SC judge defends Collegium system, hits back at Centre

1. At a Glance

• The Collegium is a judge-led mechanism for appointing and transferring judges of the Supreme Court (SC) and High Courts (HCs). It is not in the constitutional text. It evolved through the Judges Cases, which read "consultation" in Art. 124(2) and Art. 217(1) as "concurrence". [1][3]
• The Executive-Judiciary tussle over appointments is a recurring GS-II theme. It covers the primacy of the judiciary, the basic structure, and the separation of powers.
• On 23 Sept 2026, Justice Dipankar Datta called "Judges appoint Judges" a "myth" and criticised the Union's "piecemeal approvals" of Collegium recommendations. He did so in a separate opinion in a split verdict on the 2023 CEC/EC appointments law. [4]

2. Why in the News

• Justice Dipankar Datta (SC) said on Wednesday that critics in the Union government are wrong to call the Collegium an insular mechanism. He said the Judiciary "cannot always be at the receiving end of the Executive". [4]
• His remarks came in a separate opinion in a split verdict on the legality of the 2023 law on appointing the Chief Election Commissioner (CEC) and Election Commissioners (ECs). [4]
• He said the process involves detailed consultation. The Executive at the Centre and in States, and intelligence and other agencies, all play a role. Every appointment bears the President's imprimatur. [4]
• He said the government has calibrated the system to override the Collegium through "piecemeal approvals". Names "gather dust for years", and even transfer recommendations are not acted on. [4]
• The article text available here is truncated, so the rest of his observations and the verdict details are not covered.

3. Background & Evolution

• Articles 124(2) and 217(1) provide for appointment by the President "after consultation" with the judiciary. The Third Judges Case read "consultation" as "concurrence", and a Memorandum of Procedure (MoP) was then formulated. [1]
• 2014: Parliament enacted the Constitution (99th Amendment) Act, 2014 and the NJAC Act, 2014 to replace the Collegium. [1]
• The SC struck down both laws as unconstitutional. It held that the 99th Amendment violated the basic structure because it did not secure judicial primacy in appointments, and it reinstated the Collegium. [1]
• March 2023: the SC declared that CEC/EC appointments should not be made solely by the Executive. [2]
• 10 Aug 2023: the CEC and Other ECs (Appointment, Conditions of Service and Term of Office) Bill was introduced in Rajya Sabha. It repeals the 1991 Act. [2]

4. Core Static Facts

5. Multi-Dimensional Analysis

Legal / Constitutional

• The Collegium rests on judicial interpretation, not on constitutional text. NJAC was struck down on basic structure grounds. [1]
• The 2023 CEC law's selection committee has no judicial member, unlike the SC's March 2023 direction. [2]
• The split verdict on the 2023 law leaves the question open, and a larger Bench may be needed. This is an inference and is not stated in the sources.

Ethical / Governance

• Justice Datta's "piecemeal approvals" charge points to a gap in accountability on executive delay. [4]
• Critics of the Collegium cite its opacity. The PRS blog frames the debate as "Collegium vs. Commission". [1]

Administrative

• The process involves the CJI, the Law Ministry, the State and Central Executive, intelligence agencies, and finally the President. [1][4]
• Selectively clearing names alters seniority and the composition of the bench. This is an analytical point and is not stated in the sources.

Historical

• The sequence runs from the Judges Cases, through the MoP, to NJAC (2014), and then to the 2023 CEC Act. In each, the judiciary and the Executive contest who controls appointments. [1][2]

6. Recent Developments (last 12-18 months)

• 23 Sept 2026: Justice Datta's separate opinion in the split verdict on the 2023 CEC/EC law. [4]
• Earlier context: the CEC/EC Bill was introduced on 10 Aug 2023, and the SC ruled in March 2023 against sole Executive appointment. [2]
• No other 2025-26 events were retrieved within the search budget.

