New Delhi: An umpire selected by the captain of a cricket team that eventually wins would always be suspected over his decisions even if they are correct, Supreme Court judge Dipankar Datta said on Wednesday to highlight that the Executive will have an “effective” veto in the selection of the Chief Election Commissioner and election commissioners.
Using this cricket metaphor, Justice Datta was extremely critical of the fact that a three-member panel, comprising the Prime Minister, the Leader of Opposition and a Union minister, selects the CEC and election commissioners.
If free and fair elections are to be ensured, it is axiomatic that the Election Commission (EC) must not only be an independent body but also be seen to act independently, he said.
Justice Datta headed a bench, also comprising Justice Satish Chandra Sharma, which gave split opinions on whether a batch of pleas challenging the validity of a 2023 law that excludes the CJI from the panel for selecting the chief election commissioner (CEC) and election commissioners should be referred to a larger constitution bench.
Dealing with the issue of independence and neutrality, Justice Datta noted the submissions of petitioners that the inclusion of a minister in the panel denuded the selection committee of institutional neutrality.
“If the said Selection Committee were to function, the decision would invariably be 2:1, on paper, in favour of the executive and, in practice, of whoever is the ruling party. With two members from the executive being part of the Selection Committee, the executive has an effective veto,” he said.
Referring to discussion during the hearing, he said it was quite unlikely that the minister would take a stand against the Prime Minister in case of a difference of opinion between the Prime Minister and the Leader of Opposition.
“The presence of likelihood of a ‘no’ is striking enough to colour the perception of the Selection Committee; the probabilities and certainties of the ‘no’ matter little. Thus, the challengers of the law contend, even if the appointments are meritorious, the process does not pass the perception test.
“The bottom line of the argument runs thus: it would not be a fallacious metaphor if it is said that since the umpire is picked by the captain of one side in a cricket match and his team wins, even if the decisions taken by such umpire are correct, 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 Sharma differed with the views of Justice Datta and batted for referring the pleas to a larger bench while terming the issue as important.
Justice Datta said, “If free and fair elections are to be ensured, it is axiomatic that the ECI must not only be an independent body but also be seen to act independently.”
