C No 235 of 1990
Under Article 32 of the Constitution of india
Gopal Subramanium Ms Binu Tamta and section Murlidhar for the Petitioner
Altar Ahmad Additional Solicitor General Ms A Subha shini K Swami CS Vaidyanathan and SR Setia for the Respondents
The Judgment of the Court was delivered by SAWANT J
On 7th October 1989 by a notification issued in exercise of the powers conferred by clause 2 of Article 324 of the Constitution the President fixed until further orders the number of Election Commissioners other than the Chief Election Commissioner at two
By a subse quent notification of 16th October 1989 issued under the same provisions the President appointed the petitioner and one Shri VS Seigell as Election Commissioners wef
the afternoon of that day
On the same day by another notifica tion issued in exercise of the powers conferred by clause 5 of Article 324 of the Constitution the President made rules to regulate the conditions 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 office for a term of five years or until he attains the age of 65 years whichever happens earlier
On 1st january 1990 in exercise of the powers conferred under Article 3242 of the Constitution the President issued two notifications one rescinding with immediate effect the notification of 7th October 1989 creating the two posts of Election Commissioners 165 and another rescinding with immediate effect the notifi cation of 16th October 1989 by which the appointment of the petitioner and Shri VS Seigell was made
It is these two notifications of ist January 1990 which are being assailed in the present petition
The grounds of attack are firstly once appointed an Election Commissioner continues in office for his full tenure determined by the rules made under Article 3245 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 1st January 1990 is illegal
Secondly it is urged that the Election Commission is an independent body and its independ ence 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 the present case viz of the rescission of the notification creating the posts and there by abolishing the poets and thus removing the petitioner 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 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 illdis posed towards the creation of the posts of the Election Commissioners
It is also alleged that there were differ ences of opinion between the Chief Election Commissioner on the one hand and the Election Commissioners on the other and the former desired that he should have the sole power of decision making in all matters
Lastly it is contended that the petitioner s removal affected him materially since after a distinguisthed career as a civil servant he had joined the Bihar 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 abruptly 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 21
1990 subject ing him to severe 166 loss of dignity and reputation
This act also shows mala fides of the Janata Dal which was a part of the succeeding government and had a prejudice against him
The petition is resisted by the 1st respondent Union of India and the 2nd respondent the then Chief Election Commissioner
No separate counter affidavit is filed on behalf of the 3rd respondent Election Commission
After the sad demise of the 2nd respondent during the pend ency 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 ist respondent it is contended that the President had issued the impugned notification rescinding the notifi cation of 7th October 1989 in bona fide exercise of his power under the first part of clause 2 of Article 324 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 limitation 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 subjec tive satisfaction of the President formed on the advice tendered by the Counsel of Ministers
In support of this contention it is pointed out that whereas Article 3242 creates an obligation that the Election Commission shall consist of the Chief Election Commissioner as regards the appointment of the other Election Commissioners 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 CommissiOn 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 appointments of the petitioner and the other Election Com missioner 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 notification of 16th October 1989 was also rescinded by another notifica tion 167 of 1st January 1990
It was thus according to the 1st respondent a case of a termination of service of the peti tioner consequent upon the abolition of the post
It was not a case of a removal of the petitioner from service as al leged 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 Commissioner along with his then machinery was capable of coping with the work
However after the appoint ment of the Election Commissioners the Election Commission took decisions on all matters unanimously although there were differences of opinion
There was no occasion for the Chief Election Commissioner either to resent the appointment of the petitioner and the other Election Commissioner or to recommned their removal
In fact the petitioner himself has admitted on the petition that the Chief Election Commission er 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 allegations made against him qua the various incidents and has contended the all his actions were in conformity with law and the past practices of the Commission
Article 324 of the Constitution reads as follows 324
Superintendence direction and control of elections to be vested in an Election Commission 1 The superintendence direction and control of the preparation of the 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 President and Vice President held under this Constitution shall be vested in a Commission referred to in this Constitution as the Election Commission
