S.S. DHANOA

A

v.

UNION OF INDIA AND ORS.

JULY 24, 1991

[M.H. KANIA AND P.B. SAWANT, JJ] B

Constitution

of India, 1950: Article 324. Election Commission­

President's Notification-Determination

of number and appointment of

Election Commissioners-Ru/es providing ,tenure of 5 years or upto

superannuation

age of 65 years-Subsequent notification by President

-Abolition of the post of Election Commissioners-Whether ma/a fide, C

whether affects independence of Election Commission-Material loss to

incumbents-Whether exigency of employment-Flashing of photo­

graphs

of Election Commissioners while announcing their removal on

TV deprecated.

Election Commission-Salient features and

composttwn of~ p

Appointment of Chief Election Commissioner is obligatory-Appoint­

ment

of other Election Commissioners is not obligatory-Comn,ission's

work should warrant appointment

of other Election Commissioners­

Distinction

in service conditions and tenure of the Chief Election Com­

missioner and other

£/ection Commissioners-What is-Chief Election

Commissioner whether primus inter partes-Need for laying down the

E

. procedure for transacting the business of Election Commission

emphasised.

Article 324(2) of the Constitution

empo~ers the President to fix

and appoint such number of Election Commissioners as he may from

time to time determine.

By a notification dated

7.10.1989 the President F

fixed the

number of Election Commissioners at two. By another notifi­

cation dated

16.10.89, the President appointed the petitioner and

another person as El~ction Commissioners. Simultaneously, the Presi­

dent also promulgated the rules regulating the conditions of service and

tenure of the Election Commissioners under which an Election Commis­

sioner was to hold office for a ferm of five years or until he attained the O

age of 65 years whichever was earlier.

However, on Isl January, 1990, the President issued two notifica­

tions rescinding the earlier two notifications dated 7.10.89 and

16.10.89. Consequently, the two posts of Election Commissioners were

abolished and the appointment of the petitioner and the other ElectiolJ H

(:ommissioner came to an end.

159

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160 SUPREME COURT REPORTS I 1991) 3 S.C.R.

The petitioner filed a writ petition in this Court challenging the

legality of the notifications dated 1st January, 1990 contending that: (a)

the Election Commission being an independent body, the abolition of

the posts

of Election Commissioners and their consequent removal

tampered

with the independence of the Election Commission directly or

indirectly; (b) in view of the service rules made by the President the

Election Commissioners were entitled

to continue in office for full

tenure of five years or until they attained the age of 65 years which­

ever was earlier;

(c) the notification abolishing the two posts and

removing the petitioner and the other Election Commissioner were

issued

ma/a fide under the advice of the Chief Election Commis­

sioner; (d) Petitioner's removal affected him materially; and

(e) the

flashing

of the photographs of the petitioner and. other Election Com­

missioner while announcing their removal on the television during a

· news bulletin subjected them to severe loss of dignity and reputation.

Dismissing the petition, this Court,

D HELD:

1. The Election Commission as envisaged by the Constitu-

tion

is an independent institution and has to function as such. In the

~

discharge of its duties and functions it is not amenable to the control of

any

other body. The salient features of the composition of the Election

Commission as given in Article 324 are that the Commission shall

always consist of a permanent incumbent, viz. the Chief Election Com-

E missioner. But the President has also been given the power to appoint

such number

of other Election Commissioners as he may, from time to

time, fix. While the appointment of the Chief Election Commissioner

is

a must, the appointment of the other Election Commissioner or Com­

missioners

is not obligatory. The number of other Election Commis­

sioners

is left to the discretion of the President depending upon the need

F felt from time to time. [169A-B-C]

1.1 However, in the 1natter of the conditions of service and tenure

of office of the Election Cu1nmissioners, a distinction is made between

the Chief Election Commissioner on the one hand and Election Com­

missioners and Regional Co1nmissioners on the other. Whereas the con-

G ditions of service and tenure of office of

all are to be such as the Presi­

dent may, by rule determine, a protection is given to the Chief Election

Commissioner in that his conditions of service shall not be varied to his

disadvantage after his appointment, and he shall not be removed from

his office except in like manner and

on the like grounds as a judge of the

Supreme Court. These protections are not available either

to the Elec-

B lion Commissioners or to the Regional Commissioners. Their conditions

.\.

S.S. DHANOA v. U.0.1. 161

of service can be varied even to their disadvantage after their appoint­

ment and they can be removed on the recommendation of the Chief

Election Commissioner, although not otherwise. Thus in these two

respects not only the Election Commissioners are not on

par with the

Chief Election Commissioner, but they are also placed on par with the

Regional Commissioners although the former constitute the Commis­

sion and the latter

do not and are

only appointed to assist the

Commission. [169H, 170A-8-C]

Article 324(4) though spells out the relationship between Election

Commission and Regional Commissioners does not help to throw light

on the relationship between the Chief Election Commissioner and Elec­

tion Commissioners inter se. The fact that the Regional Commissioners

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B

are to be appointed by the President in consultation with the Commi•-C

sion to asist the Commission to perform its functions, though places the

Election Commissioners on a higher pedestal than the Regional

Commissioners does not raise them to the status of the Chief Election

Commissioner. The Chief Election Commissioner does not, therefore,

appear to be primus inter partes, i.e. first among the equals, but is

intended to be placed in a distinctly higher position. Therefore, it can­

D

not be held that the Election Commissioners have the same powers

and the authority as the Chief Election Commissioner, and it may well

be

that the Chief Election Commissioner has the power to disregard

and override the views of the Election Commissioners the abolition

of their posts therefore least infringed on the independence of the

Commission. [1758, 174H, J75A,

170E, 1808]

1.2 The petitioner and the other Election Commissioners were

appointed when the work of the Commission did not warrant their

E

---', appointment. It is evident from record that the then Government had

thought it

fit to make the two appointments although there was no need

to do so. What other considerations weighed with the then Government F

in making the appointment

is anybody's guess, and the Court does nut

propose to

go into them. However, it

w&s expected that the Union of

India would candidly admit the initial mistake of making the said

appointments

rather than defend them on non-existent grounds. Not

only there was no need for the said appointments, but also the appoint­

ments in the absence of the definition of their roles in the Commission G

__. were creating an untoward and unworkable situation rendering the

Commission internally torn and ineffectual in its functioning. Thus the

manner of appointment of the

Election Commissioners and the attitude

adopted

by them in the discharge of their functions was

hardly cal­

culated to ensure free and independent functioning of the Commission.

much less its smooth working. [175E, 179C-D, E, 178C] H

,

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162 SUPREME COURT REPORTS [1991] 3 S.C.R.

