Basic structure of the Constitution revisited : The Hindu

The basic structure theory plays a useful part in our constitutional jurisprudence. But was there truly a judicial formulation by the Supreme Court of India of the basic structure doctrine in the Kesavananda Bharati case? An insider's unravelling of a fascinating story.

THIRTY-FOUR years ago, on April 24, 1973, thirteen judges of the Supreme Court assembled in the Chief Justice's court packed to its capacity with lawyers and laypersons. They delivered eleven judgments in India's most celebrated case in constitutional law the Kesavananda Bharati case. For over three decades we have believed that in that case a majority of judges decided that Parliament has no power to amend the basic structure of the Constitution.

Revelations of how the Kesavananda case was decided have been disclosed in later interviews with those who were involved in the case, writings of scholars, and by a revealing autobiography of Justice Jaganmohan Reddy, one of the judges in that case. This writer, a counsel in the case, kept detailed notes of the proceedings of the case. We can now piece together a collated account of how the case was decided. At the end of it, the question arises was there truly a judicial formulation of the theory of basic structure in that case, as it has come to mean today; and was the case decided in an atmosphere conducive to a detached determination of a highly contentious matter with political overtones?

To reverse the Golak Nath case (1967), which had held that Parliament had no power to amend fundamental rights, and in anticipation of a major constitutional battle, we now know that the government carefully selected some judges who would not be obstructive to its reversal. The case became a contest not only between the rival parties but apparently among some of the judges who were committed to their own strong views on Parliament's power to amend the Constitution. Justice Jaganmohan Reddy records this about some his colleagues: "I got the impression [from the first day] that minds were closed and views were determined."

The case was essentially a political fight in a court of law with a political background. It was conducted under continuous and intense pressure the likes of which it is hoped will never be seen again. One author has described the atmosphere of the court as "poisonous." A judge on the bench later spoke about the "unusual happenings" in the case. If the several "unusual happenings" in the case are related in detail, they will make one doubt if the decision in the case was truly a judicial one expected from judges with detachment from the results of the controversy before them.

On April 24, 1973, the eleven separate judgments were delivered by nine judges; collectively these ran into more than 1000 printed pages. Six judges Chief Justice S.M. Sikri and Justices J.M. Shelat, K.S. Hegde, P. Jaganmohan Reddy, A.N. Grover, and S. Mukherjea were of the opinion that Parliament's power was limited because of implied and inherent limitations in the Constitution, including those in fundamental rights. Six other judges Justices A.N. Ray, D.G. Palekar, K.K. Mathew, S.N. Dwivedi, M.H. Beg, and Y.V. Chandrachud were of the opinion that there were no limitations at all on Parliament's power to amend the Constitution. But one judge Justice H.R. Khanna took neither side. He held that Parliament had the full power of amending the Constitution; but because it had the power only "to amend," it must leave "the basic structure or framework of the Constitution" intact. It was a hopelessly divided verdict after all the labour and contest of five months. No majority, no minority, nobody could say what was the verdict.

How was it then said that the Court by a majority held that Parliament had no power to amend the basic structure of the Constitution? Thereby hangs a tale not generally known. Immediately after the eleven judges finished reading their judgments, Chief Justice Sikri, in whose opinion Parliament's power was limited by inherent and implied limitations, passed on a hastily prepared paper called a "View of the Majority" for signatures by the thirteen judges on the bench. One of the conclusions in the "View of the Majority" was that "Parliament did not have the power to amend the basic structure or framework of the Constitution." This was lifted from one of the conclusions in the judgment of Justice H.R. Khanna. Nine judges signed the statement in court. Four others refused to sign it.

By any reading of the eleven judgments, this conclusion could not have been the view of the majority. It was only the view of one judge Justice H.R. Khanna. Some judges had no time to read all the eleven judgments as they were prepared under great constraints of time owing to the retirement of the Chief Justice the next day. Justice Chandrachud confessed that he had a chance hurriedly to read four draft judgments of his colleagues. No conference was called of all judges for finding out the majority view. The one conference called by the Chief Justice excluded those judges who were of the opinion that there were no limitations on the amending powers. Nor was the conclusion debated in court, as it ought to have been. The Chief Justice's action has been described by some as an act of statesmanship. Others believe it was a manoeuvre to create a majority that did not exist.

The verdict would have remained in this uncertain state but for accidental events following the decision. On August 1, 1975, with lightning speed and by an outrageous abuse of the amending power during the Emergency, Parliament made the 39th Amendment to the Constitution. This introduced Article 329 A of the Constitution which sought to validate Indira Gandhi's election set aside by a judge of the Allahabad High Court without any contest, including her pending appeal in the Supreme Court.

On August 11, 1975, Indira Gandhi's election appeal against her disqualification was heard by five judges presided over by Chief Justice A.N. Ray. He had been appointed Chief Justice of India by the government the day after the judgments in the Kesavanada case superseding three other judges who had decided against the unlimited power of Parliament to amend the Constitution. The government believed that with the amendment to Article 329A of the Constitution, her appeal would simply be allowed. But so outrageous was the amendment that all five judges declared it bad as it violated "the basic structure." Nevertheless, Indira Gandhi's appeal was allowed by an amendment made to the Representation of the People Act, 1951, which cured all illegalities in her election. The court could strike down constitutional law but not an ordinary law that carried out the same purpose. To many this seemed perplexing.

