Manas Dasgupta
NEW DELHI, Sept 23: A two-judge division bench of the Supreme Court on Wednesday delivered a split verdict on whether the pleas challenging the validity of the 2023 law dropping the Chief Justice of India (CJI) from the panel for the selection of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs) to a larger five-judge bench but concurred on the decision to send the matter to the CJI to decide on the composition of the constitution bench.
The two-judge bench comprising Justice Dipankar Datta and Justice SC Sharma heard this specific procedural point. The challenge now concerns the 2023 amendment act, which replaced the Chief Justice of India with a Union Cabinet Minister alongside the Prime Minister and the Leader of the Opposition. “We heard these petitions and applications for more than five days,” Justice Dipankar Datta said. Talking with one voice would have been better for institutional solidarity. Unfortunately, our opinion is divided,” Justice Dutta said.
Justice Satish Chandra Sharma, the puisne judge on the Division Bench, held in favour of sending the case to a Constitution Bench, reasoning that several questions of substantial importance were at stake. The judge invoked Article 145(3) of the Constitution, which mandates a minimum Bench strength of five judges for cases involving substantial questions of constitutional interpretation.
Though the two judges had different opinions on the question of reference, they concurred to forward the case to the Chief Justice of India to ultimately constitute a Constitution Bench of appropriate strength to pronounce an authoritative ruling on the legality of the provisions.
Justice Datta agreed that the replacement of the Chief Justice of India with a Union Cabinet Minister in the Prime Minister-led selection panel for Chief Election Commissioner (CEC) and Election Commissioners (ECs) prima facie amounts to an “effective veto” in favour of the Union government and fails the “perception test”, sending wrong signals to the public. Justice Datta reminded that it is well-settled in law that independence in the appointment and functioning of the Election Commissioners was integral to free and fair elections and an essential part of the Basic Structure of the Constitution.
Justice Datta further stressed that the Election Commission must not only be independent but must also be perceived as independent. He also questioned whether a selection panel comprising the Prime Minister, the Leader of Opposition and a Union minister nominated by the Prime Minister could provide an effective check on executive power.
During the hearing of the matter, he observed that a minister nominated by the Prime Minister could not reasonably be expected to oppose the Prime Minister and side with the Leader of Opposition. The principle of collective responsibility, he said, would also make it difficult for the minister to oppose the Prime Minister.
Justice Datta also stated that this could effectively result in a 2:1 decision on the panel, giving the executive an effective veto. Referring to the Attorney General’s response, Justice Datta stated that even if the persons ultimately appointed were meritorious, the perception of executive dominance could remain.
In the plea, the petitioners argued that this compromises the independence of the Election Commission, giving the executive a two-to-one majority, whereas the Centre defended the composition. Both SC judges directed the pleas to be placed before CJI Surya Kant for the constitution of a bench of appropriate strength for adjudication.
“The present case demands a perspective that considers the possibility that this court’s opinion could remain effective and relevant long after the immediate dispute has concluded,” Justice Datta said. It is crucial to dispel a misconception that has been allowed to persist, he said, adding the oft-repeated phrase ‘judges appoint judges’ was a myth.
Vested interests have propagated this perception through motivated narratives and they have often drawn sustenance from certain controversial judgments concerning judicial appointments, Justice Datta said.
On March 2, 2023, in a landmark verdict aimed at insulating the appointment of the CEC and ECs from the executive’s interference, a five-judge Constitution bench had ruled that their appointments will be made by the President on the advice of a committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India. The petitioners had contended that the 2023 Act “defeated” the Constitution Bench judgment in the Anoop Baranwal case, passed within months of the judgment, had replaced the Chief Justice with a Cabinet Minister nominated by the Prime Minister.
Justice Datta who held new rules omitting the Chief Justice “bad in law,” cited a cricket analogy on the executive’s influence in the appointment of election commissioners. “If the team that is to bat selects the umpire itself, questions regarding impartiality will inevitably arise. Even if the umpire makes the correct decision, their impartiality will remain under a cloud of suspicion,” he said.
“Such an umpire would always be suspected of being loyal to that team. The process of appointing election commissioners should also be free from such a situation, ensuring there is no doubt regarding their independence and impartiality,” the judge said. The sum of Justice Datta’s observations was that for the ECI to be independent it had to be out of bounds of the executive’s control. “Free and fair elections depend on a truly independent ECI. It is not enough for the ECI to be independent; it must appear to be independent,” he said.
The petitioners, represented by senior advocates Gopal Sankaranarayanan, Shadan Farasat, advocates Prashant Bhushan, Kaleeswaram Raj and Neha Rathi, said the Act has statutorily bestowed the Executive “dominant control” and an “effective veto” over the appointment process of the CEC and the ECs.
Justice Datta said the petitioners’ apprehension “prima facie appears to have substance” and at least cannot be dismissed as “fallacious metaphors.” The inclusion of a Cabinet Minister did indeed not pass the perception test. “The Minister cannot be expected to defy the Prime Minister,” Justice Datta observed in his opinion.
During the hearings, the apex court questioned the absence of even “one absolutely neutral person” on the Prime Minister’s committee and said it would send wrong signals to the public. Solicitor General Tushar Mehta, appearing for the government, argued that the Prime Minister ought to be the last authority to distrust.
“If the Prime Minister’s decision is not to be trusted, why not have someone from outside or a former judge to select the Ministers also,” Mr Mehta asked. Mr Mehta had quoted from a 2014 apex court judgment in the Manoj Narula case, saying the Prime Minister’s office held the highest constitutional trust and sanctity.
The law officer had asked if a constitutional court, while deciding the composition of a committee in a statute, could presume abuse of power, bad faith and mala fide intention on part of the constitutional functionaries. Justice Datta had said the question was not about “lack of faith” in the Prime Minister, but about the principle of “justice not only being done, but shown to be done.”
Many constitutional experts and activists earlier had criticised the 2023 act and held that the appointment process for the CEC and the Election Commissioners (ECs) needs to be made “broad-based” and “transparent.” Suggestions included a fourth member on the selection panel, the requirement of a two-thirds majority in Parliament to clear the appointment of a CEC, and public financing of poll campaigns.
At a conference on Electoral and Political Reforms organised by the Association for Democratic Reforms (ADR) earlier, former members of the judiciary, former Election Commissioners, politicians and activists said there needed to be a rethink on the composition of the panel to select the CEC and the ECs, which was formed after the enactment of The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.