While delivering the judgement in the case of independence of the Election Commission, the Supreme Court went back to the Constituent Assembly debates to get a fresh perspective on the matter by studying the intentions of the constitution makers.
Dr. BR Ambedkar had noted that the Committee dealing with fundamental rights had in its report stated that the independence of the elections and the avoidance of any interference by the executive in the elections to the Legislature should be regarded as a fundamental right. When this point came before the House for discussion, it was decided that while this was of fundamental importance, it should be provided for in some other part of the Constitution instead of Part III. It was, however, pointed out by Dr Ambedkar that “so far as the fundamental question is concerned that the election machinery should be outside the control of the executive Government, there has been no dispute” (para 18).
The original Article pertaining to Election Commission was Article 289 and changes were made to it by Professor Shibban Lal Saksena who had opined that if the president appoints the Election Commissioners it would mean that The Prime Minister is effectively appointing them and this will not ensure their independence. He had thus proposed that the Election Commissioner should enjoy the confidence of all parties and his appointment should be confirmed not only by majority but by two-thirds majority of both the Houses.
“If it is only a bare majority, then the party in power could vote confidence in him but when I want 2/3rd majority it means that the other parties must also concur in the appointment so that in order that real independence of the Commission may be guaranteed, in order that everyone even in opposition may not have anything to say against the Commission, the appointments of the Commissioners and the Chief Election Commissioner must be by the President but the names proposed by him should be such as command the confidence of two-thirds majority of both the Houses of Legislatures,” Saksena had said. (Para 19)
Another member of the Constituent Assembly, Pandit Hirday Nath Kunzru had raised certain concerns about the President appointing the Election Commissioners:
“…by leaving a great deal of power in the hands of the President we have given room for the exercise of political influence in the appointment of the Chief Election Commissioner and the other Election Commissioners and officers by the Central Government.” (Para 21)
As a solution, he had suggested that Parliament should be authorised to make provision for these matters by law.
KM Munshi had said that the Election Commission must be an ally to the government and must be subsidiary to the Government except in regard to the discharge of the functions allotted to it by law.
While referring to the Constituent Assembly debates, the bench of Justices KM Joseph, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar (Justice Ajay Rastogi penned a concurring judgement) in its judgment relied upon His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Another (1973) 4 SCC 225 to conclude that constituent assembly debates can be admissible to throw light on the purpose and general intent of the provision. “After all, legislative history only tends to reveal the legislative purpose in enacting the provision and thereby sheds light upon legislative intent,” the court had held in this landmark judgement.
The bench noted that Dr Ambedkar foresaw the danger of the Election Commissioners, being persons who were likely to be under the control of the Executive.
After perusing the Constituent Assembly debates, the court inferred thus
“All the Members were of the clear view that election must be conducted by an independent Commission. It was a radical departure from the regime prevailing under the Government of India Act, 1935. The Members very well understood that providing for appointment of Members of the Election Commission by the President would mean that the President would be bound to appoint the Election Commissioner solely on the advice of the Executive, which, in a sense, was understood as on the advice of the Prime Minister… It is equally clear that the Members of the Committees, including the Constituent Assembly, wanted the appointment to the Election Commission not to be made by the Executive.” (Para 32)
Stressing upon the need for a law for appointments to the Election Commission, the court observed,
“In short, what the Founding Fathers clearly contemplated and intended was, that Parliament would step-in and provide norms, which would govern the appointment to such a uniquely important post as the post of Chief Election Commissioner and the Election Commissioners.” (Para 32)
The court further held,
“While we would not go, so far as to hold that Parliament was under a compellable duty, which this Court can enforce by a Mandamus, to make a law, all that we are finding is that the Constituent Assembly clearly intended that Parliament must make a law within the meaning of Article 324(2).” (Para 33)
The complete judgement may be read here:
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