The observations came during the resumed hearing of a clutch of petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The law was passed by Parliament in December 2023 and received the President’s assent on December 29, 2023. The petitioners have argued that the law is violative of the SC’s 2023 judgement since it excludes the Chief Justice of India (CJI) from the process of appointing ECs.
Appearing for the central government, Solicitor General Tushar Mehta submitted that a constitutional court cannot begin with the assumption that the Prime Minister would act against democratic principles. Mehta contended that invalidating the composition of the selection committee on the premise that the PM and the executive would act in bad faith would undermine the constitutional trust reposed in elected institutions. “The office of the PM has a sanctity attached to it. If his decision is not to be trusted and is to be seen as necessarily a bad-faith exercise, then why not have a provision that even while selecting his cabinet, he must consult some former judge or outsider?” Mehta contended.
“My question is whether one organ of the state can proceed on the basis that the PM and the other ministers would act in bad faith, would not act in the interest of democracy, or would not act in furtherance of constitutional principles because they have a numerical majority,” he added. In response, Justice Datta said the issue was not one of distrusting the PM. “Why wouldn’t we trust the PM? Of course we would trust the PM,” Justice Datta observed.
Justice Datta added that the SC had, in earlier cases, trusted the PM to ensure that persons with questionable backgrounds were not appointed as ministers.
He clarified that the issue was not about lack of faith, but that “the EC has to be an independent person. Should that committee not consist of persons… Should there not be a show of fairness? We are not saying fairness has not been achieved by this committee. Just like justice is not only to be done, it has to be shown to be done. We are on the second part,” Justice Datta remarked. Speaking for the bench, Justice Datta verbally remarked that the CJI is part of the selection panels for offices such as the CBI director. “The thought process was that the CEC occupies one of the most important offices in a democracy,” Justice Datta observed. He further questioned whether Parliament’s decision to exclude the CJI from the Election Commission’s selection panel could be examined in wake of its approach to other high constitutional offices.
The bench eventually reserved its order on the government’s request to refer the matter to a larger constitution bench.
