The Supreme Court on Thursday held that the appointment of members of the Election Commission of India (ECI) should be done on the advice of a committee comprising the Prime Minister, Chief Justice of India and the Leader of Opposition (or the leader of single largest opposition party) in the Lok Sabha [Anoop Baranwal v. Union of India and ors].

This law will continue to hold good until a law is made by Parliament. The Court asks the government to make a necessary change with regard to funding of the Election Commission from the Consolidated Fund of India and the need for separate Secretariat."

The Court rendered its decision on a batch of pleas challenging the current system of appointing members of the ECI on the ground that the executive enjoys the power to make appointments in violation of Article 324(2) of the Constitution of India.

The said provision states:

"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."

In the judgment pronounced by Justice Jospeh, the Court noted that there is a huge surge in the role of money power and criminalization of politics and that a large section of the media has abdicated its role and become partisan.

On the independence of the ECI, it stated,

"An Election Comission that does not guarantee rule of law is against democracy. In its wide spectrum of powers, if exercised illegally or unconstitutionally, it has an effect on the outcomes of political parties...

...Election Commission has to be independent, it cannot claim to be independent and then act in an unfair manner. A person in the state of obligation to the State cannot have an independent frame of mind. An independent person will not be servile to those in power."

It also pointed out that several decades had passed, and political parties had not introduced a separate law to govern appointments to the ECI.

"Article 324 has a unique background. Several decades have passed by. Political parties of varying hues have not introduced a law. A law cannot be perpetuation of what is existing, of the executive having the absolute say in appointments. There is a lacuna as the petitioners have pointed out. Political parties would have a reason to not seek a law, which is clear to see. A party in power will have an insatiable quest to remain in power through a servile Commission."

Justice Rastogi added that the removal of the Chief Election Commissioner should be in a like manner and on like grounds as a judge of the Supreme Court.

Further, the removal of election commissioners would be made only on the recommendation of the Chief Election Commissioner. He further opined that it was desirable that grounds for removal of other election commissioners shall be the same as the Chief.

"Grounds of removal of Election Commissioners should be the same as that of CEC, service conditions should not be varied ... Election Commissioners have to be kept free from executive interference."

During the course of the hearing, the Bench had asked Attorney General (AG) for India R Venkataramani if the existing practice of appointing bureaucrats on the verge of retirement, was rational.

It had also observed that political parties in power at the Centre force Chief Election Commissioners (CEC) to do their bidding so as to remain in power, thereby, compromising the independence of the Election Commission.

The Court had suggested the inclusion of the Chief Justice of India (CJI) in the committee appointing the CEC. Justice Joseph had said that Article 326 of the Constitution gives citizens the right to vote, and it cannot be overruled by the ancillary law-making powers of Parliament.

Pertinently, the Bench had even questioned the Central government as to what the tearing hurry was to appoint Arun Goel as an Election Commissioner a few months ago, and how the names were even shortlisted before his selection.

Justice Joseph pointed out to the existing legal provisions provide for separate terms for Election Commissioners (ECs) and the Chief Election Commissioner (CEC), and not a total or maximum of six years, as has been the practice recently.

In this context, the Court had asked under what law was the practice of choosing CECs by virtue of ECs being promoted being followed.

The Supreme Court had reserved its verdict in the matter on November 24 last year.

Watch the full hearing of the Judgment below: