Election Commissioners' Appointment | Forced To Ask If Trust Placed In Prime Minister Has Been Betrayed In Practice : Justice Dipankar Datta

Justice Datta flagged the increasing criminalisation of politics and wondered whether the Constitutional Trust has been honoured in adequate measure.

Update: 2026-09-24 04:49 GMT

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Supreme Court Justice Dipankar Datta on Wednesday questioned the Union government's reliance on the “constitutional trust” placed in the Prime Minister while defending the law governing the appointment of Election Commissioners.

Justice Datta asked whether that trust has actually been honoured in practice, pointing to the criminal backgrounds of several elected representatives.

“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. It is disheartening to note that year on year, instead of promoting persons who have spotless track records and are known to be persons of unimpeachable integrity and rectitude, the political parties appear keen, instead, to promote individuals who have been accused of various crimes, including even moral turpitude”, he observed.

He also observed that successive governments failed to protect the independence of institutions such as the Election Commission.

“Placing its own electoral fortunes in the hands of a truly independent arbiter was not favoured by any political party, for obvious reasons. To remain in power, the consistent pursuit through executive action has indeed been simple — influence the composition of the ECI, control the process of appointment of the Chief Election Commissioner and the Election Commissioners and, thereby, temper adverse electoral outcomes”, he said.

The observations came in Justice Datta's opinion on the issue of whether pleas challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 should be referred to a constitution bench.

Section 7 of the Act provides for a Selection Committee comprising the Prime Minister, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister. The petitioners have challenged the provision, alleging that it gives the executive dominance in the appointment process.

Solicitor General Tushar Mehta had defended the arrangement by relying on the “sacred constitutional trust” attached to the office of the Prime Minister. His argument was that the Court should not assume that the Prime Minister or other ministers would act against democratic principles merely because the government has two members on the three-member Selection Committee.

Challenging this argument, Justice Datta referred to Dr. BR Ambedkar's initial and eventual opinions about trusting the Prime Minister.

During the Constituent Assembly debates, a proposal was made to bar convicted persons from becoming Ministers. Ambedkar did not favour putting such a disqualification in the Constitution. Instead, he felt that the Prime Minister, the legislature and the public could be trusted to prevent such appointments. He had therefore argued that the issue could be left to the “good sense” of the Prime Minister and the legislature, with the public watching their actions.

Justice Datta, however, observed that the hope, faith and trust which Ambedkar had reposed in the office of the Prime Minister and parliamentary democracy appeared to have eroded within a few years of Independence.

He referred to Ambedkar's October 28, 1951 address titled “Failure of Parliamentary Democracy Will Result in Rebellion, Anarchy and Communism” in which he raised concerns about wealthy businessmen funding the ruling party and allegations that government servants were helping the ruling party during elections.

Justice Datta observed that, while the Court could not comment on the truth of those allegations, Ambedkar's speech showed that he had already feared that the electoral process could be captured by those in power.

Justice Datta also referred to Ambedkar's 1952 speech on the conditions needed for democracy to succeed. Ambedkar had identified four such conditions – absence of inequality, an opposition, equality before law and administration, and constitutional morality.

Ambedkar had described democracy as involving a “veto of power” and said that democracy required that at some stage there must be a check on the authority of those ruling the country.

Justice Datta explained constitutional morality in simple terms – the Constitution cannot work only through written rules; those in power must also follow certain basic rules and exercise self-restraint, even when the law does not compel them to do so.

Justice Datta further referred to Ambedkar's later disillusionment with the manner in which parliamentary democracy was functioning in India.

He noted Ambedkar's observation that the Constitution he had made was workable but people in power had made it unworkable. Ambedkar had warned that India could retain democracy “in form” while degenerating into a “dictatorship in fact” if social inequalities were not actively dismantled.

Justice Datta also referred to Ambedkar's interview to the BBC, in which he expressed disappointment over the functioning of elections and observed that “elections are important provided they produce really good men”.

Justice Datta then referred to the Supreme Court's judgment in Manoj Narula v. Union of India, in which the Supreme Court held that the Prime Minister exercises significant constitutional power and therefore has a greater responsibility towards the constitutional trust placed in the office.

The Court had further observed that the Prime Minister was expected to act in the national interest and bear in mind that persons facing charges of certain offences could thwart constitutional morality and good governance and diminish constitutional trust.

The Court had said that the Prime Minister should not appoint as Ministers persons against whom serious charges of heinous offences or corruption had been framed. It had clarified that this was a constitutional expectation, and not a new legal disqualification.

Justice Datta then asked, “What is worth pondering in the current situation is, whether the trust is honoured in adequate measure?”

He observed that the Constitution provided the framework for governing the country but could not guarantee that it would always work as intended, as that depends on the people exercising power. He recalled Ambedkar's observation that even a good Constitution could fail if those entrusted with running it were not committed to its principles.

Justice Datta then connected this issue with the Election Commission. He observed that, for more than seven decades, successive governments had kept key institutions that were supposed to be independent under their control.

He stressed that this was not a criticism of one particular political party as governments across different periods had sought to retain influence over the Election Commission, the body responsible for conducting elections and determining the rules of the electoral contest.

Justice Datta pointed out that no political party in power had taken the initiative for more than seven decades to enact the law contemplated by Article 324(2) for appointing Election Commissioners, as freeing the Election Commission from exclusive executive control would have meant giving up a degree of leverage over the body responsible for judging the government's claim to electoral power.

Justice Datta observed that the constitutional ideals of the country had remained largely unfulfilled because of a lack of commitment to constitutional morality by ruling regimes, past and present.

Justice Datta acknowledged that false criminal cases are also filed against public figures to malign them. But he observed that, if the publicly available figures about criminal cases against MPs, MLAs and Ministers were accepted, they remained a matter of grave concern for the nation.

He further observed that these figures suggested that political party leaders had been unable to rise above narrow political interests and commit themselves to cleansing public life.

It was in this context that Justice Datta asked whether the constitutional trust placed by Ambedkar and later by the Supreme Court in the Prime Minister had been “betrayed in practice”.

“Be that as it may, the figures are also suggestive that even the leadership of political parties finds itself unable to rise above narrow partisan interests and commit to cleansing public life. In such a situation, one is forced to ask whether the constitutional trust reposed by Dr. Ambedkar during the CA Debates and this Court in Manoj Narula (supra) has been betrayed in practice?”, he questioned.

“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,” he concluded.

In other words, Justice Datta's response to the government's reliance on trust was that trust cannot simply be assumed. The Court must also look at how those in power have actually exercised their constitutional responsibilities.

He noted that the 2023 Act was Parliament's first attempt to fill the constitutional gap concerning the appointment of Election Commissioners after more than seven decades. However, whether the law actually protects the Election Commission from government control or merely “recalibrates executive control” would have to be examined when the petitions are decided on their merits, he added.