Supreme Court Justice Dipankar Datta has questioned the Union government’s reliance on the concept of “constitutional trust” in defending the statutory mechanism for appointing the Chief Election Commissioner and Election Commissioners, raising broader concerns about institutional independence and the state of Indian democracy.
Justice Datta’s observations came while considering challenges to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, particularly Section 7, which lays down the composition of the selection committee.
Under the provision, the committee is headed by the Prime Minister and includes the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister. Petitioners have argued that the arrangement gives the executive a dominant position in the appointment process.
The Union government, represented by Solicitor General Tushar Mehta, had defended the arrangement by placing reliance on the constitutional trust attached to the office of the Prime Minister. The argument was that the Court should not proceed on the assumption that the Prime Minister or other elected representatives would act contrary to democratic and constitutional principles.
Justice Datta’s response was to examine whether that reliance on institutional trust sufficiently addresses the realities of political governance.
He pointed to what he described as the growing criminalisation of politics and questioned whether the constitutional ideals envisaged at Independence have been adequately realised. He observed that political parties have, over the years, frequently promoted individuals facing criminal allegations rather than consistently favouring candidates with unblemished records.
At the same time, Justice Datta acknowledged the possibility of false criminal cases being brought against public figures for political or other reasons. His observations on criminal antecedents were therefore made in the context of the broader concern he was examining about constitutional morality and institutional erosion.
Concerns over Election Commission’s independence
Justice Datta also examined the larger question of whether successive governments have adequately protected the independence of the Election Commission of India.
He questioned the desirability of a system in which the executive has substantial influence over the composition of an institution whose decisions directly affect the electoral process.
The issue, according to the judge, extends beyond the actual conduct of individuals eventually appointed to the constitutional posts. It also concerns whether the appointment mechanism itself inspires confidence that the Election Commission can function independently.
This concern formed part of Justice Datta’s wider reasoning on the importance of not only having an independent electoral institution but also ensuring that the institutional structure is perceived as independent.
The Court had earlier considered a similar principle in Anoop Baranwal v. Union of India, where it prescribed, as an interim arrangement until Parliament enacted a law, a selection panel comprising the Prime Minister, the Leader of Opposition and the Chief Justice of India. The 2023 legislation replaced that arrangement with the present statutory committee.
Ambedkar’s views on trusting the Prime Minister
Justice Datta also turned to the Constituent Assembly debates involving Dr BR Ambedkar.
During discussions on whether convicted persons should be constitutionally barred from becoming Ministers, Ambedkar had opposed introducing such a specific constitutional disqualification. Instead, he had expressed faith in the Prime Minister, Parliament and the electorate to exercise sufficient judgment in such matters.
Justice Datta examined whether that faith in parliamentary institutions has remained intact over the decades.
He referred to Ambedkar’s 1951 address in which concerns were raised about the influence of money and governmental machinery on elections. Justice Datta noted that the Court could not pronounce upon the truth of the allegations made at the time, but said the speech nevertheless demonstrated that Ambedkar was alive to the possibility of political power influencing the electoral process.
The judge also referred to Ambedkar’s later articulation of the conditions necessary for democracy to function effectively, including the absence of inequality, the existence of an effective opposition, equality before law and administration, and adherence to constitutional morality.
Larger Bench question
Justice Datta’s observations formed part of his opinion on whether the challenges to the 2023 appointment law require consideration by a Constitution Bench.
The two-judge Bench comprising Justice Datta and Justice Satish Chandra Sharma differed on the question of reference. Justice Datta considered the existing constitutional principles concerning free and fair elections and the independence of the Election Commission sufficient to examine the challenge, while Justice Sharma took the view that the issues raised substantial constitutional questions warranting consideration by a larger Bench.
The matter has consequently been placed before the Chief Justice of India for consideration of the constitution of a Constitution Bench.
The dispute therefore moves beyond the question of who may sit on the selection committee. At its core is the constitutional balance between Parliament’s authority to prescribe an appointment mechanism and the requirement that an institution entrusted with conducting elections retain both independence and public confidence.
