The continuing constitutional debate over appointment of judges returned to the Supreme Court in an unexpected setting on September 23, 2026, when Justice Dipankar Datta used the hearing concerning appointments to the Election Commission of India to question the popular description of the Collegium system as one in which “judges appoint judges”. Justice Datta pointed instead to the substantial role retained by the Union executive at the final stages of judicial appointments and expressed concern that selective acceptance of Collegium recommendations could leave the judiciary functioning, in practical terms, as a “second fiddle” to the executive. At the same time, his observations were not an unqualified defence of the Collegium: he acknowledged concerns about selections made within the judicial appointment process and expressed the hope that the present Collegium would make appropriate choices in the future.
The observations arose during proceedings challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The Union was defending the statutory arrangement under which the selection committee for Election Commissioners consists of the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister and the Leader of Opposition in the Lok Sabha. In answering concerns about executive predominance in that committee, Solicitor General Tushar Mehta referred to the judicial appointments system and the criticism that judges themselves exercise predominant control over appointments to the higher judiciary. Justice Datta’s response opened a wider constitutional discussion about whether that description accurately reflects how the Collegium operates in practice.
Justice Datta described the oft-repeated formulation that “judges appoint judges” as a misleading account of the constitutional process. His reasoning was essentially institutional. A Collegium recommendation does not itself appoint a judge. It initiates or advances a constitutional process in which the executive continues to possess a consequential role. Recommendations are processed by the Union Government, intelligence and other inputs can be placed before the Collegium, recommendations may be returned for reconsideration, and the formal appointment ultimately occurs through presidential action under the Constitution. The Collegium therefore exercises primacy in recommendation under the governing judicial precedents, but it does not physically or legally issue the warrant of appointment.
This distinction is more than semantic. The constitutional debate surrounding the Collegium is frequently framed as a binary choice between “judicial appointments by judges” and “appointments by an elected government”. The actual arrangement is more complex. The higher judiciary and the executive participate at different stages of the process, although the Supreme Court’s Judges Cases have allocated primacy to the judicial component in order to protect judicial independence. The constitutional problem therefore lies not merely in identifying who recommends a candidate, but in understanding how the two institutions interact from recommendation to final notification.
Justice Datta’s concern was particularly directed at what he described as the phenomenon of selective acceptance of Collegium recommendations. Where a Collegium recommends several names together but the executive clears only some while leaving others pending, the sequence of appointments can be altered without the Collegium formally changing its recommendation. The practical consequences can extend to seniority, future elevation and institutional composition. Recent appointments to the Delhi High Court provide an illustration of the mechanics involved: the Collegium recommended eight judicial officers on September 10, while seven appointments were subsequently notified and one recommendation remained uncleared at that point. That fact does not by itself establish an unconstitutional motive, but it illustrates why selective processing has become part of the institutional debate.
Justice Datta’s observations must be understood against the constitutional history of judicial appointments. Articles 124 and 217 contemplate appointments to the Supreme Court and High Courts through presidential action following constitutionally prescribed consultation. The Constitution, in its text, does not use the expression “Collegium”. The present system emerged through judicial interpretation over several decades, particularly through the First, Second and Third Judges Cases.
In S.P. Gupta v. Union of India, commonly called the First Judges Case, the Supreme Court had adopted an interpretation under which the executive enjoyed the dominant role in judicial appointments. That position underwent a fundamental transformation in 1993 through Supreme Court Advocates-on-Record Association v. Union of India, the Second Judges Case. A nine-Judge Bench held that judicial independence required primacy to be accorded to the opinion of the Chief Justice of India formed institutionally in consultation with senior judges. The Court reasoned that judges were institutionally better positioned to assess professional ability, integrity, legal competence and suitability for judicial office, while executive participation remained part of the consultative process.
