EC Appointments Day #2: Union Argued Against Judicial Interference in Executive Domain

Election Commission Appointments

Judges: K.M. Joseph J, Ajay Rastogi J, Aniruddha Bose J, Hrishikesh Roy J, C.T. Ravikumar J

A Constitution Bench led by Justice K.M. Joseph heard Attorney General (AG) R. Venkataramani argued against a group of petitions seeking reforms in the process of appointing Election Commission (EC) members today. 

Mr. Venkataramani argued that the Court must respect the principle of Separation of Powers between different branches of the government, and refrain from interfering in the appointment process. He stressed that Article 324 of the Constitution vests the power to lay down laws regarding appointments in Parliament. Pushing back strongly, the Bench responded that Parliament had not discharged this constitutional duty in over 70 years. The Bench stated that the resultant vacuum affects the fundamental rights of citizens, and someone must plug the gaps.


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 324(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.

Issues In Focus Today

  • Can the Court intervene in the Election Process, typically an area reserved for Parliament and the Executive?
  • Does the current Election Process violate fundamental rights?

Justice Joseph Stressed Need To Secure Length of CEC’s Tenure

Armed with statistics and examples from Election Commissions all over the world, Justice Joseph posed a series of questions to the Attorney General at the very outset of today’s hearing. 

Justice Joseph first read out the tenures of each Chief Election Commissioner (CEC) since independence. He pointed out that CECs initially served an average tenure of eight years. In recent years, under the UPA and NDA governments, CECs have served heavily truncated tenures of about two years. Justice Joseph described this as a ‘very very disturbing trend’. 

Justice Joseph stressed that longer tenures are essential for any institutional leader to function independently and achieve their goals. He further stated that the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, envisions a minimum 6-year tenure for CECs for this exact reason. 

The 1991 Act also sets a 65 years retirement age for CECs. In recent years, the Executive has taken to appointing candidates who are only 1-2 years away from retirement age. Justice Joseph lamented that the Union was ‘destroying the independence’ of the EC by paying ‘mere lip service’ to the idea of a long tenure for CECs. 

Referring briefly to Sri Lanka, Nepal, Bangladesh, Pakistan, UK and USA, Justice Joseph further stated that all these Parliaments have put some thought into the EC election process and developed their own rules to govern the same. He stressed that India allowed a legal vacuum on the issue to persist for over 70 years. Justice Rastogi echoed this thought, pointing out that the Union waited for someone to approach the Supreme Court to consider an electoral issue of such grave importance. 

AG: No Fundamental Rights are Violated by EC Appointments Process, No Legal Vacuum Exists

In his arguments today, the Attorney General focused on a simple question—What is the role of constitutional courts in EC appointments? Can the Court direct Parliament to make laws on the subject? According to the Attorney General, devising a ‘manageable standard of judicial interference’ is an important aspect of this case. 

The Attorney General argued that Courts all over the world have moved past a strict separation of powers between the Judiciary, Legislature and Executive. Courts have expansive powers to protect the human rights of citizens. To this extent, judicial intervention in matters typically reserved for the Executive of Parliament is permissible if their actions violate fundamental rights. In this case, however, the Attorney General argued that the link between EC appointments and citizens’ fundamental rights was tenuous. 

Responding to this argument, Justice Joseph stated that the  Supreme Court established the right to vote as a fundamental right in the 2013 “None of the Above” or NOTA case. Here, the Court held that the judiciary can intervene using its expansive powers under Article 32 to protect this right. Advocate Prashant Bhushan, arguing for reform, interjected to clarify that the petitioners’ case was not hinged only on the right to vote. Free and fair elections are a part of the basic structure of the constitution. He claimed that an arbitrary appointment system destroys the basic structure.

Mr. Venkataramani responded stating that the link between EC appointments and fundamental rights must be made more clearly. Focusing on Article 324, he stated that the Court has often held that Parliament cannot be forced to make laws on a subject merely because the Constitution gives them the power to do so. Moreover, some areas require slow and recalcitrant actions. The Bench reminded Mr. Venkataramani that 70 years is a long time for Parliament to carry out slow and detailed deliberations. 

Mr. Venkataramani suggested that the absence of a law does not mean a vacuum exists on the subject. He stated that there is no evidence-based report that suggests that the current EC appointments process damages free and fair elections. While it is important to appoint the most independent candidate as Election Commissioner, Mr. Venkataramani stated that the Court cannot dictate how this is to be done. Parliament must be left to decide the process in due time. 

The Bench agreed that the Court cannot dictate a process for appointment. However, the Bench pointed out that the Court had stepped in to plug gaps in laws to protect fundamental rights at various points, most notably with the Vishaka guidelines on sexual harassment at the workplace. It would hence not be unprecedented for the Court to make an intervention here as well. 

Mr. Venkataramani will continue his arguments tomorrow (November 23rd), followed by responses from the petitioners.