Justice Dipankar Datta and Justice Satish Chandra Sharma were on the bench at the Supreme Court of India. They were hearing the petition on the validity of the law on appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) by a panel consisting of the Prime Minister, a Cabinet Minister and the leader of the opposition.
Collegium system
While perusing the arguments forwarded by the parties, Justice Datta, took note of the oral argument made by the Solicitor General drawing a parallel with the Collegium system and stated that this argument has a bearing on the integrity of the institution. “Though not too relevant for the purpose of giving an opinion on the question of whether a reference is called for, which is presently under consideration, his reference to ‘Judges appointing Judges’ seeks to revive an old criticism and, unwittingly, travels beyond the present lis.”
Even though the issue of judicial appointment was not connected to the context of the present matter, however, Justice Datta, deemed it fit to address the issue stating that, “The first instinct too, while writing this opinion, was to be reticent and let such criticism pass. But, on a second thought, it is realised that the judiciary cannot always be at the receiving end.”
Views of Justice Dipankar Datta
The observations were part of his separate opinion in a split verdict on the legality of a 2023 law on appointments of the Chief Election Commissioner and the Election Commissioners and on the executive participation in the Collegium Deliberations for judicial appointments to the High Courts and the Supreme Court
1. The collegium system remains the most viable option for safegaurding judicial independence, despite its "opacity and imperfection"
2. The deficiencies of the collegium could not justify the ushering in of executive participation in collegium deliberations.
3. Judiciary had been relegated to playing second fiddle to the executive in appointments because of the way collegium recommendations were cleared by the Government.
4. The opinion expressed, "Judges appointing judges," was a myth, taking cognisance of the manner in which Government cleared the collegium picks.
5. It was the executive that wielded decisive control and held the reins over appointments at every stage.
6. Referring to Governments's argument that the judiciary had an exclusive say in judges' appointment, he articulated, "Judiciary cannot be at the receiving end," and devoted six pages to the issue.
7.It was further stated that, "Relevant observations in response need to be made, lest silence be misunderstood as a tacit acceptance by the court of such unworthy criticism in circulation."
8. The executive wielded decisive control and held the reins at every level
9. It has become fashionable to blame the collegium for every infelicitous choice, conveniently forgetting that aberrations were exceptions and not the norm and that no system could guarantee infallibility of human choice.
10. The oft repeated phrase that 'judges appoint judges' is a myth, which people have been fed by vested interests through motivated narratives. If the recommendations of the Collegium of the Supreme Court were binding in nature, the same would certainly have been implemented in their entirety. Unfortunately, the records tell a different story.
11. A sweeping generalisation is that the collegium acts as a law unto itself, overlooks the consultative process envisaged under the constitution and the intrinsic role of the executive - both at the centre and in the states.
12. It is undeniable that the collegium system has occasionally faltered and iits functioning has not been entirely free from aberrations. However, vociferous criticism, by itself, does not offer an alternative. While the absence of an outsider may invite scrutiny, executive supremacy cannot be the cure. Criticism may be abundant, but a viable substitute being conspicuously absent, the deficiencies cannot be used as a justification to usher in participation of the executive in the Collegium deliberations.
13. The constitutional quest is not to transfer the primary from one organ to another, but to preserve institutional independence through checks and balances.
14. What is most worrying and needs attention for remedy is that the sanctity of a collegium resolution is lost each time the executive implements it selectively, approving majority of those recommended while withholding at least one. Undeterred by such piecemeal approvals and regardless of the fate of those not cleared by the executive, the collegium chooses to proceed, to avoid a head-on conflict with the executive, left with a hobson's choice to keep the institution running.
15. What it thereby averts, arguably, is a constitutional crisis. But the question is how long can this state of affairs continue if such a selective implementation is allowed to acquire the character of an accepted practice?"
Views of Justice S.C.Sharma
1. SG Tushar Mehta's submission was "not a criticism of the collegium system or regarding the role of the executive in the appointment of judges."
2. It was a submission to the effect that if the constitution bench had held the presence of outsiders in the collegium as violative of the doctrine of separation of powers, a similar independence should be read in the executive and the rules framed under Article 324 be not declared void on the ground that it does not have an outsider in the selection committee or the executive predominates it.
3. The SG had based his argument on the judgement in the National Judicial Appointments Commission case, where a constitution bench held that the presence of even the law minister in the collegium for appontments of SC and HC judges would violate separation of powers.
4. Building upon the constitutional principle, the submission of the SG was that a corresponding degree of constitutional independence must be recognised for the executive as well as the legislature.
5. The SG submitted that the committee constituted under rules framed under Article 324 deserves to be declared legal though dominated by members of the executive.
The Times of India
24 September 2026
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