REWIND
New
Delhi, 28 March 2024
SUPREME COURT GOES WRONG
By Inder Jit
(Released on 13 March 1984)
The
Supreme Court’s judgment 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 judgment has raised a basic issue of vital importance to the provision
of free and fair elections 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? Which of the two is the apex body in matters relating to
election? 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 judgment. 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 Asoke 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 Mr 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,
elections to Parliament and to the legislature of every state and of elections
to the offices 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 power to supervise,
direct and control the functioning of the Governor General of India, who was
authorised even to act “in his discretion” and “exercise his individual
judgment”. 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 or certain aspects of the elections, such as making provision
with respect to elections 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 (italics mine).
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 in 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 raison d’etre
for the opening clause in Article 327 and 328 which leaves the exercise of
power 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, in a 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 the 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 judgment of a three-member Division bench of
the Supreme Court comprising Mr Justice Murtaza Fazl Ali, Mr Justice Varadarajan
and Mr Justice R. Misra. We also have the judgment 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
the Mohinder Singh Gill case. Obviously, the latest verdict holds the field.
The Union Law Minister, Mr J.N. Kaushal, told the Rajya Sabha on Friday that
the law as now laid down by the Supreme Court's judgment “is unexceptionable.”
But the Opposition and some constitutional experts hold a different view. Some
even describe the judgment as “retrograde and preposterous”. (Criticism of a
judgment 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,
direction and control of elections to mere superintendence. An issue of
fundamental importance is involved --- INFA.
(Copyright, India News & Feature Alliance)
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