In his separate opinion, Justice Datta made several observations about the present appointment mechanism, particularly the role of the LoP, the influence of the executive and the importance of public confidence in the independence of the ECI.

The Supreme Court on Wednesday delivered a split verdict on whether challenges to the 2023 law governing the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) should be considered by a larger Constitution Bench.

While Justice Dipankar Datta disagreed with the Union government’s request for a larger bench, Justice Satish Chandra Sharma held that the constitutional questions involved warranted consideration by a five-judge bench.

The two judges, however, unanimously directed that the matter be placed before the Chief Justice of India (CJI) to consider constituting a Constitution Bench.

In his separate opinion, Justice Datta made several observations about the present appointment mechanism, particularly the role of the Leader of Opposition (LoP), the influence of the executive and the importance of public confidence in the independence of the Election Commission of India (ECI).

What is the dispute over the 2023 law?

The petitions challenge the constitutional validity of the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

The principal issue is the replacement of the CJI with a Union Cabinet Minister in the committee that selects the CEC and ECs.

The present committee consists of the Prime Minister, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister.

The petitioners, including the Association for Democratic Reforms (ADR), Congress leader Jaya Thakur, Sanjay Narayanrao Meshram, Dharmendra Singh Kushwaha and advocate Gopal Singh, have challenged Sections 7 and 8 of the 2023 Act, which prescribe the procedure for appointment of ECI members.

They have argued that excluding the CJI weakens the independence of the appointment process and consequently affects the requirement of free and fair elections.

Why did Justice Datta question the role of the Cabinet Minister?

Justice Datta's concern centred on the fact that two of the three members of the committee effectively belong to or are nominated by the executive.

The Prime Minister chairs the committee, while the third member is a Cabinet Minister nominated by the Prime Minister.

Justice Datta said it was highly unlikely that such a minister would oppose the Prime Minister.

He said the Cabinet Minister nominated by the Prime Minister could not reasonably be expected to oppose the person who appointed him to the selection panel.

"The Minister nominated by the Prime Minister to function as the third member of the selection committee, chaired by the Prime Minister, cannot be expected to defy his own nominator," Justice Datta said.

He added that the minister could also risk his continuation as a nominated member of the panel by taking a position against the Prime Minister.

"Even otherwise, the collective responsibility doctrine would preclude the Minister from opposing his Prime Minister," he said.

He referred to Article 75(3), which provides for the collective responsibility of the Council of Ministers, while explaining why he found it difficult to expect a Cabinet Minister to take a position contrary to the Prime Minister on appointments to a sensitive constitutional institution.

According to Justice Datta, the Cabinet Minister therefore does not provide the independent counterweight that a neutral member could offer.

Why did Datta call the LoP's role ‘ornamental’?

Justice Datta's reasoning was that if the Prime Minister and his nominated Cabinet Minister are likely to be aligned, the LoP becomes the only member outside the executive's control.

But that member cannot counterbalance the other two members if they act together.

Justice Datta said the Cabinet Minister does not provide the independent check that a neutral member of the panel could offer.

He observed that the minister would be likely to follow the Prime Minister's position.

"The Cabinet Minister would merely echo the voice of his leader," Justice Datta said.

He said this also affected the purpose of having the Leader of Opposition on the committee.

"Consequently, the presence of the Leader of Opposition in the selection committee becomes largely ornamental," he said, adding that it does not serve the purpose for which the LoP was included in the panel.

Justice Datta therefore agreed, prima facie, with the petitioners' contention that the existing mechanism gives the executive overwhelming influence over appointments.

He also stressed that institutional independence involves more than actual independence.

"Free and fair elections depend on a truly independent ECI. It is not enough for the ECI to be independent; it must appear to be independent," Justice Datta observed.

'Perception test' for the Election Commission

Justice Datta indicated that the 2023 Act might survive the direct challenge based on the absence of the CJI from the committee. But, in his opinion, that would not end the constitutional inquiry.

The law would also have to satisfy what he described as a perception test: whether the appointment mechanism creates public confidence that the ECI is independent.

He said the challengers had raised concerns over the extent of executive control under the 2023 Act. Justice Datta noted that the law gives the executive "overwhelming selection power" in the appointment of Election Commissioners.

According to him, this could affect the appearance of the Election Commission's independence, which he linked to Article 324 and the basic structure of the Constitution. "The point urged by the challengers, prima facie, does appear to have substance," he said.

The judge also noted that successive ruling dispensations had found it convenient to retain influence over institutions that the Constitution envisages as independent.

Justice Datta said the issue could not be attributed to any particular political party or government. "This has not been the failing of any one party or one period," he said.

He observed that governments across decades had sought to retain influence over institutions responsible for overseeing the exercise of political power.

"A consistent trait of political power discernible over the decades has been to preserve leverage over the very body that is meant to judge its claim to power," Justice Datta said.

What about the 2023 Anoop Baranwal judgment?

The petitioners had also argued that Parliament's 2023 law departed from the mechanism prescribed by the Supreme Court in Anoop Baranwal v Union of India.

In its March 2, 2023 Constitution Bench judgment, the Supreme Court had directed that appointments to the Election Commission be made on the recommendation of a committee consisting of the Prime Minister, the CJI and the LoP until Parliament enacted a law on the subject.

The 2023 Act subsequently replaced the CJI with a Cabinet Minister nominated by the Prime Minister.

Justice Datta said the mechanism laid down in Anoop Baranwal was transient and was not itself a permanently binding constitutional arrangement that Parliament was required to retain.

"If indeed the Constitution Bench intended that inclusion of the CJI in the selection committee were binding on the Parliament, it would have said so, but at the risk of being legislatively overruled," he said.

At the same time, Justice Datta distinguished between the composition of the interim committee and the constitutional principle behind it. He said the declaration in Anoop Baranwal that the selection process for Election Commissioners must be independent of exclusive executive control remains binding.

The 'umpire' analogy

While summarising the petitioners' submissions, Justice Datta referred to their argument comparing the appointment process with the selection of an umpire in cricket.

He said the concern was comparable to a cricket match where the captain of one side gets to choose the umpire.

"The umpire is picked by the captain of one side in a cricket match," Justice Datta said.

He noted that even if the umpire subsequently makes correct decisions, the manner of his appointment could still create doubts about the process.

"It has the patina of suspicion, for at the end of the day the umpire has effectively been chosen by the winning captain," he said.

Justice Datta described the submissions as "very emphatic and appealing".

What happens next?

Justice Datta rejected the Union government's request to refer the matter to a larger bench, while Justice Sharma held that the constitutional validity of the 2023 Act required authoritative determination by a Constitution Bench under Article 145(3).

The court ultimately directed that the matter be placed before the CJI for considering whether a Constitution Bench of appropriate strength should be constituted.

The bench also acknowledged concerns about delays in cases referred to larger benches. It observed that constitutional matters can remain pending for years and called for institutional self-introspection.

The judges further requested the CJI to consider establishing a permanent five-judge bench for constitutional matters to address such delays.

The petitions had been pending since challenges were brought against the 2023 appointment law. In 2024, the Supreme Court had declined to stay the appointments of two Election Commissioners under the legislation.

The split verdict therefore does not finally decide the constitutional validity of the 2023 Act. Instead, the next stage will be determined after the CJI considers whether a Constitution Bench should hear the challenge.