Past and present regimes have failed to abide by constitutional morality: Supreme Court Justice Dipankar Datta

Justice Dipankar Datta of the Supreme Court on Wednesday said that the "constitutional trust" reposed in the country's political leadership has been betrayed in practice [Dr. Jaya Thakur & Ors. v. Union of India & Ors.].In his separate opinion on the validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, Justice Datta pointed to the large number of parliamentarians and ministers with criminal antecedents across successive ruling dispensations."The misfortune of the people of India is that, the lofty ideals that the Constitution envisaged have remained largely unaccomplished owing to a lack of intent and non-abidance with constitutional morality by the ruling regime, past and present, resulting in substantial institutional erosion," he said..Justice Datta also sounded a stark historical warning regarding judicial caution in election-related matters, recalling that the last time the top court grappled with a subject as sensitive as elections without extreme restraint, it unintentionally caused "an avalanche called the National Emergency." .Last time the top court grappled with a subject as sensitive as elections without extreme restraint, it unintentionally caused an avalanche called the National Emergency.Justice Dipankar Datta.The Centre had submitted that the office of the Prime Minister, who is part of the selection panel for Election Commissioners, carries sacred constitutional trust.Addressing this submission, Justice Datta observed that political parties have consistently failed to commit to cleansing public life."The misfortune of the people of India is that, the lofty ideals that the Constitution envisaged have remained largely unaccomplished owing to a lack of intent and non-abidance with constitutional morality by the ruling regime, past and present, resulting in substantial institutional erosion...That a large number of parliamentarians, legislators and even ministers, both at the Centre and in the States, have criminal antecedents is a fact borne out by data in the public domain," Justice Datta stated.He further noted that any reference to the doctrine of constitutional trust must extend to the constitutional morality of the appointing process itself."In such a situation, one is forced to ask whether the constitutional trust reposed by Dr. Ambedkar during the Constituent Assembly Debates and this Court in Manoj Narula has been betrayed in practice? Thus, any reference made to the constitutional trust doctrine, having regard to the criminal background of members of the elected bodies, must extend to the constitutional morality of the appointing process itself," the judge remarked..Justice Datta added that for seven decades, no ruling dispensation had been willing to cede executive control over the Election Commission of India (ECI) by enacting a legislative framework under Article 324(2)."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 noted..Dr. Shyama Prasad Mookherjee was heard/read by Dr. Ambedkar as having pointed out, as early as in 1951, that government servants were helping the ruling party to ensure electoral success.Justice Dipankar Datta.Tracing historical warnings by Dr. Shyama Prasad Mookherjee and Dr. BR Ambedkar regarding institutional capture, corporate influence and electoral fraud, Justice Datta quoted the latter's 1951 address at Jullundur where he cautioned against political parties taking financial help from "multi-millionaires" and government officials aiding ruling parties during elections."Dr. Shyama Prasad Mookherjee was heard/read by Dr. Ambedkar as having pointed out, as early as in 1951, that government servants were helping the ruling party to ensure electoral success. Dr. Ambedkar invoked and warned, would endanger parliamentary democracy itself... the great personality identified the core risk that Article 324(2) was designed to address: executive dominance over the electoral arbiter," Justice Datta observed.Highlighting the structural flaw in giving the executive a 2:1 majority on the 3-member election commissioner selection panel, Justice Datta used a vivid cricket metaphor to explain why the process fails the perception test:"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," the judge remarked..The observations formed part of a split verdict where Justice Datta rejected the Union government's demand to refer the challenge against the 2023 Act to a larger bench, while Justice Sharma held that the matter raised substantial questions of law requiring adjudication by a Constitution Bench..Highlighting the systemic delay in resolving constitutional references, both Justice Datta and Justice Satish Chandra Sharma noted in their joint order that references remaining unresolved for decades - such as Anoop Baranwal taking 8 years and Jai Bir Singh taking 24 years - cause institutional embarrassment. The Bench urged the Chief Justice of India Surya Kant to explore establishing a permanent 5-Judge Constitution Bench to adjudicate core constitutional questions..LoP reduced to ornamental role in selection of Election Commissioners: Justice Dipankar Datta in split verdict.[Read Judgment]