Everyone took it that the court had now approved the basic structure theory by striking down the amendment to Article 329A everyone, that is, except Chief Justice A.N. Ray. He had stated in Indira Gandhi's case that the hearing would proceed "on the assumption that it was not necessary to challenge the majority view in Kesavananda Bharati case." On November 9, 1975, two days after the Indira Gandhi case was decided, the Chief Justice constituted a new bench of thirteen judges to review the Kesavananda Bharati case.

For two days, N.A. Palkhivala made the most eloquent and passionate argument against the review. On November 12, the third day, the Chief Justice announced suddenly at the very outset of hearing: "The bench is dissolved." Thus ended an inglorious attempt to review the Kesavananda judgment. Whatever the reasons for the dissolution of the bench, Chief Justice Ray's maladroit attempt to review the basic structure limitation gave it a legitimacy that no subsequent affirmation of it could have given.

But the problem could not be avoided. In 1980, in the Minerva Mills case, the question was raised whether there was indeed a majority view on the limitation of the basic structure. Justice Bhagwati said that the statement signed by nine judges had no legal effect at all and could not be regarded as the law declared by the Supreme Court. He said the so-called majority view was an unusual exercise that could not have been done by judges who had ceased to have any function after delivering their judgments and who had no time to read the judgments. However Justice Bhagwati relieved himself from deciding what he called "a troublesome question" by saying that Indira Gandhi's case had accepted the majority view that Parliament's power of amendment was limited. This was not correct as that case was decided on the assumption that it was not necessary to challenge the majority view.

So a single judge's opinion Justice Khanna's of a limitation of the basic structure on Parliament's power has passed off as the law. But Justice Khanna was responsible for another vital dimension of the basic structure two years after the case was decided. In the Kesavananda case, he did not say that fundamental rights were part of the basic structure of the Constitution, although six other judges said that and the case was entirely about the validity of amending fundamental rights by the challenged constitutional amendments. Three of Justice Khanna's brother judges in the Kesavananda case were clearly of the opinion that Justice Khanna had not held that fundamental rights were part of the basic structure in the Kesavananda Bharati case.

But in Indira Gandhi's election case two years later, Justice Khanna "clarified" his judgment in the Kesavananda case. He now said that he had given clear indications in his judgment that fundamental rights were part of the basic structure. By so clarifying his judgment, Justice Khanna did not realise that this clarification rendered his judgment in the Kesavananda case hopelessly self-contradictory, as he had held unconditionally valid two constitutional amendments that nullified vital fundamental rights. With that dubious exercise, Justice Khanna's "clarification" is now a vital part of the basic structure. Fundamental rights are now immune to an amendment if it violates the basic structure of the Constitution.

In the latest judgment, delivered on January 11, 2007, by nine judges of the Court on the Ninth Schedule to the Constitution, the basic structure limitation has been stated to be "an axiom of our constitutional law." An axiom means a self-evident truth. So be it. Whatever its origins, the basic structure theory plays a useful part in our constitutional jurisprudence. Parliament does not and should not have an unlimited power to amend the Constitution. However, in the glorification of the basic structure theory, it is important to bear in mind its infirm roots and how predilections and prejudices of judges, chance, and accidental circumstances have played a greater part rather than any logic or conscious formulation of it.

(The writer is a former Solicitor-General of India. This article is based on his lecture, which was presided over by Lok Sabha Speaker Somnath Chatterjee, to the Supreme Court Bar Association on April 4, 2007.)

Issues Related to Collegiums System:

 How should the judges be selected to higher judiciary?
Has collegium system of judges' appointment outlived its utility? This question has been bothering not just the top echelons of judiciary in India but the executive too. Though the ‘collegium system’ which appoints judges has been in place for quite some time now, there have been murmurs of dissatisfaction over the practice in different quarters. The collegium system — which is followed in the appointment of judges to the supreme court and the high courts has recently been challenged in the supreme court. The petitioner, Rajasthan-based Suraz India Trust wants the court to declare the system ‘ultra vires’ and ‘unconstitutional’ because the constitution does not mention it anywhere and it has been brought into existence through the judgements of the supreme court. The bench, which heard the matter, referred it to the Chief Justice of India for ‘appropriate direction’ as the petition raised ‘complicated legal issues.’ On its part, the government has said that the matter required ‘reconsideration.’

The appointment of judges to the Supreme Court of India and the High Court has over the years been a subject of intense conflict between the judiciary and the executive.

What are the Constitutional provisions?

Article 124(2) and 217(1) provide procedure for appointment of judges in higher judiciary.

Article 124(2) reads inter alia thus:

Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the high courts in the states as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:
Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.

Article 217(1) provides that every Judge of a high court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the high court, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years.

Article 124(2) talks about two type of consultation. One, being discretionary on the part of the President and the other being mandatory under the provision. Under Article 217(1) the process of ‘consultation’ by the President is mandatory and this clause does not speak of any discretionary consultation.

Introduction to collegiums system

Collegiums System is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. It has no place in the Indian Constitution.

The collegium system has its genesis in a series of three judgments that is now clubbed together as the "Three Judges Cases". The S P Gupta case (December 30, 1981) is called the "First Judges Case".

In the S.P. Gupta case (the First Judges’ Case, 1981), the Supreme Court held by a majority that among the opinion of the three constitutional functionaries, the opinion of the Chief Justice of India

did not enjoy primacy over those of the other two in the matter of appointment of judges. This view paid due regard to plain language; ‘consultation’ was not an ambiguous word at all.