The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners if any as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall subject to the provisions of any law made in that behalf by Parliament be made by the President
3 When any other Election Commis sioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission
168 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 Presi dent may also appoint after consultation with the Election Commission such Regional Commis sioners 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 Commissioners 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 Elec tion Commissioner shall not be varied to his disadvantage after his appointment Provided further that any other Election Commissioner or a Regional Commis sioner 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 Commis sioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause 1
 The provisions of clause 1 of the Article show that the superintendence direction and control of the prepara tion of the 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 Commission in the matter of the conduct of election to the Parliament and to the Legislatures of the States
In the discharge of these duties and in the exercise of these powers the Com mission has to act on its own and to take various dicisions and implement them as an independent body
In the discharge of its duties and functions it is not amenable to the control of any other body
There is no doubt therefore that the Election Commission as envisaged by the Constitu tion is an independent institution and has to function as such
The salient features of the composition of the Elec tion Commission as given in clauses 2 3 and 4 of the Article are that the Commission shall always consist of a permanent incumbent viz the Chief Election Commissioner
But the President has also been given the power to appoint such number of other Election Commissioners as may from time to time fix
In other words while 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 require ments of the time as assessed by the President
The power given to the President to appoint the Chief Election Commissioner and other Election Commissioners is subject to the provisions of any law that may be made by the Parliament in that behalf
The Parliament has thus reserved to itself the power to regulate 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
However when other Election Commissioners are appointed the Commis sion consists of both the Chief Election Commissioner and the other Election Commissioners and together they consti tute the Commission
In such a case the Chief Election Commissioner acts as the Chairman of the Election Commis sion
Clause 4 of the Article gives power to the Presi dent to appoint after consulting 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
The Regional Commis sioners abviously do not constitute the Commission but are appointed to assist it
However in the matter of the conditions of service and 170 tenure of office of the Election Commissioners a distinc tion is made between the Chief Election Commissioner on the one hand and Election Commissioners and Regional Commission ers 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 Elec tion 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 Commissioners although the former constitute the Commission and the latter do not and are only appointed to assist the Commission
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 Commis sioner 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 Election Commission ers as that of the Chief Election Commissioner
The Chief Election Commissioner does not therefore appear to be primus inter parties
ie 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  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 Commissioner
In this connection the controversy as to whether there should be a one member Commission or a multi member Commission also assumes a little importance since it throws light both on the genesis of Article 324 as well as its implications
We may first refer to the relevant discussion on the subject in the Constituent Assembly
In the Draft Constitution the present Article 324 was numbered as Article 289
It appears from Dr Ambedkar s introductory comments on the Article Constituent Assembly Debates Vol
VIII p 905 that the Drafting Committee appointed on the Fundamen 171 tal Rights had made a report 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 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 was designed to carry out that part of the decision of the House
Explaining the provisions of clause 2 of the Article Dr Ambedkar stated that there were two alternatives before the Drafting Committee viz either to have a permanent body consisting 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 adhoc 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
Commenting upon clause 4 of the then Article 289 now 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 the tenure of office of the members of the Election Commis sion subject to one or two conditions that the Chief 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 abso lutely necessary that the new machinery which we are setting up namely the Election Com mission should be irremovable by the execu tive by a mere fiat
We have therefore given the Chief Election Commissioner the same status so far as removability is concerned as we have given to the Judges of the Supreme Court
We of coursedo not propose to give the same status to the other members of the Commission