An important feature of the Second Judges Case is often lost in contemporary descriptions of the Collegium. The judgment did not conceptualise judicial appointments as a competition in which either the judiciary or the executive must “win”. It described the process as a joint constitutional exercise directed towards identifying the most suitable candidates. Judicial primacy became relevant principally where disagreement persisted. The constitutional objective was not institutional superiority for its own sake, but protection of judicial independence while retaining meaningful consultation between constitutional functionaries.
The 1998 Presidential Reference the Third Judges Case further institutionalised the Collegium by enlarging the consultative body for Supreme Court appointments and clarifying the collective character of the Chief Justice’s opinion. The conceptual premise was significant: judicial primacy should itself be exercised collectively rather than becoming the personal appointment power of the Chief Justice of India. Plurality within the judiciary was intended to function as an internal safeguard against individual preference or arbitrariness.
That history provides important context to Justice Datta’s rejection of the expression “judges appoint judges”. The Collegium recommends, but the process does not terminate with its recommendation. The executive examines the proposal, may raise objections and may return a recommendation for reconsideration. The constitutional conventions and judicial precedents governing reiterated recommendations place significant limits on executive resistance, but the practical importance of timing remains. A recommendation that remains pending for a prolonged period can produce consequences even without an express governmental rejection.
It is precisely here that the distinction between formal constitutional power and practical institutional power becomes important. On paper, judicial primacy may remain intact. In practice, however, delay can itself acquire institutional consequences. If some recommendations are notified quickly while others remain pending, the resulting sequence can affect seniority and potentially the future career trajectory of those appointed. The power to determine when a recommendation moves from Collegium resolution to presidential appointment can therefore acquire constitutional significance even where the executive does not formally claim a power of final selection.
Justice Datta’s observations also questioned whether the Collegium has sometimes responded too cautiously to this situation. He suggested that the institution may have avoided confrontation with the executive despite selective clearances becoming increasingly visible. That concern turns the conventional narrative on its head. The usual criticism is that the Collegium has accumulated excessive power at the expense of the elected government. Justice Datta’s intervention raises the opposite possibility: that judicial primacy may exist doctrinally while becoming weakened operationally if the judiciary does not insist upon consistent treatment of its recommendations.
Yet his remarks were not an argument that the Collegium is beyond criticism. On the contrary, he acknowledged the existence of concerns surrounding choices made through the judicial appointment process and expressed the hope that the present Collegium would make proper selections going forward. That qualification is important because judicial independence and appointment accountability are not mutually exclusive concepts. Defending the judiciary against inappropriate executive influence does not require treating every Collegium recommendation as institutionally flawless.
Indeed, the strongest criticism of the Collegium has historically concerned opacity. The process has been criticised for insufficiently articulated selection criteria, limited public explanation of why one candidate is preferred over another, uneven information concerning rejected candidates, and the absence of a permanent institutional secretariat comparable to appointment commissions operating in some other jurisdictions. Greater independence from executive control therefore does not automatically answer questions concerning transparency, diversity, merit and accountability within the Collegium itself.
This duality is crucial. The constitutional conversation becomes distorted when it is reduced to a choice between executive control and an unaccountable Collegium. Judicial independence requires protection from political influence; judicial legitimacy requires a selection process capable of explaining and defending its own standards. A credible appointment system must confront both problems simultaneously.
The constitutional significance of judicial primacy was tested most dramatically through the Ninety-Ninth Constitutional Amendment and the National Judicial Appointments Commission Act. Parliament sought to replace the Collegium with the NJAC, consisting of the Chief Justice of India, two senior-most Supreme Court judges, the Union Law Minister and two eminent persons. In 2015, a five-Judge Constitution Bench, by a four-to-one majority, struck down the constitutional amendment and the NJAC legislation, holding that the altered arrangement impermissibly affected judicial independence, which forms part of the Constitution’s basic structure.