The Second Judges’ Case, i.e. Supreme Court Advocates on Record, was decided in October 1993. ‘Consultation’ acquired a meaning.

The judgment stated that the question of primacy of the role of the Chief Justice of India in the context of appointment of judges in the Supreme Court and the High Courts must be considered to achieve the constitutional purpose of selecting the best available for composition of the Supreme Court and the High Courts, so essential to ensure the independence of the judiciary, and thereby, to preserve democracy. A fortiori any construction of the constitutional provisions which conflicts this constitutional purpose or negates the avowed object has to be eschewed, being opposed to the true meaning and spirit of the Constitution and, therefore, an alien concept.’ And so the consultation is with the Chief Justice of India as the head of the Indian judiciary, for the purpose of composition of higher judiciary, has to be distinguished from the colour the same word "consultation" may take in the context of the executive associated in that process to assist in the selection of the best available material.’

Further it is the judges who are best equipped to assess the suitability of lawyers to be on the bench because it is the courts which are the arenas where they perform. In other words, the technical competence of lawyers could best be appraised by judges. The opinion of the Chief Justice of India did not mean the individual opinion of Chief Justice of India, it meant his opinion formed collectively, that is to say, after taking into account the views of his senior colleagues, ‘who are required to be consulted by him for the formation of his opinion.’ This leads to the formation of the ‘collegium’.

In 1998, President K.R. Narayanan issued a presidential reference to the Supreme Court as to what the term “consultation” really means in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. The question was if the term “consultation” requires consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of the CJI constituted the meaning of the articles. In reply, the Supreme Court laid down nine guidelines for the functioning of the coram for appointments/transfers; this came to be the present form of the collegium.

Besides, a judgment dated October 28, 1998, written by Justice S P Bharucha at the head of the nine-judge bench, used the opportunity to strongly reinforce the concept of “primacy” of the highest judiciary over the executive.

While it is very much true that even under the prevalent system, the executive government is not bound to accept the recommendations of the Collegium if there are serious conflicts between its members or if dissent overpowers proposals, as also laid down in Third Judges' case (1998), but if the Collegium itself in unanimity flouts the principles of natural justice or diversity and equitable representation in matters of appointments, the government can only remain a mute spectator.

The first ever views against the collegiums system was expressed by National Commission to Review the Working of Constitution (NCRWC) headed by the former Chief Justice of India (CJI), Justice MN Venkatchaliah in its report (2002) also recommended setting up of NJC headed by CJI for appointment, transfer and dealing with errant judges. This was followed by the Fourth Report (2007) of the Second Administrative Reforms Commission headed by the former Union Law Minister, M Veerappa Moily which suggested the formation of the National Judicial Council proposed to be headed by the Vice-President of India and comprising members from all three pillars of democracy, a practice which is followed in many other democratic countries.

The then 18th Law Commission of India under Justice AR Lakshmanan in its 214th Report (2008) also recommended reconsideration of present process of appointing higher judges. All this apart, even certain Parliamentary Committees , noted jurists, legal intellectuals , representatives of Bar Panels as well as leaders of leading national political parties have been urging vociferously for replacing the prevalent “Collegium” system with a more broad-based and transparent mechanism. What more to say when even renowned legal luminary, Fali S Nariman who appeared on behalf of petitioners in Second Judges' (1993) regretted his victory which ushered in Collegium system in Indian Judiciary.

It is often lamented that India is the only democratic country where only Judges appoint Judges.

In recent public interest litigation, the collegium system was questioned. Refreshingly, the Attorney General (and presumably with the consent of the present government) supported the petitioner, saying that the Second and Third Judges’ Cases require reconsideration. However, the petition was ultimately dismissed with the Supreme Court holding that the present system merited no change.

SC guidelines on Appointments:
1. The term “consultation” with the Chief Justice of India in Articles 124 (2), 217(1) and 222 (1) requires consultation with a plurality of judges in the formation of the opinion of the CJI. The sole, individual opinion of the CJI does not constitute consultation.

2. The CJI can only make a recommendation to appoint a judge of the Supreme Court and to transfer a Chief Justice or puisne judge of a High Court in consultation with the four senior-most judges of the Supreme Court. As far as the High Courts are concerned, the recommendation must be made in consultation with the two senior-most judges of the Supreme Court.

3. Strong cogent reasons do not have to be recorded as justification for a departure from the order of seniority in respect of each senior judge who has been passed over. What has to be recorded is the “positive reason for the recommendation”.

4. The views of the judges consulted should be in writing and should be conveyed to the Government of India by the CJI along with his views to the extent set out in the body of this opinion.

5. The CJI is obliged to comply with the norms and the requirement of the consultation process in making his recommendations.

6. Recommendations by the CJI without [such compliance] are not binding upon the government.

7. The transfer of High Court judges is judicially reviewable only if the CJI took the decision without consulting the other four judges in the Supreme Court collegium, or if the views of the Chief Justices of both High Courts [involved in the transfer] are not obtained.

8. The CJI is not entitled to act solely in his individual capacity, without consultation with other judges of the Supreme Court, in respect of materials and information conveyed by the Government for non-appointment of a judge recommended for appointment.

9. The CJI can consult any of his colleagues on the appointment of a HC judge to the Supreme Court or transfer of a puisne judge. The consultation need not be limited to colleagues who have occupied the office of a judge or Chief Justice of that particular High Court.