1.2.1 In

view of the fact that there was no need for the posts of the

Election Commissioners at the time the appointments were made and

that in the absence of a clear definition of their role in the Commission,

particularly, vis-a-vis the Chief Election Commissioner, the

appoint­

ments were an oddity, the abolition of the posts far from striking at the

independence of the Commission paved the

way for its smooth and

effective functioning. [179H,

180AI

2. The instant case is not a case of a premature termination of

service.

It is a clear case of the abolition of posts and the termination of

the service is a consequence thereof. Hence the termination of service

is

not open to challenge on the ground of any illegality.

[1800-Ej

3. The allegations of mala fides against the Chief Election

Commissioner are

hard to accept. The removal of the Election

Commis­

sioners was not on the recommendations of the Chief Election Commis­

sioner under the 2nd proviso to clause (5) of the Article 324. Nothing

has been brought

on record to show that even otherwise the

Govern­

ment while abolishing the posts had acted on the suggestion of the Chief

Election Commissioner. On the other hand, the records shows that

although tht:re were bickerings even on petty issues, all the decisions

were taken ultimately unanimously. It is, however, another thing that

this unison in working, in the circumstances, could not have been

guaranteed for all time to come, and the Government if they desired the

E continuance of the two Commissioners had an option

to make the rules of

business.

That the Government chose one rather than the other option

is no ground to allege ma/a fides against them and much less against the

Chief Election Commissioner.

[!SIB; 180F-H, 181A]

4. Material loss on account of cutting short of the tenure is not

F unknown in a service career and is one of the exigencies of employment.

The creation and abolition of post is the prerogative of the executive,

and in the present case of the President. Article 324(2) leaves it to the

President to fix and appoint such number of Election Commissioners as

he may from time to time determine. The power to create the posts is

unfettered. So also is the power to reduce or abolish them. If, therefore,

G the President, finding that there was no work for the Election Commis·

sioners or that the Election Commission could not function, decided to ....._

abolish the posts, that was an exigency of the office held by the

petiticmer. [181C-Dj

5. The flashing of the photographs of the petitioner and the other

H Election Commissioner in the news bulletin

by the Doordarshan was

S.S. DHANOA v. U.0.L 163

clearly uncalled for. Although there is nothing on record to show at

whose instance it was don~;-:yet the act deserves condemnation in the

strongest language.

It was within the powers of the Government to

investigate the

incident and it could have offered to investigate the event

and to make proper amends to the petitioner and the other Election

Commissioner. Instead it has casually dismissed the incident by a

mechanical denial of it. The attitude adopted

by the Government towards

the erstwhile public servants

is strongly disapproved. [182E-F-G-H, 183A]

6. It appears that there is an impression in some quarters

lh'! if

the Government admits its mistake whether it

is committed by the same

Government

or the earlier Government, it loses its face. Nothing

can.. be

farther from reality. In a democratic regime, the Government repre­

sents the people.

It adds to its respectability and credibility, if the

Government also owns its mistakes frankly:

I 179D-E]

7. In the absence of rules to the contrary, the members of a

multi-member body are not and need not always be on

par with each

A

B

c

other in the matter of their rights, authority and powers. [174C] D

7. I It is an acknowledged rule of transacting business in a multi­

member body that when there is ·DO express provision to the contrary,

the business has to be carried on unanimously. The rule to the contrary

such as the decision by majority, has to be laid down specifically

by

· spelling out the kind of majority-whether simple special of all the E

members

or of the members present and voting etc. [174E]

7 .2

In a case such as that of the Election Commission which is not

-', merely an advisory body but an executive one, it is difficult to carry on

its affairs by insisting on unanimous decisions in all matters. No proce­

dure has been laid down for transacting the business when Election F

Commissioners are appointed. Hence, a realistic approach demands

that either the procedure for transacting business is spelt out by a

statute

or a rule either prior to or simultaneously with the appointment

of the Election Commissioners or that no appointment of Election Com­

missioners is made in the absence of such procedure.

I 174F-G]

8. There

is no doubt that two heads are better than one, and

particularly when

an institution like the Election Commission is

entrusted with vital functions, and is armed with exclusive uncontrolled

power to execute them, _it.is both necessary and desirable that the

powers

G

are not exercised by one individual, however, all-wise he may be. It

ill-conforms the tenets of the democratic rule. It is true that the inde-H

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164 SUPREME COURT REPORTS [1991] 3 S.C.R.

pendence of an institution depends upon the perso.ns who man it and not

on their number. A single individual may sometimes prove capable of

withstanding all the pulls and pres.sures, which many may not. How­

ever, when vast powers are exercised by an institution which is account~

able to none, it is politic to entrust its affairs to more hands than one. It

helps to assure judiciousness and want of arbitrariness. The fact, how­

ever, remains that where more individuals than one man an institution,

their role have to be clearly defined, if the functioning of the institution

is not to come to a naught. [I 78E-G I

ORIGINAL JURISDICTION: Writ Petition (C) No. 235 of

1990.

(Under Article 32 of the Constitution oi India).

Gopal Subramanium, Ms. Binu Tamta and S. Murlidhar for the

Petitioner.

D Altaf Ahmad, Additional Solicitor General, Ms. A. Subhashini,

K. Swami, C.S. Vaidyanathan and S.R. Setia for the Respondents.

The Judgment of the Court was delivered by

SA WANT, J. On 7th October, 1989, by a notification issued in

E exercise

of the powers conferred by clause (2) of Article 324 of the

Constitution, the President fixed, until further orders, the number of

Election

Commi>S!oners (other than the Chief Election Commis­

sioner), at two. By a subsequent notification of 16th October, 1989

issued under the same provisions, the President appointed the

petitioner and one Shri V.S. Seigell as Election Commissioners w.e.f.

F

the afternoon of that day.

On the same day, by another notification

issued in exercise

of the powers conferred by clause (5) of Article 324

of the Constitution, the President made rules to regulate the

condi­

tions of service and tenure of office of the Election Commissioners

(other than the Chief Election Commissioner). These conditions laid

down, among other things, that an Election Commissioner shall hold

G office for a term

of five years or until he attains the age of 65 years

whichever happens earlier.

2.

On 1st 1anuary, 1990, in exercise of the powers conferred

under Article 324(2) of the Constitution. the President issued two

notifications-one rescinding, with immediate effect, the notification of

H 7th October, 1989 creating the two posts of Election Commissioners

S.S. DHANOA v .. U.0.1. [SAWANT. J.] 165

and another rescinding, with immediate effect, the notification of 16th

October, J9S9 by which the appointment of the petitioner and Shri

V.S. Seigell was made. It is these two notifications of 1st January, 1990

which are being assailed in the present petition.

3.

