‘Judges appointing judges is a myth’: Justice Datta says judiciary has been ‘relegated to playing second fiddle to executive’

The oft-repeated description of India's judicial appointments system as one in which "judges appoint judges" is a "myth", Supreme Court judge Dipankar Datta said on Wednesday, pointing to the executive's decisive role in processing collegium recommendations and its selective implementation of those resolutions.

In his separate opinion in SC's split verdict on the law governing appointment of election commissioners, justice Datta rejected the suggestion that the collegium gives the judiciary unilateral control over appointments to constitutional courts. He said the appointment process involves consultation with the executive at the Centre and in states, scrutiny by intelligence and other agencies, and ultimately the imprimatur of the President. The characterisation of the system as judges simply choosing other judges, justice Datta said, overlooks the role played by institutions outside the judiciary.

Justice Datta questioned the manner in which the executive has been dealing with Collegium recommendations, observing that the judiciary has effectively been "relegated to playing second fiddle to the executive" in judicial appointments. He said the executive approves a majority of recommendations while withholding at least one, and questioned the consequences of such selective implementation becoming an accepted practice.


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The selective clearance, he observed, undermines the sanctity of a collegium resolution. Yet the collegium continues making further recommendations, apparently to keep the judicial appointments process functioning and avoid a direct confrontation with the executive.

His observations challenged the argument that criticism of controversial judicial appointments could simply be placed at the door of collegium. He said aberrations were exceptions rather than the norm and that no system could guarantee infallibility in human choices.

Justice Datta expressed hope the present collegium, under CJI Surya Kant, would make "judicious and apposite choices" in future, leaving little room for criticism of the system's functioning.

His observations came in response to the Centre's defence of the statutory mechanism for appointing election commissioners, which had sought to draw a comparison with the collegium system.

Justice Datta questioned the logic of such a comparison, particularly when the executive itself plays a decisive role in judicial appointments. He also questioned the demand for an "outsider" in the selection process for election commissioners when, in the case of judicial appointments, the executive already exercises substantial influence after the collegium makes its recommendations.

"It is undeniable that the collegium system has occasionally faltered and its functioning has not been entirely free from aberrations. However, vociferous criticism, by itself, does not offer an alternative. While the absence of an outsider in the process may invite scrutiny, executive supremacy cannot be the cure. The constitutional quest is not to transfer primacy from one organ to another, but to secure a system that preserves institutional independence through calibrated checks and balances, and fidelity to judicial independence," he wrote.

He invoked BR Ambedkar's vision of a judiciary that is both independent of the executive and competent in itself, observing this vision appeared to be under serious strain in the present circumstances.