Questioning the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) by a three-member committee comprising the Prime Minister, a Union Minister and the Leader of Opposition, the Supreme Court on Thursday asked “should there be no show of fairness” in the procedure.The bench of Justices Dipankar Datta and S C Sharma was hearing petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which provides for their selection by the three-member panel.Defending the law, the Centre, represented by Solicitor General Tushar Mehta, said it would be wrong to assume that the PM and the minister would “not act in the interest of democracy” because they have a “numerical majority” in the selection procedure.Explained | ‘Tyranny of the elected’: Why Supreme Court has flagged Election Commission appointment procedureMehta submitted that the office of the PM has a “sanctity attached” to it and doubting the decision of the selection committee would undermine the constitutional trust reposed in elected institutions. He said that if the PM was not to be trusted in the discharge of his constitutional duties, should he be asked to consult “outsiders, including a former judge of this Hon’ble Court,” while selecting his Cabinet members too.“Now, we are not dealing with a case of appointment of a minister as such. We find the minister is already there. Now, it’s time for the PM to select one of his Cabinet members. It becomes 2:1, two on the side of the Cabinet, one on the side of the Opposition,” Justice Datta said.Mehta urged the court to refer the matter to a five-judge Constitution Bench, saying it involves questions of constitutional importance. “This needs examination by a larger bench, why independence is being talked about of only one office, and why only one organ can be trusted and others cannot be,” he said.The bench reserved its decision on this request.“Is it not the PM’s choice of minister in this committee… he may appoint the home minister, animal husbandry minister or fisheries minister or minister without portfolio… the moment Your Lordship says because there is two versus one, Your Lordships are expressing a potential lack of faith,” Mehta said.Story continues below this ad“…Not lack of faith… Election Commissioner has to be an independent person. Who is selecting him? We find that yes, a committee framed under a law under Article 324 is selecting him. But should that committee not consist of persons… should there be no show of fairness? We are not saying that no fairness is being achieved by this committee. Just like justice is not only to be done, it has to be shown to be done, we are on that second part,” Justice Datta said.Mehta said a “five-judge bench of this court in Manoj Narula vs union of India has stressed the importance of the constitutional trust which is reposed in the PM to choose and appoint the right person as a minister and therefore… have a direct bearing on the prejudicial arguments raised about the composition of the committee in question.”“It is not a question of appointment of a minister… who should be in his Cabinet is only the PM’s prerogative. Now, that prerogative has been exercised, somebody is there in the Cabinet. Now you go a step further… You have 25 Cabinet ministers, and the PM is conferred the authority to select one among these 25 (to be a part of the selection committee),” Justice Datta said.“My submission is the law laid down in Manoj Narula is that the office of the PM has a sanctity attached… It is not on him selecting the home minister as part of his committee… I am saying that if his decision is not to be trusted… then why not have that, even while selecting his Cabinet, he must consult some former judge or some outsider,” Mehta responded.Story continues below this adHe said his point was that “whether one organ of the state would have lack of faith in the decision” of the PM-led committee, as such lack of faith “would necessarily be based on the fact that the PM and the other minister would… not act in the interest of democracy, would not act in furtherance of the constitutional principles because they have a numerical majority.”“This is constitutional trust doctrine developed by a five-judge bench because the difficulty is, the moment we say that this composition does not inspire confidence, we necessarily do two things… Now, replace the minister with the CEC to adjudicate the doctrine of constitutional trust. The moment you say this committee is not adequate… the wisdom of the Parliament is being doubted,” he said.Justice Datta then quoted a speech by B R Ambdekar, lamenting what would become of Indian democracy. “In how many states there are ministers who have cases,” he asked.Mehta countered that some judges who decided the cases which resulted in the evolution of the Collegium system of appointment of judges had also lamented that they had decided the cases wrongly.Story continues below this adOn the matter of judges’ appointments, Justice Datta said: “As you said, judges select judges; we wonder whether judges select judges nowadays.”He also remarked that the issue was not about distrusting the PM. “Of course, we would trust the PM. But this has not happened over the years. I rest at that,” he said.