We have left the 172 matter to the President as to the circum stances under which he would deem fit to remove any other member of the Election Com mission 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 Parlia ment
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 disadvan tage 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 Commissioner and the Election Commission ers with regard to the security of the service conditions and the procedure of their removal was maintained as was proposed
It appears that the issue whether the Commission should be uni member or multi member had remained alive even after the adoption of the Constitution and it cannot be said that it has lost its relevance 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 though three of the former Chief Election Commissioners have opposed a multi member body on the ground inter alia that quick deci sions are needed in Election matters and the Commission acts in actual practice in consul tations with various authorities agencies and that a process of deliberation precedes its decisions and there is considerable force in what they have said it would in view of the demand from certain quarters for a multi member Commission be desirable to examine the proposal and take a decision after ascertain ing the views of the various political par ties
A suggestion to this effect was made to the Government by the Commission through its letter dated 173 October 29 1986 to the Law Minister
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 29th October 1986 to the Law Minister
Unfortunately there was no discussion in the Con stituent Assembly on the subject of the procedure to be adopted by the Commission in transacting its business when Election Commissioners are appointed in addition to the Chief Election Commissioner
We are not aware as to what precise relationship between the Chief Election Commissioner and the other Election Commissioners if and when appointed was assumed by the earlier three Chief Election Commission ers when they opposed the multi member Election Commission or what suggestion was made by the 2nd respondent with regard to the said relationship in his letter of 29th Octo ber 1986 to the Law Minister
As we have seen from the provisions of clause 3 of Article 324 all that the Arti cle says is that when any other Election Commissioner is appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission
What is therefore evident from the discussion of the 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 Commissioner 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 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 togeth er 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 also some 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 Minis ter or 174 he Chief Minister is appointed by the President or the Governor and he other Ministers are appointed by the Presi dent or the Governor on he advice of the Prime Minister or the Chief Minister the appointnent of both the Chief Elec tion Commissioner and the other Election Commissioners as the law stands today is made by the President under Artii cle 3242 of the Constitution
It has however to be noted that he provisions of the said Article have left the matter of appointment of the Chief Election Commissioner and the other Election Commissioners 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 anunquestion able rule to back it
We are not aware if there is any Election Commission in a similar Constitutional 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 con nection
It is further an acknowledged rule of transacting business in a multi member body that when there is no ex press 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 de mands that either the procedure for transacting business iS spelt out by a statute or a rule either prior to or simulta neously 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 admit tedly no such procedure has been laid down
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 Commissioners
The fact that the Regional Commissioners are to be appointed 175 by the President in consultation with the Commission to assist 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 provision is intended to vest the President with the powers of appoint ment of the Regional Commissioners for a particular purpose and the framers of the Constitution it appears desired to give a constitutional status to the Regional Commissioners also as and when they are appointed
The provision 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 Election Commissioners inter se
On the other hand clause 5 of the Article by placing the Election Commissioners Regional Commissioners on par in the matter of service conditions and their removability reinforces the assumption that Election Commissioners do not enjoy the same status and authority as that of the Chief Election Commissioner
The experience of the short period during which the petitioner and the other Election Commissioners were in the Commission 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 Commis sion would have come to a standstill and the Commission would have been rendered inactive
In the first instance the petitioner and the other Election Commissioners were appointed when the work of the Commission did not warrant their appointment
The reason given by the ist respondent Union of India that on ac count of the Constitution 61st Amendment Act reducing the voting age and the ConstitUtion 64th Amendment and 65th Amendment Bills relating to election to the Panchayats and Nagar Palikas the work of the Commission was expected to increase and therefore there was need for more Election Commissioners cuts no ice
