New Delhi, Sep 23 (PTI) If free and fair elections are to be ensured, it is axiomatic that the Election Commission of India (ECI) must not only be an independent body but also be seen to act independently, Supreme Court judge Justice Dipankar Datta said on Wednesday.
Justice Datta headed a bench also comprising Justice Satish Chandra Sharma which gave split opinions on whether a batch of pleas challenging the validity of a 2023 law that excludes the CJI from the panel for selecting the chief election commissioner (CEC) and election commissioners (ECs) should be referred to a larger Constitution bench.
Justice Sharma differed with the views of Justice Datta and batted for referring the pleas to a larger bench while terming the issue as important.
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 though the 2023 Act may possibly survive the frontal challenge of not including the CJI in the selection committee but it has to succeed on the perception test, which this court has repeatedly said is essential.
Raising questions, Justice Datta said can it be argued with conviction that the selection committee (for selection of CEC and ECs), envisioned in section 7 of the 2023 Act, looks 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 is whether the appointment process contemplated by Sections 6, 7, and 82 evinces a major executive control, passes the muster of Article 14 of the Constitution and whether Section 7 in particular meets the constitutional standard of independence required by Article 324 and the basic structure on the question of independence and neutrality.
He said the 2023 Act envisages a selection committee of three– prime minister, Union minister nominated by the PM and the leader of opposition (LoP) for the selection of 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 further on the panel sought to be constituted by the 2023 law, Justice Datta said the minister nominated by the prime minister to function as the third member of the selection committee, chaired by the PM, cannot be expected to defy his own nominator and risk his continuation as such nominated member on the committee for all practical purposes.
“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 further added that since it is the Council of Ministers, who has the collective responsibility to sustain the integrity and purity of the constitutional structure, it is far-fetched to expect that a minister, who is part of the Council of Ministers and bound by the collective responsibility under Article 75(3) would adopt a stand in the matter of appointment to a sensitive constitutional office disagreeing with the leader of the government.
“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 Data emphasised.
He said the point urged by the petitioners that since the 2023 Act vests overwhelming selection power in the executive, and thereby undermines the appearance of independence essential to Article 324 of the Constitution and the basic structure, prima facie does appear to have substance.
Justice Datta objected to the phrase that “judges appoint judges” in the Indian judiciary raised by the Centre.
“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 by 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. PTI MNL ABA MNL KVK
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