New Delhi Justice Dipankar Datta in his opinion on referring the law on the appointment of CEC and ECs to a five-judge bench questioned the selective implementation of Supreme Court collegium recommendations, suggesting that the phrase “judges appoint judges” is a myth because the judiciary “plays second fiddle” to the executive in such matters.
However, the criticism of Mehta’s argument did not find favour with the other judge on the bench—Justice Satish Chandra Sharma—who found the SG’s submission to be neither a criticism of the Collegium system nor initiating any debate regarding the manner in which the selection system has worked so far. Instead, Justice Sharma pointed out that the submission was on a constitutional issue where a parallel was sought to be drawn on the presence of outsiders (the Union Law Minister and eminent members) in the National Judicial Appointments Commission, that was struck down by the Supreme Court in 2015. He said that Mehta argued that a similar independence should be read in the executive also and the rules framed under Article 324 (for CEC, EC appointment) should not be struck down for not having any outsider in the selection committee or where there is predominance of the executive in the committee.
Because in judicial appointments, judges appoint judges, justice Dipankar Datta was responding to an argument made by solicitor general Tushar Mehta during the hearing that a committee dominated by executive members in CEC and EC appointments cannot be faulted.
Referring to multiple instances when meritorious candidates recommended by the collegium have gathered dust, without any reasons being forthcoming, he 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 appointment of Judges, is there still a clamour to induct an outsider at the stage of selection.
