On Tuesday, a five-judge Constitutional bench led by Justice KM Joseph and comprised of Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and CT Ravi Kumar heard a slew of petitions recommending changes to the process of appointing members of the Election Commission of India.

"The least intrusive and best system would be that there is a presence of the Chief Justice in the appointment committee. We feel that his very presence will send a message that no mistake can happen," the Court reasoned while hearing Attorney General India R. Venkatramani's submission.

The bench repeatedly reminded the AG that the petition requires the court's attention because it involves a serious issue of free and fair elections. It emphasized that the court was not examining the power of appointment but only the manner in which it was exercised, which was within the scope of judicial review under Article 32.

Furthermore, Justice Joseph stated that "The phenomenon is that from 2007 till now CEC's have had very short tenures. Around 2 years and many even less than that. The question is this. Under the 1991 Act the term of CEC used to be 6 years. However, the proviso said that if he attains 65 years of age, he would retire before the completion of that period. So, what the government has been doing is that because it knows the DOB, it ensures that one who is appointed does not get his full 6 years. So, the independence gets thwarted here. We want answers on this from you. Now, CEC's are not getting their full terms. How will they carry out their tasks? This trend has continued. I did the math there also. Be it UPA govt or this govt."

Senior Advocate R Venkatramani, appearing for the Union of India, submitted before the court that there are several provisions in the Constitution that entrust the Parliament with the responsibility of contemplating enacting a statute. However, he stated that such a task is for the parliament to decide on its own and not for the courts to decide on its behalf.

The case was referred to the Constitutional Bench after a Division Bench of the Supreme Court determined that a "close look and interpretation" of the provisions of Article 324 of the Constitution of India, which states that the Election Commission has superintendence, direction, and control over elections, was necessary.

The case will now be heard tomorrow, November 23rd, when the Attorney General is expected to finish his submissions.

Case Title: Anoop Baranwal v. Union of India

Citation:  WP(C) No. 104/2015

Link: https://main.sci.gov.in/supremecourt/2015/1458/1458_2015_4_501_39984_Order_22-Nov-2022.pdf