The Election Commission of India (ECI) must not only be independent but also be seen to act independently if free and fair elections are to be ensured, Supreme Court judge Justice Dipankar Datta said on Wednesday.
Justice Datta also questioned the neutrality of the mechanism for appointing the Chief Election Commissioner (CEC) and Election Commissioners under the 2023 law, observing that a Union Cabinet minister nominated by the prime minister could not be expected to oppose the prime minister during the selection process.
Justice Datta headed a bench, also comprising Justice Satish Chandra Sharma, that gave a split verdict on whether a batch of pleas challenging the validity of a 2023 law excluding the Chief Justice of India (CJI) from the panel that selects the chief election commissioner (CEC) and election commissioners (ECs) should be referred to a larger Constitution bench.
Justice Sharma differed with Justice Datta, terming the issue important and batting for referring the pleas to a larger bench.
Justice Datta said: "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 that while the 2023 Act may possibly survive a frontal challenge over the exclusion of the CJI from the selection committee, it had to succeed on the "perception test," which the court had repeatedly held to be essential.
Raising questions, Justice Datta asked whether it could be argued with conviction that the selection committee for the CEC and ECs, envisaged under Section 7 of the 2023 Act, looked as independent as the pro-tem committee constituted by the apex court in 2023.
"Over seven decades, every dispensation resting power found it convenient to keep institutions which the constitution envisioned to be independent under their control to enact along the lines empowered by Article 324(2) would have meant freeing the ECI from exclusive executive control and inviting trouble for the ruling regime.
"To the mind of this court, this has not been the failing of any one party or one period. A consistent trait of political power discernible over the decades has been to preserve leverage over the very body that is meant to judge its claim to power," he said.
On the enactment of the 2023 Act, Justice Datta said the question now was whether the appointment process contemplated by Sections 6, 7 and 82 evinced major executive control, whether it passed the test of Article 14 of the Constitution, and whether Section 7 in particular met the constitutional standard of independence required by Article 324 and the basic structure on the question of independence and neutrality.
He noted that the 2023 Act envisaged a three-member selection committee — the prime minister, a Union minister nominated by the PM, and the leader of the opposition (LoP) — for the selection of the CEC and ECs. "There can be no gainsaying that free and fair elections, to a large extent, depend on a truly independent ECI. It is not enough for the ECI to be independent; it must also appear to be independent," he said.
Elaborating on the panel envisaged under the 2023 law, Justice Datta said the minister nominated by the prime minister to serve as the third member of the selection committee, chaired by the PM, could not be expected to defy his own nominator and risk his continuation as a nominated member of the committee.
"Even otherwise, the collective responsibility doctrine would preclude the minister from opposing his Prime Minister, as observed in Manoj Narula case (2014 verdict) which reposes faith in the Prime Minister, and the entire nation has expectations of good governance being carried on by the ministers of his choice," he said.
Justice Datta added that since the Council of Ministers bore collective responsibility for sustaining the integrity and purity of the constitutional structure, it was far-fetched to expect a minister bound by collective responsibility under Article 75(3) to disagree with the leader of the government on a sensitive constitutional appointment.
"In such a circumstance, the inclusion of a cabinet minister in the selection committee fails to provide the independent counterweight that a neutral selector could, and the cabinet minister would merely echo the voice of his leader, and consequently, the presence of the leader of opposition in the selection committee becomes largely ornamental without furthering the purpose of his inclusion," Justice Datta emphasised.
He said the petitioners' contention — that the 2023 Act vests overwhelming selection power in the executive, thereby undermining the appearance of independence essential to Article 324 and the basic structure — prima facie appeared to have substance.
Justice Datta also objected to the phrase "judges appoint judges," raised by the Centre in relation to the Indian judiciary.
"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 interests through motivated narratives, often drawing sustenance from certain controversial decisions taken in this century in relation to appointment of judges," he said.
The law, enacted by Parliament in December 2023, came months after a landmark verdict in which the apex court directed that election commissioners be appointed by a committee comprising the prime minister, the LoP and the CJI. The apex court had earlier refused to stay the appointment of new election commissioners under the 2023 law.
(With inputs from PTI)