As has been pointed out by the 2nd respondent the work relating to revision of electoral rolls on account of the reduction of voting age was complet ed in all the States except Assam by the end of July 1989 itself and at the Conference of the Chief Electoral Offi cers 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 complet ed by August in the whole of the country except Assam
Further the Constitution 64th and 65th Amendment Bills had already fallen in Parliament before the 176 appointments
In fact what was needed was more secretarial staff for which the Commission was pressing and not more Election Commissioners
What instead was done was to appoint the petitioner and the other Election Commissioner 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 presented with them for the first time in the afternoon of the same day ie 16th October 1989
What follows is more instructive and interesting for it lends considerable force to what the 2nd respondent has stated in this connection in his reply
Barely 24 hours after the appointment of the Election Commissioners the Principal Secretary to the Prime Minister called on the 2nd respondent in the forenoon of 17th October 1989 and con veyed to him the desire of the Prime Minister that the go
 at 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 pm 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 Govern ment to fix the date of the election
The new Election 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
We do not propose to refer to all the other disputes which arose between the Chief Election Commissioner on the one hand and the petitioner and the other Election Commis sioner 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 Commissioner probably misunderstood their role and thought that they were appoint ed 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 Na tional Congress vs Election 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 pm on the same day
According to the said notice the with peti tion was scheduled to come up for hearing before the High Court on the following day ie November 10 1989
By the time the notice was received in the office of the COmmis Sion the 2nd respondent as well as the Election Commission ers 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 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 addition to the names men tioned 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 dis closed in the reply was engaged and he was briefed in the matter from about 8 pm to 9 pm on that day ie 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 Commission 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 inspired that the petitioner rang up the other Election Commissioner Shri VS Seigell and thereafter rang up the Deputy Election Commissioner 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 both 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 ie 1 1th 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 1989 and the Chief Election Commis sioner in his inaugural speech had 178 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 spite of the fact that the petitioner and the other Election Commissioner had participated 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
Although the whole foundation of the contentions advanced on behalf of the petitioner is the need to safe guard the independer of the Commission we are afraid that the manner of appointment 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 Commission much less its smooth working
In the circumstances and in the absence of rules to regulate the relationship between the Chief EleCtion Commissioner and the other Election Commissioners no one need shed tears that the posts were abolished
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 powers to execute them it is both necessary and desirable that the powers are not exer cised 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 indi vidual 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 arbitrari sections 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
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 Constitution 64th  65th Amendment Bills had lapsed and the revision of electoral rolls on account of 179 the lowering of the age was also completed before the gener al elections which took place in November 1989 the reasons and events which occasioned the appointment of the Election Commissioners ceased to exist and the Government on assess ing the prevailing position bona fide came to the conclusion that the volume of work in the changed context and circum stances did not warrant the continuance of the 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 Octo ber 1989
Yet the appointments 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 appear from record there fore show 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 Govern ment 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 admits its mistake whether it is committed by the same Government or the earli er 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 credi bility 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 for 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 internally torn and ineffectual in its functioning
There was of course an option before the Government viz to continue with the experiment of the multi member Commission by defin ing the roles of the new Commissioners
This course howev er might have required either framing of the rules of business or enactment of a statute or an amendment 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 taken a considerable time
