Petition Seeking Neutral Body to Recommend Names of CEC and ECs File in SC; Says Existing Practice Violates Basic Features of the Constitution

A petition has been filed in the Supreme Court seeking the constitution of a neutral collegium or selection committee to recommend names for the appointment of Election Commissioners at the Election Commission of India (ECI).

The Association for Democratic Reforms (ADR), the petitioner, has assailed the validity of the existing practice of appointing members to the Election Commission as being violative of Article 14, 324 (2) and the basic features of the Constitution.

It says the appointment of members of the Election Commission on the whims and fancies of the executive violates the very foundation on which it was created, thus, making the Commission a branch of the executive.

Presently, election commissioners are appointed by the President on the recommendation of the Prime Minister.

Article 324(2) of the Constitution of India states: “324(2): The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.”

However, till now, no law has been enacted by Parliament.

The plea argues that the Election Commissioners should be appointed in line with the recommendations of Law Commission in its 255th Report of March 2015; Second Administrative Reform Commission in its fourth report of January 2007; Dr Dinesh Goswami Committee in its report of May 1990; and Justice Tarkunde Committee in its report of 1975.

In 1975, the Justice Tarkunde Committee (appointed by ‘Citizens for Democracy’ on the suggestion of Jayaprakash Narayan) recommended that members of the Election Commission be appointed by the President on the advice of a committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India.

The Dinesh Goswami committee report had recommended that the appointment of Chief Election Commissioner should be made by the President in consultation with the Chief Justice of India and the Leader of the Opposition (and in case no Leader of the Opposition is available, the consultation should be with the leader of the largest opposition group in the Lok Sabha). In so far as the appointment of two Election Commissioners is concerned, the committee opined, their appointments should be in consultation with the Chief Justice of India, Leader of the Opposition (in case the Leader of the Opposition is not available, the consultation should be with the leader of the largest opposition group in the Lok Sabha) and the Chief Election Commissioner.

The second administrative reforms commission also suggested a collegium headed by the Prime Minister with the Speaker of the Lok Sabha, the Leader of Opposition in the Lok Sabha, the Law Minister and the Deputy Chairman of the Rajya Sabha as members who should make recommendations for the consideration of the President for appointment of the Chief Election Commissioner and the Election Commissioners.

The Law Commission of India in its report no. 255 on Electoral Reform recommended that the appointment of all Election Commissioners should be made by the President in consultation with a three-member collegium or selection committee, consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India.

ADR’s plea filed through advocate Prashant Bhushan relied heavily upon these recommendations to make out a case in favour of constituting a neutral body that would recommend names for the appointment of Chief EC and ECs.

In 2018, a plea seeking similar relief was referred by the Supreme Court to a constitution bench; that matter is still pending before the court.

The article was originally published in The Leaflet.