Justice Datta's remarks reopen row over appointment powers

Supreme Court judge Dipankar Datta's response to the Centre's defence of the law governing appointment of Election Commissioners has reopened the executive-judiciary dispute over appointments. The 2023 law replaced the CJI in the Anoop Baranwal mechanism with a Union Cabinet minister nominated by the Prime Minister, giving the government two of three panel members. Datta said the Leader of the Opposition's role could be "largely ornamental" and called "judges appoint judges" a myth. The Supreme Court struck down the NJAC in 2015.

Written by AI from News18 — India · not yet reviewed by an editor · Published 24 Sept 2026, 11:51 am IST

Source

News18 — India · read the original report ↗

#judiciary#election commission#collegium#njac#supreme court#appointments

Desk check · compared with the source

What the desk checked (5)

The 2023 law replaced the CJI with a Union Cabinet minister nominated by the PM on the three-member panel selecting the CEC and ECs. — Stated in the source and repeated in its summary section; attributed to the legislation.
Justice Dipankar Datta said the Leader of the Opposition's role could be 'largely ornamental' and that challengers' argument 'does appear to have substance'. — Direct quotes attributed to Justice Datta in the source, described as prima facie observations.
Justice Datta called 'judges appoint judges' a myth, citing executive roles in vetting and implementing collegium recommendations. — Attributed to Justice Datta's opinion in the source.
The Supreme Court struck down the NJAC in 2015, holding that the Union Law Minister's participation violated the basic structure. — Figure and ruling appear in the source; no case citation given.
Arun Jaitley argued in a 2011 article and in 2013 Parliament debate that the collegium lacked transparency and accountability. — Attributed to Jaitley's writings and parliamentary remarks as described in the source.

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Analysts’ view opinion

AI Political Analyst

This looks like a constitutional argument, but its core is raw political arithmetic: the government holds two of three seats on the panel that picks the people who run India's elections. Justice Datta's remarks are only prima facie observations, yet they hand the Opposition a ready-made framing — while the Centre's decision to defend its law by invoking the collegium appears to have backfired. Balancing that, Datta himself accepted that Parliament has an explicit role under Article 324 and that the Anoop Baranwal arrangement was "interim", which is solid constitutional ground for the government.

Replacing the CJI with a minister nominated by the Prime Minister gives the executive a working majority on the three-member panel — politically the most combustible fact in the story.
The observation that the Leader of the Opposition's role may be "largely ornamental" is the kind of line that migrates quickly from courtroom to campaign rhetoric about a captured referee.
By citing the collegium in its defence, the Centre invited a judge to dismiss "judges appoint judges" as a myth, undercutting an argument the executive has leaned on for years.
This fault line predates the current government: the same critique was made by Arun Jaitley as Leader of the Opposition, and the UPA's Judicial Standards and Accountability Bill came from the other side of the aisle — positions tend to shift with proximity to power.
Critics say the 2015 NJAC logic now applies in reverse, but the Centre's point that courts and the Election Commission perform different functions with different accountability structures is not trivial.

What to watch — Watch whether a Constitution Bench is constituted, and whether it frames the question as whether the executive may have any role at all or only whether the specific balance struck by the 2023 law is constitutional.

These are prima facie remarks only; the story does not establish a final ruling on the 2023 law's validity, any actual partisan conduct by the Election Commission, or any effect on electoral outcomes.

Deep dive

Research brief · 8 facts · 9 dates · exam-ready

The brief

Context

The Supreme Court is hearing challenges to the 2023 law that governs the appointment of the Chief Election Commissioner and Election Commissioners. That law replaced the interim mechanism the Court had laid down in Anoop Baranwal — Prime Minister, Leader of the Opposition and Chief Justice of India — by substituting the CJI with a Union Cabinet minister nominated by the Prime Minister, leaving the government with two of three seats on the selection panel. When the Centre defended this by pointing to the judiciary's own collegium, Justice Dipankar Datta replied that "judges appoint judges" is a myth, reopening a long-running executive-judiciary fault line that runs through the Judicial Standards and Accountability Bill, 2010 and the NJAC struck down in 2015.

Key facts

The 2023 law replaced the Anoop Baranwal mechanism (PM, Leader of the Opposition, CJI) with a panel of the PM, a Union Cabinet minister nominated by the PM, and the LoP.
The change gives the government two members on the three-member selection panel for the CEC and Election Commissioners.
Justice Dipankar Datta said the LoP's role could become "largely ornamental" and that the challengers' argument "does appear to have substance", calling these prima facie observations.
Justice Datta rejected "judges appoint judges" as a myth, citing executive roles in vetting, processing and implementing collegium recommendations and the President's imprimatur on every appointment.
The Supreme Court delivered a split verdict on pleas against the law replacing the CJI with a Union minister in the election panel.
Parliament passed the Constitution (99th Amendment) and the NJAC Act in 2014; the six-member NJAC was to have the CJI, two senior-most SC judges, the Union Law Minister and two eminent persons.
The Supreme Court struck down the NJAC in 2015, holding that the Union Law Minister's participation in final selection violated the basic structure.
Arun Jaitley, then LoP in the Rajya Sabha, wrote in a 2011 article: "We are living in a system where judges appoint judges."

