When Justice Dipankar Datta of the Supreme Court on Wednesday raised questions about the method of appointing Election Commissioners, the government lawyer mentioned how judges are appointed. It drew a sharp reaction from the bench.
Justice Datta said, “The oft-repeated phrase that ‘judges appoint judges’ is a myth,” and noted that the government is selective in clearing the Collegium proposals on appointments.
Government “Selective” In Implementation
The central government sought to counter this by saying that even in judicial appointments, existing judges have a predominant say in picking future judges under the Collegium system. Justice Datta took exception to this argument. He underscored that even under the Collegium system, there is a consultative process at play between the government and the judiciary before judges are appointed. He criticised the selective manner in which the central government clears Collegium proposals at times. Instead, a Union Cabinet Minister was made part of the panel, with the remaining two members being the Prime Minister and the Leader of the Opposition. A Division Bench of Justices Datta and Satish Chandra Sharma delivered a split verdict on this aspect. Justice Datta rejected the government’s request for the larger bench reference and gave a prima facie opinion.
Justice Datta made the remarks while addressing the submission by Solicitor General Tushar Mehta during the hearing of petitions challenging the 2023 law that gives more say to the government in appointments to the Election Commission of India (ECI). Petitions against the law raised concerns about the PM and a minister nominated by the PM effectively getting a 2:1 majority against the Leader of Opposition, who is the third member of the selection panel. He rejected the central government’s argument about the Collegium as a possible way to justify the selection panel proposed under the 2023 law for election commissioners’ appointment. The 2023 law created a three-member Selection Committee for appointing the Chief Election Commissioner (CEC) and other Election Commissioners. Notably, while the earlier selection mechanism required consultation with the Chief Justice of India (CJI), the selection panel laid down under the 2023 law did not include the CJI.
“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 said. “A sweeping generalisation that the Collegium acts as a law unto itself overlooks the detailed consultative process envisaged under the Constitution and 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, and the fact that every appointment bears the imprimatur of the President,” he added. He added that the judiciary often chooses not to confront the executive on such matters to avoid “head-on” conflicts and avert a possible Constitutional crisis. Justice Sharma disagreed with the observations made by Justice Datta and said that a substantial question of law was involved in the matter, which must be decided by a larger bench.
