Live Law
Deepankar Malviya

The Supreme Court on Monday issued notice on a plea challenging the constitutional validity of the practice of Union of India and Election Commission of India in appointing the members of the Election Commission as being violative of Article 14, 324(2) and the basic features of the Constitution.

A bench comprising of Justices Ajay Rastogi and B. V. Nagarathna was considering a petition filed by the NGO Association for Democratic Reforms. Advocate Prashant Bhushan appeared for the petitioner.

It was pointed in the petition that, "the Law Commission of India in its report no. 255 on the Electoral Reform recommended that the appointment of all the Election Commissioner 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 of the Lok Sabha and the Chief Justice of India."

Therefore, a direction was sought to to implement an independent system for appointment of members of the Election Commission on the lines of recommendation of the 255th Law Commission.

The Petition before the Court raised the question on the practice of appointment of Chief Election Commissioner and Election Commissioner as it is done solely by the executive and is incompatible with Article 324(2). It was stated in the petition that Article 324(2) of the Constitution mandates Parliament to make a just, fair and reasonable law.

The petition also pointed out that in order to ensure free and fair elections to maintain healthy democracy in the country, the Election Commission should be insulated from political or executive interference, as the appointment of the members of the Election Commission on the whims and fancies of the executive violates the foundation on which it was created.

It was pointed out in the petition that the election commission renders a quasi-judicial function between the various political parties including the ruling government and other parties, thus, the executive cannot be the only person to appoint members to the Election Commission as it violates Article 14 of the Constitution of India and is incompatible with free and fair elections. It was alleged in the petition that, "in recent years the Election Commission has acted as an organ of the Central Government rather than an independent agency."

A comparison was drawn and examples were cited in the petition highlighting that the post of the head and members of many other authorities are being made on the recommendations of an independent and neutral collegium/selection committee such as the Chief Information Commissioner/Information Commissioners, Chairpersons and members of NHRC, Chief Vigilance Commissioner/Vigilance Commissioners, Lokpal and Members, etc.

Case Title : Association for Democratic Reforms versus Union of India | WP(c) 569/2021
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