In the meanwhile the intractable situation in the Commission s working would have continued and might even have deteriorated
In the view that we have taken namely that there was no 180 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 particu larly vis a vis the Chief Election Commissioner the ap pointments 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 Commis sioner and it may well be that the Chief Election Commis sioner 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 ad vanced on behalf of the petitioner viz that the abolition of the posts tampered directly or indirectly with the inde pendence of the Commission
As regards the first contention namely that in view of the service rules the Election Commissioners were entitled to remain in 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 earlier 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
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 mala 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 Commis sioner had never recommended their 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 Goverment while abolishing the posts had acted on the suggestion of the 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 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 contintu ance of the two Commissioners has an option to make the 181 rules of business etc
as stated earlier
That the Govern ment chose one rather than the other option is no ground to allege mala 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 al though the earlier three Chief Election Commissioners had opined against a multi member Commission the second re spondent Chief Election Commissioner was inclined in favour of the concept
Hence the allegations of mala fides against the Chief Election Commissioner are hard to accept
The last of the contentions advanced on behalf of the petitioner is in two parts
The first part relates to the material loss on account 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 employment
The creation and abolition of post is the prerogative of the executive and in the present case of the President
Article 3242 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 the President finding that there was no work for the Elec tion Commissioners or that the Election Commission could not function 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 Gopal Subramaniam appearing for him made it clear at the very outset that the petitioner had not approched the court to make a grievance of his material loss but to assert the principle that the independence of the Election Commission should not be per mitted to be tampered with either directly or indirectly by the subterfuge of the abolition of the posts
We have dealt with this aspect earlier inquite somedetail 26
We however find some force in the second part of the contention
The petitioner in paragraph 30 of his peti tion has averted as follows The abolition of the post of Election Commis sioners was lead news in the Doordarshan Hindi News Bulletins at 730 pm and 840 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 Press Conference was 182 shown in which viewers were made to hear a question of a Press report casting aspersions on the two newly appointed Election Commis sioners with the Prime Minister answering that the Government would review these appointments along with other electoral reforms
This was clearly defamatory and it was clear to every viewer that the two Election 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 wash   In their reply to this paragraph the Union of India in paragraph 27 have stated With reference to para 30 it is submitted that the allegations and contentions contained therein are irrelevant 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 Minis ter to the Press Reporter in the Press Conference we do find that the flashing of the photos of the petitioner and the other Election Commissioner in their Hindi News Bulletin at 730 pm and 840 pm by the Doordarshan was clearly un called 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 in stance where the photos of the officers whose services were terminated had been flashed on the TV screen
That the Government should casually dismiss this incident by a me chanical denial 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 disapproval of the attitude adoptedby the Government to wards 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 peti tioner and the other Election Commissioner is no argument to justify the event
Government could have offered to investi gate the 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 Janta Dal which was a partner in the then Government and which was allegedly aggrieved by the stand taken by the two Commis sioners 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 be cause for the reasons we have discussed earlier the inci dent has no bearing on the result of the petition
The petition thus fails and the rule is dis charged
In the circumstances of the case there will be no order as to costs
TNA Petition dismissed


Summary:
Due to a collision on the highway between a Petrol tanker and a truck the Petrol tanker went off the road and fell on its side at some distance from the highway
As a result of it petrol leaked out and collected nearby
Nearly four hours after the collision an explosion took place in the petrol tanker resulting in fire
A large number of persons who had assembled near the petrol tanker sustained burn injuries few of them succumbed to the injuries
Re spondent s son was of the persons who died as such
Respondent filed a claim before the Motor Accident Claims Tribunal under Section 110 of the Motor Vehicles Act for Rs75000 as compensation
