The reference to a Constitution Bench is in tune with the court's observations in the case during a May 2017 hearing.

In a major step months before the General Elections, the Supreme Court on Tuesday found ambiguity in the appointment process of Election Commissioners and referred the question to a Constitution Bench for a “close look.”

The order passed by a Bench of Chief Justice of India Ranjan Gogoi and Justice S.K. Kaul came on a PIL filed by Anoop Baranwal seeking an “independent mechanism for appointment of ECs” outside the exclusive power of the government.

The Bench was not satisfied by the argument made by Attorney-General K.K. Venugopal for the Centre that the appointment of ECs to the top poll body is “consciously and deliberately” a part of the executive function of the State.

Mr. Venugopal said the current appointment process under the aegis of the government has in the past given eminent persons, including T.N. Seshan, who was a byword for independence.

Advocate Prashant Bhushan, for Mr. Baranwal, argued that appointments of ECs should be made under a “collegium system.” The appointment process of ECs should be in tandem with that of other top constitutional functionaries. There is a “gap in the law” as far as appointment of ECs are concerned. It is necessary to “plug the gap to ensure the independence and dignity of the institution.”

Mr. Venugopal contended that at least 15 other top constitutional functionaries, including the Compteoller and Auditor General of India, are appointed by the President acting on the advice of the Union Cabinet.

“If you are going to test one post, you will have to test all these posts,” Mr. Venugopal submitted. To this, Justice Kaul responded that the removal process for these constitutional functionaries differ from that of ECs.

The reference to a Constitution Bench is in tune with the court's observations in the case during a May 2017 hearing.

The Supreme Court had told the government that though so far the election commissioners appointed have been “outstanding people, very fair and politically neutral,” there is still a legitimate expectation that they should be selected through the “most transparent and just process” formalised in a law enacted by the Parliament.

The apex chad even prima facie agreed to a “gap” caused by the lack of a parliamentary law which transparently spells out the process of appointment of an election commissioner.

“Who should be shortlisted? Who shortlists these names? What is the eligibility? There is nothing to show the procedure followed in selecting them,” former Chief Justice Khehar had observed in 2017.

The court had observed that even the selection procedure of the CBI Director is formalised by a written law, but not that of Election Commissioners.

“The Election Commissioners supervise and hold elections in our democracy... such is the significance of their office. Their selection has to be made in the most transparent manner,” the Supreme Court had observed in the 2017 hearing.

The court had indicated to the government that it may intervene in the issue to achieve the constitutional objective under Article 324 (2) of the Constitution.

Mr. Baranwal has contended that successive governments failed in the constitutional obligation to set up a “fair, just and transparent process” for selection of election commissioners since the adoption of the Constitution.

He has argued that the appointments were made by the President solely on the basis of the advice given by the political-executive at the Centre. This situation allegedly gives “ample room for the ruling party to choose someone whose loyalty is ensured and renders the selection process vulnerable to manipulations and partisanship which is violative of Article 14 of the Constitution.”