The grounds of attack are, firstly, once appointed, an Elec­

tion Commissioner continues in office for his full tenure determined

by

the rules made under Article 324(5) of the Constitution which is five

years

or till the attainment of 65 years of age whichever is earlier. The

President could remove the petitioner only on the recommendation of

the Chief Election Commissioner. He had otherwise no power to cut

short the tenure either under the Constitution

or under the rules.

Hence, the rescission of the notifications of 7th and 16th October,

1989 by the impugned notifications of !st January, 1990 is illegal.

Secondly, it

is urged that the Election Commission is an independent

body and its independence

is vital to free and fair elections which are a

sine qua non for democracy. Any interference with the working of the

Election Commission. directly

or indirectly, is bound to have adverse

effect on the health of our democracy. Hence, it

is of paramount

importance to the democracy enshrined

in our Constitution that its

independence

is not eroded in any manner. The device adopted in tbe

present case, viz., of the rescission of the notification creating the

posts and thereby abolishing the posts and thus removing the peti­

tioner and the

other Election Commissioner was an attempt to remove

the Election Commissioners which removal could not be effected

otherwise either under the Constitution

or under the service rules. The

third attack

is that the two notifications were issued mala fide under

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D

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the advice of the Chief Election Commissioner with the sole object of

getting rid

of the petitioner and the

other Election Commissioner

because the Chief Election Commissioner was from the beginning ill­

disposed towards the creation of the posts

of the Election Commis-F

sioners.

It is also alleged that there were differences of opinion bet­

ween the Chief

Fite.ion Commissioner on the one hand and the Elec­

tion Commissioners on the other and the former desired that he should

have

the sole power of decisi(}n-making in all matters. Lastly, it is

contended that the petitioner's removal affected him materially since

after a

distinguisl.~d career as a civil servant he had joined the Bihar G

-• Public Service Commission as its Chairman only on 30th September,

1989 and had resigned the said post on 14th October, 1989 to join as

Election Commissioner on 16th October, 1989. His career was abrup-

tly ended within less than three months thereafter.

It was also urged

that while announcing the removal, his photograph was flashed on the

television during a news-bulletin

of 2.1.1990 subjecting him to severe H

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166

SUPREME COURT REPORTS I 1991] 3 S.C.R.

loss of dignity and reputation. This act also shows ma/a /ides of the

Janata Dal which was a part of the succeeding government and had a

prejudice against him.

4.

The petition is resisted by the !st respondent

(Union of India)

and the 2nd respondent (the then Chief Election Commissioner). No

separate coun.ter-affidavit is filed on behalf of the 3rd respondent­

Election Commission. After the sad demise of the 2nd respondent

during the pendency of the petition, he was deleted as a party to the

petition. However, the reply filed by him is being relied upon on

behalf of the other respondents. In the reply filed by the 1st respon­

dent, it is contended that the President had issued the impugned notifi­

cation rescinding the notification of 7th October, 1989 in bona fide

exercise of his power under the first part of clause (2) of Arlide 324 of

the Constitution which authorises the President to determine the

strength of the Election Commission and fix the number of Election

Commissioners from time to time. There is no limita.tion on the power

of the President to determine and fix the strength of the Election

Commission from time to time. The exercise of the said power is based

on the subjective satisfaction of the President formed on the advice

tendered by the Counsel of Ministers. In SUl.!Jlort.,of this contention, it

is

pointed out that whereas Article 324(2) creates an obligation that

the Election Commission shall consist of the Chief Election Commis­

sioner, as regards the appointment of the other Election Commis­

sioners and their number, the matter is left, without any limitation, to

the discretion of the

President. It is further pointed out that when the

President had issued the notifications of 7th and 16th October, 1989,

he had expected that on account of the reduction in the lower-age limit

of the voters from 21 to 18 years necessitating revision of the electoral

rolls and the impending statutes, viz., the Panchayat Raj and Nagar

Palika Bills, which were then before the Parliament, the work of the

Election Commission would increase, and to cope up with the same,

the augmentation of the strength of the Election Commissi9n was

necessary.

However, the electoral rolls became ready and the two Bills

in

question lapsed on 13th October, 1989. Hence, the augmented

strength was considered surplus to the requirement. A decision was,

therefore, taken to abolish the posts and the impugned notification of

7th October, 1989 was rescinded. Consequent upon it, the appoint­

ments of the petitioner and the other Election Commissioner came to

an

end. It was not necessary to issue another notification to rescind the

notification

of 16th October, 1989 by which the said appointments

were made. However. by way of abundant precaution, the notifica­

tion of 16th October, 1989 was also rescinded by another notification

·-

S.S. DHANOA v. U.0.1. [SAWANT. J.j 167

of 1st January, 1990. It was, thus, according to the !st respondent. a

case

of a termination of service of the petitioner consequent upon the

abolition

of the post. It was not a case of a removal of the petitioner

from service

as alleged by the petitioner. In the affidavit filed by the

2nd respondent, he has been candid

in stating that there was in fact no

need of any Election Commissioner and the Chief Election Commis­

sioner along with his then machinery was capable of coping with the

work. However, after the appointment of the Election Commis­

sioners, the Election Commission took decisions on all matters unani­

mously although there were differences of opinion. There was no occa­

sion for

the Chief Election Commissioner either to resent the appoint­

ment of the petitioner and the other Election Commissioner or to

recommned their removal. In fact, the petitioner himself has admitted

in

the petition that the Chief Election Commissioner had at no stage

made any recommendation for

his removal or for the removal of the

other Election Commissioner. He has also vehemently denied the alle­

gations made against him

qua

the various incidents and has contended

the all his ac.tions were in conformity with law and the past practices of

the Commission.

5. Article 324 of the Constitution reads as follows:

"324. Superintendence, direction and control of elections

A

B

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D

to be vested in an Election Commssion.·-( I) The superin­

tendence, direction and control of the preparation of the E

elecroral rolls for, and the conduct of,

all 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 Commis­

sion (referred to

in this Constitution as the Election

Commission). F

2.

The Election Commission shall consist of the

Chief Election Commissioner and such number of other

Election Commissioners, if any, as the President may fron1

time to time fix and the appointment of the Chief Election

Commissioner and other Election Commissioners

shall. G

subject to the provisions of any law made

'in that behalf by Parliament, be made by the President.

(3) When any other Election Commissioner is so

appointed the Chief Election Commissioner shall act

as the

Chairman of the Election Commission. H

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168

SUPREME COURT REPORTS [1991] 3 S.C.R.

(4) Before each general election to the House of the

People and to the Legislative Assembly of each State, and

before the first general election and thereafter before each

biennial election to the Legislative Council

of each

State

having such Council, the President may also appoint after

consultation with the Election Commission such Regional

Commissioners as he may consider necessary to assist the

Election Commission in the performance of the functions

conferred on the Commission by clause (1).

