That amongst the minefield of technicalities, procedures and wordsmithing, the law is fundamentally about common sense requires a reminder ever so often. Lately it came from an unlikely place. Unlikely, not because of its provenance but because recent history would suggest otherwise.
Justice Dipankar Datta of the Supreme Court of India, while hearing the challenge to the constitutionality of the law on how the chief election commissioner and the election commissioners should be appointed, said three things that reaffirms why the Supreme Court needs to exist as a voice that speaks truth to power.
First, that a committee comprising the prime minister, another cabinet minister and the leader of the Opposition in the Lok Sabha to appoint the CEC and the ECs need not be created in the first place because structurally it always makes the government win. Second, that the record of the last decade shows that the slogan that judges appoint judges in India is a myth — it is the government that has the final word. Third, if every question of law needs to be adjudicated by five-judge benches in the Supreme Court as the government argued in this case, then the Supreme Court should save time and set up a permanent five-judge Constitution bench.
None of these was said confrontationally. But their intended message was clear — with better legal advice all around, such a situation would not have arisen in the first place.
The question before the court was a straightforward one — was the law passed in 2023 that stipulated that the CEC and the two ECs would be appointed by a committee comprising the prime minister, another cabinet minister, and the leader of the Opposition in the Lok Sabha constitutionally sound? Specifically, it had to be tested against the Supreme Court’s 2023 Constitution bench judgment in Anoop Baranwal vs Union of India where the court had held that Article 324 — the provision that contains details of the constitution of the Election Commission of India — requires insulation from exclusive power of the executive to appoint commissioners. The court itself had suggested that the interim selection committee comprise the prime minister, leader of the Opposition, and the chief justice of India till such time as Parliament passed a law.
Framed this way, the only question for the court was whether the presence of a cabinet minister in place of the CJI would make the EC structurally independent of the government as the Constitution was held to require. Justice Datta was blunt — a cabinet minister “cannot be expected to defy his own nominator” (the prime minister). Even if he did, such a selection committee could never make the EC appear independent in the public mind. This is why simply including the leader of the Opposition to meet the stipulation of not having exclusive executive control was not good enough. There would be no meaning in having such a person on the committee if structurally the dice is loaded in favour of the government.
This should really have been the end of this matter. But what counts as good constitutional lawyering in the Supreme Court of India has long ceased to be
a demonstrable mastery of the law and, instead, been replaced by a combination of candour, cleverness and craft. Displaying the finest of these attributes, the government veered away from defending the legislation and risking a binding judgment at this stage, to asking that a larger bench be constituted for a matter of such considerable significance.
Justice Datta was quick to point out that an appeal to the “considerable significance” of the matter to request a larger bench was not the germane question. On the contrary, a reference to a larger bench is only warranted when there is a question of Constitution law that remains unsettled. This, he rightly said, is clearly not the case here. Displaying fine statesmanship, despite his brother judge opining that the matter be referred to a larger bench, both justices requested the CJI to constitute a permanent five-judge bench to determine pure constitutional issues. If the government was to keep asking for references, the Supreme Court must have a ready answer in the form of a bench that can immediately take up the matter, whether warranted or not.
Justice Datta’s words should prompt deep introspection within the Supreme Court. With its latest increase in numbers, the court has a sanctioned strength of 38 judges, all of whom sit on an ordinary day in combinations of two and three. This leads to differences between benches, bench-hopping by adroit lawyers, and a diminution of the finality that the Supreme Court is supposed to provide. It also provides the pretext for asking for references to larger benches when it is convenient or, as in this case, inconvenient, for any litigating party. The Supreme Court was always meant to be the apex constitutional court — creating a permanent five-judge bench for constitutional matters would be a much-delayed correction in this direction.
The sting in Justice Datta’s tail was reserved for his tough talk on judicial appointments. Ever since 2015, when the Supreme Court struck down the Narendra Modi government’s first constitutional amendment — to establish the National Judicial Appointments Commission (NJAC) for appointment of Supreme Court and high court judges — the government and the judges have been on a warpath. That judgment was grossly wrong as a matter of constitutional law and the responsibility for creating this state of affairs rests with the Supreme Court itself.
But with the passage of time, that original sin has begun to pale in comparison to what has followed. Justice Datta pointed this out eloquently and plainly—that a government which sits on files of certain appointments for inordinately long periods of time, separates recommendations made by the Collegium, and processes one name without processing another without reason cannot now come before the court and say, as the government’s lawyers did, that it is judges who appoint judges. For the government to bring up how judges are appointed to somehow support its case for appointing ECs was plain whataboutery.
If anything, the appointment of judges is a cautionary tale for both the government and the Supreme Court on how not to treat an appointment process. Unfortunately, it appears that the appointment of the ECs is headed in the same direction. That is unless the present public outcry over the incumbent CEC can be channelised constructively. Attempting to impeach Gyanesh Kumar is one part of the story. Making sure that future CECs of questionable integrity are not appointed is another. For that, Justice Datta’s opinion should be mandatory reading for civil society activists, the government, and his own brother judges on the court. It reaffirms what the Supreme Court exists for — to stand as the voice of common sense at a time when common sense has been rendered nearly voiceless.
Arghya Sengupta is Research Director, Vidhi Centre for Legal Policy. Views are personal