7. Prelims Hooks

• SC Collegium: CJI + 4 senior-most judges. [1]
• HC Collegium: CJI + 2 senior-most SC judges. [1]
• The Third Judges Case interpreted "consultation" as "concurrence" in Art. 124(2) and 217(1). [1]
• The 99th Constitutional Amendment Act, 2014 created the NJAC. [1]
• The SC held the NJAC unconstitutional for violating the basic structure. [1]
• The CEC/EC Bill, 2023 was introduced in Rajya Sabha on 10 Aug 2023. [2]
• The 2023 law repeals the 1991 Act. [2]
• The 2023 selection committee comprises the PM, a Cabinet Minister and the LoP (Lok Sabha). [2]
• The Search Committee is headed by the Cabinet Secretary and proposes five names. [2]
• The Selection Committee may consider names outside the Search Committee panel. [2]
• Justice Dipankar Datta described "Judges appoint Judges" as a myth. [4]

8. What the Delay Actually Looks Like in Numbers

• The gap between sanctioned judges and sitting judges is huge
• On 1 November 2021, 37% of High Court judge posts were empty — 406 vacant out of a sanctioned strength of 1,098 [5].
• In Telangana, Patna and Calcutta High Courts, at least half the posts were vacant [5].

• Between 2010 and 2020, High Court vacancies did not shrink. They grew from 33% to 38% [5].

• The written timeline exists. It is simply not followed.

• The Memorandum of Procedure (MoP) — the rulebook both sides agreed to — says a High Court must start the appointment process at least six months before a post falls vacant [5].

• The Parliamentary Standing Committee said this timeline is "rarely adhered to", and that 35-40% of High Court posts stay unfilled every year [5].

• After the Collegium sends a name, the file still sits

• For 2018-19, the average time the Executive took to complete an appointment after the recommendation reached it was five to seven months [5].

• This is the hard number behind Justice Datta's charge that names "gather dust for years" [4].

• Why an aspirant should care: over four crore cases are pending in Indian courts [5]. Empty benches are not a lawyers' problem. They are a delayed-justice problem for ordinary litigants.

9. Why Clearing Some Names and Not Others Is the Sharper Weapon

• Blocking everything would be visible. Blocking a few is not.
• A full refusal would be an open constitutional fight. "Piecemeal approvals" — clearing part of a list and sitting on the rest — attracts no such attention [4].

• The Collegium's only reply is to send the same name again (reiteration). It has no power to make the Executive act within a date, because the MoP timeline has no penalty attached to it [5].

• Order of appointment decides careers, not just jobs

• In Indian courts, a judge's seniority runs from the date of appointment. If names A and B are recommended together but only A is cleared, A becomes permanently senior to B.

• Seniority then shapes who leads benches, who becomes a High Court Chief Justice, and who enters the pool considered for the Supreme Court. (This is reasoning from how seniority works, not a claim made in the sources.)

• The Standing Committee saw this risk in 2016 and offered a plain fix

• It recommended that when a judge retires, the appointment to that vacancy should be made at the same time, not months later [6].

• A same-day replacement leaves no window in which some files move and others do not.

• Transfers are the quieter half of the same problem — Justice Datta noted that even transfer recommendations are left unacted upon [4]. A transfer that never happens keeps a particular judge on a particular bench, without anyone having to say no.

10. The Strongest Argument Against Justice Datta, and What It Gets Right

• The opposing case, put at its strongest: the Collegium asks the Executive to obey timelines that the Collegium itself does not publish rules for. It demands accountability it does not offer.
• The Standing Committee (2016) had to ask that eligibility criteria, the method of selection, the standard for judging merit, and the number of vacancies be made public [6]. A body that already did these things would not need to be asked.
• It also recommended that a candidate rejected — whether by the Collegium or by the government — be given written reasons [6]. At present a name can disappear with no explanation to anyone.

• It recommended a computerised database of eligible candidates in court registries, so that the pool is not limited to those a few judges happen to know [6].

• What is genuinely right in this criticism: "detailed consultation" with State governments, the Centre and intelligence agencies [4] is consultation that happens behind closed doors. Nobody outside can check whether merit or familiarity decided the outcome.