(5) Subject to the Provisions of any law made by

Parliament, the conditions of service and tenure of office of

the Election Commissioners and the Regional Commis·

sioners shall be such as the President may by rule determine:

Provided that the Chief Election Commissioner shall

not be removed from his office except

in like manner and

on the like grounds

as a Judge of the Supreme Court and

the conditions

of service of the Chief Election

Commis­

sioner shall not be varied to his disadvantage after his

appointment:

Provided further that any other Election Commis­

sioner or a Regional Commissioner shall not be removed

from office except on the recommendation

of the Chief

Election Commissioner.

(6) 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

dis­

charge of the functions conferred on the Election Commis­

sion by clause (1)."

The provisions of clause ( 1) of the Article show that the

superintendence, direction and control of the preparation of the

G electoral rolls for and the conduct

of all elections to

Parliament and to

the Legislature

of every State and of elections to the offices of the President and Vice-President are vested in the Election Commission.

The relevant provisions

of the Representation of the

People Act, 1950

and of the Representation of the People Act, 1951 further show that

various functions are entrusted to, and powers are conferred upon, the

H Commission in the matter

of the conduct of election to the

Parliament

~-

...

,

S.S. DHANOA v. U.0.1. [SAWANT. J.] 169

and to the Legislatures of the States. Jn the discharge of these duties A

and in the exercise

of these powers, the Commission has to act on its

own and to take various dicisions and implement them

as an indepen­

dent body. In the discharge of its duties and functions, it is not amen­

able to the control

of any other body. There is no doubt, therefore,

that the Election Commission

as envisaged by the Constitution is an

independent institution and has to function

as such. B

6.

The salient features of the composition of the Election Com-

mission as given

in clauses (2), (3)

and{ 4) of the Article are that the

Commission shall always consist

of a

perm'lnent incumbent, viz., the

Chief Election Commissioner. But the Preside.nt has also been given

the power to appoint such number of other Election Commissioners as

he may, from time to time, fix. In other words,

\llhile. the appointment

of the Chief Election Commissioner is a must, the appointment of the

other Election Commissioner or Commissioners is <not obligatory.

What is further, the number of other Election Commissioners is left to

the descretion of the President depending upon the need felt from .time

to time. This would mean that both the increase and the reduction

in

the number of the Election Commissioners would depend upon the

c

D

..J requirements of the time as assessed by the President.

7. The power given to the Preside,nt to appoint the Chief Elec­

tion Commissioner and other E.lection Commissioners

is subject to the

provisions of any law that may be made

by the Parliament in that E

behalf. The Parliament has thus reserved to itself the power to regu-

late these appointments. It

is obvious from clauses (2) and (3), that

_._ when the Commission consists only of Chief Election Commissioner, it

is he who alone constitutes the Commission and acts as such. How­

ever, when other Election Commissioners are appoirtted, the Commis­

sion consists of both the Chief Election Commissioner and the other F

Election Commissioners and together they constitute the Commission.

In such a case, the Chief Election Commissioner acts

as the Chairman

of the Election Commission.

8. Clause ( 4) of the Article gives power to the President to

appoint, after consulting the Election Commission, such Regional G

Commissioners as he may consider necessary to assist the Election

Commission in the performance of the functions conferred on the

Commission. The Regional Commissioners abviously do not constitute

the Commission but are appointed

to assist it.

9. However, in the matter

of the conditions of service and H

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170 SUPREME COURT REPORTS [1991] 3 S.C.R.

tenure

of office of the Election Commissioners, a distinction is made

between the Chief Election Commissioner on the one hand and Elec­

tion Commissioners and Regional Commissillners on the other.

Whereas the conditions of service and tenure of office of

all are to be

such

as the

President may, by rule determine, a protection is given to

the Chief Election Commissioner

in that his conditions of service shall

not be varied to his disadvantage after his appointment, and he shall

not be removed from his office except in like manner and on the like

grounds as a Judge

of the Supreme Court. These protections are not

available either to the Election Commissioners

or to the Regional

Commissioners. Their conditions

of service can be varied even to their

disadvantage after their appointment and they can be removed on the

recommendation of the Chief Election Commissioner, although not

otherwise.

It would thus appear that in these two respects not only the

Election Commissioners are not on par with the Chief Election

Commissioner, but they are placed on par with the Regional Commis­

sioners although the former constitute the Commission and the latter

do not and are only appointed to assist the Commission.

10. It is necessary to bear these features in mind because

although clause (2) of the Article states that the Commission will

consist

of both the Chief Election Commissioner and the Election

Commissioners if and when appointed, it does not appear that the

framers

of the Constitution desired to give the same status to the

E Election Commissioners as that of the Chief Election Commissioner.

The Chief Election Commissioner does not, therefore, appear to be

primus inter partes. i.e., first among the equals. but is intended to be

placed in a distinctly higher position. The conditions that the

President

may increase or decrease the number of Election Commissioners

according to the needs

of the time, that their service conditions may be

F varied to their disadvantage and that they may be removed

on the

recommendation

of the Chief Election Commissioner militate against

their being

of the same status as that of the Chief Election Commis­

sioner. In this connection, the controversy

as to whether there should

be a one 1nember Commission or a multi-member Commission also

assumes a little importance since it throws light both on the genesis of

G Article 324 as well as its implications. We may first refer to the rele­

vant discussion on the subject in the Constituent Assembly.

11. In the Draft Constitution,

the present Article 324 was

numbered as Article 289.

It appears from Dr. Ambedkar's introduc­

tory comments on the Article

(Constitu~nt Assembly Debates, Vol.

H VIII p. 905) that the Drafting Committee appointed on the Fundamen-

S.S. DHANOA v. U.O.l. {SAWANT, J.{ 171

ta! Rights had made a report that the independence of the electipns

and the avoidance of any interference by the executive in the elections

to the legislature should be regarded as a Fundamental Right and

provided for, in the Chapter dealing with Fundamental Rights. When

the matter came up before the House, it was decided to treat it as of

fundamental importance but to provide for it in some other part

of the

Constitution and not

in the chapter dealing with Fundamental Rights.

The House had affirmed without any kind of dissent that in the

interests

of purity and freedom of elections, the Commission should be

free from any kind

of interference from the executive of the day.

Article

289 (now Article 324) wa:s designed to

carry· out that part of the

decision

of the House. Explaining the provisions of clause (2) of the

Article, Dr. Ambedkar

staled that there were two alternatives before

the Drafting Committee, viz., either to have a permanent body con­

sisting

of 4 or 5 members of the Election Commission who would

continue in office throughout without any break, or to permit the

President to have an ad hoc body appointed at the time when there

is

an election on the anvil. The Drafting Committee had steered a middle

course.