Flaws in the collegiums system

The present process adopted by the collegium of judges is beset with its own problem of opacity and non-accountability besides excluding Executive entirely in the collaborative and consultative exercise for appointment of judges to Bench of higher judiciary. Because of its inherent deficiencies in the collegium, as many as approximately 275 posts of judges in various High Courts are lying vacant, which has direct bearing upon justice delivery system and thereby affecting the institutional credibility of judiciary.

The operation of the collegium has marked the complete breakdown of the inter-institutional system envisaged in Article 124 and Article 217. The collegium system enshrines de facto judicial supremacy over appointments. Though the executive must formally confirm the appointment, the role is marginal as its objections can be overridden by the collegium, whose decision is determinative in practice. The constrained role of the executive denudes the possibility of an inter-institutional check and balance on the judiciary and also renders public questioning of the executive in relation to judicial appointments futile as the executive inevitably pleads helplessness.

The collegium system has been criticised on various instances. A prominent one being the case of Delhi High Court Chief Justice AP Shah, who was supposed to be elevated to the Supreme Court. However, the collegium having Chief Justice S H Kapadia on board, rejected his appointment to the Apex Court. Interestingly, a few years back, when both Justice Kapadia and Justice Shah were on the bench of the Bombay High Court, the latter had dissented with the future Chief Justice of India. Another instance of supersession was when Justice Arijit Pasayat, as part of the collegium, had blocked the appointment of Justice A.K.Patnaik, then the Chief Justice of Madhya Pradesh High Court for unknown reason, though Justice Patnaik was a judge of immense repute. In yet another instance, Sikkim High Court Chief Justice Dinakaran was appointed to be elevated to the Supreme Court, only to be later charged guilty of corruption and graft charges. The recent allegations of Gujarat High Court Chief Justice Bhaskar Bhattacharya against former CJI Altamas Kabir have put a huge question mark on the collegium system. Justice Kabir has been alleged of scuttling Justice Bhattacharya’s elevation to the Supreme Court on the ground of malice due to the latter having rejected Justice Kabir’s sister appointment as a Calcutta High Court judge. Lastly, one other major flaw of the collegium system that has been seen over the years is that almost thirty per cent seats in various High Courts of the country remain vacant due to inefficient functioning of the collegium.

Steps to make the process transparent

The former CJIs M.N. Venkatachaliah and the late J.S. Verma; the retired Supreme Court judge, Justice Ravindaran, and Professor Madan Gopal expressed concern over the appointments made under the present collegium system. They strongly advocated the setting up of a Judicial Appointments Commission to select eligible and meritorious candidates as High Court judges

The Judicial Appointments Commission Bill, 2013, seeks to reform the appointment of High Court and Supreme Court judges by establishing a Judicial Appointments Commission (JAC). Simultaneously, a constitutional amendment providing for the recommendation of the JAC for appointment of judges to the government is proposed to be made by the Constitution (120th Amendment) Bill, 2013.

The Bill provides for the composition, functions and procedure of the Judicial Appointments Commission. The Commission is sought to be established for the purpose of recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court, and Chief Justice and other Judges of High Courts.

The Bill seeks to enable equal participation of Judiciary and Executive, ensure that the appointments to the higher judiciary are more participatory, transparent and objective.

Establishment and composition of Commission

• The Commission shall be chaired by the Chief Justice of India (CJI) and shall comprise of two other senior most Judges of the Supreme Court, the Union Minister for Law and Justice, and two eminent persons to be nominated by the collegium.
• The collegium comprises the Prime Minister, the CJI and Leader of Opposition of the Lok Sabha. The eminent members will retain membership for a three year period and are not eligible for re nomination.
• The Secretary to the Government of India in the Department of Justice shall be the convener of the Commission.

Functions of Commission

• The Commission seeks to perform functions that relate to appointment, transfer and quality of candidates.
• Those include (i) recommending persons for appointment as Chief Justice of India; judges of the Supreme Court, Chief Justices of High Courts and other judges of High Courts; (ii) recommending of transfer of Chief Justices of High Courts and the judges of High Courts, from one High Court to any other High Court; iii) ensuring that the person recommended is of ability, integrity and standing in the legal profession.
• The procedure for recommendation with respect to appointment of High Court Judges includes eliciting views of the Governor, Chief Minister and Chief Justice of High Court of the concerned state, in writing. This shall be in accordance with procedure specified by regulations made by the Commission.

Reference to Commission for filling up of vacancies

• Upon the arising of a vacancy in the High Court and Supreme Court, references to the Commission shall be made by the Central Government.
• Intimation of existing vacancies shall be made within a period of three months from the date of coming into force of this Act.
• In the case of vacancy due to the completion of term, reference shall be made two months prior to the date of occurrence of vacancy.
• In the case of vacancy due to the death, resignation, reference shall be made within a period of two months from the date of occurrence of vacancy.
Procedure for short listing of candidates
• Process for selection shall be initiated by the Convener, by inviting recommendations from the Chief Justices of High Courts, the Central Government and the State Governments, for candidates fulfilling eligibility criteria.
• The Commission may make regulations to specify the procedure for short listing of candidates for considering their appointment as Judges to the High Court and Supreme Court.

