T N SESHAN CHIEF ELECTION COMMISSIONER OF INDIA CHO S RAMASWAMY B K RAI COMMON CAUSE A REGISTERED SOCIETY Vs. UNION OF INDIA :UNION OF INDIA :UNION OF INDIA

JUDGEMENT

(1.) The President of India, in exercise of powers conferred upon him by clause (1 of Article 123 of the Constitution of India, promulgated an Ordinance (No. 32 of 1993 entitled "the Chief Election Commissioner and other Election Commissioners (Conditions of Service) Amendment Ordinance, 1993" (hereinafter called "the Ordinance") to amend "the Chief Election Commissioner and other Commissioners (Conditions of Service) Act, 1991" (hereinafter called "the Act"). This Ordinance was published in the Gazette of India on 1/10/1993. Before we notice the amendments made in the 1991 Act by the said Ordinance it may be appropriate to notice the provisions of the 1991 Act. As the long title of the Act suggests it lays down the conditions of service of the Chief Election Commissioner (hereinafter called 'the CEC') and Election Commissioners (hereinafter called 'the ECs') appointed under Article 324 of the Constitution of India. Section 3 (1 provides that the CEC shall be paid a salary which is equal to the salary of a Judge of the Supreme court of India. Section 3 (2 says that an EC shall be paid a salary which is equal to the salary of a Judge of a High court. Section 4 lays down the term of office of the CEC and ECs to be six years from the date on which the incumbent assumes charge of his office provided that the incumbent shall vacate his office on his attaining, in the case of the CEC, the age of 65 years and the EC the age of 62 years, notwithstanding the fact that the term of office is for a period of six years. Section 8 extends the benefit of travelling allowance, rent-free residence, exemption from payment of income tax on the value of such rent-free residence, conveyance facility, sumptuary allowance, medical facilities, etc. , as applicable to a Judge of the Supreme court or a Judge of the High court to the CEC and the ECs, respectively. By the Ordinance the title of the Act was sought to be amended by substituting the words "and to provide for the procedure for transaction of business by the Election Commission and for matters" for the words "and for matters". By the substitution of these words the long title to the Act got further elongated as an Act to determine the conditions of service of the CEC and other ECs and to provide for the procedure for transaction of business by the Election Commission and formatters connected therewith or incidental thereto. In Section I of the Principal Act for the words and brackets "the Chief Election Commissioner a and other Election Commissioners (Conditions of Service) " the words and brackets "the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) " came to be substituted with the result that the amended provision read as the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. The definition clause in Section 2 also underwent a change, in that, the extant clause (b) came to be renumbered as clause (c) and a new clause (b) came to be substituted by which the expression "election Commission" came to be defined as Election Commission referred to in Article 324 of the Constitution of India. Consequent changes were also made elsewhere. In Ss. (1 of Section 3, after the words "chief Election Commissioner", the words "and other Election Commissioners" came to be inserted with the result that they came to be placed on a par in regard to salary payable to them and Ss. (2 came to be omitted. In Section 4 the first proviso came to be substituted as under:

(2.) On the day of publication of the Ordinance, 1/10/1993, the President of India, in exercise of powers conferred by clause (2 of Article 324 of the Constitution of India, fixed, until further orders, the number of Election Commissioners (other than the CEC) at two. By a further notification of even date the President was pleased to appoint Mr M. S. Gill and Mr G. V. G. Krishnamurthy as Election Commissioners with effect from 1/10/1993.

(3.) The first salvo was fired by Cho. S. Ramaswamy, a journalist, on 13/10/1993. By a Writ Petition (Civil) No. 791 of 1993 he prayed for a declaration that the Ordinance was arbitrary, unconstitutional and void and for issuance of a writ of certiorari to quash the notifications fixing the number of Election Commissioners at two and the appointments of Mr M. S. Gill and Mr G. V. G. Krishnamurthy made thereunder. This was followed by Writ Petition No. 805 of 1993 by the incumbent CEC himself claiming similar reliefs on 26/10/1993. Two other writ petitions were also filed questioning the validity of the Ordinance and the notifications referred to earlier. Three of these writ petitions came up for preliminary hearing on 15/11/1993, While admitting the writ petitions and directing rule to issue in all of them, in the writ petition filed by the CEC notice on the application for interim stay as well as for production of documents was ordered to issue and an ad interim order to the following effect was passed: