Supreme Court judge defends Collegium, flags Centre’s ‘selective’ approvals

Reading it out, he added, “It is considered absolutely necessary to address a misconception that has been allowed to proliferate. The off-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 appointment of judges.”

Judge flags ‘piecemeal approvals’

Justice Datta 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 that “the uninitiated and the unwatched, 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. Perhaps none else, other than government knows better how the collegium system works.”

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 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, seemingly, to avoid a head-on conflict with the executive and left with a Hobson’s Choice, to keep the institution running.”

He added, “What it thereby averts probably 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.”

Independent judiciary and an Ambedkar reference

The opinion also referred to Dr B R Ambedkar’s views and said, his “vision was that the judiciary must both be independent of the executive and be competent in itself. However, given the present situation, that mission appears blind, and under serious strain”.

Justice Datta 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 appointments 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 detection from its own dereliction and failure”.

The judgement said that “since it is the executive that wields decisive control and holds the reins over appointment of judges at every stratum, the response of the defenders for sustaining the new legislation, by seeking to draw a parallel to the Collegium system, of not having an outsider, is rather disingenuous, evasive, and disquieting.”

It added that “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.”