Why are we discussing this issue?

Anoop Baranwal v. Union of India A Constitution Bench of the Supreme Court has ordered that Election Commissioners will be appointed by the President of India on the advice of a Committee consisting of the President, Prime Minister, Leader of Opposition, and Chief Justice of India. However, in this case, the Office of the President was not a Party. Directions were sought against the Election commission. Hence prima facie the Judgment is not binding upon her.


The power to amend the constitution is with Parliament. It is an unfettered power under Article 368 of the Constitution. However, a series of Judgements and stare decisis has put a limitation on the exercise of this power. It was felt by the Court that elected representatives may have their own agendas. The landmark judgments say that as far as fundamental rights are concerned amendment should not touch the basic structure of the constitution.


The Supreme Court has the power to declare any law that it finds unconstitutional void.


On two occasions this question has arisen:

  1. The power of the President to appoint higher court Judges under Articles 124 and 217 is shielded by a Judgement and a system of collegium is formed;
  2. Amending Article 324 whereby the power of the President is veiled by a recent judgment of the Supreme Court in the matter of Anup Baranwal ( Supra);


Under Article 52 President is bestowed upon executive powers. Every power is executed in the name of the President under Article 77.

What is Election Commission?

Under the provisions of the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business)] Act, 1991

“Chief Election Commissioner” means the Chief Election Commissioner appointed under Article 324 of the Constitution.

PART XV Provides for the appointment of the Election Commission and procedure.

Under Article 324 entire 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 vests in a Commission (referred to in this Constitution as the Election Commission).


The Election Commission under Article 324 consists of the Chief Election Commissioner and such number of other Election Commissioners if any, is appointed by the President from time to time 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.

When any other Election Commissioner is so appointed by the President the Chief Election Commissioner shall act as the Chairman of the Election Commission.

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

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.


 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 Commissioner shall not be varied to his disadvantage after his appointment:

Similarly, any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.


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 discharge of the functions conferred on the Election Commission.


 The scheme of Article 324 of the Constitution. It must be remembered that the CEC (Chief Election Commissioner) is intended to be a permanent incumbent and, therefore, in order to preserve and safeguard his independence, he had to be treated differently. That is because there cannot be an Election Commission without a CEC. That is not the case with other ECs. They are not intended to be permanent incumbents. Clause (2) of Article 324 itself suggests that the number of ECs can vary from time to time. In the very nature of things, therefore, they could not be conferred the type of irremovability that is bestowed on the CEC. If that were to be done, the entire scheme of Article 324 would have to undergo a change. In the scheme of things, therefore, the power to remove in certain cases had to be retained. Having insulated the CEC from external political or executive pressures, confidence was reposed in this independent functionary to safeguard the independence of his ECs and even RCs by enjoining that they cannot be removed except on the recommendation of the CEC.


This is evident from the following statement found in the speech of Shri K.M. Munshi in the Constituent Assembly when he supported the amended draft submitted by Dr. Ambedkar:

“We cannot have an Election Commission sitting all the time during those five years doing nothing. The Chief Election Commissioner will continue to be a whole-time officer performing the duties of his office and looking after the work from day to day but when major elections take place in the country, either Provincial or Central, the Commission must be enlarged to cope with the work.

More members, therefore, have to be added to the Commission. They are no doubt to be appointed by the President. Therefore, to that extent their independence is ensured. So there is no reason to believe that these temporary Election Commissioners will not have the necessary measure of independence.”


There can be no doubt that the Election Commission discharges a public function. As pointed out earlier, the scheme of Article 324 clearly envisages a multi-member body comprising the CEC and the ECs. The RCs may be appointed to assist the Commission. If that is so the ECs cannot be put on par with the RCs. ECs form part of the Election Commission, unlike the RCs. Their role is, therefore, higher than that of RCs. If they form part of the Commission, it stands to reason to hold that they must have a say in decision-making. If the CEC is considered to be superior in the sense that his word is final, he would render the ECs non-functional or ornamental. Such an intention is difficult to cull out from Article 324 nor can we attribute it to the Constitution-makers. We must reject the argument that the ECs’ function is only to tender to advise to the CEC. See M.S. Gill vs. Chief Election Commissioner (1978) 2 SCR


Under Article 361 The President, or the Governor or Rajpramukh of a State, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties:

On the contrary, the President is head of all branches including the Judiciary and it is the domain of the President to appoint Judges of the Higher Courts under the provisions of the Constitution under Article 124 (2).



