During a hearing on whether the 2023 law on the appointments is free of government influence, he said there was scope for doubt, as the three-member selection committee includes the Prime Minister and a minister nominated by the PM, besides the Leader of the Opposition (Lok Sabha) or LOP.
Justice Dipankar Datta of the Supreme Court used a cricket analogy on Wednesday to make a point about who should, and who should not, appoint the “umpire” — in this case, the Election Commissioners.
He specifically pointed to the provision of a minister being nominated by the PM. This nominated-minister provision came in as the Narendra Modi government made a new law to replace the Chief Justice of India on the 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 and risk his continuation as such nominated member on the committee for all practical purposes. This was an interim arrangement, to last until Parliament enacted a law. That law removed the CJI and placed a minister instead.
In March 2023, the Constitution Bench directed that the President appoint the CEC and ECs on the recommendation of a committee of the Prime Minister, the Leader of Opposition in the Lok Sabha and the CJI.
Such a nominee “cannot be expected to defy his own nominator and risk his continuation”, he remarked. Even otherwise, the collective responsibility doctrine would preclude the minister [from opposing] his Prime Minister,” Justice Datta said. “In such a circumstance, the inclusion of a Cabinet Minister in the selection committee fails to provide the independent counterweight that a neutral selector could, and the Cabinet Minister would merely echo the voice of his leader, and consequently, the presence of the Leader of Opposition in the selection committee becomes largely ornamental, without furthering the purpose of his inclusion,” he added.
