'Judiciary plays second fiddle to govt in judges' appointment’: SC Justice Datta defends collegium system
During a Supreme Court hearing, a sitting judge made observations on the process by which judges of the higher judiciary are appointed in India
The judge stated that the common description of the process as "judges appointing judges" is a misconception, since the final appointment authority rests with the executive, which formally notifies (or withholds) each appointment
The judge observed that when the executive accepts some collegium recommendations while leaving others pending without action, the sanctity of a collegium resolution is diminished each time it happens
The observations defended the collegium system's institutional design while critiquing the manner of its implementation in practice
The Collegium System — Origins in the Three Judges Cases
The collegium system for appointing judges to the Supreme Court and High Courts is not written into the constitutional text; it emerged entirely through Supreme Court interpretation of the "consultation" requirement in Articles 124 and 217 across three landmark rulings.
Key Details
- S.P. Gupta v. Union of India (1981), the "First Judges Case," held that "consultation" with the Chief Justice under Articles 124 and 217 did not mean "concurrence," giving the executive primacy in appointments
- Supreme Court Advocates-on-Record Association v. Union of India (1993), the "Second Judges Case," reversed this position, holding that the Chief Justice's opinion — formed in consultation with the two senior-most judges — was binding on the President, and created the collegium
- In re Presidential Reference (1998), the "Third Judges Case," was the Court's advisory opinion (under Article 143) expanding the Supreme Court collegium to the Chief Justice of India plus the four senior-most judges
- Together these rulings shifted appointment primacy from the executive to a judicial collegium, without any constitutional amendment
The current remarks revisit exactly this history, questioning whether the executive's practice of selectively acting on collegium names has, in effect, restored a degree of executive control the collegium jurisprudence was meant to remove.
Articles 124(2) and 217(1) — Constitutional Basis for Judicial Appointments
Article 124(2) provides that Supreme Court judges are appointed by the President after consultation with such judges of the Supreme Court and High Courts as the President deems necessary, and mandates consultation with the CJI for appointments other than the CJI's own. Article 217(1) provides a parallel mechanism for High Court judges, requiring consultation with the CJI, the Governor of the State, and (for judges other than the Chief Justice) the Chief Justice of the High Court concerned.
Key Details
- Neither article mentions a "collegium" by name; the term and its binding character are judicial constructs read into the word "consultation"
- The President formally appoints and notifies judges, meaning the executive retains a procedural, non-discretionary role once a recommendation is validly made under the collegium framework
- This dual structure — judicial recommendation, executive notification — is the basis for the "judges appoint judges" characterization that the recent remarks pushed back against
The judge's point was that because notification remains an executive act, describing the system as "judges appointing judges" overstates judicial control and understates the executive's practical leverage through delay.
NJAC Case (2015) — Reaffirmation of the Collegium
In 2015, a five-judge Constitution Bench struck down the 99th Constitutional Amendment Act, 2014 and the National Judicial Appointments Commission (NJAC) Act, 2014, by a 4:1 majority, holding that the collegium system's primacy for judicial independence was part of the Constitution's basic structure.
Key Details
- The NJAC would have replaced the collegium with a six-member body including the CJI, two senior SC judges, the Union Law Minister, and two eminent persons
- The Court held that giving the executive an effective veto (through the Law Minister and eminent persons) over judicial appointments compromised judicial independence, a basic structure feature
- Following the ruling, the Court directed revision of the Memorandum of Procedure (MoP) — the document governing the appointment process — but the collegium framework itself was retained
The NJAC verdict is the constitutional backstop for the collegium's continued existence; the present observations concern not the system's legitimacy (already settled) but the fairness of how the executive implements it under the MoP.
Memorandum of Procedure (MoP) and the Reiteration Rule
The MoP is the administrative document, evolved from the three Judges Cases, that governs the practical steps of judicial appointment: the collegium recommends, the government can raise objections or seek reconsideration once, but if the collegium reiterates the same name, the government is bound to notify the appointment.
Key Details
- The government does not have an absolute veto: a name sent back for reconsideration and then reiterated by the collegium must be notified
- In practice, delays arise when the government neither notifies a reiterated name nor formally rejects it, leaving recommendations pending indefinitely
- This gap between the binding legal rule (reiteration must be notified) and administrative practice (recommendations can languish without a decision) is the specific issue the recent remarks about "selective implementation" addressed
The critique of selective clearance of collegium proposals maps directly onto this reiteration mechanism — the concern is not that the government exercises its one permitted objection, but that pending or reiterated names are left unacted upon without any formal rejection, hollowing out the enforceability of the MoP rule.
- First Judges Case: S.P. Gupta v. Union of India, 1981 — executive primacy in "consultation"
- Second Judges Case: SCAORA v. Union of India, 1993 — created the collegium; CJI's opinion (with two senior judges) made binding
- Third Judges Case: In re Presidential Reference, 1998 — Supreme Court collegium expanded to CJI plus four senior-most judges
- Constitutional basis: Article 124(2) (Supreme Court judges), Article 217(1) (High Court judges)
- NJAC struck down: 2015, by a 4:1 majority of a five-judge Constitution Bench; 99th Amendment Act and NJAC Act, 2014 held unconstitutional
- MoP rule: government may seek reconsideration once; on reiteration by the collegium, the government is bound to notify the appointment