She also claimed Rs15000 as compensation under Section 92A of the Act
The Tribunal dismissed the claim under Section 92A on the ground that the explosion could not be said to be an accident arising out of the use of the petrol tanker and so the provisions of Sec tion 92A were not attracted
It held that the explosion and the fire which took place after about four hours of the accident had no connec 27 tion with the accident and it was altogether a different and independent accident It also observed that the villagers took benefit of the earlier accident and while they were trying to pilfer petrol  from the tanker there was friction which caused the ignition and explosion and since an outside agency was responsible therefore the subsequent accident of explosion and fire could not be said to be an accident arising out of the use of the tanker
On appeal a Single Judge of the High Court disagreed with the finding of the Tribunal that the explosion was a direct consequence of the attempt to pilfer petrol from it and further held that in view of Sub Section 4 of Section 92A if there was a wrongful act neglect or default on the part of the deceased or injured the claim under Section 92A for compensation for no liability cannot be rejected
He observed that the fact that at the material time the tanker was not driven on the highway but was lying turtle on the side of the highway would not make any difference and that the tanker was a vehicle lying on the side of the highway and would be covered by the expression use  in Section 92A of the Act and so compensation would be payable under no fault liability 
The petitioners filed a Letters Patent Appeal against the said decision and a Division Bench of the High Court dismissed the same affirming the findings of the Single Judge
The Bench held that the collision between the tanker and the other vehicle which occurred earlier and the escape of petrol from the tanker which ultimately resulted in explosion and fire were not unconnected but related events
It rejected the claim of the petitioners that the first information report recorded by the police and the panchnama indicated that the explosion and fire near the petrol tanker had been caused by careless act of throwing away of a match stick used for lighting a beedi or cigarette
Aggrieved by the said decision the petitioners pre ferred the present petition for special leave to appeal
On behalf of the petitioners it was contended that the petrol tanker was not a motor vehicle as defined ln Section 218 of the Act at the time the explosion and fire took place because at that time the petrol tanker was lying turtle and was not capable of movement on the road that since before the explosion and fire the petrol tanker was lying immobile it could not be said that the petrol tanker was in use as a motor vehicle at the time of the explosion and fire that even if it is found that the petrol tanker was in use as a motor vehicle at the time of the explosion and fire there was no causal relationship between the 28 collision which took place between the petrol tanker and the truck and the explosion and fire in the petrol tanker which took place about four and half hours later and it cannot therefore be said that the explosion and fire in the petrol tanker was an accident arising out of the use of a motor vehicle
Dismissing the petition this Court HELD 1
Section 92A of the was in the nature of beneficial legislation enacted with a view to confer the benefit of expeditious payment of limited amount by way of compensation to the victims of an accident arising out of the use of a motor vehicle on the basis of no fault liability
In the matter of interpretation of a bene ficial legislation the approach of the courts is to adopt a construction which advances the beneficient purpose underly ing the enactment in preference to a construction which tends to defeat that purpose
39E G Motor Owners  Insurance Co Ltd vs Jadavji Keshavji Modi  Ors 1982 1 SCR 860 Skandia Insurance Co Ltd vs Kokilaben Chandravadan  Ors   relied on
Manjusri Raha  Ors
BL Gupta  Ors
   State of Haryana vs Darshana Devi  Ors   Bishan Devi  Ors
vs Sirbaksh Singh  Anr   NKV Bros Ltd vs M Karumai Ammal and Ors
  and Gujarat State Road Transport Corporation vs Ramanbhai Prabhatbhai  Anr   referred to
The petrol tanker was a vehicle manufactured for the purpose of transporting petrol
It was a vehicle which had been adapted for such use and was suitable for use on the road for transporting petrol
At the time when the petrol tanker collided with the truck on the national highway it was being used for the purpose of transporting petrol
It cannot therefore be disputed that when the said collision took place it was a motor vehicle as the said expression was defined in section 218 of the Act
Merely because the petrol tanker had turned turtle as a result of the collision and was lying at a short distance away from the road does not mean that it had ceased to be suitable or fit for use on the road and it had ceased to be a motor vehicle
It could be said that as a result of the collision with the truck the petrol tanker was damaged to such an extent that there was no reasonable prospect of the vehicle ever being made mobile again
In the circumstances it cannot be held that the petrol tanker which was a motor vehicle when it collided with the 29 truck had ceased to be a motor vehicle after the said colli sion and it could not be regarded a motor vehicle under Section 218 of the Act at the time when the explosion and fire took place
40H 41A C 42D E Bolani Ores Ltd etc
vs State of Orissa
   Newberry vs Simmonds and Smart vs Allan  Anr  referred to
