The government defended the Election Commissioners’ appointment law by invoking the ‘constitutional trust’ placed in the Prime Minister. Justice Dipankar Datta turned the argument around: trust cannot simply be assumed, it must be earned by how power is actually exercised. Pointing to the criminal antecedents of many legislators and drawing on Ambedkar, he asked whether that trust had, in practice, been betrayed.
New Delhi: Supreme Court judge Justice Dipankar Datta has questioned the Union Government’s reliance on the “constitutional trust” reposed in the Prime Minister to defend the law governing the appointment of Election Commissioners, asking whether that trust had actually been honoured in practice [Dr. Jaya Thakur v. Union of India and connected cases].
The observations came in Justice Datta’s opinion, delivered with Justice Satish Chandra Sharma, 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.
The ‘constitutional trust’ argument
Section 7 of the 2023 Act constitutes the Selection Committee for the appointment of Election Commissioners of the Prime Minister, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister. Defending the composition, the Solicitor General had relied on the “sacred constitutional trust” attached to the office of the Prime Minister, submitting that the Court should not presume that the Prime Minister or the ministers would act against democratic principles merely because the government has two members on the three-member committee.
Justice Datta’s response was that trust cannot simply be assumed; the Court must also look at how those in power have actually exercised their constitutional responsibilities. Pointing to the criminal backgrounds of several elected representatives, he questioned whether the trust the Constitution reposed in the office had been honoured in adequate measure.
Ambedkar, and the erosion of trust
Justice Datta traced the “constitutional trust” doctrine to Dr. B.R. Ambedkar. During the Constituent Assembly debates, a proposal to bar convicted persons from becoming Ministers was not favoured by Ambedkar, who felt the matter could be left to the “good sense” of the Prime Minister and the legislature, with the public watching. That hope, faith and trust, Justice Datta observed, appeared to have eroded within a few years of Independence, citing Ambedkar’s own later disillusionment, including his 1951 address warning that the failure of parliamentary democracy could result in rebellion, anarchy and communism, and his concern that the electoral process could be captured by those in power.
He recalled Ambedkar’s observation that the Constitution he had made was workable, but that people in power had made it unworkable, and Ambedkar’s warning that India could retain democracy “in form” while degenerating into a “dictatorship in fact”. Explaining constitutional morality in plain terms, that the Constitution cannot work through written rules alone, and that those in power must exercise self-restraint even where the law does not compel them, Justice Datta relied on the Court’s judgment in Manoj Narula v. Union of India, which held that the Prime Minister bears a greater responsibility towards the constitutional trust placed in the office, and expressed the constitutional expectation that persons against whom serious charges are framed not be appointed Ministers.
‘Betrayed in practice?’
Against that backdrop, Justice Datta posed the central question. “What is worth pondering in the current situation is, whether the trust is honoured in adequate measure?” he observed, before going further:
“…the figures are also suggestive that even the leadership of political parties finds itself unable to rise above narrow partisan interests and commit to cleansing public life. In such a situation, one is forced to ask whether the constitutional trust reposed by Dr. Ambedkar during the CA Debates and this Court in Manoj Narula (supra) has been betrayed in practice?”
He observed that, instead of promoting persons of spotless track record and unimpeachable integrity, political parties appeared keen to promote individuals accused of various crimes, including offences involving moral turpitude, and that the lofty ideals the Constitution envisaged had remained largely unaccomplished owing to a lack of intent and non-abidance with constitutional morality by “the ruling regime, past and present”, resulting in substantial institutional erosion. Any reliance on the constitutional-trust doctrine, he concluded, must, given the criminal background of members of elected bodies, extend to the constitutional morality of the appointing process itself.
Justice Datta was careful to record that this was not a criticism of any one political party, noting that governments across different periods had sought to retain influence over the Election Commission, and that no party in power had, for more than seven decades, taken the initiative to enact the law contemplated by Article 324(2) for appointing Election Commissioners, since freeing the ECI from executive control would have meant giving up leverage over the body that judges the government’s claim to power. He also acknowledged that false criminal cases are sometimes filed against public figures to malign them, while observing that the publicly available figures on cases against legislators remained a matter of grave concern.
Why it matters
The observations go to the core of the Union’s defence of the 2023 Act. The “constitutional trust” argument asks the Court to presume that the executive, though it holds a majority on the Selection Committee, will act with propriety; Justice Datta’s answer is that such trust is not a given but a constitutional expectation to be tested against conduct, and that the record, particularly the criminalisation of politics, casts doubt on whether it has been honoured. By tying the trust doctrine to constitutional morality, he reframes the question from one of presumed good faith to one of demonstrated fidelity to constitutional values.
The reliance on Ambedkar is significant. By invoking the framer’s own trajectory, from initial faith in the good sense of those in power to later disillusionment, Justice Datta situates the present controversy within a long-standing anxiety about whether constitutional institutions would be allowed to function independently. His point that no government in over seven decades enacted the law envisaged by Article 324(2) is offered not as partisan criticism but as evidence of a structural reluctance, across regimes, to relinquish control over the Election Commission.
These are, it must be emphasised, prima facie observations in an opinion that decides only that the matter be placed before a Constitution Bench; they are not a ruling on the validity of the 2023 Act. Whether the law genuinely protects the Election Commission from executive control or merely “recalibrates” it, Justice Datta noted, will fall to be examined when the petitions are decided on merits. The observations nonetheless add a weighty judicial voice to the debate on the independence of the Election Commission, and frame the standard against which the appointment mechanism may come to be tested.
Case Title: Dr. Jaya Thakur v. Union of India and connected cases [W.P.(C) No. 14/2024 and connected matters] | Citation: 2026 LiveLaw (SC) 976; 2026 INSC 1040
Bench: Justice Dipankar Datta and Justice Satish Chandra Sharma, Supreme Court of India
Context: Observations in Justice Datta’s opinion on the reference of the challenge to the CEC/EC Appointments Act, 2023 to a Constitution Bench.
Status: Prima facie observations; the challenge to the 2023 Act referred to a Constitution Bench, validity undecided.