The fundamental law of the nation depends on constitutional rights of an
individual which safeguard the abuse of power of the government. The absolute
right of the people consists of an expected duty to be performed by the
government who obliges to do. The selection of an election commissioner plays an
important role to determine whether our nation is following the separation of
powers as envisaged in Schedule VII of the Constitution properly.
right to vote is a Constitutional Right under Article 326 of the Constitution,
the determination of the election candidate without any biased election depends
upon the selection of election commissioner and it is one of the major cruxes of
a democratic country.
This was reiterated in the case of Anoop Baranwal v. Union
, by the Apex court consist of 5 Judge Bench, by stating that voting an
elected representative in a democratic nation is a Fundamental human Right
which was envisaged as a Constitutional Right. This blog is based on the
judgment given by the Supreme Court in this instant case for a fair and free
The topic was arisen because of the selection process for the appointment of
Arun Goel as the Chief Election Commissioner of India was completed in one day.
On November 18, 2022, 4 names were considered for the appointment of the
The appointment of Arun Goel was notified on the same day
when Goel made an application seeking waiver of three-month period to avail the
voluntary retirement. The extension of his office was granted arbitrarily
against the Section 4(1) of the Chief Election Commissioner and Other Election
Commissioners (Conditions of Service) Act, 1991 which states that the EC has to
vacate the office on reaching 65 years of age.
View of Advisory committee for selecting an election commissioner:
In a memorandum dated May 30, 1947, B.N. Rau, the Constitutional Adviser,
proposed principles for a model Provincial Constitution. He suggested that the
Governor, with the discretion subject to Council of State approval, should have
authority over elections, including the appointment of election tribunals. A
similar provision was recommended for the Union Constitution, giving the
President discretion, subject to Council of State advice, over central
The Provincial Constitution Committee, in a report on June 27, 1947, accepted
Rau's suggestions but omitted the requirement for Council of State approval.
The reason for the decision is they did not want to mix up the executive and
legislative which may cause destruction to the whole object. The Union
Constitution Committee, on the other hand, removed all recommendations for
discretionary powers by the President and eliminated the proposal for a Council
of State. Instead, it advocated for centralized authority, proposing that a
Commission appointed by the President would have all powers regarding the
supervision, direction, and control of federal and provincial elections.
Nature of the Right to vote: statutory or Constitutional Right?
Article 326 is based on the doctrine of Adult franchise. It has some
constitutional parameters which determines the qualification and
disqualification for the registration of vote by a person. It provides that
every person who is a citizen of India and who is not less than 18 years of age
on such date as may be fixed in that behalf by or under any law made by the
appropriate legislature. It is a statutory right under People Representatives
Act, 1951 which have some certain limitations.
A Bench of six learned Judges in N.P. Ponnuswami v. Returning_Officer, Namakkal
, categorically held that the
right to vote was a creature of a statute or a special law and must be subject
to limitations imposed by it. The court finally clarified that the Right to vote
is neither a Fundamental Right nor a Constitutional Right in the case of People
Union for Civil Liberties v. Union of India
. So, the Right to vote a Right
which were conferred to the people through a Statute.
Absence of a specific law with regards to the appointment:
Under Article 324(2) of the Indian Constitution, the President have to appoint
the Chief election Commissioner and the other election commissioners with
subject to the provision of any law made by the Parliament. It is to be noted
that President appoints the election commissioner because of the absence of any
specific law made by the Parliament.
The Supreme court categorically held that the appointment of election
commissioner shall be appointed by the three persons until a concrete law
relating to the subject matter pronounced by the Parliament. The three persons
- The Prime Minister
- The Chief Justice of the Supreme Court
- The Leader of opposition (If there is no leader of Opposition, the
leader of largest opposition group will be taken into consultation)
The mode of appointment should be continuing unless an establishment of a
permanent and independent secretariat.
Power of an election commissioner:
The Election Commission of India is having both administrative and adjudicatory
functions. It is a quasi-judicial authority which settle disputes related to the
election of members of Parliament and State legislature. The administrative
power of the Election Commissioner can disqualify any members of Parliament and
State legislature. They are having Superin
Our constitution has provided the status of an election commissioner on par with
the Judge of the Supreme Court. This indicates that the executive cannot
arbitrarily remove an election commissioner for their whims and fancies because,
the selection and removal process of an Election commissioners are not like a
bureaucratic functionary. The removal of the Chief Election Commissioner is
vested with member of the House of Parliament supported by a majority of not
less than two-third, which is a special majority. 
But the problem arises in
this situation, where this par of power was only given to the Chief Election
Commissioner, and was not to the rest of other two election commissioners. The
Apex court observed that, "�The element of 'independence' sought to be achieved
under the Constitution is not exclusively for an individual alone but for the
So, the Independence of the commission will be stronger and effective if this
power is granted to the rest of the 2 Election commissioners.
The present scenario is as per Article 324(5), the conditions of service and
tenure of office of the Election Commissioners is determined by the President by
rule. The Election Commissioner can be removed from office by the President at
the recommendation of the Chief Election Commissioner.
But, in this instant case, the Majority judgment authored by Justice K M
Joseph dismissed the idea of extending identical protection to other Election
Commissioners as is provided to the Chief Election Commissioners. The reason put
forwarded is Article 324(5) of the Indian Constitution is very clear, that it is
mentioned only the protection available to the Chief Election commissioner. They
added that giving another layer of protection to the Election Commissioners will
create an unusual circumstance as if they were removed in the manner of Supreme
Need for providing a permanent secretariat:
The Supreme Court had passionately urged the Parliament to contemplate
implementing essential reforms to ensure the genuine independence of the
Election Commission of India. The constitutional Bench of the Supreme court
noted that there should be an establishment of permanent secretariat and the
expenditure are to charged under the consolidated fund of India [Expenditures
carried out by the Government]. But the Court stated that it pertains to a
policy matter and abstained from issuing explicit directives on this subject.
The right to free and fair elections stands as a cornerstone of democratic
societies, serving as the bedrock of citizens' participation in shaping their
governance. Ensuring the integrity of electoral processes is not merely a legal
obligation but a moral imperative that underpins the principles of justice,
equality, and representation.
The significant authority entrusted to the
Election Commission of India plays a crucial role in safeguarding the democratic
foundation of the country. Functioning as the guardian of transparent and
equitable elections, the Election Commission's power guarantees the credibility
of the electoral system, a sentiment reinforced once more by the Supreme Court.
- Anoop Baranwal v. Union of India, Para 30, (2023) 6 SCC 161
- Shyamdeo Pd. Singh v. Nawal Kishore Yadav, (2000) 8 SCC 46
- N.P. Ponnuswami v. Returning_Officer, Namakkal 9 AIR 1952 SC 64
- People Union for Civil Liberties v. Union of India, (2013) 10 SCC 1
- Law commission of India Report, 2015(255th Report), Chapter VI-
Strengthening The Office Of The Election Commission Of India.
- Article 324(5) of the Indian Constitution.
- Article 124(4) of the Indian Constitution.
- Anoop Baranwal v. Union of India, Para 30, (2023) 6 SCC 161