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.

Even though, 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 of India, 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[1] 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 election.

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 election commissioner.

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 elections.

The Provincial Constitution Committee, in a report on June 27, 1947, accepted Rau's suggestions but omitted the requirement for Council of State approval.[2] 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.[3] 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[4], 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[5]. 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 are:

1. The Prime Minister
2. The Chief Justice of the Supreme Court
3. The Leader of opposition (If there is no leader of Opposition, the leader of largest opposition group will be taken into consultation)[6]

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.[7] 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. [8]

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 whole institution."

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[9], 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 Court judges.

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.

CONCLUSION:
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.

End-Notes:

1. Anoop Baranwal v. Union of India, Para 30, (2023) 6 SCC 161
2. Supra
3. Shyamdeo Pd. Singh v. Nawal Kishore Yadav, (2000) 8 SCC 46
4. N.P. Ponnuswami v. Returning_Officer, Namakkal 9 AIR 1952 SC 64
5. People Union for Civil Liberties v. Union of India, (2013) 10 SCC 1
6. Law commission of India Report, 2015(255th Report), Chapter VI- Strengthening The Office Of The Election Commission Of India.
7. Article 324(5) of the Indian Constitution.
8. Article 124(4) of the Indian Constitution.
9. Anoop Baranwal v. Union of India, Para 30, (2023) 6 SCC 161