LoP reduced to ornamental role in selection of Election Commissioners: Justice Dipankar Datta in split verdict

Justice Dipankar Datta of the Supreme Court on Wednesday said that the Leader of Opposition's (LoP) role in the selection of Election Commissioners of the Election Commission of India (ECI) is only ornamental as the Union government holds an overwhelming majority in the selection panel.

Justice Datta made the observations in his separate opinion on petitions challenging the validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

The 2023 Act is primarily under challenge before the top court for replacing the Chief Justice of India (CJI) with a cabinet minister on the selection panel. The panel at present comprises the Prime Minister, the Leader of the Opposition and a Union cabinet minister nominated by the Prime Minister.

Justice Datta in his prima facie view said that it was highly unlikely that the cabinet minister would ever disagree with the Prime Minister. The judge stressed that it was not enough for the ECI to be independent but it must also appear to be independent.

"The Minister nominated by the Prime Minister to function as the third member of the selection committee, chaired by the Prime Minister, 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 to oppose his Prime Minister," Justice Datta said.

He further opined that 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 take a stand contrary to the Prime Minister in the matter of appointment to a sensitive constitutional office.

"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," he added.

However, Justice Datta also said while the 2023 Act may possibly survive the frontal challenge of not including the CJI in the selection committee, it also has to succeed on the perception test.

He asked whether the existing mechanism generates the same public confidence that the presence of a neutral third member would.

"The point urged by the challengers that since the 2023 Act vests overwhelming selection power in the executive and thereby undermines the appearance of independence essential to [Article] 324 and the basic structure, prima facie does appear to have substance," he added.

Justice Datta also stated that every ruling dispensation in India found it convenient to keep institutions, which the Constitution envisions to be independent, under its control.

He added that a law in accordance with Article 324(2) would have meant freeing the ECI from exclusive executive control but that would invite trouble for the ruling regime. However, he blamed all ruling parties for it.

"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," Justice Datta said.

Justice Datta also addressed the argument that the government was required to act in accordance with the Supreme Court’s 2023 Constitution Bench ruling in Anoop Baranwal v. Union of India, which had directed that appointments to the Election Commission would be made by a committee comprising the Prime Minister, the Leader of Opposition and the CJI.

Justice Datta said the mechanism was only transient in nature and not a binding norm that the parliament was constitutionally obliged to follow.

"If indeed the Constitution Bench intended that inclusion of the CJI in the selection committee were binding on the Parliament, it would have said so, but at the risk of being legislatively overruled," he added.

However, he also said that Anoop Baranwal's declaration that the process of selection of Election Commissioners has to be independent of exclusive executive control, is binding.

While summarising the arguments of the petitioners who have challenged the 2023 Act, Justice Datta said:

"The bottom line of the argument runs thus: it would not be a fallacious metaphor if it is said that since the umpire is picked by the captain of one side in a cricket match and his team wins, even if the decisions taken by such umpire are correct, it has the patina of suspicion, for at the end of the day the umpire has effectively been chosen by the winning captain. These are very emphatic and appealing submissions."

The top court today delivered a split verdict on the Union government's demand to refer the petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 to a larger bench.

While Justice Datta rejected the government's request for reference, Justice Satish Chandra Sharma agreed with the demand.

Consequently, the matter has been ordered to be placed before the Chief Justice of India (CJI) for considering the desirability of constituting a Constitution Bench to decide the validity of the law.