Hope Present Collegium Makes Proper Choices In Future; Judiciary Playing Second Fiddle To Executive In Judges' Appointment : Justice Dipankar Datta

Justice Dipankar Datta of the Supreme Court criticised the perception that the collegium is solely responsible for every controversial judicial appointment. He observed that people have come to believe that judges alone appoint judges and blamed the collegium for every "infelicitous choice", overlooking that aberrations are exceptions and that no system can guarantee infallibility in human choices.

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

Justice Datta made the observations in his separate opinion in the challenge to the law governing appointments to the Election Commission, while dealing with arguments concerning the collegium system of judicial appointments. His comments on collegium system came in response to the Centre defending the Election Commissioners' appointment process by drawing an analogy with the collegium system where "judges are appointing judges".

Justice Datta rejected the notion that "judges are appointing judges", since the final say is of the Executive.

Judiciary relegated to playing second fiddle to the executive

The judiciary has been relegated to playing second fiddle to the executive in the matter of appointment of judges as the executive selectively implements collegium recommendations, Supreme Court Justice Dipankar Datta observed on Wednesday, while questioning the clamour to include an outsider in selection process for judges.

He observed that, given the executive's role in judicial appointments and its selective implementation of collegium resolutions, Solicitor General Tushar Mehta's invocation of the Collegium system to defend the absence of an outsider from the Election Commission selection mechanism was misplaced.

“Since it is the executive that wins over the 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”, he said.

Selective appointments destroy the sanctity of Collegium resolutions

He noted that the executive approves a majority of collegium recommendations while withholding at least one, and questioned the consequences of such selective implementation becoming an accepted practice. He noted that the collegium nevertheless continues with further recommendations, apparently to avoid a direct confrontation with the executive and keep the judicial appointments process functioning.

“What is most worrying and needs attention for a remedy is 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. Undeterred by such peaceful disapprovals and regardless of the fate of those not cleared by the executive, the Collegium chooses to proceed, seemingly, to avoid a head-on conflict with the executive and left with the choice to keep the institution running. What it thereby avoids arguably is a constitutional crisis, but the larger question which looms is, how long can this state of affairs continue if such selective implementation is allowed to acquire the character of an accepted practice?”

Referring to Dr BR Ambedkar's vision that the judiciary must be independent of the executive and competent in itself, Justice Datta observed that this vision appeared to be under serious strain.

He then questioned why, in such circumstances, there was a demand for an outsider at the stage of selection in the context of the challenge before the Court.

Justice Datta observed, “Dr. Ambedkar's vision was that the judiciary must both be independent of the executive and be competent in itself. However, given the present situation, that vision appears blurred and under serious strain. 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.”

Justice Datta also rejected the characterization of the collegium system as one in which “judges appoint judges”. He described the phrase as a “myth” and pointed to the role played by the executive and other agencies in the appointment process.

“The oft-repeated phrase that judges appoint judges is a myth, which people have been fed by vested interests through motivated narratives, often drawing sustenance from certain controversial decisions taken in this country in relation to appointment of judges”, he said.

Controversial appointments are exceptional aberrations

Addressing the criticism of the collegium system, he explained that the constitutional process involves consultation with the executive at the Centre and in the States, besides scrutiny by intelligence and other agencies, and that judicial appointments ultimately bear the imprimatur of the President.

He further criticised the perception that the collegium alone is responsible for every controversial judicial appointment.

“The uninitiated and the unversed unknowingly have thus been made to believe that the collegium of the Supreme Court and the collegia of the High Courts comprise of judges who appoint judges, and it has become fashionable nowadays to blame the collegium for every infelicitous choice, conveniently forgetting that aberrations are exceptions and not the norm, and that no system can guarantee infallibility of human choice.”

Ultimately, he expressed hope that the present collegium would make appropriate choices under the leadership of the Chief Justice of India Surya Kant, and would leave no room for criticism.

“At the same time, this court expresses hope and trust that henceforth only judicious and apposite choices shall be made by the present collegium under the able leadership of the CJI, leaving little room for future criticism of the system's working”, he said.

The observations form part of Justice Datta's opinion on the issue of whether the challenge to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 should be referred to a Constitutional Bench.

The petitions challenge the statutory mechanism under which the selection committee comprises the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister and the Leader of Opposition in the Lok Sabha. The petitioners contend that the executive's numerical dominance in the committee undermines the independence of the Election Commission.

The bench, also comprising Justice Satish Chandra Sharma, referred the matter to the Constitution bench, with Justice Datta recording prima facie doubts about the independence of the present appointment process for Election Commissioners.

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