Supreme Court judge Justice Dipankar Datta on Wednesday (September 23) said that if free and fair elections are to be ensured, it is axiomatic that the Election Commission of India (EC) must not only be an independent body but also be seen to act independently.
The Supreme Court gave split opinions on whether a batch of pleas challenging the validity of a 2023 law that excludes the Chief Justice of India (CJI) from the panel for selecting the Chief Election Commissioner (CEC) and Election Commissioners (ECs) should be referred to a larger Constitution Bench.
Bench’s request to CJI
A Bench of Justices Datta and Satish Chandra Sharma, which heard the pleas for five days, said that due to a difference of opinion, the matters be placed before CJI Surya Kant on the administrative side for constitution of a Bench of appropriate strength for an effective and authoritative adjudication.
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The Bench also requested the CJI to explore the possibility of setting up a permanent five-judge Constitution Bench for deciding seminal issues.
On March 2, 2023, in a landmark verdict aimed at insulating the appointment of the CEC and ECs from the executive’s interference, a five-judge Constitution bench ruled that their appointments will be made by the president on the advice of a committee comprising the prime minister, the leader of the opposition in the Lok Sabha and the CJI.
Justice Datta, who headed the Bench, refused to accept the Centre’s submission that the petitions raise seminal questions of constitutional importance and should be referred to the five-judge Constitution bench.
Justice Sharma disagreed with the views of Justice Datta.
What Justice Datta said
Justice Datta said, “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.
“Though 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, which this court has repeatedly said is essential.”
Also, Justice Datta, in his opinion, objected to the phrase that “judges appoint judges” in the Indian judiciary.
“It is considered absolutely necessary to address a misconception that has been allowed to proliferate. The oft-repeated phrase that ‘judges appoint judges’ is a myth, which people have been fed by vested interests through motivated narratives, often drawing sustenance from certain controversial decisions taken in this century in relation to appointment of judges,” he said.
The law, enacted by Parliament in December 2023, came months after a landmark verdict by which the apex court directed that election commissioners be appointed by a committee comprising the prime minister, the leader of the opposition and the CJI.
The apex court had earlier refused to stay the appointment of new election commissioners under the 2023 law.