Case Note & Summary
This matter arose from writ petitions filed before the Supreme Court of India challenging the constitutional validity of Ordinance No.32 of 1993, which amended the Chief Election Commissioner and other Election Commissioners (Condition of Service) Act, 1991, and the consequential notifications issued under Article 324(2) of the Constitution fixing the number of Election Commissioners at two and appointing Mr. M.S. Gill and Mr. G.V.G. Krishnamurthy as Election Commissioners with effect from 1 October 1993. The lead petitioner, T.N. Seshan, the incumbent Chief Election Commissioner, alleged that the ruling party at the Centre, irked by his strict enforcement of the Model Code of Conduct and his refusal to postpone elections for four State assemblies despite requests including from the Prime Minister, misused the power under Article 324(2) to appoint two Election Commissioners to sideline him and erode his authority. The Ordinance inserted a new Chapter III into the 1991 Act with Sections 9 and 10 providing for transaction of business, including that decisions shall be unanimous or by majority where the Chief Election Commissioner differs in opinion. On 15 November 1993, the Court admitted the petitions, issued rule, and passed an interim order directing that the Chief Election Commissioner shall remain in complete overall control of the Commission's work, shall not be bound by the views of other Commissioners, and only he shall issue instructions to staff and outside agencies. The Court later continued the interim order and referred the matters to a Constitution Bench because the questions involved interpretation of Article 324. During the pendency, the Ordinance became Act No.4 of 1994 on 4 January 1994 without change. The provided judgment text does not include the final decision; it records the factual background, the interim orders, and the referral to the Constitution Bench.
Headnote
A) Constitutional Law - Election Commission - Composition and Transaction of Business - Constitution of India, Article 324 and the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, Sections 9 and 10 - The Ordinance amended the 1991 Act to insert Chapter III providing that business of Election Commission shall be transacted according to the Act, and that decisions shall be unanimous or by majority if CEC differs. The petitioner challenged the constitutional validity of the Ordinance and notifications appointing two Election Commissioners. The Court referred the matters to a Constitution Bench for interpretation of Article 324 and continued an interim order placing the CEC in overall control pending final hearing. (Paras 1-5)
B) Constitutional Law - Malafides - Abuse of Power under Article 324(2) - Constitution of India, Article 324(2) - The CEC alleged that the ruling party at the Centre, irritated by his strict enforcement of the Model Code of Conduct, misused the power under Article 324(2) to fix the number of Election Commissioners at two and appoint two ECs to sideline him. The Court noted these allegations in the factual matrix but no final determination is available in the provided text. (Paras 1-5)
C) Election Law - Conditions of Service - Parity between CEC and ECs - The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, Sections 3,4,6,8 - The Ordinance brought the CEC and other Election Commissioners at par regarding salary and age of superannuation at 65 years, and provided for deletion of sub-section (3) of Section 6. The writ petitions challenged these amendments along with appointments. The Court's final decision is not available in the provided excerpt. (Paras 1-5)
Issue of Consideration
Constitutional validity of the Chief Election Commissioner and other Election Commissioners (Condition of Service) Amendment Ordinance, 1993 (later Act No.4 of 1994) and the notifications appointing two Election Commissioners; interpretation of Article 324 of the Constitution; whether the business of the Election Commission can be decided by majority and whether the Chief Election Commissioner has primacy; whether the appointments and amendments were malafide.
Final Decision
Not mentioned in the provided excerpt; the text records only interim orders and referral to Constitution Bench.
Law Points
- Article 324 vests superintendence
- direction and control of elections in Election Commission
- Commission consists of CEC and other ECs
- President may fix number of ECs and make appointments subject to law
- CEC acts as Chairman
- business of Commission regulated by Act
- Section 10 of amended Act provides for unanimous or majority decision
- interim order directed CEC to remain in overall control.
Case Details
1995 LawText (SC) (07) 20
Writ Petition (Civil) No. 805 of 1993 with Writ Petition (Civil) No. 791 of 1993, Writ Petition (Civil) No. 825 of 1993, and Writ Petition No. 268 of 1994
A.M. Ahmadi, Jagdish Saran Verma, N.P. Singh, S.P. Bharucha, M.K. Mukherjee
T.N. Seshan, Chief Election Commissioner of India
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Nature of Litigation
Constitutional writ petitions challenging the validity of Ordinance No.32 of 1993 amending the Chief Election Commissioner and other Election Commissioners (Condition of Service) Act, 1991, and the notifications appointing two Election Commissioners and fixing their terms.