THE COLLEGIUM SYSTEM vs. THE JUDICIAL APPOINTMENTS COMMISSION

The collegium system has failed to create an unbiased system for making the appointments of the judges of the Supreme Court and the High Courts and many voices from the legal fraternity have been demanding its replacement. But Charges have already been leveled against the JAC as an attempt to compromise the independence of the Judiciary. It has been said that the cure should not be worse than the disease. It is required that the JAC should not give sweeping powers to the Executive and a balance is maintained. There is a system of checks and balances under which the Constitution functions and it can be maintained only if no organ of the State is vested with an absolute power. 
The collegium system is an undemocratic system under which the prerogative lies with the Judiciary to make the appointments to such a powerful institution. This system is a perfect example of legislation by the Judiciary. Such a system is not followed in any democratic state and is unique to our legal system. It has completely annihilated the Constitution scheme of checks and balances by reducing the role of the Executive to the minimum. 
The JAC, Bill definitely provides a better alternative but a lot of debate and discussion is required to be conducted before it turns into an Act as it concerns a matter of immense importance. There is no clarity as to who will be the ‘two eminent’ persons who are proposed to be the members of the JAC and on what considerations they will be selected. The UPA government’s hurry to pass the bill has raised serious aspersions on the intention of the government. The approach of the government should be more assiduous and responsible. This is not a bill of ordinary importance and concerns the complete overhaul of the process of judicial appointments. It should be passes only after detailed deliberations and debates. The non transparency of the current collegium system should not be made a pretext for giving the Executive sweeping powers in the matter of judicial appointments.

Shortcomings of the proposed reforms

1. The JAC has the Chief Justice of India and two senior most judges. Then there is the Law Minister and two “eminent persons,” bringing the non-judicial component to three out of six members.

• The selection of eminent persons risks the taint of political appointments, given the fact that the selection is made by the Prime Minister and the Leader of the Opposition constituting a total of two, and reducing the judicial component consisting of the Chief Justice to one.

2. The constitutional amendment bill, which provides the constitutional support for the JAC bill, does not incorporate the composition of the JAC.

• The composition of the JAC has to be entrenched in the Constitution itself; otherwise it could be subject to changes by any ordinary law by the government of the day. This is also the view of the standing committee.

3. The JAC is vested with the power to recommend persons for appointment of the Chief Justice of India — which means the rule of seniority has been given the go-by.

• Every eligible senior judge will now face a direct threat to being superseded from being appointed as Chief Justice.

4. To seek the opinion of the government and the Chief Minister of the State in the appointment process again raises the risks of political appointments — which in turn jeopardises independence.

5. Under the JAC bill, the JAC has been entrusted with the formidable task of not only appointing 31 SC judges, but over 800 judges in 24 high courts.

• To be effective, such a commission has to be a full-time institution.

• It is impossible for it to operate part-time with ex-officio judges of the SC, who have full-time court work, and the law minister, who has other duties, in charge.

• In the UK, the judicial appointments commission has 15 commissioners and is a permanent institution working day-to -day with a large secretariat to support it.

6. Under the JAC bill, the JAC would have the onerous task of appointing SC judges as well as the high court.

• As the criteria for selection for SC judges is different from that of high court judges, and considering the importance of SC judges, there should be a separate commission for appointments to the SC, as in the UK.

7. A serious lacuna in the bill is that the selection of judges is to be determined by regulations made by the commission to “shortlist” candidates.

• There is no indication of how candidates will be shortlisted and by whom.

• In the absence of definite objective criteria, the short listing could be highly subjective and even arbitrary. This has also been noted by the standing committee in its report.

• The standing committee has suggested public notifications be issued inviting applications for appointment to the post of judges of the high court, as is the practice in the UK. However, this is unlikely to work well in India.

• Advertising for a judicial post is likely to deter well-qualified candidates from accepting appointments because they will be apprehensive of the impact a rejected application could have on their reputation.

The Constitution (118th Amendment) Bill, 2012 (Insertion of new article 371J)

• The Constitution 118th Amendment Bill, 2012 was introduced in the Lok Sabha on September 7, 2012 by the Minister of Home Affairs, Mr. Sushil Kumar Shinde.  The Bill was referred to the Standing Committee on Home Affairs (Chairperson: Mr. M. Venkaiah Naidu), which is scheduled to submit its report by the first week of the Winter Session of the Parliament.    

• A resolution to make special provisions for the Hyderabad-Karnataka Region was passed by the Legislative Assembly and Legislative Council of Karnataka in March 2012.  The resolution aims to establish an institutional mechanism to develop the region and promote inclusive growth.  It aims to reduce inter-region and inter-district disparity in the State of Karnataka.  This Bill was introduced in Parliament to give effect to this resolution.

• The Bill seeks to insert Article 371J in the Constitution to empower the Governor of Karnataka to take steps to develop the Hyderabad-Karnataka Region.  As per the Statements of Objects and Reasons of the Bill, this Region includes the districts of Gulbarga, Bidar, Raichur, Koppal, Yadgir and Bellary.

• The President may allow the Governor to take the following steps for development of the region: (i) setting up a development board for the Region; (ii) ensure equitable allocation of funds for development of the Region; and (iii) provide for reservation in educational and vocational training institutions, and state government positions in the Region for persons from the Region.

