Justice Datta’s observation was delivered in a separate opinion after a split decision by a two‑judge Division Bench on whether the challenge to the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023 should be referred to a Constitution Bench.
Datta reminded the court that the independence of the Election Commissioners is a cornerstone of free and fair elections and forms part of the Constitution’s basic structure, arguing that the 2023 Act’s removal of the Chief Justice of India from the selection panel and insertion of a Union Cabinet Minister gives the executive an “effective veto” over appointments.
The petitioners – senior advocates Gopal Sankaranarayanan, Shadan Farasat, Prashant Bhushan, Kaleeswaram Raj and Neha Rathi – contend that the amendment defeats the March 2023 Constitution Bench judgment in the Anoop Baranwal case, which had established a selection panel chaired by the Prime Minister and comprising the Leader of Opposition and the Chief Justice of India.
The 2023 Act, passed within months of that judgment, substituted the Chief Justice’s seat with a Cabinet Minister nominated by the Prime Minister, a change the petitioners say bestows “dominant control” on the executive and undermines the perception of neutrality required for the election‑monitoring body.
Justice Satish Chandra Sharma, the other judge on the bench, argued that the matter raises substantial constitutional questions and should be referred to a Constitution Bench, invoking Article 145(3) which mandates a minimum of five judges for cases involving significant constitutional interpretation.
The court agreed to forward the matter to the Chief Justice of India for constituting an appropriately sized Constitution Bench, leaving the final determination of the Act’s legality pending.
During the hearing, Solicitor General Tushar Mehta defended the Prime Minister’s role, citing a 2014 Supreme Court decision in the Manoj Narula case that the Prime Minister’s office holds the highest constitutional trust, and questioned why an external or former judge should be added to the panel if the Prime Minister’s judgment is already trusted.
Datta countered that the issue is not a lack of faith in the Prime Minister but the principle that justice must not only be done but be seen to be done, likening the situation to an umpire selected by the batting side – even correct decisions would be viewed with suspicion.
The case’s referral to a Constitution Bench underscores the judiciary’s scrutiny of any legislative changes that could erode the independence of constitutional bodies, with potential ramifications for future appointments to the Election Commission and the broader credibility of India’s electoral process.