What the Committee proposed by the said clause was to have

permanently

in office one man called the Chief Election Commissioner

so

that the skeleton machinery would always be available .. This was felt

sufficient, taking into consideration

all exigencies. At the same time, it

was felt that when the elections come up, the President may add to the

machinery by appointing other members of the Commission. Com­

menting upon clause (4)

of the then Article 289 (rrow clause (5) of

Article 324), Dr. Ambedkar stated as follows:

"So far as clause (4) is concerned, we have left the matter

to the President to determine the conditions of service and

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the tenure of office of the members of the Election Com­

mission, subject to one or two conditions, that the Chief F

Election Commissioner shall not be liable to be removed

except in the same manner as a Judge of the Supreme

Court.

If the object of this House is that all matters relating

to Elections should be outside the control of the Executive

Government

of the day, it is absolutely necessary that the

new machinery which

we are setting up, namely, the Elec-G

tion Commission should be irremovable

by. the executive

by a mere fiat. We have, therefore, given the Chief Elec-

tion Commissioner the same status so far as

removability is

concerned as we have given to the Judges of the Supreme

Court. We,

of

course,.do not propose to give.the same status

to the other members

of the Commission. We have left the H

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172 SUPREME COURT REPORTS [ 1991] 3 S.C.R.

matter to the President as to the circumstances under which

he would deem fit to remove any other member of the

Election Commission, subject to one .condition that the

Chief Election Commissioner must recommend that the

removal

is just and proper.

(Emphasis supplied)

Prof. Shibban Lal Saksena wanted, among other things, the

appointment

of the

Chief Election Commissioner as well as of the

Election Commissioners to be confirmed by two-third majority in a

joint session

of both Houses of Parliament. He also wanted both the Chief Election Commissioner and the Election Commissioners to be

removed

by the same process, viz., in like manner and on the like

grounds as a Judge

of the

Supreme Court, and non-variation of the

service conditions

of the Election

Commissioners to their disadvantage

as was provided for

in the service conditions of the

Chief Election

Commissioner. This amendment was supported, among others, by

Pandit Hriday Nath Kunjru. The amendments were not accepted by

the House, and the distinction between the Chief Election Commis­

sioner and the Election Commissioners with regard to the security of

the service conditions and the procedure of their removal was

maintained as was proposed.

12. It appears that the issue whether the

Commission should be

E uni-member

or multi-member had remained alive even after the

adop­

tion of the Constitution, and it cannot be said that it has lost its rele­

vance even today. This is clear from the Election Commission's

reports of the earlier period. The 2nd respondent in the Commission's

report for 1986-87, had· referred to this issue and observed therein, as

pointed out by the petitioner himself,

as follows:

F

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H

"though three of the former Chief Election Commissioners

have opposed a multi-member body on the ground, inter

alia, that quick decisions are needed in Election matters

and the Commission acts in actual practice in consultations

with various authorities, agencies and that a process of

deliberation precedes its decisions and there is consider­

able force in what they have said, it would, in view of the

demand from certain quarters for a multi-member Com­

mission, be desirable to eBmine the proposal and take a

decision after ascertaining the views of the various political

parties. A suggestion

to

tliis effect was made to the

Government

by the

Commission through its letter dated

_,

,

S.S. DHANOA v. U.O.l. [SAWANT, J.] 173

October 29, 1986 to the Law Minister".

A

As stated by the 2nd respondent, the then Prime Minister had

categorically stated

in Parliament in December 1988 that he was

against a multi-member Election Commission. It is presumed that this

statement was made

by the

Prime Minister after the Government had

considered the views expressed

by the 2nd respondent in his letter of B

29th October,

1986 to the Law Minister.

13. Unfortunately, there was no discussion in the Constituent

Assembly on the subject of the procedure to be adopted

by the Com­

mission

in transacting its business when Election Commissioners are

appointed

in addition to the Chief Election Commissioner. We are C

also not aware

as to what precise relationship between the Chief Elec-

·

tion Commissioner and the other Election Commissioners, if and when

appointed, was assumed

by the earlier three Chief Election Commis­

sioners when they opposed the multi-member Election Commission

or what suggestion was made by the 2nd respondent with regard to

the said

relati"nship in his letter of 29th October, 1986 to the Law D

Minister. As

we have seen from the provisions of clause (3) of Article

324, all that the Article says

is that when any other Election Commis­

sioner

is appointed. the Chief Election Commissioner shall act as the

Chairman

of the Election Commission.

14. What is, therefore, evident from the discussion of the E

framers

of the Constitution is, firstly, they did not want to give the

same status to the Election Commissioners

as of the Chief Election

Commissioner and, secondly, they wanted the Chief Election Commis-

--4., sioner to be in overall control of the business of the Commission. The

nearest analogy of another Constitutional institution that comes to our

mind

in this connection, is that of the Council of Ministers under F

Articles

74 and 163 of the Constitution. The

Prime Minister and the

Chief Minister,

as the case may be, are at the head of the Council of

Ministers and they together with the other Ministers constitute the

Council. They are, however, not bound

by the views of the other

Ministers and may even override them. Nor have

the other Ministers

the same power

as the

Prime Minister or the Chief Minister. There is G

--' also "~me similarity between the powers of the Prime Minister and the

Chief Minister on the one hand and the Chief Election Commissioner

on the other, in the matter of recommendations for the removal of the

other Ministers and Commissioners respectively. There

is no doubt

that there

is an important distinction

between the Council of Ministers

and the Election Commission

in that whereas the

Prime Minister or H

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174

SUPREME COURT REPORTS [1991] 3 S.C.R.

the Chief Minister is appointed by the President or the Governor and

the other Ministers are appointed by the President or the Governor on

the advice of the Prime Minister or the Chief Minister, the appoint­

ment of both the Chief Election Commissioner and the other Election

Commissioners as

the law stands today, is made by the President under

Article 324(2)

of the Constitution. It has, however, to be noted that

the provisions of the said Article have left the matter of appointment

of the Chief Election Commissioner and the other Election Commis­

sioners to be regulated by a law to be made

by the Parliament, and the

President exercises the power of appointing them today because of the

absence of such law which has yet to be made. In pointing out these

similarities we do not intend to place the two institutions on par.

Instead, we want to stress that in the absence of rules to the contrary,

the members of a multi-member body are not and need not always be

on par with each other in the matter of their rights, authority and

powers.

In the case of the functioning of the Council of Ministers there

is the Westministerial Convention crystallised into an.unquestionable

rule, to back it. We are not aware if there

is any Election Commission

in a similar Constih1tional framework

as ours in any other part of the

world and of its composition and the manner of its working. But, if

there is one, the method of its working will be worth studying, in this

connection.

