Supreme Court Judge Justice Dipankar Datta on Wednesday schooled the Centre on the Collegium system of appointing judges during the hearing on the CEC appointment row. Critising the Centre’s argument that the collegium system of appointing judges was essentially “judges appointing judges”, Justice Datta asked, “Judges appoint judges? Really?”
The Centre had used the argument to argue that if there was no objection to the judiciary having a role in appointing judges through the collegium, there should also be no objection to a greater executive role in choosing members of the Election Commission. The Centre was defending the 2023 law that removed the Chief Justice of India from the panel that selects the CEC and Election Commissioners, and replaced him with a “Union Cabinet Minister nominated by the Prime Minister”.
Criticising the Centre’s argument, Justice Datta asked: “Judges appoint judges? Really? The oft-repeated phrase is a myth.” Justice Datta said the idea had been promoted through what he called “motivated narratives”.
The Supreme Court bench of Justices Datta and SC Sharma delivered a split verdict on Wednesday on whether the challenge to the 2023 law should be referred to a Constitution Bench.
Justice Datta did not favour the reference, while Justice Sharma held that the matter warranted consideration by a larger bench. The matter has now been placed before the Chief Justice of India for further action.
At the heart of the dispute is the 2023 law, which replaced the Chief Justice of India with a Union Cabinet Minister nominated by the Prime Minister on the three-member selection panel.
The panel now comprises the Prime Minister, the nominated Union Cabinet Minister and the Leader of Opposition in the Lok Sabha.
Petitioners have challenged the arrangement, arguing that it gives the executive greater influence over the appointment process.
Justice Datta pushed back against the comparison with the collegium. He said describing the system as one in which “judges appoint judges” overlooks the detailed consultation involved in judicial appointments, including the role of the executive at the Centre and in the states, as well as intelligence and other agencies involved in vetting credentials.
He also pointed to the President’s constitutional role in making judicial appointments.
Justice Datta said the public perception that judges alone decide who becomes a judge ignores the executive’s role in the process.
The judge went further, questioning the Centre’s handling of collegium recommendations. He said the sanctity of a collegium resolution is affected when the executive clears recommendations selectively while withholding some names. He questioned how long such a practice could continue.
Justice Datta also acknowledged that the collegium system has faced criticism and has, at times, suffered from shortcomings. But he rejected executive supremacy as the answer.
The constitutional objective, he said, should not be to transfer primacy from one institution to another, but to maintain institutional independence through checks and balances.
The dispute over the ECI appointment law comes against the backdrop of the Supreme Court’s 2023 judgment in Anoop Baranwal v Union of India, when the court had prescribed an interim selection panel comprising the Prime Minister, Leader of Opposition and CJI until Parliament enacted a law. Parliament subsequently enacted the 2023 legislation, replacing the CJI with the government-nominated Cabinet minister.
The final constitutional question over the validity of that law remains to be decided.
The immediate issue before the court on Wednesday was whether the challenge should go before a five-judge Constitution Bench. With the two judges divided, the matter will now move to the next stage before the CJI.