The Supreme Court issued split opinions today regarding petitions that challenge a 2023 law. This law removes the Chief Justice of India from the panel responsible for selecting the Chief Election Commissioner (CEC) and Election Commissioners (EC). The Court is considering whether to refer the matter to a larger bench for further deliberation.
The bench comprising Justice Dipankar Datta and Justice Satish Chandra Sharma held divergent views after hearing the matter for five days
“Had we delivered a unanimous verdict, it would have been in the interest of institutional solidarity. Unfortunately, there is a difference of opinion. Justice Datta cited a cricket analogy on the executive’s influence in the appointment of election commissioners. “If the team that is to bat selects the umpire itself, questions regarding impartiality will inevitably arise. “Such an umpire would always be suspected of being loyal to that team. “Free and fair elections depend on a truly independent ECI.
Due to this difference, I had to write a more detailed order,” Justice Datta said. 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 had 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 Chief Justice of India.
“The present case demands a perspective that considers the possibility that this court’s opinion could remain effective and relevant long after the immediate dispute has concluded,” Justice Datta said. It is crucial to dispel a misconception that has been allowed to persist, he said, adding the oft-repeated phrase ‘judges appoint judges’ is a myth. Vested interests have propagated this perception through motivated narratives and they have often drawn sustenance from certain controversial judgments concerning judicial appointments, Justice Datta said. Even if the umpire makes the correct decision, their impartiality will remain under a cloud of suspicion,” he said. The process of appointing election commissioners should also be free from such a situation, ensuring there is no doubt regarding their independence and impartiality,” the judge said. It is not enough for the ECI to be independent; it must appear to be independent,” he said.
