Supreme Court justice Dipankar Datta today prima facie questioned the neutrality of the mechanism for appointing the Chief Election Commissioner and Election Commissioners under the 2023 law, observing that the Union Cabinet Minister nominated by the Prime Minister cannot be expected to oppose the Prime Minister in the selection process.

Justice Datta prima facie observed that the Prime Minister-nominated Cabinet Minister could not be expected to act as an independent counterweight to the Prime Minister.

“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 and risk his continuation as such nominated member on the committee, for all practical purposes,” he observed.

Justice Dipankar Datta delivered his opinion on whether the challenge to the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 should be referred to a Constitutional Bench.

The petitions challenge Section 7 of the 2023 Act, which provides for a three-member Selection Committee comprising the Prime Minister as Chairperson, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister.

Before deciding the issue of reference, he prima facie observed that free and fair elections require the Election Commission of India (ECI) to not only be independent but also to be seen to act independently.

The petitioners argued that the inclusion of the PM's nominee undermines the institutional neutrality of the Selection Committee, as the PM's nominee could not be expected to oppose him and support the Leader of Opposition.

Justice Datta found weight it the petitioners' argument and observed that with two members of the committee being from the executive, the executive effectively gets a veto over the selection process.

He highlighted, “When queried by this Court as to whether the Prime Minister's nominee would take a stand against the Prime Minister in case of a difference of opinion between the Prime Minister and the Leader of Opposition, 'probably no' was the answer of the learned Attorney although 'certainly no' is what the challengers say would be the ultimate outcome.”

Justice Datta observed that even the likelihood of a “no” to the Court's question was enough to affect the perception of the Selection Committee.

“The presence of likelihood of a 'no' is striking enough to colour the perception of the Selection Committee,” he observed.

The petitioners have argued that even if appointments made through the process were meritorious, the mechanism would fail the “perception test”. They compared the situation to an umpire in a cricket match being chosen by the captain of one side, arguing that even correct decisions could carry a patina of suspicion if the umpire was effectively chosen by the winning captain.

Justice Datta found the submission relevant to the constitutional requirement of free and fair elections. “If free and fair elections are to be ensured, it is axiomatic that the ECI must not only be an independent body but also be seen to act independently,” he observed.

He noted that the 2023 Act might possibly survive the direct challenge based on the exclusion of the Chief Justice of India from the Selection Committee. However, he held that the mechanism would also have to satisfy the perception test which the Supreme Court has repeatedly recognised as essential.

Justice Datta questioned whether the Selection Committee under Section 7 appeared as independent as the temporary mechanism laid down by the Supreme Court in Anoop Baranwal v. Union of India, which provided for a Committee of the Prime Minister, the Leader of Opposition and the CJI.

He also emphasised that the issue was not whether the persons eventually appointed under the 2023 Act would necessarily lack character or integrity, but whether the statutory mechanism itself generated the same public confidence as the presence of a neutral third member.

He relied on the principle of collective responsibility under Article 75(3) of the Constitution and opined that a Minister who is part of the Council of Ministers and bound by collective responsibility could not reasonably be expected to disagree with the Prime Minister in the appointment of persons to a sensitive constitutional office. He added that the presence of the Leader of Opposition consequently became “largely ornamental”.

“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 he (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 said.

Justice Datta held that the petitioners' contention that the 2023 Act vests “overwhelming selection power” in the executive and thereby undermines the appearance of independence required under Article 324 and the basic structure prima facie has substance.

Solicitor General Tushar Mehta argued that constitutional trust reposed in the office of the Prime Minister meant that decisions taken by the Prime Minister should not be doubted.

Justice Datta, however, was not convinced, and connected the argument to the actual functioning of the political system. He observed that the constitutional ideals envisaged by the Constitution had remained largely unaccomplished due a lack of intent and non-abidance with constitutional morality by ruling regimes, resulting in institutional erosion.

He further observed that political parties appeared to promote persons accused of crimes, including offences involving moral turpitude, instead of persons with spotless track records” and unimpeachable integrity and rectitude.