15. It is further an acknowledged rule of transacting business in

a multi-member body that when there is no express provision to the

contrary, the business has to be carried on unanimously. The rule to

the contrary such as the decision by majority, has to be laid down

specifically

by spelling out the kind of majority-whether simple,

special,

of all the members or of the members present and voting etc.

In a case such as that

of the Election Commission which is not merely

an advisory body but an executive one, it

is difficult to carry on its

affairs by insisting

on unanimous decisions in all matters. Hence, a

realistic approach demands that either the procedure for transacting

business

iS spelt out by a statute or a rule either prior to or simultane­

ously with the appointment of the Election Commissioners or that no

appointment of Election Commissioners is made in the absence of such

procedure. In the present case, admittedly, no such procedure has

been laid down.

16.

For this reason, again, we are not impressed by the stress

laid

on behalf of the petitioner on the provisions of clause ( 4) of

Article 324 in relation to the appointment of the Regional Commis­

sioners.

The fact that the Regional Commissioners are to be appointed

. __,

S.S. DHANOA v. U.0.J. [SAWANT. J.J 175

by the President in consultatioµ with the Commission to ·assist the

Commission to perform its functions, though places the Election Com,

missioners on a higher pedestal than the Regional Commissioners,

does

not raise them to the status of the Chief Election Commissioner.

The provision is intended to vest the

President with the powers of

appointment

of the Regional Commissioners for a particular purpose,

and the framers of the Constitution, it appears, desired to give a con­

stitutional status

to the Regional Commissioners also, as and when they

are appointed. The provision, though spells out the relationship

bet­

ween Election Commission and Regional Commissioners, does not

help to throw light on the relationship between the Chief Election

Commissioner and Election Commissioners

inter se.

On the other

hand, clause (5) of the Article, by placing the Election Commissioners

and Regional Commissioners on par in tlie m.atter of service conditions

and their removability, reinforces the assumption that Election Com­

missioners do not en joy the same status and authority

as that of the

Chief Election Commissioner.

17. The experience of the short period during which the

petitioner and

the other Election Commissioners were in the Commis­

sion, as has been brought

out in the petition and in the counter filed by

the then Chief Election Commissioner, shows that were it not for the

restraint and sagacity shown by the Chief Election Commissioner, the

work

of the Commission would have come to a standstill and the

commission would have been rendered inactiye,

18. In the first instance, the petitioner and the other Election

Commissioners were appointed when the work

of the Commission did

not warrant their

appointrpent. The reason given by the 1st respoµdent

(Union of India), that on account of the Constitution (61st Amend­

ment) Act reducing the yotjng age and the Constitution (64th Amend­

ment) and (65th Amendment) Bills relatmg to election

to the

Pancha­

yats and Nagar Palikas, the work of the Commission was expected to

irtci'ease and, therefore, there was need for more .Election Commis­

sioners, cuts no ice. As has been pointed out by the 2nd respondent,

the work relating to revision of electoral rolls on account of the reduc­

tion of voting age was completed

in all the States except Assam by the

end of July 1989

itself. and at the Conference of the Chief Electoral

Officers at Tirupati, the 2nd respondent had declared that the entire

preparatory work relating to the conduct of the then ensuing general

elections to the Lok Sabha would be completed py August iµ the whole

pf the country except Assam. Further, the, Constitution (64th and 65th

Amendment) Bills had already fallen in Parliament, before the

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176 SUPREME COURT REPORTS [1991] 3 S.C.R.

appointments. In fact, what was needed was more secretarial staff for

which the Commission

was pressing, and not more Election Commis­

sioners. What instead

was done was to appoint the petitioner and the

other Election

Commissio:ier on 16th October, 1989. Admittedly,

further the views of the Chief Election Commissioner were not

ascertained before making the said appointments. In fact, he

was

pre­

sented with them for the first time in the afternoon of the same day,

i.e., 16th October, 1989.

What follows is more instructive and interesting for it lends con­

siderable force to what the 2nd respondent has stated

in this connec­

tion

in his reply. Barely 24 hours after the appointment of the Election

Commissioners, the Principal Secretary to the Prime Minfster called

on the 2nd respondent

in the forenoon of 17th October, 1989 and

conveyed to him the desire of the Prime Minister that the general

elections to the Lok

Sabha should be held on a particular date and that

the announcement

in that behalf should be made by the Commission

forthwith and before 2 p.m. on that day,

in any case. It appears that

the 2nd respondent took the stand that it was for the Commission and

not for the Government to

fix the date of the election. The new Elec­

tion Commissioners joined issue with

him with regard to his said stand

and insisted that the Commission forthwith make an announcement

of

the date of election as desired by the Prime Minister.

E

19. We do not propose to refer to all the other disputes which

F

G

H

arose between the Chief Election Commissioner on the one hand and

the petitioner and the other Election Commissioner on the other. But

it appears from the contents of the petition and of the reply filed

by the

2nd respondent that the petitioner and the other Election Commis-

sioner probably misunderstood their role and thought that they were

appointed to control the Chief Election Commissioner at every-stage.

This

is evident from two instances, among others. It appears that a

Writ Petition No. 3205 of 1989 [Indian Nati<'nal Congress v. F;Iection

Commission and Ors.] was filed in the Delhi High Court on November

9,

1989, and a notice of the same was received by the Commission at

about 6 p.m. on the same day. According to the said notice, the writ

petition

was scheduled to come up for hearing before the High Court

on the following day, i.e., November

10, 1989. By the time the notice

was received

in the office of the Commission, the 2nd respondent as

well as the Election Commissioners had left the office. The Deputy

Election Commissioner contacted the 2nd respondent at his residence

over the phone and mentioned the names of some counsel and also

referred to the consistent practice of the Commission not to engage as

•

S.S. DHANOA v. U.0.1. [SAWANT, J.[ 177

its counsel law officers of the Government of India in cases where the

party

in power is a party to the suit. To the 2nd respondent it was a

matter of a routine nature in view of the established practice of the

Commission, and he suggested the name of one more counsel in addi­

tion to the names mentioned by the Deputy Election Commissioner.

Accordingly, a senior advocate,

Shri V (we are not mentioning the full

names

of the Counsel here although they are candidly disclosed in the

reply) was engaged, and he was briefed

in the matter from about 8

p.m. to 9 p.m. on that day, i.e., 9th November, 1989. Later on, the

petitioner herein rang up the 2nd respondent to

say that

Shri D, the

.then Additional Solicitor General be engaged to represent the Com­

mission and he also told

him that he was so advised by the Union Law

Secretary. The 2nd respondent told him that firstly it

was too late and

secondly it was contrary to the practice of the Commission. Later on, it

transpire a that the petitioner rang

up the other Election Commissioner,

Shri V .S. Seigell and thereafter rang up the Deputy Election Commis­

sioner and directed him to withdraw the brief from Shri V with a view

to entrust it to Shri D. In order to avoid any controversy, the 2nd

respondent acquiesced

in the proposed appointment of

Shri D. In the

morning

of

10th November, 1989, Shri D was approached to act as

Commission's counsel. He, however, expressed his inability to do so.

