REWIND
New Delhi,
8 December 2022
Supreme Court Goes Wrong
By Inder Jit
(Released on 13 March 1984)
The Supreme Court’s judgement on electronic voting has been dismissed widely as of
little consequence. Most people feel it matters little whether they vote by
ballot or through an electronic machine. Yet the verdict deserves greater
attention of the nation than it has received so far. It goes way beyond the
Court’s decision to set aside the election of a Kerala MLA. The judgement has
raised a basic issue of vital importance to the provision of free and fair
election in India. Since free and fair elections are
the bedrock of any democracy worth its name, several questions arise. Who is to
ensure free and fair elections under the Constitution? The Election Commission
or Parliament? Can the Election Commission ignore Parliament? Or vice versa,
can Parliament ride roughshod over the Election Commission? Whose view should
prevail in the event of a clash of opinion? What was the basic scheme and
approach of the founding fathers of the Constitution?
First the judgement. A division
bench of the Court has held that the Election Commission’s order directing the
casting of ballot by machines was without jurisdiction according to the law.
More important, the court disagreed with the contention of Mr. Ram Jethmalani
and Mr. Ashok Sen, who appeared for the respondent and the Election Commission
respectively, that the Constitution gave complete powers to the Commission for
the conduct of elections under Article 324. The judges observed that the
provisions of the Constitution could never have intended to make the Commission
an apex body in respect of matters relating to the elections and conferring on
it legislative powers ignoring Parliament altogether. If the Commission was
armed with such unlimited and arbitrary powers, the judges observed if it ever
happens that the person manning the Commission shares or is wedded to a
political havoc or to bring about a Constitutional crisis, it could set at
naught the integrity and independence of the electoral process, so important to
and indispensable in the democratic system.
The bench said that such an
absolute and uncanalised power given to the Commission without providing any
guidelines would itself destroy the basic structure of the rule of law, adding
“it is manifest such a disastrous consequence could never have been
contemplated by the Constitution makers.” Hence the judges said: “We construe
Article 324 to 329 would reveal that the legislative powers in respect to
matters relating to Parliament or State legislature vest in Parliament and no
other body, and the Commission would come into the picture only if no provision
has been made by Parliament in regard to the elections to Parliament or the
State legislature.” The judges said furthermore: “The power under Article 324
relating to superintendence, direction and control was actually vesting of
merely all the executive powers and not the legislative powers.” It was
pertinent to indicate that the Kerala High Court, which had upheld the election
of M.R. Pillai, “fell into an obvious fallacy by acceptance of the position
that the direction of the Commission was intended to operate in an uncovered
field.”
The founding fathers were anxious
to ensure free and fair elections and therefore, created an independent
Election Commission which would function without fear or favour. Accordingly, Article
324 (1) of the Constitution provides: “The superintendence, direction and
control of the preparation of the electoral rolls for, and the conduct of, all
elections to Parliament and to the legislature of every State and of elections
to the office of President and Vice President held under this Constitution
shall be vested in a Commission (referred to in this Constitution as the
Election Commission)”. However, all this would have been meaningless without
protecting the independence of the Chief Election Commissioner. Therefore, the
founding fathers also provided under Section 5 of the same Article that “the
Chief Election Commissioner shall not be removed from his office except in like
manner and on like grounds as a judge of the Supreme Court”. Further, “the
conditions of service of the Chief Election Commissioner shall not be varied to
his disadvantage after his appointment.”
Not many remember that the founding
fathers deliberately and advisedly picked the three words --- superintendence,
direction and control --- from Article 14 of the Government of India Act of
1935. This key article, it needs to be pointed out, was specially designed to
give the Secretary of State absolute powers to supervise, direct and control
the functioning of the Governor General of India, who was authorized even to
act “in his discretion” and “exercise his individual judgement”. In fact, a
Constitution Bench of the Supreme Court held in 1978 that the power of the
Commission in the superintendence, direction and control is unfettered and
over-riding. Parliament, is no doubt, empowered under Article 327 to legislate
on certain aspects of the elections, such as making provision with respect to
election to legislatures. But the crucial point to remember here is this: all
such legislation is subject to the absolute power accorded to the
Election Commission to conduct a free and fair poll.