The 117th Amendment Bill-2012

About Election Commission of India

A Constitutional Body Appointment & Tenure of Commissioners Transaction of Business The Setup Budget & Expenditure Political Parties & the Commission Executive Interference Barred Advisory Jurisdiction &  Quasi-Judicial Functions Judicial Review Media Policy Voter Education International Co-operation New Initiatives

 Constitutional Body

India is a Socialist, Secular, Democratic Republic and the largest democracy in the World. The modern Indian nation state came into existence on 15th of August 1947. Since then free and fair elections have been held at regular intervals as per the principles enshrined in the Constitution, Electoral Laws and System.

The Constitution of India has vested in the Election Commission of India the superintendence, direction and control of the entire process for conduct of elections to Parliament and Legislature of every State and to the offices of President and Vice-President of India.

Election Commission of India is a permanent Constitutional Body. The Election Commission was established in accordance with the Constitution on 25th January 1950. The Commission celebrated its Golden Jubilee in 2001. For details, please click here

Originally the commission had only a Chief Election Commissioner. It currently consists of Chief Election Commissioner and two Election Commissioners.

For the first time two additional Commissioners were appointed on 16th October 1989 but they had a very short tenure till 1st January 1990. Later, on 1st October 1993 two additional Election Commissioners were appointed. The concept of multi-member Commission has been in operation since then, with decision making power by majority vote.

Appointment & Tenure of Commissioners

The President appoints Chief Election Commissioner and Election Commissioners. They have tenure of six years, or up to the age of 65 years, whichever is earlier. They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court of India. The Chief Election Commissioner can be removed from office only through impeachment by Parliament.

Transaction of Business

The Commission transacts its business by holding regular meetings and also by circulation of papers. All Election Commissioners have equal say in the decision making of the Commission. The Commission, from time to time, delegates some of its executive functions to its officers in its Secretariat.

The Setup

The Commission has a separate Secretariat at New Delhi, consisting of about 300 officials, in a hierarchical set up.

Two or three Deputy Election Commissioners and Director Generals who are the senior most officers in the Secretariat assist the Commission. They are generally appointed from the national civil service of the country and are selected and appointed by the Commission with tenure. Directors, Principal Secretaries, and Secretaries, Under Secretaries and Deputy Directors support the Deputy Election Commissioners and Director Generals in turn. There is functional and territorial distribution of work in the Commission. The work is organised in Divisions, Branches and sections; each of the last mentioned units is in charge of a Section Officer. The main functional divisions are Planning, Judicial, Administration, Systematic Voters’ Education and Electoral Participation, SVEEP, Information Systems, Media and Secretariat Co-ordination. The territorial work is distributed among separate units responsible for different Zones into which the 35 constituent States and Union Territories of the country are grouped for convenience of management.

At the state level, the election work is supervised, subject to overall superintendence, direction and control of the Commission, by the Chief Electoral Officer of the State, who is appointed by the Commission from amongst senior civil servants proposed by the concerned state government. He is, in most of the States, a full time officer and has a small team of supporting staff.

At the district and constituency levels, the District Election Officers, Electoral Registration Officers and Returning Officers, who are assisted by a large number of junior functionaries, perform election work. They all perform their functions relating to elections in addition to their other responsibilities. During election time, however, they are available to the Commission, more or less, on a full time basis.

The gigantic task force for conducting a countrywide general election consists of nearly five million polling personnel and civil police forces. This huge election machinery is deemed to be on deputation to the Election Commission and is subject to its control, superintendence and discipline during the election period, extending over a period of one and half to two months.

Budget & Expenditure

The Secretariat of the Commission has an independent budget, which is finalised directly in consultation between the Commission and the Finance Ministry of the Union Government. The latter generally accepts the recommendations of the Commission for its budgets. The major expenditure on actual conduct of elections is, however, reflected in the budgets of the concerned constituent units of the Union - States and Union Territories. If elections are being held only for the Parliament, the expenditure is borne entirely by the Union Government while for the elections being held only for the State Legislature, the expenditure is borne entirely by the concerned State. In case of simultaneous elections to the Parliament and State Legislature, the expenditure is shared equally between the Union and the State Governments. For Capital equipment, expenditure related to preparation for electoral rolls and the scheme for Electors' Identity Cards too, the expenditure is shared equally. 

Executive Interference Barred

In the performance of its functions, Election Commission is insulated from executive interference. It is the Commission which decides the election schedules for the conduct of elections, whether general elections or bye-elections. Again, it is the Commission which decides on the location polling stations, assignment of voters to the polling stations, location of counting centres, arrangements to be made in and around polling stations and counting centres and all allied matters.

Political Parties & the Commission

Political parties are registered with the Election Commission under the law. The Commission ensures inner party democracy in their functioning by insisting upon them to hold their organizational elections at periodic intervals. Political Parties so registered with it are granted recognition at the State and National levels by the Election Commission on the basis of their poll performance at general elections according to criteria prescribed by it. The Commission, as a part of its quasi-judicial jurisdiction, also settles disputes between the splinter groups of such recognised parties.

Election Commission ensures a level playing field for the political parties in election fray, through strict observance by them of a Model Code of Conduct evolved with the consensus of political parties. 

The Commission holds periodical consultations with the political parties on matters connected with the conduct of elections; compliance of Model Code of Conduct and new measures proposed to be introduced by the Commission on election related matters. 

Advisory Jurisdiction & Quasi-Judicial Functions

Under the Constitution, the Commission also has advisory jurisdiction in the matter of post election disqualification of sitting members of Parliament and State Legislatures. Further, the cases of persons found guilty of corrupt practices at elections which come before the Supreme Court and High Courts are also referred to the Commission for its opinion on the question as to whether such person shall be disqualified and, if so, for what period. The opinion of the Commission in all such matters is binding on the President or, as the case may be, the Governor to whom such opinion is tendered. 

