Supreme Court Justice Dipankar Datta has raised concerns about the composition of the selection panel used to appoint the Chief Election Commissioner (CEC) and Election Commissioners (ECs). In a separate opinion, he said replacing the Chief Justice of India with a Union Cabinet Minister in the Prime Minister-led panel could appear to give the Union government significant influence over the appointment process.
Justice Datta said the arrangement does not appear to satisfy what is known as the “perception test.” He observed that even the appearance of excessive government influence could send the wrong message to the public about the independence of the Election Commission.
According to Justice Datta, the independence of Election Commissioners is important not only for their appointment but also for their ability to perform their duties independently. He connected this issue with the constitutional importance of conducting elections in a fair and impartial manner.
The observations came in a split verdict concerning challenges to the 2023 law governing the appointment of the CEC and ECs. The judges were considering whether the petitions challenging the law should be examined by a larger Constitution Bench.
Justice Satish Chandra Sharma supported referring the matter to a Constitution Bench, pointing to the important constitutional questions involved. Although the judges differed on aspects of the reference, the matter is being placed before the Chief Justice for consideration of a larger bench.
The petitions were filed against changes introduced by the 2023 Act. Petitioners argued that the law moved away from the selection system outlined by the Supreme Court in its earlier Anoop Baranwal judgment.
In that judgment, the Supreme Court had directed that the selection panel should include the Prime Minister, the Leader of the Opposition and the Chief Justice of India. The 2023 law changed the composition of the panel by replacing the Chief Justice with a Union Cabinet Minister nominated by the Prime Minister.
The petitioners argued that this change gave the Executive greater control over the appointment of Election Commissioners. They claimed that such a system could affect the perceived independence of the Election Commission.
Justice Datta found that these concerns raised important constitutional issues. He also questioned whether the presence of a government minister on the panel would provide enough independence from the Executive.
In explaining the concern, Justice Datta used an example from cricket, comparing the situation to an umpire being selected by one of the teams. The comparison was used to illustrate how the appointment process could be viewed by the public if the selection panel does not include sufficiently independent members.
The court also considered the importance of public confidence in election institutions. The case will now be considered for further proceedings before a larger bench, which could examine the constitutional questions surrounding the 2023 law and the appointment process in greater detail.