Courts play second fiddle to govt in appointing judges: Justice 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.