The Commission has the power to disqualify a candidate who has failed to lodge an account of his election expenses within the time and in the manner prescribed by law. The Commission has also the power for removing or reducing the period of such disqualification as also other disqualification under the law.

Judicial Review

The decisions of the Commission can be challenged in the High Court and the Supreme Court of the India by appropriate petitions. By long standing convention and several judicial pronouncements, once the actual process of elections has started, the judiciary does not intervene in the actual conduct of the polls. Once the polls are completed and result declared, the Commission cannot review any result on its own. This can only be reviewed through the process of an election petition, which can be filed before the High Court, in respect of elections to the Parliament and State Legislatures. In respect of elections for the offices of the President and Vice President, such petitions can only be filed before the Supreme Court.

Media Policy

The Commission has a comprehensive policy for the media. It holds regular briefings for the mass media-print and electronic, on a regular basis, at close intervals during the election period and on specific occasions as necessary on other occasions. The representatives of the media are also provided facilities to report on actual conduct of poll and counting. They are allowed entry into polling stations and counting centres on the basis of authority letters issued by the Commission. They include members of both international and national media. The Commission also publishes statistical reports and other documents which are available in the public domain. The library of the Commission is available for research and study to members of the academic fraternity; media representatives and anybody else interested.

The Commission has, in co-operation with the state owned media - Doordarshan and All India Radio, taken up a major campaign for awareness of voters. The Prasar Bharti Corporation which manages the national Radio and Television networks, has brought out several innovative and effective short clips for this purpose.

Voter Education

Voters’ Participation in the democratic and electoral processes is integral to the successful running of any democracy and the very basis of wholesome democratic elections. Recognising this, Election Commission of India, in 2009, formally adopted Voter Education and Electoral participation as an integral part of its election management.

International Co-operation

India is a founding member of the International Institute for Democracy and Electoral Assistance (IDEA), Stockholm, Sweden. In the recent past, the Commission has expanded international contacts by way of sharing of experience and expertise in the areas of Electoral Management and Administration, Electoral Laws and Reforms. Election Officials from the national electoral bodies and other delegates from the several countries - Russia, Sri Lanka, Nepal, Indonesia, South Africa, Bangladesh, Thailand, Nigeria, Namibia, Bhutan, Australia, the United States and Afghanistan etc. have visited the Commission for a better understanding of the Indian Electoral Process. The Commission has also provided experts and observers for elections to other countries in co-operation with the United Nations and the Commonwealth Secretariat.

New Initiatives

The Commission has taken several new initiatives in the recent past. Notable among these are, a scheme for use of State owned Electronic Media for broadcast/telecast by Political parties, checking criminalisation of politics, computerisation of electoral rolls, providing electors with Identity Cards, simplifying the procedure for maintenance of accounts and filling of the same by candidates and a variety of measures for strict compliance of Model Code of Conduct, for providing a level playing field to contestants during the elections.

FAQ's About Election commission of India

Q 1. Which authority conducts elections to the offices of the President and Vice-President of India ?

Ans. Election Commission of India (ECI)

Under Article 324(1) of the Constitution of India, the Election Commission of India, interalia, is vested with the power of superintendence, direction and control of conducting the elections to the offices of the President and Vice-President of India. Detailed provisions are made under the Presidential and Vice Presidential Elections Act, 1952 and the rules made thereunder.

Q 2. Which authority conducts elections to Parliament?

Ans. Election Commission of India (ECI)

The same Article 324 also vests in the Commission the powers of superintendence, direction and control of the elections to both Houses of Parliament. Detailed provisions are made under the Representation of the People Act, 1951 and the rules made thereunder.

Q 3. Which authority conducts elections to the State Legislative Assemblies and Legislative Councils?

Ans. Election Commission of India (ECI)

Article 324 (1) also vests in the Commission the powers of superintendence, direction and control of the elections to both Houses of the State Legislature. Detailed provisions are made under the Representation of the People Act, 1951 and the rules made thereunder.

Q 4. Which authority conducts elections to Corporations, Municipalities and other Local Bodies ?

Ans. The State Election Commissions (SECs)

The State Election Commissions constituted under the Constitution (Seventy-third and Seventy-fourth) Amendments Act, 1992 for each State / Union Territory are vested with the powers of conduct of elections to the Corporations, Muncipalities, Zilla Parishads, District Panchayats, Panchayat Samitis, Gram Panchayats and other local bodies. They are independent of the Election Commission of India.

Q 5. What is the present composition of the Election Commission?

Ans. A Three - Member Body

At present, the Election Commission of India is a three-member body, with one Chief Election Commissioner and two Election Commissioners.

Q 6. Has the Election Commission been a multi-member body from the beginning?

Ans. No.

It was not a multi member body from the beginning. It was a single - member body when it was first set up in 1950 and up to 15th October, 1989 with only the Chief Election Commissioner. From 16th October, 1989 upto the 1st January, 1990, it became a three-member body with R.V.S.Peri Sastri (C.E.C) and S.S.Dhanoa and V.S.Seigell as Election Commissioners. From 2nd January, 1990 to 30th September, 1993, it was a single-member Commission and again from 1st October, 1993 it has become a three-member Commission.