Biman Chandra Bose vs Dr. H.C. Mukherjee, Governor 1952 Calcutta High Court

adverting to Article 361 of the Constitution it appears upon an analysis of this Article that the Governor is not answerable to any Court for the exercise and performance of the powers and duties of his office. In other words, no Court can compel the Governor to exercise any power or to perform any duty nor can a Court compel him to forbear from exercising his power or performance of the duties. He is not amenable to the mandate or writs or directions issued by any Court. These words are wide enough to bar any interference by the Court in respect of the official acts or omissions of the Governor. But the framers of the Constitution have taken the precaution of using additional words in the Article, with a view to extending the protection even in respect of acts or omissions which can be said to be incidental to the exercise of the power and performance of the duties of the office of the Governor. Consequently, the Article affords immunity not only, in respect of the exercise and performance of the powers and duties of the office but also in respect of “any act done or purporting to be done by him” in the exercise and performance, of those powers and duties. These words “for any act done etc.” are commonly used in provisions of statutes having for their object the creation of absolute or partial bar of interference by Courts in respect of certain acts done or purported to be done under such statute.



Court in Shankari Prasad Singh Deo v. Union of India and State of Bihar and Sajjan Singh v. State of Rajasthan examined the power to amend the Constitution. The unanimous view of the Supreme Court in the Shankari Prasad case was that although law must ordinarily include Constitutional law there is a clear demarcation between ordinary law which is made in the exercise of legislative power and Constitutional law which is made in the exercise of constituent power. In the absence of a clear indication to the contrary, it is difficult to hold that the framers of the Constitution intended to make the fundamental rights immune of Constitutional amendment. The terms of Article 368 are general to empower Parliament to amend the Constitution without any exception. Article 13(2) construed in the context of Article 13 means that law in Article 13(2) would be relatable to the exercise of ordinary legislative power and not an amendment to the Constitution.

Golaknath Case: This is one of the largest bench on 13 Judges. Our of which 9 Judges gave concurrent view and 4 against. The majority view is that Parliament has the power to amend fundamental rights. However, the Court affirmed another proposition also asserted in the Golaknath case, by ruling that the expression “amendment” of this Constitution in article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the Preamble and the Constitution to carry out the objectives in the Preamble and the Directive Principles. Applied to fundamental rights, it would be that while fundamental rights cannot be abrogated, the reasonable abridgment of fundamental rights could be affected in the public interest. The true position is that every provision of the Constitution can be amended provided the basic foundation and structure of the Constitution remain the same. Which is also called the theory of Pith and Substance.

Then came the Keshvanand Bharati Case: this majority view was The decision of the leading majority in the Golak Nath case that the then Article 368 of the Constitution merely prescribed the procedure for amendment of the Constitution and that the power of amendment had to be traced to Entry 97 of List I, Schedule VII read with Articles 245, 246 and 248 is not correct.  The decision of the leading majority and of Hidayatullah J. that there is no distinction between an ordinary law and a law amending the Constitution is incorrect. Article 13(2) took in only ordinary laws, not amendments to the Constitution effected under Article 368. The decision of the leading majority and of Hidayatullah J. that Parliament had no power to amend the Constitution so as to abrogate or take away Fundamental Rights is incorrect. The power of amendment of the constitution conferred by the then Article 368 was wide and unfettered. It reached every part and provision of the Constitution. The preamble is a part of the Constitution and is not outside the reach of the amending power under Article 368. There are no inherent limitations on the amending power in the sense that the Amending Body lacks the power to make amendments so as to damage or destroy the essential features or the fundamental principles of the Constitution.


A judgment, it is well settled, cannot be read as a statute. “It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if Judges, under the guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the court before whom the matter comes to consider to be injurious to the public interest.” J.P. Bansal vs State Of Rajasthan & Anr on 12 March 2003

Dr. Y.S. Rajasekhara Reddy vs His Excellency, The Government of Andhra Pradesh  … on 2 November, 1999

“41. The power of Courts to invalidate statutes and executive actions in the name of the Constitution would have been abandoned, for, the choice would then be either rule of Judges according to their own desire or rule of people according to theirs. The distinction between the authoritarian and judicial oligarchy and the representative democracy can only be that Judges are not the dictatorial oligarchy but the guardians of liberties. Constitution is not a law, is advanced by people who have dramatic expansion of judicial governance in the name of Constitution. It must rise above all. Frankfurter observed, “the ultimate test of the constitutionality is the Constitution itself and not what we have\said about it.” Law is what the public thought of, what the Constitution meant and not the subjective intentions. It is how the words would have been understood at the time.

