The Supreme Court will decide the constitutional validity of the practice of appointing the members of the Election Commission by the Executive.
The petitioner is the Association for Democratic Reforms (ADR), an organisation advocating political and electoral reforms in India.
The President, subject to any law, is empowered to appoint the Chief Election Commissioner and other Election Commissioners, as per Article 324(2) of the Constitution of India, 1950. However, the President is bound by the advice of the Executive while making such appointments, according to Article 74.
Currently, however, the Chief Election Commissioner and other Commissioners are appointed only by the Executive. The petitioners contend that this practice is arbitrary, violative of Articles 14, 324(2), and goes against the basic structure of the Constitution.
ADR contends that the changes made to Article 324(2) during the Constituent Assembly Debates (stating that the appointment made by the President is subject to any laws made by the Parliament) was made with forethought. It was made with the hope that the government would take initiative to develop a fair system for the appointment of members for the Election Commission. The Petitioners referred to Prakash Singh v. Union of India, to highlight that the inaction of the Government in this regard was unwarranted and contrary to the rule of law.
The independence of the Election Commission is vital for the protection of democracy as per the basic structure of the Constitution. The petitioner contends that the appointment of the Election Commission by the Executive allows the biases of the ruling party to reflect in appointments. This makes the Election Commission a part of the executive.
Further, the Election Commission renders a quasi judicial function between political parties. For the Executive to be part of the appointment for the members of such a body would be counterproductive. The petitioners note that this is inconsistent with the aim to facilitate free and fair elections.
In light of the issues listed, the petitioners seek the Supreme Court to issue an order for the constitution of a committee or collegium that is independent and free of the influences of the Executive. The petitioners also referred to the 255th Law Commission Report of March, 2015; 4th Report of the Second Administrative Reform Commission, 2007; Dr. Dinesh Goswami Committee Report, 1990; and Justice Tarkunde Committee Report, 1975. All these reports have suggested the formation of such an independent committee for the appointment of the members of the Election Commission. The implementation, however, has not occurred.
1. Whether the respondents have to constitute an independent collegium/committee for the appointment of the Election Commission members?
2. Whether the practice of appointment of the Chief Election Commissioner by the Executive is violative of Article 324(2) and 14 of the Constitution of India?