NEW DELHI: Holding that the collegium system remains the most viable option for safeguarding judicial independence despite its “opacity and imperfections”, Justice Dipankar Datta Wednesday said its deficiencies could not justify ushering in executive participation in collegium deliberations. He said judiciary had been relegated to playing second fiddle to the executive in appointments because of the way collegium recommendations were cleared by govt.Referring to govt’s argument that the judiciary had an exclusive say in judges’ appointments, Datta said “judiciary cannot always be at the receiving end” and devoted six pages to the issue, saying “relevant observations in response need to be made, lest the silence be misunderstood as a tacit acceptance by the court of such unworthy criticism in circulation”.Datta said the executive wielded decisive control and held the reins over appointments at every level. He said it had become fashionable to blame the collegium for every infelicitous choice, conveniently forgetting that aberrations were exceptions and not the norm, and that no system could guarantee infallibility of human choice.The other judge on the bench, Justice S C Sharma said SG Tushar Mehta’s submission was “not a criticism of the collegium system or regarding the role of executive in the appointment of judges”.“It was a submission to the effect that if the constitution bench has held the presence of outsiders in collegium as violative of doctrine of separation of powers, a similar independence should be read in executive and rules framed under Art 324 be not declared void on the ground that it does not have an outsider in the selection committee or the executive predominates in it,” he said.Sharma said the SG had based his argument on the judgment in the National Judicial Appointments Commission case, where a constitution bench held that the presence of even the law minister in the collegium for appointment of SC and HC judges would violate separation of powers. “Building upon the constitutional principle, the submission of the SG was that a corresponding degree of constitutional independence must be recognised for the executive as well as legislature. He submitted that the committee constituted under rules framed under Art 324 deserves to be declared legal though dominated by members of executive,” Sharma said.Datta said, “The oft-repeated phrase that ‘judges appoint judges’ is a myth, which people have been fed by vested interests through motivated narratives. A sweeping generalisation that collegium acts as a law unto itself overlooks the consultative process envisaged under the Constitution, and the intrinsic role of executive – both at Centre and in the states.”He added, “It is undeniable that collegium system has occasionally faltered and its functioning has not been free from aberrations. However, vociferous criticism, by itself, does not offer an alternative.
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While absence of an outsider may invite scrutiny, executive supremacy cannot be the cure. The constitutional quest is not to transfer primacy from one organ to another, but to preserve independence through checks and balances.“What is worrying is that the sanctity of a collegium resolution is lost each time the executive implements it selectively, approving majority of those recommended while withholding one. Undeterred by piecemeal approvals and fate of those not cleared by the executive, collegium chooses to proceed, to avoid a head-on conflict with the executive, left with a Hobson’s choice to keep the institution running. What it averts is a constitutional crisis; but the larger question is: how long can this state of affairs continue, if selective implementation is allowed to acquire the character of an accepted practice?”