The NJAC decision nevertheless did not amount to a judicial declaration that the Collegium was institutionally perfect. The Supreme Court itself subsequently entertained proceedings concerning improvements to the Collegium system. The constitutional proposition was narrower but fundamental: reform of appointments cannot destroy the independence of the judiciary or place the political executive in a position capable of compromising the decisional autonomy of the courts.
Justice Datta’s September observations therefore revive an old constitutional question in a contemporary form. If judicial primacy is constitutionally protected, what happens when the executive does not openly reject that primacy but influences outcomes through differential processing, delayed notifications or selective acceptance? The issue is subtler than an express claim of executive supremacy because administrative inaction can be more difficult to test than an overt refusal.
There is also a question of constitutional convention. Institutions governed by consultation mechanisms depend not only upon enforceable legal commands but also upon good-faith cooperation between constitutional actors. The Second Judges Case itself envisaged a participatory process rather than permanent institutional hostility. The executive can possess information relevant to security, integrity or suitability that may not otherwise be available to the judiciary. A functioning appointments process must allow such information to be communicated and genuinely considered.
Consequently, not every governmental objection to a Collegium recommendation amounts to an assault on judicial independence. The executive has a constitutionally recognised consultative role. It may possess legitimate reasons for requesting reconsideration, and the Collegium is required to examine relevant material rather than mechanically reiterate its initial decision. Judicial primacy does not mean that executive input must be treated as constitutionally irrelevant.
The problem becomes more difficult where objections are not accompanied by timely institutional resolution. A system of consultation assumes that disagreement will eventually produce either reconsideration, reiteration or appointment. Indefinite pendency creates a third category not easily contemplated by the constitutional design: a recommendation is neither accepted nor conclusively returned. In practical terms, silence can then perform the work of rejection without the institutional accountability ordinarily accompanying an express decision.
The issue of selective clearances similarly requires careful treatment. There can be legitimate administrative reasons why different candidates within a group of recommendations are processed at different speeds. Additional information may be required in one case but not another. The constitutional concern therefore cannot rest merely upon the existence of different timelines. It becomes significant where selective processing develops into a pattern capable of altering Collegium priorities without a transparent institutional explanation.
Justice Datta’s observations are particularly striking because they were made while the Court was examining executive influence over appointments to another constitutional institution—the Election Commission. The Union had relied upon the Collegium as an analogy to answer the criticism that the executive possesses two places on the three-member Election Commissioners selection committee. Justice Datta’s response effectively challenged the premise of that comparison by emphasising that even within judicial appointments, the executive retains substantial practical involvement.
The comparison nevertheless has limits. The constitutional provisions governing judges and Election Commissioners are different, as are the precedents interpreting them. The validity of the Election Commissioners appointment law cannot therefore be determined simply by importing the Collegium model into Article 324. Nor do Justice Datta’s observations concerning judicial appointments themselves amount to a fresh binding ruling altering the Collegium system. They arose in the context of the broader constitutional discussion during the Election Commission litigation.
Still, the exchange reveals a recurring constitutional principle: institutional independence depends not merely upon the character of the person appointed, but upon the structure through which the appointment is made. Courts, election bodies, investigative agencies and regulatory institutions can possess formally independent office-holders while remaining vulnerable if the appointment process creates excessive dependence upon one branch of government.
For the judiciary, the argument is particularly powerful because courts routinely adjudicate disputes involving the Union and State Governments. Constitutional courts examine executive action, strike down legislation, review criminal investigations, decide disputes concerning elections and enforce fundamental rights against the State. A judiciary dependent upon the executive for the selection of its members would therefore create an obvious structural tension.
But the reverse institutional concern must also be confronted. If judges possess decisive influence over appointments to their own institution, the system must develop credible internal safeguards against favouritism, narrow professional networks and inconsistent standards. Judicial independence cannot become a constitutional vocabulary for resisting every form of transparency.
