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Informist, Wednesday, Sept. 23, 2026

 

NEW DELHI – The Supreme Court Wednesday observed that the phrase, "judges appoint judges", which is often stated in the context of appointments through the collegium system, is a myth that people have been fed by vested interests through motivated narratives, often drawing sustenance from certain controversial decisions in this century in connection with judicial appointments. The court said the phrase is a sweeping generalisation that claims the collegium acts as a law unto itself and overlooks the detailed consultative process envisaged under the Constitution, the intrinsic role of the executive, intelligence, and other agencies in the appointment process, including in the vetting of credentials, and the fact that every appointment bears the president's imprimatur.

 

The court's remarks came after the Centre tried to compare the law for appointing members of the Election Commission of India with the collegium system. It argued that if the participation of outsiders was not envisaged in appointments to the higher judiciary, a similar objection cannot be raised in the context of appointments to the poll panel. The Centre said the criticism was not limited to the participation or non-participation of outsiders, but extends to the broader question of whether judicial independence can be understood to exclude all forms of scrutiny, accountability, and institutional corrective measures.

 

The uninitiated and the unversed have been made to believe that the collegium of the Supreme Court and the collegia of high courts comprise "judges who appoint judges", Justice Dipankar Datta said. It has become fashionable 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, the court said. Perhaps none other than the government knows better how the collegium system works, it added.

 

The role of the collegium, insofar as selection is concerned, is nothing more than recommendatory, the court said. At every stage prior to the recommendations taking shape, the executive is involved, it said. "Whispers are heard in the corridors that unless approval of the […]; however, let whispers remain whispers and not drown the constitutional wisdom that has sustained the institution," it said.

 

What is unmissable, however, is that at the end of the day, acceptance of the recommendations is within the exclusive domain of the executive; it may, or may not, accept the recommendations, the court said. The final say, therefore, rests with the executive.

 

For the past year and a half or so, advocates and judicial officers recommended for elevation by collegia of the high courts are called upon to interact with judges forming part of the collegium, led by the chief justice of India, whereafter those who are found to be suitable in all respects are finally recommended, it said. However, it is not infrequent that out of a list of advocates and judicial officers ultimately recommended by the collegium, one or more are held back by the executive and not elevated as judges, the court said. The system is so calibrated that the executive can override the recommendations of the collegium headed by the chief justice, notwithstanding precedents mandating that primacy has to be given to the chief justice's opinion, it said.

 

On multiple occasions, recommendations have not been acted upon by the executive without reasons being disclosed; and a few of them, even after reiteration, have been left to gather dust for years, the court said. Even recommendations for the transfer of judges made by the collegium in the interest of administration of justice are not acted upon by the executive in a number of cases, it said.

 

If the recommendations of the collegium of the Supreme Court were binding, they would have been implemented in their entirety, the court said. But the record tells a different story. The court said that while it would not be prudent to discuss specifics, the judiciary would have been richer if sheer merit, unimpeachable integrity, and sterling character had always counted for appointments or elevation to the high courts and the Supreme Court.

 

What is most worrying and needs attention is that the sanctity of a collegium resolution is lost each time the executive implements it selectively, albeit approving the majority of those recommended while withholding at least one, the court said. Undeterred by such piecemeal approvals and regardless of the fate of those not cleared by the executive, the collegium chooses to proceed to avoid a head-on conflict with the executive and to keep the institution running, it said. "What it thereby averts, arguably, 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?"

 

Dr. B.R. Ambedkar's vision was that the judiciary must be both independent of the executive and competent in itself, the court said. However, given the present situation, that vision appears blurred and under serious strain, it 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?" it said. Coming as it does from the executive, the argument ill-behoves its stature and is a feeble attempt to deflect attention from its own dereliction and failure, it added.  End

 

The top court directed that petitions challenging The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023, on inclusion of a Union Cabinet minister to a panel to appoint members of the Election Commission of India be placed before Chief Justice of India Surya Kant.

 

Reported by Surya Tripathi

Edited by Rajeev Pai

 

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