Justice Datta Rebukes Collegium Critics, Calls Out Government Delays

Supreme Court Justice Dipankar Datta on Wednesday strongly defended the Collegium system of judicial appointments, rejecting the charge that it amounts to "judges appointing judges" and accusing the Union government of deflecting attention from its own failures.

The observations came in his separate opinion in a split verdict on the legality of a 2023 law governing appointments to the posts of Chief Election Commissioner and Election Commissioners.

Justice Datta described the widely repeated phrase "judges appoint judges" as a myth fed to the public by vested interests through motivated narratives, often drawing on controversial decisions taken this century on judicial appointments.

He said broad claims that the Collegium acts as a law unto itself ignore the detailed consultative process and the role played by the Executive at the Central and State levels, as well as by intelligence and other agencies. Every judicial appointment, he noted, carries the imprimatur of the President.

Turning to the government's record, Justice Datta pointed to what he called piecemeal approvals of Supreme Court Collegium recommendations. He said the appointment system has been calibrated to override Collegium recommendations, with proposed names gathering dust for years and transfer recommendations often left unacted upon.

He questioned why, even after the judiciary has been relegated to playing second fiddle to the Executive on appointments, there remains a clamour to induct an outsider at the selection stage. Coming from the Executive, he said, the argument ill-behoves its stature and is a feeble attempt to deflect attention from its own dereliction and failure.

Despite this conduct, Justice Datta said, the Collegium continues its work to avoid a head-on conflict with the Executive, left with a Hobson's choice to keep the institution running.

The judge was responding to oral submissions by Solicitor General Tushar Mehta, who had drawn a parallel between judicial and Election Commission appointments and questioned the Supreme Court's consistency. Mr. Mehta asked why the court had rejected outsiders in judicial appointments in the NJAC ruling while insisting that the Chief Justice of India sit on the selection committee for Election Commissioners.

Justice Datta said the criticism was unworthy but warranted a reply, lest his silence be mistaken for tacit acceptance. He added that vociferous criticism alone offers no alternative, and that while the absence of an outsider may invite scrutiny, Executive supremacy cannot be the cure. The constitutional aim, he said, is not to shift primacy from one organ to another but to secure a system that preserves institutional independence.

Justice Satish Chandra Sharma differed with these observations, writing that the Solicitor General's submissions were not meant as criticism of the Collegium system. In his view, the submission was that if a Constitution Bench had held the presence of outsiders in the Collegium violative of the doctrine of separation of powers, a similar independence should be read into the Executive. He said it was neither a criticism of the Collegium nor an attempt to open a debate on how the selection system has worked.