Judges appointing judges is a myth: Justice Dipankar Datta pulls up government for selectively clearing Collegium proposals

Justice Dipankar Datta of the Supreme Court on Wednesday said that it was wrong to claim that judges appoint judges in the country, and critcised the government for selectively clearing Collegium proposals for the appointment of judges.

Justice Datta made the observation while addressing a submission made by Solicitor General Tushar Mehta during the hearing of petitions challenging a 2023 law that gave more say to the Executive in the selection of members of the Election Commission of India (ECI).

The petitions raised concerns about the government Executive's dominance in the selection panel that appoints ECI members.

One of the arguments raised by the Central government to counter this concern was that even in judicial appointments, existing judges have a predominant say in the appointment of future judges under the existing Collegium system.

In a ruling pronounced today, Justice Datta took exception to this argument. He underscored that even under the Collegium system, there is a consultative process at play between the government and the judiciary before judges are appointed.

"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 century in relation to the appointment of judges. A sweeping generalisation that the collegium acts as a law unto itself overlooks the detailed consultative process envisaged under the Constitution and the intrinsic role of the executive, both at the Centre and in the States, as well as intelligence and other agencies in the appointment process, including vetting of credentials, and the fact that every appointment bears the imprimatur of the President," he said.

Justice Datta went on to lament that it has become fashionable to overlook this and simply blame the Collegium for every instance of an unsuitable judge being cleared for appointment.

"The uninitiated and the unversed unknowingly have thus been made to believe that the collegium of the Supreme Court and the collegia of the High Courts comprise of judges who appoint judges, and it has become fashionable nowadays to blame the collegium for every infelicitous choice, conveniently forgetting that aberrations are exceptions and not the norm, and that no system can guarantee infallibility of human choice," he remarked.

Pertinently, he criticised the selective manner in which the Central government sometimes clears Collegium proposals for the appointment of judges.

He added that the judiciary often chooses not to confront the executive on such matters, to avoid "head-on" conflicts and avert a possible Constitutional crisis.

"What is most worrying and needs attention for a remedy is that the sanctity of a collegium resolution is lost each time the executive implements it selectively, albeit approving the majority of those recommended while withholding at least one. Undeterred by such piecemeal approvals and regardless of the fate of those not cleared by the executive, the collegium chooses to proceed, seemingly to avoid a head-on conflict with the executive, and left with the Hobson's choice to keep the institution running. What it thereby averts, arguably, is a constitutional crisis," he said.

However, he questioned how long such a state of affairs can be permitted to continue.

"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? Dr. Ambedkar's vision was that the judiciary must both be independent of the executive and be competent in itself. However, given the present situation, that vision appears blurred and under serious strain," he observed.

He went on to reject the Central government's reliance on the Collegium system as a possible way to justify the selection panel proposed under the 2023 law for Election Commissioners' appointment.

"This court is left to wonder why, even after the judiciary has been relegated to playing second fiddle to the executive in the matter of appointment of judges, is there still a clamour to induct an outsider at the stage of selection (of election commissioners)? Coming as it does from the side of the executive, the argument ill behoves its stature and is a feeble attempt to deflect attention from its own dereliction and failure. Since it is the executive that wields decisive control and holds the reins 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 discouraging," he said.

The judge also expressed hope that the Collegium in future is able to recommend ideal judges, leaving little room for any criticism of the Collegium system's working.

"At the same time, this court expresses hope and trust that henceforth only judicious and apposite choices shall be made by the present collegium under the able leadership of the CJI, giving little room for future criticism of the system's working," he observed.

The observations were part of Justice Datta's ruling on the question of whether petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, needs to be referred to a larger Bench.

The 2023 law created a three-member Selection Committee for appointing the Chief Election Commissioner (CEC) and other Election Commissioners.

Notably, while the earlier selection mechanism required consultation with the Chief Justice of India (CJI), the selection panel laid down under the 2023 law did not include the CJI.

Instead, a Union Cabinet Minister was made part of the panel, with the remaining two members being the Prime Minister and the Leader of the Opposition.

The petitioners before the Court had raised concerns that such a selection process could compromise the independence of the ECI.

The Union government had earlier requested the Court to refer the matter to a larger Bench under Article 145(3) of the Constitution. 

A Division Bench of Justices Datta and Satish Chandra Sharma today delivered a split verdict on this aspect.

Justice Datta rejected the government's request for the larger Bench reference and gave a prima facie opinion. Justice Sharma disagreed with the observations made by Justice Datta and said that a substantial question of law was involved in the matter, which must be decided by a larger bench.