The idea that “judges appoint judges” is a myth, Justice Dipankar Datta has said, because the last word on who becomes a judge rests with the executive. In a separate opinion, he observed that the judiciary has been reduced to playing ‘second fiddle’ to the executive, which approves most collegium recommendations but quietly withholds others, eroding the sanctity of the collegium’s resolutions.
New Delhi: Supreme Court judge Justice Dipankar Datta has observed that the judiciary has been “relegated to playing second fiddle to the executive” in the matter of the appointment of judges, because the executive selectively implements the recommendations of the collegium [Dr. Jaya Thakur v. Union of India and connected cases].
The observations came in Justice Datta’s separate opinion in the challenge to the law governing appointments to the Election Commission, decided alongside Justice Satish Chandra Sharma, while he dealt with the Centre’s argument drawing an analogy between the Election Commission selection mechanism and the collegium system of judicial appointments.
‘Judges appoint judges’ a myth
Defending the Election Commissioners’ appointment process, the Centre had drawn a parallel with the collegium system, where, it suggested, “judges are appointing judges”. Justice Datta rejected that characterisation, holding that the final say in judicial appointments rests with the executive, and describing the phrase as a myth.
“The oft-repeated phrase that judges appoint judges is a myth, which people have been fed by vested interests through motivated narratives, often drawing sustenance from certain controversial decisions taken in this country in relation to appointment of judges,” he observed. The constitutional process, he noted, involves consultation with the executive at the Centre and in the States, scrutiny by intelligence and other agencies, and ultimately bears the imprimatur of the President.
Selective implementation ‘destroys the sanctity’ of resolutions
Justice Datta’s central concern was the executive’s practice of implementing collegium recommendations selectively, clearing most while withholding at least one, and the effect of that practice on the institution. “Since it is the executive that wins over the appointments of judges at every stratum, the response of the defenders for sustaining the impugned legislation by seeking to draw a parallel with the collegium system of not having an outsider is rather disingenuous, evasive, and disquieting,” he said.
He warned that the sanctity of a collegium resolution is lost each time it is implemented selectively, and questioned how long such a state of affairs could continue. “What is most worrying… is that the sanctity of a collegium resolution is lost each time the executive implements it selectively, albeit approving majority of those recommended while withholding at least one. Undeterred by such peaceful disapprovals… the Collegium chooses to proceed, seemingly, to avoid a head-on conflict with the executive and left with the choice to keep the institution running. What it thereby avoids arguably is a constitutional crisis, but the larger question which looms is, how long can this state of affairs continue if such selective implementation is allowed to acquire the character of an accepted practice?” he asked.
Referring to Dr. B.R. Ambedkar’s vision that the judiciary must be both independent of the executive and competent in itself, Justice Datta observed that this vision “appears blurred and under serious strain”, and wondered why, even after the judiciary had been “relegated to playing second fiddle to the executive” in appointments, there was still a “clamour” to induct an outsider at the selection stage, the very demand raised in the Election Commission context.
Controversial appointments ‘aberrations, not the norm’
Even as he criticised the executive’s role, Justice Datta defended the collegium against the perception that it alone is to blame for every controversial appointment. It had become “fashionable”, he said, to blame the collegium for every “infelicitous choice”, forgetting that “aberrations are exceptions and not the norm, and that no system can guarantee infallibility of human choice”.
He expressed hope that the present collegium, under the leadership of Chief Justice of India Surya Kant, would make “judicious and apposite choices” in future, “leaving little room for future criticism of the system’s working”.
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Why it matters
The observations are striking for coming from a sitting Supreme Court judge and for locating the problem of judicial appointments not in the collegium’s choices but in the executive’s control over their implementation. The collegium recommends, but the executive appoints; and, on Justice Datta’s account, the executive’s willingness to sit on individual recommendations, neither clearing nor formally rejecting them, gives it an effective veto that the constitutional design of judicial primacy was meant to prevent. His characterisation of the judiciary as playing “second fiddle” is a candid acknowledgment, from within the institution, of that imbalance.
The comments also carry an argumentative purpose in the case at hand. The Centre had relied on the collegium, “judges appointing judges”, to justify the absence of an independent outsider on the Election Commission selection panel; Justice Datta’s response was that the analogy is misplaced precisely because the collegium does not, in truth, have the final word. If anything, he suggested, the executive’s dominance over judicial appointments is a reason for concern rather than a template to be replicated in appointments to another independent constitutional body.
The remarks form part of an opinion in a matter that has now been referred to a Constitution Bench, and are, in that sense, observations rather than a binding ruling on the collegium system. But they add a significant judicial voice to the long-running debate over judicial appointments and the executive’s role in them, and, coupled with the judge’s expression of hope in the present collegium, frame the issue as one of institutional practice, the selective implementation of resolutions, that he suggests requires a remedy before it hardens into an accepted norm.
Case Title: Dr. Jaya Thakur v. Union of India and connected cases [W.P.(C) No. 14/2024 and connected matters]
Bench: Justice Dipankar Datta and Justice Satish Chandra Sharma, Supreme Court of India
Context: Observations in Justice Datta’s separate opinion in the reference of the challenge to the CEC/EC Appointments Act, 2023 to a Constitution Bench.
Status: Observations on the collegium and judicial appointments; the challenge to the 2023 Act referred to a Constitution Bench.