Election Commissioners to Be Appointed on Advice of PM, Opposition Leader and CJI Until Parliament Legislates: Constitution Bench

Four public interest writ petitions under Article 32 questioned the practice of the Executive alone choosing the members of the Election Commission (Joseph J., paras 1, 3-6). A two-Judge Bench referred the question to a Constitution Bench on 23.10.2018 (Joseph J., para 2). The petitioners sought a neutral selection committee, equal removal protection for Election Commissioners, and an independent secretariat with its expenditure charged on the Consolidated Fund of India (Joseph J., paras 3-5). During the hearing, Arun Goel was appointed an Election Commissioner on 18.11.2022, and the Court called for the file (Joseph J., para 187).

The framers did not intend appointments to the Election Commission to rest exclusively with the Executive, so Article 324(2) makes them subject to a law of Parliament (Joseph J., para 215). No such law was made in seven decades, leaving a vacuum (Joseph J., paras 219, 227). The Court would not issue a mandamus to Parliament, but the undermining of democracy, the rule of law and Articles 14 and 19 justified norms lasting only until Parliament steps in (Joseph J., paras 226, 228), drawing on Vineet Narain, the Second Judges case and Vishaka (Joseph J., paras 197, 202-207). Appointing an officer who cannot serve the six-year term under Section 4 of the 1991 Act defeats the policy of the law, though this was not an assessment of the appointee (Joseph J., para 195). Equal removal protection for Election Commissioners was rejected and left to Parliament (Joseph J., para 233). Rastogi J. would extend it through Article 142 guidelines and declared the right to vote in direct elections a fundamental right (Rastogi J., paras 68, 118, 125), whereas the majority proceeded on it as at least a statutory right tied to Article 326 (Joseph J., para 141).