In the meanwhile, the petitioner had sent a note against the alleged

violation of the procedure

in that he and his other colleague were

not

consulted while appointing Shri V. The withdrawal of the brief from

Shri V and the refusal of Shri D to appear in the matter placed the

Election Commission in

an embarrassing position before the High

Court since the Commission

was not represented by any counsel as

none of the standing counsel of the Central Government at the Delhi

High Court was also willing to act

as the Commission's counsel. An

application for adjournment of the matter to the following day, i.e.,

11th November

1989 was made on behalf of the Commission which was

reluctantly granted by the Court as the following day happened to be a

non-working day of the Court.

It appears that confronted with the said

situation, the petitioner and the other Commissioner realised their

mistake and later agreed to the engagement of any other suitable

counsel. Thereafter,

Shri R, .another senior advocate was engaged who

represented the Commission before the High Court on

11th

November, 1989.

The second instance gives a glimpse of a still more contentious

attitude adopted by the petitioner.

It appears

that a "closed door"

meeting of the Chief Electoral Officers was held on December 14,

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1989 and the Chief Election Commissioner in his inaugural speech had H

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178 SUPREME COURT REPORTS [ 1991] 3 S.C.R.

referred to the policies, procedures and practices to be followed. The

petitioner objected to this speech insisting that before making the

speech he should have been consulted. He also objected to the manner

in which the Chief Election Commissioner handled the subjects and

the decisions were taken

in the meeting. This was so in spiie of the fact

that the petitioner and the other Election Commissioner had partici­

pated

in the Conference, and everyone participating in it including the

juniormost Chief Election Officer

was free to express his opinion on

the matters covered

in the address and the decisions were arrived at on

the basis of the views expressed

by the majority of the Chief Election.

Officers.

20. Although the whole foundation of the conteutions advanced

on behalf of the petitioner is the need to safeguard the independence

of the Commission, we are afraid that the manner of appointment of

the petitioner and the other Election Commissioner, and the attitude

adopted by them

in the discharge of their functions was hardly

calculated to ensure free and independent functioning of the Commis­

sion, much less its smooth working. In the circumstances and

in the

absence of rules to regulate the relationship between the Chief Elec­

tion Commissioner and the other Election Commissioners

no one need

shed tears that the posts were abolished.

21. There

is no doubt that two heads

arc better than one, and

particularly when

an institution like the Election Commission is

entrusted with vital functions, and is armed with exclusive uncontrol­

led powers to execute them, it

is both necessary and desirable that the

powers are not exercised

by one individual, however, all-wise he may

be.

It ill-conforms the tenets of the democratic rule. It is true that the

independence of an institution depends upon the persons who man it

and not on their number. A single individual may sometimes prove

capable

of withstanding all the pulls and pressures, which many

may

not. However, when vast powers are exercised by an institution which

is accountable to none, it is politic to entrust its affairs to more hands

than one.

It helps to assure judiciousness and want of arbitrariness.

The fact, however, remains that where more individuals than one, man

an institution, their roles have to be clearly defined, if the functioning

of the institution

is not to come to a naught.

22.

It is true that the

Union of India in their reply have not been

all that candid with the reasons for the abolition of the posts. They

have merely stated that since the Constituti(\11 (64th & 65th Amend­

H ment) Bills had lapsed and the revision of ekctoral rolls on account of

,.

S.S. DHANOA v. U.0.1. [SAWANT, J.] 179

the lowering of the age was also completed before the general elet~

tions which took place in November, 1989, the reasons and evenis

which occasioned the appointment

of the Election Commissioners

ceased to exist, and the Government on assessing the prevailing posi­

tion

bona fide came to the conclusion that the volume of work iri the

changed context and circumstances did not warrant the continliarice of

ihe posts. These reasons are

not convincing since, as we have pointed

out earlier from the contents of the .reply filed by the 2nd respondent,

they had ceased to be relevant even before the appointment of the two

Commissioners was made on 16th October,

1989. Yet, the

appoint­

ments were made and the rules governing their service conditions were

also promulgated simultaneously, which assured them the tenure

of

five years or upto the superannuation age of 65 years whichever

hap­

pened earlier. The facts as they appearfrom record, therefore, show

thai the then Government .had thought it fit to make the two appoint­

ments although there was no need to do so. What other considerations

weighed with the then Government in making the appointments

is

anybody's guess, and we do not propose to go into them. But we

expected that the.

Union of India would candidly admit the initial

mistake

of making the said appointments rather than defend them on

non-existent grounds.

It appears that there is an impression in some

quarters that if the·Government adinits its mistake whether it is com­

mitted

by the same Government or the earlier Government, it loses its

face. Nothing can be farther from reality. In a democratic regime, the

Government represents the people.

It adds to its respectability and

credibility, if the Government also owns its mistakes frankly. The

truth

of the matter as is apparent

from the record is that not only there

was no need fot the said appointments, but the appointments

in the

absence

of the definition of their roles in the Commission, was creating

an untoward and unworkable situation rendering the Commission

in­

ternally torn and ineffectual in its functioning. There was, of course,

an Option before the Government, viz., to continue with the experi­

ment of the multi-member Commission by defining the roles of the

ncW Cominissioners. This course, however, might have required either

framitig of the rules of business or enactment of a statute or an ameoo­

ment to the provisions of Article 324 in view particularly of the provi­

sions

of the 2nd proviso to clause (5) thereof. We express no opinion

on the same except stating that if the said course was thought of, it

might

have iaken a considerable time. In the meanwhile, the intract­

able situation in the Commission's working would have continued and

might even have deteriorated.

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180 SUPREME COURT REPORTS [1991] 3 S.C.R.

A

need for the posts of the Election Commissioners at the time the

appointments were made and that

in the absence of a clear definition

of their role in the Commission, particularly,

vis-a-vis the Chief Elec·

tion Commissioner, the appointments were an oddity, the abolition of

the posts far from striking at the independence of the Commission

paved the way for its smooth and effective functioning. In

view further

of the fact that for reasons stated above, it is not possible to hold that

the Election Commissioners have the same powers and the authority

as the Chief Election Commissioner, and it may well be that the Chief

Election Commissioner has the power

to disregard and override the

views of the Election Commissioners, the abolition of their posts least

infringed on the independence of the Commission. Hence,

we are not

enamoured

of the second contention advanced on behalf of the

petitioner,

viz. that the abolition of the posts tampered directly or

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indirectly with the.independence of the Commission.

