A Constitution Bench of the Supreme Court is entertaining a PIL seeking to reform how members of the Election Commission of India are appointed.
In January 2015, Anoop Baranwal filed a PIL on the ground that the current system for appointing members of the Election Commission of India (ECI) is unconstitutional. Currently, the Executive enjoys the power to make appointments, which the PIL contends has degraded the ECI's independence over time. The PIL pleads for the Court to issue directions to set up an independent, Collegium-like system for ECI appointments. It claims that the current system of appointments violates Article 342(2) of the Constitution.
Article 324 specifies that while the Chief Election Commissioner and Election Commissioners will be appointed by the President, this is subject to Parliamentary law (if such law exists). While this provision places an expectation on Parliament to draft a relevant a law, it has not done so up until now. In the absence of such a law, the President has been making appointments as per the recommendations of the Prime Minister.
The Union has defended the current mechanism of appointments, citing the 'honest record' of all past Chief Commissioners. It has urged the Court to not intervene, submitting that the matter falls within the executive domain.
On 23 October 2018, a bench comprising Chief Justice Ranjan Gogoi and SK Kaul referred the matter to a five-judge Constitution Bench. On 6 January 2020, the Court tagged a similar petition by Ashwini Kumar Upadhyay to the matter.
1. Does the current process for appointments, which executive violate equality guarantee under the Constitution?
2. Does it violate separation of power principle if court issues directions/ guidelines for appointment process of election commissioners?