While delivering his opinion on the matter of reference in the challenge to the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, Justice Dipankar Datta has opined that it has become "fashionable nowadays" to blame the Collegium for every infelicitous choice.

Justice Datta highlighted that the Collegium's role is merely recommendatory and that the executive holds final decisive control—frequently overriding recommendations, delaying reiterated names, and forcing the judiciary into a Hobson's choice to keep the institution running.

Despite delivering the split verdict, both judges issued a concurring procedural order directing the case papers to be placed before the Chief Justice of India to consider constituting a Constitution Bench directly, avoiding the procedural delay of a three-judge bench, while also highlighting the urgent institutional need to address long-pending references.

While Justice Dipankar Datta held that the challenge could be decided by applying settled constitutional principles without referring the matter to a larger bench, Justice Satish Chandra Sharma favoured referring the substantial constitutional questions to a five-judge bench.

Justice Dipankar Datta observed, "What is most worrying and needs attention for a remedy is that the sanctity of a Collegium resolution is lost each time the executive implements it selectively, albeit approving majority of those recommended while withholding at least one. Undeterred by such piecemeal approvals and regardless of the fate of those not cleared by the executive, the Collegium chooses to proceed, seemingly, to avoid a head-on conflict with the executive and left with a Hobson’s choice to keep the institution running. 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?"

"The oft-repeated phrase that “Judges appoint Judges” is a myth, which people have been fed by vested interests through motivated narratives, often drawing sustenance from certain controversial decisions taken in this century in relation to appointment of Judges. A sweeping generalisation that the Collegium acts as a law unto itself overlooks the detailed consultative process envisaged under the Constitution, and the intrinsic role of the executive — both at the Centre and in the States — as well as intelligence and other agencies in the appointment process including vetting of credentials, and the fact that every appointment bears the imprimatur of the President."

Senior Advocates Gopal Sankaranarayanan, Shadan Farasat and Advocate Prashant Bhushan appeared for the Petitioners, while Attorney General R Venkataramani and Solicitor General Tushar Mehta appeared for the Respondents.

Justice Datta observed, "The uninitiated and the unversed, unknowingly, have thus been made to believe that the Collegium of the Supreme Court and the collegia of the High Courts comprise of “Judges, who appoint Judges”; and, it has become fashionable nowadays 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. Perhaps, none else other than the Government knows better how the Collegium system works."

Justice Datta also opined that the role of the Collegium, insofar as selection is concerned, is nothing more than recommendatory. He added that at every stage prior to the recommendations taking shape, the executive is involved.

"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", he further added.

It was noted that the final saying such matters rests with the executive; i.e. it may or may not accept the recommendations. He said that out of a list of advocates/judicial officers ultimately recommended by the Collegium, one or a couple of them are held back by the executive and not elevated as Judges. 

"The system is so calibrated that the executive can override the recommendation of the CJI led Collegium, notwithstanding the precedents mandating that primacy has to be given to the opinion of the CJI. On multiple occasions, recommendations have not been acted upon by the executive without reasons being disclosed and available in the public domain; and a few of them, even after reiteration, have been left to gather dust for years. Even recommendations for 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 was observed.

Justice Datta said that if the recommendations of the Collegium of the Supreme Court were binding in nature, the same would certainly have been implemented in their entirety.

"Several persons possessed of the aforesaid qualities have been overlooked in the past and, thus, not elevated as High Court Judges, and even as Judges of the Supreme Court owing to reasons other than merit", he said.

Remembering Dr B. R. Ambedkar’s vision that the judiciary must both be independent of the executive and be competent in itself, Justice Datta said that given the present situation, that vision appears blurred and under serious strain.

"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? Coming as it does from the side of the executive, the argument ill-behoves its stature and is a feeble attempt to deflect attention from its own dereliction and failure", he added.

He also observed that to enact a law on the lines empowered by Article 324(2) would have meant freeing the ECI from exclusive executive control and inviting trouble for the ruling regime. He added that this has not been the failing of any one party or one period; a consistent trait of political power, discernible over the decades, has been to preserve leverage over the very body that is meant to judge its claim to power.

Justice Satish Chandra Sharma, on the other hand, opined that fair and free elections, being a part of the basic structure, have been acknowledged in the precedents relied on, and no Court can or would, possibly, doubt it.

"The submission that reference to a Constitution Bench would permit the respondents to launch a challenge to the decision in Anoop Baranwal (supra) and reopen issues settled by it, short-circuiting the reference procedure and, thus, misusing the provisions of Article 145(3) of the Constitution, proceeds on a misapprehension", he said.

Accordingly, in view of the difference of opinion between the two, the Bench directed that the papers be placed before the Chief Justice for considering the desirability of constituting a Constitution Bench of such number of Judges to decide the question of vires of Section 7 and the other provisions of the Act, 2023.

Cause Title: Dr Jaya Thakur Vs Union Of India and other connected matters [Neutral Citation: 2026 INSC 1040]

Appearances:

Petitioners: Senior Advocate Gopal Sankaranarayanan, Senior Advocate Vijay Hansariya, Senior Advocate Sanjay Parikh, Advocate on Record Prashant Bhushan, Advocate on Record Pawan Reley, Advocate on Record M/S. Varun Thakur & Associates, Advocate on Record Sanjeev Malhotra, Advocate on Record Maulshree Pathak and others

Respondents: Attorney General for India R. Venkataramani, Solicitor General Tushar Mehta, Additional Solicitor General Raghvendra P. Shankar, Senior Advocate Pradeep Kumar Rai, Senior Advocate Shadan Farasat, Advocate on Record Gurmeet Singh Makker, Advocate on Record Dr. N. Visakamurthy, Advocate on Record Prateek Kumar, Advocate on Record R. P. Gupta, Advocate on Record Prashant Padmanabhan, Advocate on Record Smita Amratlal Vora, Advocate on Record Mohammed Sadique T.A., Advocate on Record M/S R And R Law Associates, Advocate on Record Talha Abdul Rahman, Advocate on Record Sudipto Sircar and others

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