While he acknowledged that false cases were also instituted against public figures to malign them, he maintained that that the figures concerning criminal antecedents of parliamentarians, legislators and Ministers, if accepted, raised concern.

He made it clear that these are prima facie observations and not a final ruling on the constitutional validity of the 2023 Act in this opinion.

The two-judge bench differed on whether the challenge should be referred to a Constitution Bench. Justice Datta held that the existing constitutional jurisprudence on free and fair elections and the independence of the ECI was settled and that the 2023 Act had to be tested against those principles.

Justice Satish Chandra Sharma took the view that whether Parliament could exclude a neutral selector from the Selection Committee raised a substantial question of constitutional interpretation not previously decided.

Ultimately, the matter was directed to be placed before the Chief Justice of India for considering constitution of a Constitution Bench to decide the validity of Section 7 and the other impugned provisions of the 2023 Act.

Headnote

Constitution of India — Article 145(3) read with Supreme Court Rules, 2013, Order XXXVIII Rule 1 — Split Verdict on Reference to Constitution Bench - In a batch of writ petitions challenging the constitutional validity of Sections 6, 7, and 8(2) of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 for excluding the Chief Justice of India and institutionalizing executive dominance in the Selection Committee, the two-Judge Bench delivered a split opinion on whether the challenge must be referred to a Constitution Bench under Article 145(3) – Per Dipankar Datta, J. (Rejecting the plea for reference) - Merely raising a constitutional question or challenging a novel enactment does not attract Article 145(3), if the foundational constitutional principles have already been authoritatively settled by Supreme Court - The Constitution Bench in Anoop Baranwal v. Union of India, (2023) 6 SCC 161, definitively held that the Election Commission of India must be insulated from exclusive executive control and that free and fair elections form part of the basic structure - What remains is only the application of these settled standards to the newly enacted 2023 Act - Applying settled law does not amount to interpreting the Constitution under Article 145(3) - The interim committee in Anoop Baranwal was a transient pro tem measure under Article 142 until legislative intervention, and examining whether the 2023 Act passes the muster of Article 14 and Article 324 is within the domain of the regular Bench. [Paras 49-88].

Per Satish Chandra Sharma, J. (Allowing the plea for reference) - The 2023 Act was enacted by Parliament pursuant to Anoop Baranwal - There is no prior authoritative decision of the Supreme Court testing the constitutional validity of the 2023 Act - Whether Parliament was constitutionally justified under Article 324(2) in excluding an independent or neutral selector (such as the CJI) from the Selection Committee and retaining an executive majority raises a seminal and substantial question of law as to the interpretation of the Constitution which has never been decided before - Under Article 145(3) read with Order XXXVIII Rule 1 of the Supreme Court Rules, 2013, such a pristine question of constitutional interpretation must be decided by a Bench of not less than five Judges. [Relied on Anoop Baranwal v. Union of India, (2023) 6 SCC 161; People's Union for Civil Liberties v. Union of India, (2003) 4 SCC 399; Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly, (2020) 2 SCC 595; Manoj Narula v. Union of India, (2014) 9 SCC 1; Supreme Court Advocates-on Record Association v. Union of India (NJAC Case), (2016) 5 SCC 1; Paras 5-20].

Judicial Process — Inordinate Delay in References to Larger Benches — Suggestion for Permanent Constitution Bench - Noting the grave delay in deciding references (often taking between 5 to 20 years or more, as witnessed in Anoop Baranwal and Jai Bir Singh), which causes institutional embarrassment, the Bench collectively placed the papers before the Chief Justice of India for the constitution of an appropriate Bench to resolve the vires of the 2023 Act, and urged the CJI to explore the necessity of setting up a permanent 5-Judge Constitution Bench to decide pure constitutional controversies expeditiously.

Case no. - W.P.(C) No. 14/2024 Diary No. 146 / 2024 and connected cases

Case Title - Dr. Jaya Thakur v. Union of India and connected cases

Citation: 2026 LiveLaw (SC) 976

Also from the judgment - Hope Present Collegium Makes Proper Choices In Future; Judiciary Playing Second Fiddle To Executive In Judges' Appointment : Justice Dipankar Datta