The Second Judges Case itself recognised the importance of plurality as an internal check. Its reasoning proceeded on the assumption that collective consultation among senior judges would reduce the risk of individual bias and arbitrariness. The judgment stressed that the objective was to identify candidates possessing legal ability, integrity, proper conduct, firmness and fearlessness—qualities considered essential to an independent superior judiciary.
The challenge three decades later is whether plurality alone provides sufficient accountability. Modern judicial appointments require consideration not only of professional competence and integrity but also institutional diversity, representation, temperament, constitutional understanding, judicial productivity and the ability to administer increasingly complex courts. The Collegium must therefore demonstrate through its own practices that judicial primacy produces selections justified by the constitutional reason for which that primacy was created.
The Supreme Court has, in recent years, published Collegium resolutions concerning appointments, transfers and elevations on its official platform, providing greater visibility than existed during the earlier years of the system. The Court’s current repository includes resolutions concerning High Court appointments, transfers, Chief Justices and Supreme Court elevations. That development represents an important movement towards institutional transparency, although the broader debate over the depth of reasons disclosed by the Collegium remains unresolved.
Justice Datta’s hope that the present Collegium makes proper choices should consequently be read alongside his criticism of executive influence. The two propositions reinforce rather than contradict each other. If the judiciary claims constitutional primacy because judges are institutionally best positioned to identify persons suitable for judicial office, the quality of the choices made through that primacy becomes central to the legitimacy of the system.
Likewise, executive accountability cannot be invoked to justify political control over appointments. The elected character of the Government gives it democratic legitimacy, but constitutional democracy deliberately creates institutions that are insulated from direct majoritarian control. Courts are among the clearest examples. Their function frequently requires them to restrain governments possessing overwhelming electoral mandates. Independence from political power is therefore not a democratic defect; it is part of the constitutional structure within which democratic power operates.
The more productive constitutional debate is thus not whether judges or governments should “control” appointments. The constitutional objective identified in the Judges Cases was to create a participatory process in which different institutions contribute what each is best positioned to assess, while ensuring that the executive cannot dominate the composition of the judiciary.
From that perspective, the language of one institution playing “second fiddle” to another identifies a structural warning rather than a complete description of the law. The Constitution does not envisage the judiciary and executive as competitors seeking institutional victory. The executive’s legitimate consultative role must be preserved, just as the judiciary’s constitutionally recognised primacy must remain effective. What matters is whether the process ultimately produces judges capable of deciding cases independently of both the government that participated in their appointment and the judges who recommended them.
Justice Datta’s intervention therefore exposes weaknesses on both sides of the appointments debate. An executive capable of selectively controlling the timing of judicial appointments may weaken judicial primacy without formally repudiating it. A Collegium unable to convincingly demonstrate why particular candidates deserve appointment risks weakening public confidence in the very system designed to preserve independence. Neither difficulty can be solved by pretending the other does not exist.
The constitutional future of judicial appointments consequently lies in strengthening independence and accountability together. Timelines for processing recommendations, principled treatment of reiterated names, transparent communication of objections, clearer selection criteria, a stronger institutional secretariat and more informative Collegium resolutions are not necessarily alternatives to judicial primacy. Properly designed, they could make that primacy more defensible.
The September 23 exchange is therefore important beyond the immediate controversy concerning Election Commissioners. It has reopened a fundamental institutional conversation about who actually exercises power in the appointment of judges and how that power should be controlled. Justice Datta’s remarks challenge the simplicity of the claim that judges alone appoint judges, but they equally resist the proposition that judicial primacy excuses the Collegium from scrutiny.
The enduring constitutional principle is more demanding than either slogan. Judicial appointments must remain sufficiently insulated from the political executive to preserve the independence of courts, yet the judiciary must exercise its privileged role through a process capable of commanding confidence on grounds of merit, integrity, transparency and institutional fairness. The Collegium’s constitutional strength ultimately depends not merely upon resisting executive dominance, but upon demonstrating through the quality and credibility of its own choices why judicial primacy was considered necessary in the first place.
