‘ECI Must Appear To Be Independent’: Justice Datta As Two SC Judges Differ on Challenge To ECI Law, Matter Sent To Constitution Bench

New Delhi: The Supreme Court on Wednesday referred petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, to a Constitution Bench. A two-judge bench of Justice Dipankar Datta and Justice Satish Chandra Sharma delivered a split verdict on whether the matter required larger bench consideration but united in directing that the papers be placed before the Chief Justice of India to constitute an appropriate Constitution Bench, citing the need to avoid further delay.

Justice Datta prima facie expressed doubt over whether the 2023 law ensures an independent selection process for the Chief Election Commissioner (CEC) and Election Commissioners. Under the Act, the selection committee comprises the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister, and the Leader of the Opposition. Justice Datta observed that this arrangement appears to confer a veto on the executive and fails the test of “perception trust.”

“A nominee of the Prime Minister cannot be expected to defy the PM,” he said. “Inclusion of cabinet ministers fails to provide an independent counterweight that a neutral selector would. It becomes largely ornamental.” He emphasised that free and fair elections depend on a truly independent Election Commission of India (ECI).

“It is not enough for the ECI to be independent; it must appear to be independent,” Justice Datta pronounced.

Justice Datta held that the Constitution Bench judgment in Anoop Baranwal v. Union of India (2023) had already settled the core principles of free and fair elections and ECI independence. That ruling had directed appointments by a committee including the Prime Minister, the Leader of the Opposition, and the Chief Justice of India as an interim measure until Parliament enacted a law. In his view, the present challenge merely required applying those settled principles to the 2023 Act, making a fresh larger bench reference unnecessary.

Justice Sharma disagreed. He held that the question of whether Parliament could exclude a neutral selector (such as the CJI) from the appointment process raises a substantial constitutional issue of first impression under Article 145(3) of the Constitution and therefore warrants authoritative determination by a Constitution Bench.

Despite their difference of opinion, both judges agreed that sending the matter first to another three-judge bench to decide on the reference itself would only cause further delay. The papers will therefore go before the CJI for consideration of constituting a Constitution Bench to examine the validity of Section 7 and other provisions of the 2023 Act.

The judges also requested the CJI to explore the necessity of a permanent five-judge bench to decide pure constitutional questions. They noted that several references have remained pending for five to 20 years, describing the delay as a “source of institutional embarrassment” that requires “self-introspection.”

The petitions, including those by Dr. Jaya Thakur and others, contend that the 2023 mechanism gives the executive a two-to-one majority and undermines the independence of the Election Commission, contrary to the principles laid down in Anoop Baranwal. The Centre had sought a larger bench reference, arguing that the challenge raises substantial questions on the interpretation of Article 324 and the scope of Parliament’s power after it filled the legislative vacuum identified in the earlier judgment.

The matter will now await the Chief Justice’s decision on constitution of the larger bench.

Top Quotes of Justice Dipankar Datta During the Hearing

--"There is no constitutional bar or precedent precluding hearing of these petitions by the present bench. Accordingly, the prayer for reference to a larger bench is rejected."

--"Precedents having laid down in unmistakable terms that free and fair elections are a basic feature of the constitution and that the ECI should be insulated from exclusive executive control in relation to appointment. What remains is no more than the application of the settle principles of law to the facts of the case."

--"The justification for reference cannot be sustained merely by re packaging and existential constitutional principle in a seemingly new factual or legislative setting."

--"The question is not whether the present challenge invoke constitutional provisions of considerable significance. It empathetically does. But the question is whether the challenge involves interpretation of the constitution which remains unsettled."

--"The Minister nominated by the PM to function as the third member of the selection committee cannot be expected to defy his own nominator and risk his continuation. Even otherwise the collective responsibility doctrine would preclude the Minister to oppose jis Prime Minister."

--"The ECI must not only be an independent body but also be seen to act independently. Though the Act may possibly survive the frontal challenge of not including the cji it also has to succeed on the perception test."

--"When asked if the prime minister's nominee would take a different stance in case of a difference of opinion between the Prime Minister and the Leader of Opposition the learned attorney general answerd 'probably no'. The presence or likelihood of a no is striking enough to colour the perception of the selection committee. Probabilities uncertainties of the no matter little."

--Justice Datta on the issue of CEC appointment: "The Anup Barnwal judgement explains Why independence demands a neutral appointment mechanism. But the language makes it explicit that the arrangement was transient in nature and not a binding norm that Parliament was constitutionally obliged to follow. If the constitution bench intended for the inclusion of chief justice in the selection committee to be binding it would have said so."

--"Coming as it does from the side of the executive the argument ill behoves its stature and is a feeble attempt to deflect attention from its own dereliction and failure. Since it is the executive that wields decisive control and holds the reigns over the appointment of judges at every stage the response of the defendants for sustaining the impugned legislation by seeking to draw a parallel with the collegium system of not having an outsider is rather disingenuous and evasive. At the same time this court expresses hope and trust that in court only judicious and apposite opposite choices shall be made by the present collegium under the able leadership of the chief justice leaving little room for future criticism of the systems."

--"What it thereby avoids arguably is a constitutional crisis. But the larger question which looms is that how long can the state of affairs continue if such selective implementation is acquired to allowed to acquire the character of accepted practice. Dr Ambedkar's vision was that the Judiciary must both be independent of the executive and be competent in itself, however given the present situation that vision appears blind and under serious threat This Court is left to wonder why even after after the Judiciary has been relegated to playing second fiddle to the executive in the matter of appointment of judges is there still a clamour to induct an outsider at the stage of selection."

--"Perhaps none other than the government knows better how the collegium system works. What is most worrying and needs attention for a remedy is that the sanctity of a collegium resolution is lost each time by executive implements is selectively, albeit approving majority of those recommended while withholding at least one. Regardless of the fate of those not cleared by the executive the collegium chooses to proceed seemingly to avoid a head on conflict with the executive and left with no choice to keep the institution running."

--"Sweeping generalization that the collegium acts as a law unto itself overlooks the detailed consultation process under the constitution and the intrinsic role of the executive both at the centre and in the states as well as intelligence and other agencies in the appointment process including vetting of credentials. The the uninitiated and unversed unknowingly have been made to believe that the collegium of the supreme court and the high courts is comprised of judges who appoint judges and it has become fashionable nowadays to blame the collegium for and every infelicitous choice, conveniently forgetting that aborations are exceptions and not the norm and that no system can guarantee infallibility of human choice."

--"This is in regard to judges appointing judges. It is considered absolutely necessary to address a misconception that has been allowed to proliferate. The oft repeated phrase that judges appoint judges is a myth which people have been fed by vested interest through motivated narratives often drawing sustenance from certain controversial decisions taken in this country in relation to appointment of judges."

--"It is a foundational principle of constitutional scheme that ours is the Government of laws not of men where the rulers are bound by the law and they can never be above the law. It is in this larger constitutional context that the implications of the present opinion must necessarily be weighed. the significance of a judicial opinion is not always to be measured by the controversy of that occasion. The present matter calls for an approach alive to the possibility that the opinion of this court may live well beyond immediate controversy."

--“We have heard this petitions for over 5 days. Speaking in one voice would have served the cause of institutional cohesion. Unfortunately we are divided in our opinion. Due to the difference of opinion, I had to write a more elaborate order.”