Justice Datta Questions Leader of Opposition’s Role
In a recent Supreme Court decision, Justice Dipankar Datta expressed concerns over the limited role of the Leader of Opposition (LoP) in the selection process of Election Commissioners in India. He described this role as largely symbolic, given the dominant influence of the Union government on the selection panel.
These observations emerged during deliberations on petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act of 2023. The Act faces scrutiny for substituting the Chief Justice of India (CJI) with a cabinet minister on the selection panel, which currently includes the Prime Minister, the LoP, and a cabinet minister nominated by the Prime Minister.
Concerns Over Panel Composition
Justice Datta highlighted the improbability of a cabinet minister opposing the Prime Minister within this selection framework. He emphasized the necessity for the Election Commission of India (ECI) not only to be independent but also to be perceived as such. “The Minister nominated by the Prime Minister cannot be expected to defy his nominator,” Justice Datta remarked, citing the doctrine of collective responsibility under Article 75(3) as a barrier to ministerial dissent.
He further argued that including a cabinet minister fails to offer an independent counterbalance, as the minister would likely reflect the Prime Minister’s decisions. Thus, the LoP’s presence on the panel becomes merely ornamental, failing to enhance the purpose of their inclusion.
Impressions and Independence
While Justice Datta noted that the 2023 Act might withstand challenges regarding the exclusion of the CJI, he questioned whether the current system inspires the same public confidence as one with a neutral third member. “The challengers’ argument that the Act bestows excessive selection power upon the executive, undermining the appearance of independence essential to [Article] 324, appears to have merit,” he stated.
He also criticized the longstanding practice of Indian governments retaining control over institutions meant to be independent, blaming all ruling parties for this tendency. “This is not the failing of any single party or period,” Justice Datta observed, identifying a persistent trait of political power to maintain influence over bodies tasked with assessing their claims to power.
Supreme Court’s Constitution Bench Ruling
Addressing the argument that the government should comply with the Supreme Court’s 2023 Constitution Bench ruling in Anoop Baranwal v. Union of India, Justice Datta clarified that this mechanism was intended as a temporary measure, not a binding requirement for Parliament. However, he noted that the declaration for independent selection of Election Commissioners is binding.
Summarizing the petitioners’ arguments, Justice Datta employed a metaphor: the idea that an umpire chosen by one team’s captain in a cricket match, even if impartial, carries a veneer of bias.
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Split Verdict on Larger Bench Referral
In a split verdict, the Supreme Court delivered differing opinions on whether to refer the petitions against the 2023 Act to a larger bench. Justice Datta opposed the referral, while Justice Satish Chandra Sharma supported it. Consequently, the Chief Justice of India will now consider forming a Constitution Bench to evaluate the law’s validity.
