cannot be divorced or separated from mandate of Article 326. The right to vote  is of the greatest importance and forms the foundation for a free and fair election, which , in turn, constitutes the right of the people to elect their representatives

The Supreme Court in Anukul Chandra Pradhan Vs. Union of India  AIR (1997) SC 2814 has held that holding free and fair election is a basic feature of the Constitution.

The Supreme Court noted that Election Commission discharges several functions critical to democracy. Article 324 is a plenary provision clothing the Election Commission with the entire responsibility to hold the National and State Elections and carries with it the necessary powers to discharge its functions. The Election Commission under Article 324 can postpone an election on the basis of the opinion that there existed disturbed conditions in the State or some area of the State thus making of holding free and fair elections not possible. The election commission is endowed with power to recognize political parties and deciding disputes among them. Under Article 103 (2) and Article 192 (2), the President and the Governor are to act on the opinion of the Election Commission as regards the question of disqualification of the Member of Parliament and of the Legislature of a State respectively.

The Supreme Court observed that appointment of Chief Election Commission must not be overshadowed by even a perception that a ‘yes man’ will decide the fate of democracy and all that it promises.

The Supreme Court directed that the appointment of the Chief Election Commissioner and the Election Commissioners, shall be made by the President on the advice of a Committee consisting of the Prime Minister, the Leader of the Opposition or the Lok Sabha and in case no leader of Opposition is available, the leader of largest opposition party in Lok Sabha in terms of numerical strength and the Chief Justice of India.

Subsequent to passing of this judgment the Supreme Court passed Chief Election Commissioner and Other Election Commissioners Act (Appointment, Conditions of Service and terms of Office) Act, 2023. The Act provides that Chief Election Commissioner and other Election Commissioners will be appointed on the recommendation of Selection Committee consisting of Prime Minister, Leader of Opposition and a Minister of Cabinet rank.

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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Mukesh Kumar Suman

Mukesh Kumar Suman

Mukesh Kumar Suman is an advocate based at Delhi. He has rich experience in civil, criminal, commercial, arbitration and corporate insolvency matters. He regularly appears before District Courts, NCLT, NCLAT, High Court and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

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