Courts play second fiddle to government in appointing judges: Justice Dipankar Datta

New Delhi Justice Dipankar Datta in his opinion on referring the law on the appointment of CEC and ECs to a five-judge bench questioned the selective implementation of Supreme Court collegium recommendations, suggesting that the phrase “judges appoint judges” is a myth because the judiciary “plays second fiddle” to the executive in such matters.

Justice Dipankar Datta was responding to an argument made by solicitor general Tushar Mehta during the hearing that a committee dominated by executive members in CEC and EC appointments cannot be faulted because in judicial appointments, judges appoint judges.

The CEC and EC (Appointment, Conditions of Service and Term of Office) Act, 2023 provides for a selection panel headed by the Prime Minister, along with the Leader of Opposition in the Lok Sabha and a Union Minister to carry out the appointment of CEC and ECs.

Justice Datta said that the “sanctity of a Collegium resolution is lost each time the executive implements it selectively, albeit approving majority of those recommended while withholding at least one.”

“Since the executive wields decisive control and holds the reins over 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 disquieting,” the justice said.

Referring to multiple instances when meritorious candidates recommended by the collegium have gathered dust, without any reasons being forthcoming, he said, “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.”

Undeterred by such piecemeal approvals, he said, the collegium chooses to proceed to avoid a head-on conflict with the executive and is “left with a Hobson’s choice” to keep the institution running.

In his opinion, the justice did admit that the collegium has “occasionally faltered” and its functioning has not been “entirely free from aberrations”. He expressed hope and trust that henceforth only “judicious and apposite choices” are made by the Chief Justice-headed collegium, leaving little room for future criticism of the system’s working.

However, the criticism of Mehta’s argument did not find favour with the other judge on the bench—Justice Satish Chandra Sharma—who found the SG’s submission to be neither a criticism of the Collegium system nor initiating any debate regarding the manner in which the selection system has worked so far.

Instead, Justice Sharma pointed out that the submission was on a constitutional issue where a parallel was sought to be drawn on the presence of outsiders (the Union Law Minister and eminent members) in the National Judicial Appointments Commission, that was struck down by the Supreme Court in 2015. He said that Mehta argued that a similar independence should be read in the executive also and the rules framed under Article 324 (for CEC, EC appointment) should not be struck down for not having any outsider in the selection committee or where there is predominance of the executive in the committee.

In his opinion Justice Datta said that the myth that the collegium appoints judges is fed by “vested interests through motivated narratives” and sought to put the record straight by stating how at the end of the day, “The final say rests with the executive.”

He wondered for how long the present state of affairs will continue as he reiterated that the role of the collegium is only recommendatory and blaming the collegium for every “infelicitous” choice is to forget that aberrations are exceptions and not the norm and no system can guarantee infallibility of human choice.