Right to vote a Constitutional right; cannot be overruled by parliament's ancillary powers: Justice KM Joseph in Election Commission case

Article 326 of the Constitution gives citizens the right to vote and that cannot be overruled by the ancillary law-making powers of parliament, the Supreme Court observed on Wednesday. .The remark was made after the counsel for the Election Commission told a Constitution Bench of Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, CT Ravikumar and Hrishikesh Roy that the right to vote is a statutory than a constitutional right.Justice Joseph, after asking the counsel to read Article 326 (which provides for universal adult franchise), then remarked, "If you are going to say that the parliament's legislative power is going to override the Constitutional power ... the Constitution has contemplated giving a right, that is a fundamental thing... the ancillary law-making by parliament is actually intended to give it [the right to vote] teeth and flesh ... Now if the legislature were to say we will not make a law (under Article 324), definitely we will issue a mandamus." The ancillary law-making powers being referred to were concerning disqualification of certain voters under Article 326, Justice Joseph added..The Court was hearing a challenge to the current system of appointing members of the ECI on the ground that the executive enjoys the power to make appointments in violation of Article 324(2) of the Constitution of India..The bench during today's hearing also directed the Central government to produce the file relating to the recent appointment of retired civil servant Arun Goel as an Election Commissioner.Justice Joseph asked Attorney General R Venkataramani how the appointment could have been made given the pendency of an interim application seeking a stay on appointments to the Election Commission of India (ECI).Goel took voluntary retirement on Friday, was appointed on Saturday and took charge on Monday.Counsel today argued on whether, in the absence of a law as contemplated by Article 324, judicial intervention was called for.The bench had yesterday observed that political parties in power at the centre force Chief Election Commissioners (CEC) to do their bidding so as to remain in power, thereby, compromising the independence of the Election Commission..Counsel for the ECI at today's hearing also said that all the prayers in the petitions are already the same as several of their reform proposal submitted to the Law Commission. It was added that Election Commissioners should be at par with the Chief Election Commissioner in terms of the procedure of and immunity from removal. On the proposal for a independent secretariat, the bench indicated that it was a policy decision since it involved financial allocation.