·

24. As regards the first contention, namely, t.hat in view of the

service rules, the Election Commissioners were entitled to remain

in

D their posts for a period of five years or till they attained the age of 65

years whichever event occurred earlier, we are of the view that this is

not a case of a premature termination of service. It is a clear case of the

abolition of posts on account of the reasons stated ea.rlier and the

termination

of the service is a consequence thereof. Hence, the

termi­

nation of service is not open to challenge on the ground of any illegal-

E ity. For the same reason,

we are also not attracted by the argument

that the notifications abolishing the

two posts and removing the

petitioner and the other Election Commissioner were issued

ma/a fide

at the instance of the Chief Election Commissioner who allegedly

wanted to get rid of them.

We are satisfied, on the basis of the record,

that the Chief Election Commissioner had never recommended their

F removal. In fact, the petitioner himself has admitted that his removal

and the removal of the other Election Commissioner

was not on the

recommendation of the Chief Election Commissioner under the 2nd

proviso to clause (5) of Article 324. There

is further nothing brought

on record

by the petitioner to show that even otherwise the

Govern­

ment while abolishing the posts had acted on the suggestion of the

G Chief Election Commissioner. On the other hand, it is clear from the

contents of the petition

as well as the reply filed by the 2nd respondent

that although there were bickerings even on petty issues,

all the

deci­

sions were taken ultimately unanimously. It is., however, another thing

that this unison ili working, in the circumstai:ices, could not have been

guaranteed for all time to come, and the Government

if they desired

H the contimrance of the two Commissioners has an option to make the

.,

•

S.S. DHANOA v. U.0.1. [SAWANT, J.[ 181

rules of business etc. as stated earlier. That the Government chose 0ne

rather than the other option is no ground to allege ma/a fides against

them and much less against the Chief Election Commissioner.

It may

be pointed

out in this connection that as admitted by the petitioner

himself although the earlier three Chief Election Commissioners had

opined against a multi-mem.ber Commission .• the second respondent·

Chief Election Commissioner was inclined in favour of the concept.

Hence, the allegations of

ma/a fides against the Chief

E'.lection Com­

missioner are hard to accept.

25. The last of the contentions advanced on behalf of the

petitioner

is in two parts. The first part relates to the material loss on

i!CCount of the cutting short .of the tenure of the petitioner. Such loss is

not unknown in a service career and is one of the exigencies of employ­

mept. The creation and abqlition of post is the prerogative of the

executive, and in the present case of the President. Articl~ 324(2)

leaves it to the President to

fix and appoint such number of

E'.lection

Commissioners as he may from time to time determine. The power to

create the posts is unfettered. So also is the power to reduce or abolish

.:hem. If, therefore, the President, finding that there Was no work for

the E!e.ction Commissioners

0

r that the Election Commission could

not fullction, decided to abolish the posts, that was an exigency of the

office .held by the petitioner. In fairness to the petitioner, we may

record here that Shri Gop.al Subramaniam appearing for him made it

clear at the very outset that the petitioner had n0t approched the court

to make a grievance of

his material loss but to assert

tJ!e principle that

the independence of the Election Commission should not be permitted

to be tampered with, either directly or indirectly

by

the su~\{11ge of

the abolition ,of the posts.

We have dealt with this aspect earlier in

.quite some detail. .

26. We, however, find, some force in the second part of the

contention. The petitioner

in paragraph

30 of his petition has averred

as follows:

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"The abolition of the post of Election Commissioners was

(lead news) in the Doordarshan Hindi News Bulletins at G

7.30 pm and 8.40 pm with photos of the two 'removed'

Commissioners being flashed on the TV screen. They

quoted the Government Press Note which sought to justify

abolition of the two posts on the basis of a review of the

work of the Election Commission but before that an earlier

left-out shot of the Prime Minister's P~ess Conference was H

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182 SUPREME COURT REPORTS [1991] 3 S.C.R.

shown in which viewers were mad·e t~ hear a qt.iestioii of a

Press report casting aspersions on 'the two newly appointed

Election Commissioners with the Prime Minister answering

that the Government would review these appointments

along

with other electoral reforms. This 'was clearly defa­

matory and it was cle.ar to every viewer that the two Elec­

tion Commissioners had been 'removed' for the reasons

contained in the insinuation

of the press reporter and the · official reasons justifying abolition of the posts were a mere

eye-~ash ......... "

In their reply to this paragraph the lJni~n of India in paragraph 27

have stated: • · · -

"With reference to para 30, it is submitted that the

allegations and contentions contained ·therein are irrele­

vant and have no bearing on· the issues arising in the writ

petition.

The said allegations in any event are not admitted.

and the petitioner is put to strict proof

thereof."

Although we do not find any substance in the grievance of the )·-

petitioner against the answer given by the Prime Minister to the Press

Reporter in the Press Conference, we do find that the flashing of the

photos

of the petitioner arid the other Election Commissioner iri their

E Hindi News Bulletin at

7.30 pm and 8.40 pm by the Doordarshan was

clearly uncalled for. There is nothing on record to show at whose

instance it was done.

But

the act deserves condemnation in the

strongest language. This may probably be the first instance where· the

photos of the officers whose services were terminated had been flashed

, on the TV screen. That the Government should casually dismiss this

F incident by a mechanical den.ial

of it, adds poignancy to the episode.

We wish that the Government had adopted a.reasonable attitude and

. given a plausible answer to the allegation.

It was within their powers

to

investigate the incident. Instead, they have non-chalantly stated in the

reply

that

"the said allegations in any event are not admitted and the

petitioner is

put to strict proof thereof'. We must record our strong

G disapproval

of the attitude adopted by the

Government towards the ,,_

erstwhile public servants. It has neither enhanced the prestige of the

Government nor of the public service. That the flashing of the photos

· on the TV screen had nothing to do with the validity of the abolition of

the posts· and the consequential termination_ of the services of the

petitioner and the

other Election .Commissioner-is

~J) argument to

H justify

the event. Government could have offered

io investigate the

'

S.S. DHANOA v. U.0.1. [SAWANT. J.] 183

event and to make proper amends to the petitioner and the other

Election Commissioner. This event

was cited by the petitioner as a

proof

of vindictiveness of the Jan ta Dal which was a partner in the then

Government and which was allegedly aggrieved

by the stand taken by

the two Commissioners in the dispute relating to its symbol in the 1989

elections. It was, therefore, all the more necessary to deal with it

seriously. We, however, leave the matter here because for the reasons

we have discussed earlier, the incident has no bearing on the result of

the petition.

.• 27 .. The petition, thus, fails and the rule is discharged. In the

circumstances

of the case, there will be no order as to costs.

T.N.A. Petition dismissed.

A

B

c