42.While exercising the power of judicial review, Courts would not advance judicial process in the matter of political opinion, question of social and ethical controversy, allocation of resources, lack of objective criteria as the Courts are ill-equipped to do so. Reference may be made to 1999 ACJ 521 at 597-7, 1986 (1) AC 112 at 193, 1995 Vol.11, All England Reports 129. While exercising the power of judicial review one cannot be permitted to rewrite the Constitution once sufficient bar has been provided by the Constitution itself that the Governor shall not be answerable to any Court for his acts done or supposed to have been done in the discharge of his Constitutional functions by any stretch of interpretative law by importing implications and giving credence to the other section of the Constitution, giving a precedent meaning, as the basic structure of the Constitution cannot render the specific unambiguous Constitutional provisions solely on the thought what the constitutional provisions should be. If one person can demand his Constitutional rights the other person cannot be denied the rights specifically conferred on him. The dignity of the highest Constitutional executive post cannot be denuded of its dignity on assumptions that he would not discharge his constitutional duties in accordance with the Constitution.

43. Our Constitution is a written Constitution intertwined with separation of powers yet the same are defined by the Constitution itself. Power of judicial review unexceptionally by now has been accepted as the basic structure of the Constitution while the Constitution itself puts a restriction on each wing or pillar of the Constitution.

44.The scheme of Constitution which provides for justice be it social or otherwise which is again a basic structure of Constitution in its operation, vested the executive power of Union of India in the President of India, and in the case of a State in the Governor of the State who holds the office during the pleasure of the President of India. Constitution has conferred certain privilege on the institution like that of Governor, Parliament, Members of Parliament, etc. It has put an embargo on the powers of judiciary too as in the case of two other equally important participating independent wings of the State i.e., Parliament and State Legislature either expressly or impliedly. It provides that no member of the Legislature would be liable for anything done in any proceeding, in the Court meaning thereby his act is taken out of the purview of judicial scrutiny. Similarly, Court’s jurisdiction has been ousted from inquiring into the proceedings in Parliament. Protective umbrella for independent working of the officer was provided by Constitution that no officer shall be subject to Court’s jurisdiction with respect to powers exercised by him. Logistic provisions were made in the Constitution with respect to executive and Legislative wings.

45.The Constitution provides that executive powers would vest in the Governor who would hold the same during the pleasure of the President who can further authorise him to discharge the functions not provided by the Constitution. Governor appoints the Chief Minister and the Ministers at his advice. Council of Ministers are required to advise the chief executive i.e., the Governor and the Governor is required to act on their advice. They are provided to be responsible to the Legislative Assembly. The scheme and powers conferred, both procedural and substantial, are in conformity with checks and balances and avoiding complete power on the principle that the absolute power conferred corrupts absolutely. In order that the Legislative and executive wings exercise the power independently without fear and favour, complete immunity from Court’s scrutiny was provided not only to the Legislative proceedings but also to the officers and Legislators from being subject to Court’s jurisdiction with respect to specified subjects and acts of theirs. In spite of the blanket general powers conferred on the Courts to issue writs, orders, direction for any purposes, the specific acts, subjects, constitutional office holders and persons covered by constitutional provisions are taken out of the judicial purview or being subject to judicial review.”


 When the court restricts the lawmaker from enacting laws that do not change the fundamental character of the constitution question today in the minds of citizens can Judiciary amend the constitution bypassing provisions of the constitution?

In case of judicial overreach

  1. President can avoid the directions as the order is not statute. President has a remedy under Article 143 for seeking the opinion of the Court. The Court has to file an opinion with the office of the President which the President may or may not accept ;
  2. President has the inherent power to request the judges to address the President in the Parliament under Judicial inquiry laws;
  3. Today as such there is no remedy, but President is not answerable to the Judiciary for being head of the Judiciary and may discard and or abandon the direction.

Disclaimer:  This opinion is without prejudice based on various provisions of law, judgments, and precedents. There may be a different view.

Shruti Desai

3rd March 2023