The word use  has a wider connotationas to cover the period when the vehicle is not moving and is stationary and the use of a vehicle does not cease on account of the vehi cle having been rendered immobile on account of a break down or mechanical defect or accident
In the circumstances it cannot be said that the petrol tanker was not in the use at the time when it was lying on its side after the collision with the truck
44F G Pushpa Rani Chopra vs Anokha Singh  Ors  General Managar KSRTC vs section Satalingappa  Ors and Oriental Fire  General Insurance Co Ltd vs Suman Navnath Rajguru  Ors  ap proved
Elliott vs Grey and Government Insur ance Office of New South Wales vs RJ Green  Lloyd Pty Ltd   referred to
There is no ground for interfering with the find ings recorded by the High Court that those persons who sustained injuries as a result of the explosion and fire in the petrol tanker did not indulge in any unlawful activity which might have caused the explosion and fire
The matter has therefore to be examined in the light of the meaning to be assigned to the words arising out of In the expres sion accident arising out of the use of a motor vehicle in Section 92A of the Act
46D E 42
The words arising out of have been used in var ious statutes in different contexts and have been construed by Courts widely as well as narrowly keeping in view the context in which they have been used in a particular legis lation
46F 43
In the context of motor accidents the expressions caused by and arising out of are often used in statutes
Although both these expressions imply a causal relationship between the accident resulting in injury and the use of the motor vehicle but they differ in the degree of 30 proximity of such relationship
As compared to the expres sion caused by the expression arising out of has a wider connotation and the causal relationship is not required to be direct and proximate and it can be less immediate
47G 48E 44
The expression caused by was used in Sections 951bi and ii and 962bii of the Act
In Section 92A of the Act Parliament however chose to use the ex pression arising out of which indicates that for the purpose of awarding compensation under Section 92A the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablementis not required to be direct and proximate and it can be less immediate
This would imply that accident should be connect ed with the use of the motor vehicle but the said connection need not be direct and immediate
This construction of the expression arising out of the use of a motor vehicle in section 92A enlarges the field of protection made available to the victims of accident and is in consonance with the beneficial object underlying the enactment
48D E Mackinnon Machkenzie  Co Pvt Ltd vs Ibrahim Mahommed Issak   Government Insurance Office of New South Wales vs RJ Green  Ltyoyd Pl
Ltd   Heyman vs Darwins Ltd  Union of India vs EB Aaby s Rederi AS and Samick Lines Co Ltd vs Owners of the Antonis P Lemos 1985 2 WLR 468 referred to
In the facts and circumstances of the present case the accident involving explosion and fire in the petrol tanker was connected with the use of tanker as a motor vehicle
The High Court was right in holding that the colli sion between the tanker and the other vehicle which had occurred earlier and the escape of petrol from the tanker which ultimately resulted in the explosion and fire were not unconnected but related events and merely because there was interval of about four to hour and half hours between the said collision and the explosion and fire in the tanker it cannot be necessarily inferred that there was no causal relation between explosion and fire
In the circumstances it must be held that the explosion and fire resulting in the injuries which led to the death of the Respondent s son was due to an accident arising out of the use of the motor vehicle viz the petrol tanker
48G H 49A B 6
The object underlying the enactment of Section 92A is to make available to the claimant compensation amount to the extent of Rs15000 in case of death and Rs7500 in case of permanent disable 31 ment as expeditiously as possible and the said award has to be made before adjudication of the claim under Section 110A of the Act
This would be apparent from the provision of Section 92B of the Act which provides that a claim for compensation under Section 92A in respect of death or perma nent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under Section 92A and also in pursuance of any right on the prin ciple of fault the claim for compensation under Section 92A shall be disposed of in the first place
With a view to give effect to the said directive contained in Section 92B of the Act the Maharashtra Government has amended the Rules and has inserted special provisions in respect of claims under Section 92A in Rules 291A 291B 2972 306A 306B 306C and 306D of the Rules
The object underlying the said provi sions is to enable expeditious disposal of a claim petition under Section 92A of the Act
The said object would be defeated if the Claims Tribunal is required to hold a regu lar trial in the same manner as for adjudicating a claim petition under Section 110A of the Act
52B E 7
Rules 291A 306A and 306B of the Bombay Motor Vehi cles Rules 1989 contain adequate provisions which would ennable the Claims Tribunal to satisfy itself in respect of the matters necessary for awarding compensation under Sec tion 92A of the Act and in view of these special provisions the Claims Tribunal is not required to follow the normal procedure prescribed under the Act and the Rules with regard to adjudication of a claim under Section 110A of the Act for the purpose of making an order on a claim petition under Section 92A of the Act
53B D