Writ Petition (ADR) SummaryPrivate: Collegium for Election Commissioners
Background and Issue
Article 324(2) of the Indian Constitution provides for how members of the Election Commission are appointed. The petitioner in this case is the Association for Democratic Reforms (ADR) who have worked towards electoral and political reforms including through litigation before the Supreme Court.
In the petition, ADR argues that the present practice of appointment of Election Commissioners by the Centre is violative of Articles 14, 324(2) and the basic features of the Constitution. This is on the ground that the Executive had appointed the members of the Election Commission. They had not consulted with the necessary authorities to ensure the appointments avoided political and executive interference.
The Petitioners are also seeking direction for constituting a neutral and independent selection committee for the appointment of future Election Commission members.
What does the Petitioner Seek?
The Petitioners prayed for the court to –
Declare the practice of appointment of Election Commissioners solely by the Executive as being violative of Article 324(2) and Article 14 of the Constitution.
Direct the Centre to implement an independent system for appointment of members of the Election Commission, as outlined and recommended by previous Law Commission and pertinent committee reports.
The petition first outlines arguments of Prof. Shibban Lal Saksena and Dr. Ambedkar, member and chairman of the Drafting Committee. Prof. Saksena raised reservations regarding the unfettered power granted to the Executive in the initially proposed version of the Article. Dr. Ambedkar acceded to Prof. Saksena’s concern and introduced an amendment, that the Assembly adopted.
The petitioner then brings up the findings in the reports of the Justice Tarkunde Committee (1975) and the Committee on Electoral Reforms (1990) (Goswami Committee). The Tarkunde Committee recommended that members of the Election Commission be appointed by the President on the advice of a Committee constituted by the Prime Minister, Lok Sabha Opposition Leader and the Chief Justice.
The Goswami Committee in its report, arrived at the same conclusion. They recommended effective consultations with neutral authorities Such as the Chief Justice of India and the Leader of the Opposition, should be made necessary for the appointment of all Election Commissioners and Chief Election Commissioner.
The 4th Report (2007) of the Second Administrative Reforms Commission reiterated the need for an independent body to make recommendations for appointments. The Report recommended a collegium headed by the Prime Minister and included the Law Minister and the Deputy Chairman of the Rajya Sabha alongside the neutral authorities mentioned by the Goswami and Tarkunde committees, to constitute the collegium. This was reiterated again in the 255th Law Commission Report (2015) which suggested a three-member collegium with the Prime Minister, Opposition Leader and the Chief Justice.
The petition mentions how a petition from a previous case, Anoop Baranwal v Union of India, challenged appointments to the Election Commission on similar grounds in 2015. ADR pointed out that, despite being referred to a Constitutional Bench for hearing in 2018 and being listed before said bench on five different dates in 2020, the case did not reach the hearing stage.
In order to justify their allegations of the Election Commissions indulgence towards the ruling party, the petitioners presented the findings of the Citizens’ Commission on Elections Report, March 2021. This commission, chaired by the retired Justice Lokur, found several instances of the Election Commission exhibiting inaction or omission. The report finds these instances to be indicative of a lack of fairness and neutrality, as well as exhibiting “unabashed” favour towards the ruling party. This pattern from the Report was linked to the “inaction and abdication” of duties by the Election Commission during assembly elections in multiple states, specifically highlighting West Bengal.
The petitioner provided an illustration of the various Authorities that are currently, successfully seeing appointments done by an independent committee. The petitioner proceeded to highlight that an Election Commission insulated from political bias and interference is necessary for democracy as a part of the basic structure of the Constitution.
Basic Structure and an insulated Election Commission
The petitioner argues that Article 324(2) of the Constitution mandates that “…subject to any law made in that behalf by Parliament…” has been interpreted and constructed to be a mandate for the Government to make a fair law regarding the appointment of members of the Election Commission.
As democracy is a part of the basic structure of the Constitution, ensuring that the Election Commission is insulated from political and executive interference is imperative to ensure a healthy democracy. Therefore ‘Integrity and Independence of the Election Commission’ is argued to be part of the basic structure of the Constitution. Sole appointment by the Centre without a fair and reasonable process undermines this. The petitioner also notes that this includes the process of appointment being insulated alongside the Election Commissions functioning and duties.
Citing Rojer Mathew v South Indian Bank Ltd, the petitioner argues that the Executive cannot be a sole appointer for a body that performs quasi-judicial functions between political parties including the ruling party.
Filling the Vacuum of Inaction
The Petitioner cites multiple cases in order to reinforce the Court’s ability to provide directions in situations where there is no governing law and significant public interest. Firstly, the petition brings the Court’s attention to their decision in Vineet Narain v Union of India. The Court invoked Article 141, 142 and 144 to recognise their power to issue directions in the case of a legislative vacuum until replaced by suitable legislation.
The Supreme Court Prakash Singh v Union of India insulated the Police from political interference. In this case the Court highlighted the factors that led them to mandate guidelines to fill the vacuum. These factors included the issue’s gravity, recommendations from commissions and committees, uncertainty of timeline for reform introduction and overwhelming public interest.