New Delhi, Sept. 23 -- The Supreme Court on Wednesday questioned the neutrality of the mechanism for appointing the Chief Election Commissioner (CEC) and Election Commissioners (ECs), with Justice Dipankar Datta observing that a Union Cabinet Minister nominated by the Prime Minister cannot reasonably be expected to oppose the Prime Minister who heads the selection panel. Justice Datta said the minister's position as a member of the Council of Ministers, coupled with the constitutional principle of collective responsibility, could prevent him from acting as an independent counterweight to the Prime Minister, potentially leaving the Leader of Opposition with a largely ornamental role in the process. The observation came as the two-judge bench gave split opinions on whether challenges to the 2023 appointment law should be referred to a larger Constitution Bench. The bench of Justices Dipankar Datta and Satish Chandra Sharma had heard the petitions for five days. With the judges differing on the need for a larger bench, the matter was directed to be placed before Chief Justice of India Surya Kant for consideration of a bench of appropriate strength. The judges also requested the CJI to explore the possibility of establishing a permanent five-judge Constitution Bench for deciding important constitutional questions.
The petitions challenge the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, particularly Section 7.
Under the provision, the Selection Committee consists of the Prime Minister as chairperson, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister. The law removed the Chief Justice of India from the selection panel.
Justice Datta questioned the committee's independence, saying the Prime Minister's nominee could not be expected to "defy his own nominator", especially when his membership depended on the PM's nomination.
He also relied on Article 75(3) of the Constitution, which provides for collective responsibility of the Council of Ministers. Justice Datta said it was difficult to expect a minister bound by that principle to disagree with the Prime Minister on appointments to a sensitive constitutional office.
He therefore held that the Cabinet minister could not provide an independent counterweight, making the Leader of Opposition's presence "largely ornamental".
Justice Datta said the issue was not whether individuals eventually appointed under the law would necessarily lack integrity or qualifications. Rather, the question was whether the appointment mechanism itself would generate public confidence in the independence of the Election Commission of India.
"If free and fair elections are to be ensured, it is axiomatic that the ECI must not only be an independent body but also be seen to act independently," he said.
The petitioners had argued that even a competent appointment could face doubts if the process itself appeared tilted towards the executive. They compared the situation to an umpire in a cricket match being selected by one side, arguing that decisions could still be viewed with suspicion because of the manner in which the umpire was chosen.
Justice Datta said the petitioners' contention that the 2023 Act gives the executive "overwhelming selection power" and thereby affects the appearance of independence required under Article 324 and the basic structure of the Constitution had prima facie substance.
He also compared the statutory panel with the temporary arrangement prescribed by the Supreme Court in March 2023 in Anoop Baranwal v. Union of India. In that judgment, a five-judge Constitution Bench had directed that appointments to the Election Commission be made on the advice of a committee comprising the Prime Minister, the Leader of Opposition and the CJI.
The 2023 law was enacted by Parliament in December, months after that judgment, and replaced the court-prescribed arrangement by excluding the CJI. The Supreme Court had earlier declined to stay appointments of election commissioners made under the new law.
Justice Sharma, however, took a different view from Justice Datta on whether the challenge should be referred to a Constitution Bench. He considered the question of whether Parliament could exclude a neutral selector from the appointment committee to be a substantial issue of constitutional interpretation that had not previously been settled by the court.
The disagreement between the judges therefore centred not only on the composition of the selection panel but also on whether existing constitutional jurisprudence was sufficient to decide the challenge or whether a larger bench was necessary.
Justice Datta said the existing constitutional principles concerning free and fair elections and the independence of the ECI provided a basis for examining the 2023 law. Justice Sharma's view was that the constitutional question arising from Parliament's decision to exclude the CJI warranted consideration by a larger bench.
Justice Datta also addressed the Centre's argument that constitutional trust placed in the office of the Prime Minister meant decisions taken by the Prime Minister should not be questioned. He discussed concerns relating to constitutional morality and institutional functioning, while also noting that false criminal cases can be used to malign public figures.
The judge made clear that his observations were prima facie and did not amount to a final ruling on the constitutional validity of the law.
The matter will now go before CJI Surya Kant for consideration of the constitution of a bench of appropriate strength. Any larger bench will have to consider the validity of Section 7 and the related provisions challenged before the court, including whether the appointment mechanism provides sufficient institutional independence and public confidence in the Election Commission.
Published by HT Digital Content Services with permission from Millennium Post.