For what a sense of satisfaction feels like, one must read the opinion rendered by Justice Dipankar Datta in the Election Commission appointment reference. He didn’t just defend the Collegium system; he put the government on the stand and read its own record back to it.

The Solicitor General was defending the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Terms of Office) Act, 2023, a law that vests the selection of India’s Election Commissioners in a three-member committee in which two of three chairs answer, directly or by collective responsibility, to one man.

It was argued that if the judiciary’s own Collegium appoints judges of the constitutional courts without any “outsider” sitting in on the process, then why should the executive be denied the same courtesy when appointing Election Commissioners? Little did he know that his argument would hoist him with his own petard.

Some waiting passes like a soft breeze, but the worst kind sits like a heavy stone upon the chest, suffocating the spirit. And it was this heavy, suffocating stone that Justice Datta was forced to bear. The Supreme Court Collegium on September 27, 2022 recommended Justice Datta’s name for elevation to the Supreme Court. Back then, he was Chief Justice of the Bombay High Court. The decision was made. What remained was simply a signature. Weeks passed.

Meanwhile, the Supreme Court Bench comprising Justices Sanjay Kishan Kaul and Abhay S Oka, hearing an unrelated matter, observed that the government has been sitting on multiple cleared and even reiterated Collegium names and stated this behaviour to be “unacceptable”. Even Senior Advocate Vikas Singh raised Justice Datta’s pending approval publicly, urging the government to act. It took 76 days before the notification finally came through and Justice Datta took oath in December 2022. No reasons whatsoever were placed on record for the delay.

So, when the Solicitor General made the argument regarding the Collegium system that “judges appoint judges”, he was making that argument to a man who knew, from his own personal experience, exactly who holds the deciding vote in judicial appointments, and it is not the Judges.

Justice Datta, in his opinion, dismantles the premise piece by piece. The Collegium, he reminds, does not appoint anyone. It recommends. Every recommended name is then routed through the executive at multiple stages, vetted by intelligence agencies, screened by the Law Ministry and finally approved by the President. The executive isn’t a bystander in judicial appointments; it is, in fact, embedded in the process at every step. And critically, it even holds the unwritten power of not acting on a recommendation made by the Collegium. Names sit. Files gather dust. Even reiterated recommendations routinely go unimplemented for years, without any explanation.

“Judges appoint Judges,” Justice Datta emphasised, is a myth that people have been “fed through motivated narratives.” These words, coming from a judge who has himself experienced it, read less like rhetoric and more like testimony.

What is worth noticing is that Justice Datta doesn’t let the Collegium off easily either and candidly opens up about the Collegium’s functioning. He says that the Collegium’s functioning “has occasionally faltered” and “has not been entirely free from aberrations.” He stops short of exonerating the Collegium from criticism. At heart, this is his point: our house has its own problems, and we know it; that is precisely why we cannot accept being lectured on transparency by an Executive that won’t even explain why a file sat untouched for months.

Senior Advocate Liz Mathew has been practising at the Supreme Court since 2004. She was designated Senior Advocate in January 2024. By any measure the Collegium, is supposed to apply competence, integrity, standing at the Bar for appointing judges from the Bar. She qualifies completely. On April 14, 2026, the Collegium recommended her, along with Advocate AK Preetha, for elevation to the Kerala High Court. One resolution. One date. Two names, side by side on the same page.

And then something almost bizarre happened. Ten days later, the Central government notified Advocate Preetha’s appointment. She was sworn in as an additional judge before the month was even out. Liz Mathews' name, recommended in the very same breath, on the very same day, by the very same Collegium, is still not acted upon. Five months and counting. No reasons given. No timeline offered. Just one half of a joint recommendation quietly walking through the door while the other waits outside, presumably still holding the coat.

It's the kind of detail that will look implausible even in fiction; surely no one clears one name and simply forgets the other, from the same file, on the same day. And yet here we are, while the Kerala High Court, sanctioned for 47 Judges, continues functioning with 11 short of its full strength.

It is, almost too neatly, exactly the pattern Justice Datta describes in his opinion: a name cleared by the body constitutionally tasked with recommending it, met by silence from the body tasked with acting on it. Except, this time, the government has helpfully demonstrated that acting quickly is entirely within its abilities, when it wants to be. The Solicitor General’s argument was that the executive deserves the same freedom from outside scrutiny that the judiciary enjoys. Justice Datta’s answer - and Senior Advocate Liz Mathew’s file sitting in a drawer somewhere in New Delhi as you read this - both suggest the same thing: the executive already has considerably more of that freedom than it’s letting on. It simply chooses, case by case, name by name, when to use it.

Shraddha Joshi is an advocate practicing before the Supreme Court of India.