Supreme Court Judge Calls 'Judges Appoint Judges' a Myth in Election Commissioner Case
Justice Dipankar Datta rejected the government's Collegium parallel in the Election Commission appointments case, while the bench split on referring the matter to a larger bench.
A Supreme Court bench hearing challenges to the 2023 law on Election Commission appointments saw a sharp exchange on Wednesday, after Solicitor General Tushar Mehta invoked the Collegium system to defend the selection panel created by the statute.
Justice Dipankar Datta took exception to the comparison. He said the widely repeated idea that judges appoint judges is a myth, one he said has been sustained by motivated narratives and certain controversial decisions of this century. He stressed that the Collegium does not operate in isolation: the Constitution envisages a detailed consultative process involving the executive at the Centre and in the states, as well as intelligence and other agencies that vet credentials, and every appointment carries the President's approval.
He added that it has become fashionable to blame the Collegium for every poor choice, while ignoring that aberrations are exceptions rather than the norm and that no system can guarantee infallible human judgment.
Selective Clearance
Justice Datta said the more troubling issue is the selective implementation of Collegium resolutions. He noted that the executive often approves most recommendations while holding back at least one, which erodes the sanctity of a Collegium resolution. The judiciary, he said, tends to proceed despite such piecemeal approvals to avoid a head-on conflict and a possible constitutional crisis, leaving it with little choice but to keep the institution functioning.
He asked how long such a situation can continue if selective implementation becomes accepted practice, and invoked B R Ambedkar's vision of a judiciary both independent of the executive and competent in itself, which he said now appears blurred and under strain.
Turning to the case at hand, Justice Datta questioned why there is still a demand to induct an outsider at the selection stage for election commissioners when the judiciary has, in his view, been relegated to a secondary role in judicial appointments. He said the argument, coming from the executive, does not suit its stature and amounts to an attempt to deflect attention from its own failures.
The 2023 Law
The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 set up a three-member selection committee comprising the Prime Minister, a Union Cabinet Minister and the Leader of the Opposition. The earlier mechanism required consultation with the Chief Justice of India, who is not part of the new panel.
Petitioners argue that the composition could undermine the independence of the Election Commission, since the Prime Minister and a minister nominated by him can outvote the Leader of the Opposition. The government had asked 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 delivered a split verdict on that request. Justice Datta declined the reference and offered a prima facie view, while Justice Sharma disagreed and held that a substantial question of law is involved and must be decided by a larger bench.