Remedy Sought
Petitioners, including the Chief Election Commissioner, sought a declaration that the Ordinance was arbitrary, unconstitutional and void, and writs of certiorari to quash the notifications fixing the number of Election Commissioners at two and the appointments of M.S. Gill and G.V.G. Krishnamurthy.
Filing Reason
The Chief Election Commissioner alleged that the ruling party at the Centre, irked by his strict enforcement of the Model Code of Conduct, misused power under Article 324(2) to appoint two Election Commissioners to sideline him and erode his authority.
Previous Decisions
An interim order dated 15.11.1993 directed that the Chief Election Commissioner shall remain in complete overall control of the Commission's work, shall not be bound by the views of other Commissioners, and only he shall issue instructions to staff and outside agencies. The matters were later referred to a Constitution Bench. The Ordinance became Act No.4 of 1994 on 4 January 1994 during pendency.
Issues
Whether the Chief Election Commissioner and other Election Commissioners (Condition of Service) Amendment Ordinance, 1993 (later Act No.4 of 1994) is constitutionally valid.
Whether the notifications under Article 324(2) fixing the number of Election Commissioners at two and appointing M.S. Gill and G.V.G. Krishnamurthy are valid.
Interpretation of Article 324 of the Constitution regarding the composition, superintendence, and transaction of business of the Election Commission.
Whether the business of the Election Commission can be decided by majority under Section 10(3) of the amended Act, and whether the Chief Election Commissioner has primacy.
Whether the appointments and amendments were malafide and intended to erode the powers of the Chief Election Commissioner.
Submissions/Arguments
The present Chief Election Commissioner claimed that after his appointment on 12.12.1990 he insisted on strict compliance with the Model Code of Conduct and took stern action against infractions, which irked the ruling party at the Centre.
The CEC alleged that the ruling party made attempts to influence him, and when he declined to postpone elections for four State assemblies despite requests including the Prime Minister, the ruling party misused power under Article 324(2) to issue notification and appoint two Election Commissioners to sideline him.
The CEC alleged malafides and that the intention behind the Ordinance was to erode his authority and obtain favourable orders through newly appointed Election Commissioners.
Ratio Decidendi
Not mentioned in the provided excerpt.
Judgment Excerpts
The President of India, in exercise of powers conferred upon him by clause (1) of Article 123 of the Constitution of India, promulgated an Ordinance (No.32 of 1993) entitled 'The Chief Election Commissioner and other Election Commissioners (Condition of Service) Amendment Ordinance, 1993'...
The business of the Election Commission shall be transacted in accordance with the provisions of this Act.
Save as provided in sub section (1) all business of the Election Commission shall, as far as possible, be transacted unanimously.
Subject to the provisions of sub-section (2), if the Chief Election Commissioner differ in opinion on any matter, such matter shall be decided according to the opinion of the majority.
Until further orders, to ensure smooth and effective working of the Commission and also to avoid confusion both in the administration as well as in the electoral process, we direct that the Chief Election Commissioner shall remain in complete overall control of the Commission's work.
Procedural History
On 1 October 1993, the President promulgated Ordinance No.32 of 1993 amending the 1991 Act; on the same day, notifications were issued fixing the number of Election Commissioners at two and appointing M.S. Gill and G.V.G. Krishnamurthy. On 13 October 1993, Cho S. Ramaswamy filed Writ Petition (Civil) No.791 of 1993. On 26 October 1993, the Chief Election Commissioner filed Writ Petition (Civil) No.805 of 1993. Other writ petitions were also filed. On 15 November 1993, three petitions came up for preliminary hearing; the Court admitted them, issued rule, and passed an interim order placing the CEC in complete overall control. On 15 December 1993, the Court directed that all State Governments be heard through counsel and continued the interim order; it observed that questions involved interpretation of Article 324 and referred matters to Constitution Bench. On 4 January 1994, the Ordinance became Act No.4 of 1994 without change.
Acts & Sections
- The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991: Section 1, Section 2, Section 3, Section 4, Section 6, Section 8, Section 9, Section 10
- Constitution of India: Article 324
