New Delhi, Sep 23 In a spirited and unusual defence that too in a judgment of the collegium system, Supreme Court judge Justice Dipankar Datta on Wednesday said the oft-repeated criticism of “judges appoint judges” is a “myth” and people have been fed by vested interests through “motivated narratives”.
Justice Datta, rather, flagged selective appointments by the government based on collegium resolutions and said they lose sanctity due to a selective approach.
While acknowledging certain aberrations, Justice Datta said, “…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.”
The significant observations of Justice Datta came in a split verdict delivered by the bench of which Justice Satish Chand Sharma was also part.
The bench was deciding a batch of pleas challenging the validity of a 2023 law that excludes the CJI from the panel for selecting the chief election commissioner (CEC) and election commissioners.
Justice Datta said, “It is considered necessary to address a misconception that has been allowed to proliferate. 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 century in relation to the appointment of judges.”
He made the observation with regard to the submission of the Centre that in the Indian judiciary, judges appoint judges through the collegium system while defending the 2023 law.
He said a sweeping generalisation that the collegium acts as a law unto itself overlooks the detailed consultative process envisaged under the Constitution, the intrinsic role of the executive, both at the Centre and in the states, as well as intelligence and other agencies in the appointment process, including vetting of credentials.
Justice Datta said the fact that every appointment bears the imprimatur of the president. The uninitiated and the unversed unknowingly have thus been made to believe that the collegium of the Supreme Court and the collegium of the high courts comprise judges, who appoint judges, he said.
He further said it has become fashionable nowadays to blame the collegium for every infelicitous choice, conveniently forgetting that aberrations are exceptions and not the norm, and no system can guarantee infallibility of human choice. Perhaps none else, other than the government, knows better how the collegium system works, the judge added.
Voicing his concern, Justice Datta said 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 the majority of those recommended while withholding at least one.
“Undeterred by such peaceful approvals 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 is left with the option to keep the institution running,” he said, adding that the collegium thereby averts a constitutional crisis.
While referring to Dr B R Ambedkar’s vision that the judiciary must both be independent of the executive and be competent in itself, he said the larger question which looms is for how long can this state of affairs continue if such selective implementation is allowed to acquire the character of an accepted practice?
Justice Datta further said, however, that vision of Dr Ambedkar appears blurred and under serious strain given the present situation.
“… 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, coming as it does from the side of the executive, the argument ill-behoves its stature, and is a feeble attempt to deflect attention from its own dereliction and failure,” he said.
Justice Datta pointed out that it is the executive that wields decisive control and holds the reins over the appointment of judges at every stratum.
“The response of the defenders (government) for sustaining the impugned legislation (2023 law) by seeking to draw a parallel with the collegium system of not having an outsider is rather disingenuous, evasive and disquieting,” he said.
Justice Datta said the Supreme Court expresses hope and trust that henceforth only judicious and apposite choices shall be made by the present collegium under the leadership of the CJI, leaving little room for future criticism of the system’s working.
The bench directed that the matters be placed before CJI Surya Kant on the administrative side for the constitution of a bench of appropriate strength for an effective and authoritative adjudication.
It also requested the CJI to explore the possibility of setting up a permanent five-judge Constitution bench for deciding seminal issues.
Justice Datta said so far, for all the criticism, no other alternative model that is demonstrably superior for the judiciary in this country has been suggested.
“Despite all its opacity and imperfections, the collegium system still remains the most viable option for safeguarding independence, as envisioned under Article 50 of the Constitution by its framers,” he said.
(PTI News)