In practice, the
three words --- superintendence, direction and control --- also give the
Election Commission two vital far-reaching rights; to virtually legislate and
to be informed. The Chief Election Commissioner is empowered to legislate
through “direction”, implement the legislation through “superintendence” and
interpret the legislation through “control”. Every little detail in regard to
the conduct of elections comes under his overall control, direction and
superintendence through Section (6) of Article 324 of the Constitution which
provides: “The President, or the Governor of a State, shall, when so requested
by the Election Commission,make available to the Election Commission or to a
Regional Commissioner such staff as may be necessary for the discharge of the
functions conferred on the Election Commission by clause (1)” (Experts tell me
that the word staff does not mean merely officials or clerks of the State. The
word embraces everyone under the umbrella of either the Centre or the State
Government, including the police and the army.)
The Constitution Bench of the
Supreme Court held in the Mohinder Singh Gill case in 1978 that “the
Constitution contemplates a free and fair election and vests comprehensive
responsibilities of superintendence, direction and control of the conduct of
elections in the Election Commission. This responsibility may cover powers,
duties, and functions of many sorts, administrative or other, depending on the
circumstances.” It conceded that “when appropriate laws are made under Article
327 by Parliament as well as under Article 328 by the State legislatures, the
Commission has to act in conformity with those laws and the other legal
provisions made thereunder.” Nevertheless, it made it clear that both these
articles “are subject to the provisions of the Constitution which include
Article 324 and 329.” It added: “Since the conduct of all elections is vested
under Article 324 (1) in the Election Commission, the framers of the
Constitution took care leaving scope for exercise of residuary powers by the
Commission in its own right, as a creature of the Constitution, in the infinite
variety of situations that may emerge from time to time in such a large
democracy as ours.”
Not only that. The Court further
explained: “Every contingency could not be foreseen or anticipated with
precision. That is why there is no hedging in Article 324. The Commission may
be required to cope with some situation which may not be provided for in the
enacted law and the rules. That seems to be the raisiond’etre for the opening
clause in Article 327 and 328 which leaves the exercise of powers under Article
324 operative and effective when it is “reasonably called for in a vacuous
area.” The Court further held: “Once the appointment is made by the President,
the Election Commission remains insulated from extraneous influences, and that
cannot be achieved unless it has an amplitude of powers in the conduct of
elections of course in accordance with the existing laws. But where these are
absent… he must lawfully exercise his powers independently, in all matters
relating to the conduct of elections, and see that the election process is
completed properly, ina free and fair manner”.
The basic issue boils down to this:
which is the apex body for the superintendence, direction and control of the
elections: Parliament or the Election Commission? In the case of Kerala MLA,
the Election Commission took the view that it had the necessary constitutional
and statutory powers to go ahead with electronic voting under Article 324. But
the Supreme Court has held that it was not open to the Commission to do so “at
its own sweet will.” In support of its contention, the Court has argued that
the powers of the Commission were “meant to supplement rather than supplant the
law.” It has also stated that the Commission could not be given “unlimited and
arbitrary powers” as this could have “disastrous consequences” which could
“never have been contemplated by the Constitution makers.” But in taking this
stand, the Supreme Court appears to have overlooked the ultimate check provided
by the founding fathers against the Commission going berserk. Article 324 also
provides that the Chief Election Commissioner can be removed by Parliament in a
like manner and on like grounds as a judge of the Supreme Court.
What next? We have now before us
the judgement of a three-member division bench of theSupreme Court comprising
Mr. Justice Murtaza Fazl Ali, Mr. Justice Vardarajan and Mr. Justice R. Misra.
We also have the judgement of the five-member Constitution Bench comprising Mr.
Justice M.H. Beg, Mr. Justice P.N. Bhagwati, Mr. Justice Krishna Iyer, Mr.
Justice P.K. Goswami and Mr. Justice P.N. Singhal in theMohinder Singh Gill
case. Obviously, the latest verdict holds the field. The Union Law Minister,
MrJ.N. Kaushal, told the Rajya Sabhaon Friday that the law as now laid down by
the Supreme Court’s judgement “is unexceptionable.”.
But the Opposition and some
constitutional experts hold a different view. Some even describe the judgement
as “retrograde and preposterous”. (Criticism of a judgement is permitted so
long as motives are not attributed.) Mr. L.K. Advani suggested that either the
Government or the Election Commission should approach the Supreme Court for a
review. This, he said, was necessary to restore independence of the Election Commission
and to ensure free and fair elections. The suggestion
deserves to be accepted since the Supreme Court has gone wrong in virtually
reducing the power of the Election Commission from superintendence,
directionand control of elections to mere superintendence. An issue of
fundamental importance is involved. ---INFA
(Copyright,
India News and Feature Alliance)
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