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A plea has been filed in Supreme Court challenging the constitutional validity of the practice of the Respondent in appointing the members to the Election Commission as being in violation of Articles 14, 324 (2) and basic features of the Constitution.

The plea has been preferred by Association for Democratic Reforms (ADR), a registered Society under the Societies Registration Act XXI of 1860 and has been in the vanguard of electoral and political reforms in the country & filed through Supreme Court Advocate Prashant Bhushan states the appointment of Chief Election Commissioner and Election Commissioner solely by the executive is incompatible with Article 342(2) of the Constitution of India is manifestly arbitrary.

“In 1999, ADR filed a PIL in the Delhi High Court seeking disclosure of criminal, financial and educational background of candidates contesting elections. Based on this, the Supreme Court in 2002 and subsequently in 2003 made it mandatory for the candidates to disclose their criminal, financial and educational background prior to the polls by filing an affidavit with the Election Commission. ADR, along with National Election Watch, has conducted election watches for the 2009 Lok Sabha Elections, Rajya Sabha Elections and almost all the State Assembly elections since 2002. ADR is striving to bring about transparency and accountability in the functioning of political parties. In April, 2008, ADR obtained a landmark order from the Central Information Commission holding that the Income Tax Returns of political parties and the assessment orders passed on them will be available to the citizens.” – Excerpt from the plea.

The petitioners averred that Article 324(2) mandates Parliament to make a just, fair, and reasonable law.

"Amendment introduced by Dr. B.R. Ambedkar relating to the appointment of the Chief Election Commissioner and the Election Commissioner shall be made by the President “subject to any law made in that behalf by Parliament.” with the hope that in due course of time the Government will take an initiative to make just, fair, just and reasonable law for the appointment of the members of Election Commission so as to ensure its independence and integrity.", the plea states. 

It has further been contended that the Election Commission is not only responsible for conducting free and fair elections but it also renders a quasi-judicial function between the various political parties including the ruling government and other parties & thereafter the executive cannot be the sole participant in the appointment of members of the Election Commission as it gives unfettered discretion to the ruling party to choose someone whose loyalty to it is ensured and thereby renders the selection process vulnerable to manipulation. 

"Democracy is a facet of the basic structure of the Constitution and in order to ensure free and fair elections and to maintain healthy democracy in our country, the Election Commission should be insulated from political and/or executive interference. There is no doubt that in order to ensure the purity of the election process it was thought by our Constitution-makers that the responsibility to hold free and fair elections in the country should be entrusted to an independent body which would be insulated from political and/or executive interference.  However, 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.", excerpt from the plea.   .

Thereafter the plea seeks for issuance of a writ of mandamus or an appropriate writ, order or direction to constitute a neutral and independent collegium/selection committee to recommend the names for appointment on the vacant post of the members of the Election Commission on the lines of the recommendations of Law Commission in its  255thReport 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.

It is further noted that, all the Committees and Commissions have recommended in similar lines for independent/neutral committees in order to strengthen the autonomy of Election Commission and to ensure their impartiality. However, the recommendations of the Committees and Commissions have not been implemented yet.