Q 7. What is the status Chief Election Commissioner and the Election Commissioners in terms of salaries and allowances etc.?

Ans. Equivalent to Supreme Court Judges.

The Chief Election Commissioner and the two Election Commissioners draw salaries and allowances at par with those of the Judges of the Supreme Court of India as provided for by the Chief Election Commissioner and other Election Commissioners (Conditions of Service) Rules, 1992.

Q 8. What is the term of office of the Chief Election Commissioner? Is it different from the Election Commissioners?

Ans. The Chief Election Commissioner or an Election Commissioner holds office for a term of six years from the date on which he assumes his office. However, where the Chief Election Commissioner or an Election Commissioner attains the age of sixty-five years before the expiry of the said term of six years, he shall vacate his office on the the date on which he attains sixty-five years of age.

Q 9. When the Commissioner becomes a multi-member Commission, how are the decisions taken, whether by majority or by consensus?

Ans. Section 10 of the Chief Election Commissioner and other Election Commissioners (Conditions of Service) Amendment Act, 1993 is reproduced below:-
(1) The Election Commission may be by unanimous decision, regulate the procedure for transaction of to business as also allocation of its business amongst the Chief Election Commissioner and their Election Commissioners.
(2) Save as provided in sub section (i) all business of the Election Commission shall, as far as possible, be transacted unanimously.
(3) Subject to the provisions of sub-section (ii), if the Chief Election Commissioner and other Election Commissioners differ in opinion on any matter, such matter shall be decided by according to the opinion of the majority.

Q 10. Who appoints the Chief Election Commissioners and Election Commissioners?

Ans. The President.

Under Article 324(2) of the Constitution of India, the President of India is empowered to appoint the Chief Election Commissioner and the Election Commissioners.

Q 11. Who fixes the number of Election Commissioners (other than Chief Election Commissioner)?

Ans. The President.

Article 324(2) also empowers the President of India to fix from time to time the number of Election Commissioners other than the Chief Election Commissioner.

Q 12. Who supervises the election work in a State ?

Ans. The Chief Electoral Officer (CEO).

As per section 13A of the Representation of the People Act 1950, read with section 20 of the Representation of the People Act, 1951, the Chief Electoral Officer of a State/ Union Territory is authorised to supervise the election work in the State/Union Territory subject to the overall superintendence, direction and control of the Election Commission.

Q 13. Who appoints the Chief Electoral Officer?

Ans. Election Commission of India (ECI)

The Election Commission of India nominates or designates an Officer of the Government of the State/Union Territory as the Chief Electoral Officer in consultation with that State Government/Union Territory Administration.

Q 14. Who supervises the election work in a District?

Ans. The District Election Officer (DEO)

As per section 13AA of the Representation of the People Act 1950, subject to the superintendence, direction and control of the Chief Electoral Officer, the District Election Officer supervises the election work of a district.

Q 15. Who appoints the District Election Officer?

Ans. Election Commission of India (ECI).

The Election Commission of India nominates or designates an Officer of the State Government as the District Election Officer in consultation with the State Government.

Q 16. Who is responsible for the conduct of elections in any Parliamentary or Assembly constituency ?

Ans. Returning Officer (RO)

The Returning Officer of a parliamentary or assembly constituency is responsible for the conduct of elections in the parliamentary or assembly constituency concerned as per section 21 of the Representation of the People Act 1951.

Q 17. Who appoints the Returning Officer?

Ans. Election Commission of India (ECI)

The Election Commission of India nominates or designates an officer of the Government or a local authority as the Returning Officer for each of the assembly and parliamentary constituencies in consultation with the State Government/Union Territory Administration. In addition, the Election Commission of India also appoints one or more Assistant Returning Officers for each of the assembly and parliamentary constituencies to assist the Returning Officer in the performance of his functions in connection with the conduct of elections.

Q 18. Who is responsible for the preparation of electoral rolls for a Parliamentary or Assembly Constituency?

Ans. Electoral Registration Officer (ERO)

The Electoral Registration officer is responsible for the preparation of electoral rolls for a parliamentary / assembly constituency.

Q 19. Who conducts the poll at a polling station?

Ans. Presiding Officer

The Presiding Officer with the assistance of polling officers conducts the poll at a polling station.

Q 20. Who appoints the Electoral Registration officer?

Ans. Under section 13B of the Representation of the People Act, 1950, the Election Commission of India, in consultation with the State / UT Government, appoints an Officer of the Government or the Local Authorities as the Electoral Registration Officer. In addition, the Election Commission of India also appoints one or more Assistant Electoral Registration Officers to assist the Electoral Registration Officer in the performance of his functions in the matter of preparation / revision of electoral rolls.

Q 21. Who appoints Presiding Officers and Polling Officers?

Ans. District Election Officer (DEO)

Under section 26 of the Representation of the People Act 1951, the District Election Officer appoints the Presiding Officers and the Polling Officers. In the case of Union Territories, such appointments are made by the Returning Officers.

Q 22. Who appoints Observers?

Ans. Election Commission of India (ECI)

Under section 20B of the Representationof the People Act 1951, the Election Commission of India nominates officers of Government as Observers (General Observers and Election Expenditure Observers) for parliamentary and assembly constituencies. They perform such functions as are entrusted to them by the Commission. Earlier, the appointment of Observers was made under the plenary powers of the Commission. But with the amendments made to the Representation of the People Act, 1951 in 1996, these are now statutory appointments. They report directly to the Commission.