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SUPREME COURT OF INDIA
K.M. JOSEPH, ANIRUDDHA BOSE, HRISHIKESH ROY, C. T. RAVIKUMAR, AJAY RASTOGI, JJ.
Anoop Baranwal – Appellant
Versus
Union Of India - Respondent
Writ Petition (Civil) No.104 of 2015, 1043 of 2017, 569 of 2021, 998 of 2022
Decided on : 02-03-2023
JUDGMENT :
K.M. JOSEPH, J.
| INDEX | |
| A. THE CASES: THE FOUR WRIT PETITIONS | |
| B. THE SUBMISSIONS OF THE PETITIONERS; SHRI GOPAL SANKARANARAYANAN, LEARNED SENIOR COUNSEL IN WRIT PETITION (C) NO. 1043 OF 2017 | |
| C. SUBMISSIONS ON BEHALF OF SHRI PRASHANT BHUSHAN, LEARNED COUNSEL ON BEHALF OF PETITIONER IN WRIT PETITION (CIVIL) NO. 104 OF 2015 | |
| D. SUBMISSIONS BY SHRI JAYA THAKUR, PETITIONER IN WRIT PETITION (CIVIL) NO. 998 OF 2022 16 | |
| E. SUBMISSIONS OF SHRI KALEESWARAM RAJ, LEARNED COUNSEL FOR THE INTERVENOR in Writ Petition (Civil) No. 569 of 2021 | |
| F. SUBMISSIONS ON BEHALF OF THE LEARNED ATTORNEY GENERAL FOR THE UNION OF INDIA | |
| G. SUBMISSIONS OF SHRI TUSHAR MEHTA, LEARNED SOLICITOR GENERAL OF INDIA | |
| H. SUBMISSIONS OF SHRI BALBIR SINGH, LEARNED ADDITIONAL SOLICITOR GENERAL | |
| ANALYSIS | |
| I. ‘THE FRAMING OF INDIA’S CONSTITUTION’ BY B. SHIVARAO | |
| J. THE CONSTITUENT ASSEMBLY DEBATES | |
| K. THE USE OF CONSTITUENT ASSEMBLY DEBATES .......................................................................... 49 | |
| L. CONCLUSIONS ABOUT HISTORICAL PERSPECTIVES INCLUDING THE LIGHT SHED BY THE CONSTITUENT ASSEMBLY DEBATES | |
| M. ARTICLES IN THE CONSTITUTION, WHICH EMPLOY THE WORDS ‘SUBJECT TO ANY LAW’ TO BE MADE BY PARLIAMENT AS CONTAINED IN ARTICLE 324 | |
| N. DEVELOPMENTS AFTER 26 JANUARY 1950; THE CHIEF ELECTION COMMISSIONERS AND THE ELECTION COMMISSIONERS WHO WERE APPOINTED AND THEIR TERMS | |
| O. A CLOSER LOOK AT S.S. DANOA (SUPRA), THE 1991 ACT AND T.N. SESHAN (SUPRA) | |
| P. THE CLAMOUR FOR REFORMS | |
| Q. SEPARATION OF POWERS AND JUDICIAL ACTIVISM | |
| R. IS THE RIGHT TO VOTE A STATUTORY RIGHT OR A CONSTITUTIONAL RIGHT? .......................... 135 | |
| S. ARTICLE 326 DEMYSTIFIED | |
| T. DEMOCRACY AND THE IMPORTANCE OF ELECTIONS | |
| U. POWERS, FUNCTIONS AND JURISDICTION OF THE ELECTION COMMISSION OF INDIA ............. 191 | |
| V. THE IMPACT OF ARTICLE 329(b) | |
| W. PURSUIT OF POWER; A MEANS TO AN END OR AN END IN ITSELF? | |
| X. RULE OF LAW; FUNDAMENTAL RIGHTS AND AN INDEPENDENT ELECTION COMMISSION | |
| Y. THE SYMBOLS ORDER; THE MODEL CODE OF CONDUCT | |
| Z. INDEPENDENCE; A STERLING AND INDISPENSABLE ATTRIBUTE | |
| THE CONCEPT OF LEGITIMATE POWER OF RECIPROCITY | |
| AA. THE APPOINTMENT OF SHRI ARUN GOEL: A TRIGGER OR A MERE ASIDE? | |
| BB. IS THERE A VACUUM IN ARTICLE 324? SHOULD THE COURT INTERFERE, IF THERE IS ONE? | |
| CC. AN ELECTION COMMISSIONER ENTITLED TO SAME PROTECTION AS GIVEN TO CHIEF ELECTION COMMISSIONER? | |
| DD. REGARDING INDEPENDENT SECRETERIAT/CHARGING EXPENDITURE ON THE CONSOLIDATED FUND OF INDIA | |
| EE. THE FINAL RELIEF | |
A. THE CASES: THE FOUR WRIT PETITIONS
1. In this clutch of writ petitions maintained under Article 32 of the Constitution, the Court is called upon to consider the true effect of Article 324 and, in particular, Article 324(2) of the Constitution. The said sub-Article reads as follows:
“324(2) 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 any law made in that behalf by Parliament, be made by the President.”
2. A Bench of two learned Judges of this Court in Writ Petition (Civil) No. 104 of 2015, passed the following Order on 23.10.2018:
“I.A. No.2 for amendment of writ petition; raising additional facts, grounds and prayer is allowed.
The matter relates to what the petitioner perceives to be a requirement of having a full-proof and better system of appointment of members of the Election Commission.
Having heard the learned counsel for the petitioner and the learned Attorney General for India we are of the v
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