NEW DELHI: Deliberating on the validity of the law on appointment of chief election commissioner and election commissioners by a panel of the PM, a cabinet minister and the leader of opposition, Justice Dipankar Datta on Wednesday pointed out drawbacks and said it gave “overwhelming” power to the executive and made the presence of the LoP “ornamental”, undermining the appearance of independence in the selection process. He also noted that since independence, govts had tried to control the poll body.“Over seven decades, every dispensation wresting office found it convenient to keep institutions which the Constitution envisioned to be independent under their control. To enact a law on the lines empowered by Article 324(2) would have meant freeing the ECI from exclusive executive control and inviting trouble for the ruling regime. To the mind of this court, this has not been the failing of any one party or one period. A consistent trait of political power, discernible over the decades, has been to preserve leverage over the very body that is meant to judge its claim to power,” Justice Datta said.He said if free and fair elections were to be ensured, it was axiomatic that the EC must not only be an independent body but also be seen to act independently and it was “painful to note that not a single party in power, entrusted by the people of India to govern this great nation”, took the initiative of enacting a law of the nature which Article 324(2) left to the supreme law-making body, ie Parliament, to legislate.“Placing its own electoral fortunes in the hands of a truly independent arbiter was not favoured by any political party, for obvious reasons. To remain in power, the consistent pursuit through executive action has indeed been simple – influence the composition of the EC, control the process of appointment of CEC and ECs and, thereby, temper adverse electoral outcomes,” Justice Datta said.
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Summarising the contentions raised against the law, he added, “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.“Justice Datta further said, “There can be no gainsaying that free and fair elections, to a large extent, depend on a truly independent EC. It is not enough for the EC to be independent, it must also appear to be independent. The minister nominated by the prime minister, to function as the third member on the selection committee chaired by the prime minister, cannot be expected to defy his own nominator. In such a circumstance, the inclusion of a minister in the selection committee fails to provide the independent counterweight that a neutral selector could and he 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.“