New Delhi : A two-judge bench of the Supreme Court on Wednesday delivered a split verdict on whether petitions challenging the law governing the appointment of the Chief Election Commissioner (CEC). The matter will now be placed before the Chief Justice of India (CJI), who will decide on placing it before a larger bench. The case was heard by Justices Dipankar Datta and Satish Chandra Sharma. The petitions challenge the 2023 law that replaced the Chief Justice of India (CJI) on the selection panel for appointing the CEC and ECs with a Union Cabinet minister nominated by the Prime Minister.
“We heard these petitions for over 5 days, speaking in one voice would have served the voice of institutional cohesion. Unfortunately, we are divided in our opinion. It is a foundational principle of the constitutional scheme that rulers are bound by law and not above it,” Justice Datta ruled. Justice Sharma disagreed and said whether Parliament was correct in not including a neutral member in the selection committee, in accordance with constitutional principles, was a matter that required consideration by a larger bench.
Justice Datta raised concerns over the independence and neutrality of the Election Commission and questioned whether the appointment mechanism under the 2023 law meets the constitutional standards required for free and fair elections. The appointment panel comprises the Prime Minister, the Leader of Opposition and a Union Cabinet Minister nominated by the Prime Minister. The petitions argue that replacing the Chief Justice with a Union minister undermines the independence of the Election Commission.
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. Justice Datta questioned whether a 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. 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.
Justice Datta said the concern would remain even if the persons appointed to the Election Commission were meritorious. Even if the appointments are meritorious, the perception of dominance persists, he said. The umpire has effectively been chosen by the winning captain,” Justice Datta observed, questioning the credibility of the mechanism. He clarified that the issue was not the constitutional credibility of the individuals appointed, but whether the mechanism itself could generate public confidence.
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