Timeline

1993 and 1998Supreme Court judgments produce the modern collegium, shifting appointment power away from the executive.
2009Arun Jaitley questions in Parliament why the judicial appointments system lacks a statutory definition of merit.
2010UPA government introduces the Judicial Standards and Accountability Bill, proposing a National Judicial Oversight Committee.
2011Parliamentary standing committee submits its report on the Bill; Jaitley's article argues "judges appoint judges".
2013Parliament debates a proposed Judicial Appointments Commission; Jaitley says "judges appoint themselves and judges are accountable to judges".
2014Parliament passes the Constitution (99th Amendment) and the NJAC Act.
2015A Constitution Bench strikes down the NJAC and effectively restores the collegium.
2023Parliament enacts the law replacing the CJI with a PM-nominated Union Cabinet minister on the CEC selection panel.
September 24, 2026Story published on Justice Datta's remarks reopening the appointments row.

Who has a stake

Election Commission of India — Its independence and the "appearance of independence" in administering elections depend on how its members are selected.
Supreme Court / Justice Dipankar Datta — Must decide whether the 2023 balance is compatible with an independent ECI, having already struck down the NJAC in 2015.
Union Government / Centre — Defends the 2023 law and its long-held position that judicial control over judicial appointments creates an accountability deficit.
Leader of the Opposition — Holds one seat on the three-member panel, a role Justice Datta suggested could be "largely ornamental".
Parliament — Has an explicit role under Article 324 to legislate the appointment mechanism for Election Commissioners.
Voters and political parties — Free and fair elections turn on a referee perceived to be insulated from the government of the day.

Why it matters

The row is not about personalities but about institutional design: whether independence requires insulation from the executive or accountability requires executive participation. Because the Court used the basic structure doctrine in 2015 to keep the executive out of judicial selection, the same logic is now being tested in reverse on the body that umpires elections. An eventual Constitution Bench ruling on the 2023 CEC law would redraw the line between executive authority and institutional independence.

UPSC angle

Prelims pointers

Anoop Baranwal: SC mandated PM, LoP and CJI to pick CEC/ECs as an interim arrangement until Parliament legislated.
The 2023 law substituted the CJI with a Union Cabinet minister nominated by the Prime Minister.
Article 324 gives Parliament an explicit role in legislating the appointment mechanism for Election Commissioners.
NJAC: created by the Constitution (99th Amendment) Act and NJAC Act, 2014; struck down by the Supreme Court in 2015.
NJAC composition: CJI, two senior-most SC judges, Union Law Minister, and two eminent persons chosen by PM, CJI and LoP.
Judicial Standards and Accountability Bill, 2010 proposed a National Judicial Oversight Committee; standing committee reported in 2011.

Mains framing

The controversy over the 2023 CEC appointment law exposes an unresolved constitutional question: who appoints the heads of institutions meant to be independent of the government they may have to check. The Supreme Court's Anoop Baranwal formula was, as Justice Datta conceded, "interim" and "transient", and Article 324 expressly empowers Parliament to legislate; yet by replacing the CJI with a PM-nominated minister, the law gives the executive two of three panel seats, making the LoP's presence potentially "largely ornamental" and, the challengers argue, eroding the ECI's perceived independence. The Centre's defence — that the judiciary's own collegium excludes outsiders — is a position with a long pedigree, voiced by Arun Jaitley from the Opposition benches in 2009, 2011 and 2013, and institutionalised in the NJAC of 2014, which the Court struck down in 2015 for letting the Law Minister into final selection. Justice Datta's rejoinder, that "judges appoint judges" is a myth given executive vetting, processing and the President's imprimatur, undercuts that symmetry while conceding the collegium's "opacity and imperfections". The way forward lies less in choosing between executive and judicial dominance than in designing selection panels with plural, non-partisan participation, transparent criteria of merit and accountability mechanisms of the kind the 2010 Bill attempted — with the Constitution Bench ruling on whether this particular balance meets the requirement of an independent Election Commission.

Key terms

Anoop Baranwal judgment: Supreme Court ruling that laid down an interim panel of PM, LoP and CJI to select the CEC and ECs until Parliament legislated.
Collegium system: Judge-led mechanism, shaped by the 1993 and 1998 judgments, that recommends appointments to the higher judiciary.
NJAC: National Judicial Appointments Commission, a six-member body created in 2014 to replace the collegium; struck down in 2015.
Basic structure doctrine: Principle that certain core constitutional features, including judicial independence, cannot be abridged even by amendment.
Article 324: Constitutional provision on the Election Commission that gives Parliament a role in legislating the appointment mechanism.
Judicial Standards and Accountability Bill, 2010: UPA-era Bill proposing asset declarations, a complaints framework and a National Judicial Oversight Committee for judges.

Practice questions

Does executive dominance in selecting Election Commissioners violate the constitutional requirement of an independent Election Commission? Examine in light of the 2023 law and the Anoop Baranwal judgment.
"Independence demands insulation from the executive; accountability demands its participation." Critically evaluate this tension with reference to the collegium and the NJAC verdict of 2015.
Compare the constitutional position of judicial appointments and Election Commission appointments. Should the same standard of insulation apply to both? Argue with reasons.

Grounded only in the source report — figures and dates are the source's, not inferred.

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