SPLIT VERDICT AT THE SC - APPOINTMENT OF CEC AND THE ECs

 Justice Dipankar Datta and Justice Satish Chandra Sharma were on the bench at the Supreme Court of India. They were hearing the petition on  the validity of the law on appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) by a panel consisting of the Prime Minister, a Cabinet Minister and the leader of the opposition.

Views of Justice Dipankar Datta on appointment of the CEC and the ECs

1. It would not be a fallacious metaphor if it is said that since the umpire is picked by the captain of one side and his team wins, even if the decisions taken by such umpire are correct, it has the patina of suspicion.

2. Deliberating on the validity of the law on appointment of the Chief Election Commissioner and the Election Commissioners by a panel consisting of the Prime Minister, a Cabinet Minister and the leader of opposition, he mentioned the flaws.

a. It gave "overwhelming power" to the  executive.

b. It made the presence of the LOP ornamental.

c. It undermines the appearance of independence in the selection process.

d. Since independence, governments had tried to control the poll body.

e. Over seven decades, every dispensation wresting office found it convenient to keep institutions which the constitution envisioned to be independent under its control.

f.  To enact a law on the lines empowered by Article 324 (2) would have meant freeing ECI from exclusive executive control and inviting trouble for the ruling regime.

g. To the mind of this court, this has not been the failing of any one party or one period.

h. 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.

i. If free and fair elections were to be ensured, it was axiomatic that the EC must not only be an independent body, but also be seen to act independently.

j. It was painful to note that not a single party in power entrusted by the people of India to govern this great nation took the initiative of enacting a law of the nature which Article 324 (2) left to the supreme law making body, ie. Parliament, to legislate.

k. Placing its own electoral fortunes in the hands of a truly independent arbiter was not favoured by any political party for obvious reasons.

l. To remain in power, the consistent pursuit through executive action has indeed been simple - influence the composition of the EC, control the process of appointment of the CEC and ECs and thereby temper adverse electoral outcomes.

m. The bottom line of the argument runs like this:-  It would not be a fallacious metaphor if it is said that since the umpire is picked by the captain of one side and his team wins, even if the decisions taken by such umpire are correct, it has the patina of suspicion.

n. There can be no gainsaying that free and fair elections, to a large extent, depend on a truly indepndent Election Commission. It is not enough for the EC to be independent, it must also appear to be independent. The minister nominated by the Prime minister to function as the third member on the selection committee chaired by the Prime Minister cannot be expected  to defy his own nominator.

o.In such a circumstance, the inclusion of a minister in the selection committee fails to provide the independent counterweight that a neutral selector could and he would merely echo the voice of his leader. 

p. Consequently, the presence of the leader of opposition in the selection committee becomes largely ornamental, without furthering the purpose of his inclusion.

Views of Justice Satish Chandra Sharma

a. The petition challenging the 2023 law on appointment of the CEC and the ECs raised substantial questions of law.

b.The substantive constitutional questions should be systematically referred for an authoritative pronouncement. 

c. It required consideration  by a larger bench.

Outcome

While Justice Datta did not find a reference to a Constitution Bench necessary, Justice Satish Chandra Sharma, 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.

Due to the differing opinions on whether to directly process or refer the matter regarding the inclusion of a Cabinet Minister in place of the CJI, the two judge bench delivered a split verdict. 

The Bench requested the Chief Justice of India to constitute a five judge Constitution Bench to settle the issue.