• Where the criticism fails: it does not excuse the delay.
• Opacity is a defect in how the Collegium picks. Sitting on a cleared file for five to seven months [5] is a defect in how the Executive responds.
• Two separate faults. Fixing neither by pointing at the other is what the 2016 Committee meant when it blamed the lack of agreement between Executive and Judiciary on the MoP for the whole backlog [6].

11. Reforms Already Written Down and Still Not Done

• The Standing Committee on Personnel, Public Grievances, Law and Justice (Anand Sharma, 2016) should have its MoP recommendations carried out [6]:
• Put timelines for appointments to all higher courts into the MoP, binding on every constitutional authority. The present MoP has timelines for High Court appointments but none for the Supreme Court [6].

• Make vacancy numbers, eligibility criteria and merit standards public, and give written reasons for every rejection [6].

• The same Committee's short-term relief measures

• Appoint ad hoc judges from among retired judicial officers to clear the backlog [6].
• Raise the retirement age to 67 for the Supreme Court and 65 for High Courts [6]. This buys years of sitting judge-time without any new appointment file.

• Fix a minimum tenure for Chief Justices, so that leadership of a court does not change every few months [6].

• Why the MoP is the real battleground for a Mains answer: the Collegium survived the NJAC judgment, but the MoP was never finally settled after it. Every delay since then lives in that unfinished document [6]. An answer that ends at "strengthen the Collegium" says nothing; an answer that says "finalise the MoP with enforceable timelines and written reasons" names the actual gap.

12. Anchors for Answers

• Data: 37% of High Court judge posts vacant — 406 of 1,098 sanctioned, as on 1 Nov 2021 [5]
• Data: Government took 5-7 months on average to complete appointments after Collegium recommendation (2018-19) [5]
• Data: 35-40% of High Court posts unfilled every year; over 4 crore cases pending [5]
• Report/Committee: Standing Committee on Personnel, Public Grievances, Law and Justice (Anand Sharma), report on inordinate delay in filling judicial vacancies, 6 December 2016 [6]
• Law/Case: Art. 124(2) and Art. 217(1); Third Judges Case reading "consultation" as "concurrence"; 99th Amendment and NJAC struck down on basic structure grounds [1][3]
• Quote: Justice Dipankar Datta — "Judges appoint Judges" is a "myth"; the Executive uses "piecemeal approvals" while names "gather dust for years" (23 Sept 2026) [4]
• Document to name: the Memorandum of Procedure — has timelines for High Court appointments, none for the Supreme Court, and no penalty for breach [5][6]

13. Mains Relevance

• GS-II: Structure, organisation and functioning of the Judiciary. Separation of powers. Executive-Judiciary relations. Statutory, regulatory and quasi-judicial bodies (the Election Commission).
• Possible questions:
• The Collegium is said to be opaque, yet 'Judges appoint Judges' is called a myth. Critically examine. (15 marks)
• Discuss the role of the Executive in judicial appointments and the effect of delays in clearing Collegium recommendations.
• Examine the constitutional issues in the 2023 law on CEC/EC appointments.

14. Related Topics to Study Next

• Judges Cases (First, Second, Third): they created the Collegium doctrine.
• NJAC / 99th Amendment: this is the basic structure test applied to appointments.
• Memorandum of Procedure: it governs the timelines for the Executive.
• Election Commission independence (Art. 324): the CEC law follows from it.
• Removal of judges (Art. 124(4)): it covers accountability.
• Basic structure doctrine.
• Judicial vacancies and pendency.

15. Common Errors / Trap Areas

• The SC Collegium is CJI + 4 judges, and the HC Collegium is CJI + 2 SC judges. Do not confuse the two.
• The Collegium is not in the Constitution. Articles 124 and 217 say "consultation".
• NJAC was struck down, so the 99th Amendment is not in force.
• The 2023 CEC selection committee has no CJI. That is a change from the SC's 2023 interim direction and is a frequent trap.
• The 2023 Act is a statute, not a constitutional amendment, and it replaced the 1991 Act.