Not All Recommendations Of SC Collegium Are Acted Upon Due To 'External Forces': Justice Dipankar Datta

Supreme Court judge Justice Dipankar Datta on Saturday (June 28) while addressing the 'critics' of the 'Collegium System' said that the notion that it is 'only judges appointing judges' is a 'misconceived one' and in fact there are 'external forces' which hinders appointments of judges.

These external forces, Justice Datta underlined, "must be dealt with sternly."

"We need to tell the society that if judges were to appoint judges then all the recommendations of the Supreme Court Collegium would have been acted upon. But that doesn't happen. When I was a member of the Calcutta High Court Collegium in 2019, we recommended appointment of an advocate to as a HC judge but that is not yet acted upon and it's been six years now.  Why does it happen? No one questions that," Justice Datta said. 

Further, calling for a stern action, Justice Datta, added, "Therefore, the external forces which prevents the collegium recommendations from being acted upon should be dealt with sternly and I feel that whatever proceedings are pending must be given top priority to ensure that merit, merit and only merit is considered and not the extraneous considerations."

Justice Datta further urged Chief Justice of India (CJI) Bhushan Gavai to dispense such misconceived notion that 'judges appoints judges' and bring in more transparency in the Collegium system. 

"Sir (CJI Gavai) this is an appeal to you this is high time that we dispense with the misconceived notion that judges appoints judges. Critics of the Collegium system have been vociferous, why should there be a Collegium system?" he said. 

Justice Datta then spoke about how three Chief Justices of Bombay High Court were not even considered to become Supreme Court judges way back in 1980s by the pre-collegium system.

"Let me go back to 1980s of the last century... Let me recall Chief Justices MN Chandurkar, Chittadosh Mookerje and PD Desai... Those who practice before these Chief Justices and even others will vouch that they were no less than the judges who made it to the Supreme Court in 1980s?Does anybody question the pre- collegium system? We only refer to the supersession of these three judges by a judge in 1974 just prior to the Kesavananda Bharti judgment and then the supersession of Justice HR Khanna by the next Supreme Court judge..But why does not anyone question why CJ Chandurkar, CJ Mookerje or CJ Desai couldn't make it to the SC?" Justice Datta raised questions. 

Even judges of the Collegium said that the system is opaque, the Supreme Court judges pointed out, however, clarifying, "But now we are trying to bring in transparency. I would say from opacity the system is now translucent but Sir under you we expect there should be a transparent process and as you have repeatedly said that there cannot be a compromise on merit, that must be adhered to."

Responding to Justice Datta's concerns, CJI Gavai, said that the most recent appointment to the Supreme Court of Justice Atul Chandurkar the senior-most puisne judge of the Bombay High Court is the 'living example' of transparency in the Collegium System. 

"We are following transparency, we are interacting with the candidates and we find that interactions work their way out. We have tried to maintain seniority and merit. A living example of this is the appointment of Justice Atul Chandurkar to the Supreme Court," CJI Gavai said. 

The two judges were speaking at the felicitation ceremony of CJI Gavai conducted by the High Court Bar Association (HCBA), Nagpur.

In his detailed speech, Justice Datta also pointed out that 'judicial activism' has come to stay as a means of ensuring justice in our dynamic society.

"Now sometimes, activism progresses towards judicial adventurism and if it further over-reaches, then critics says it amounts to judicial terrorism. Since this is the concern expressed by CJI, may I address my former colleagues and all judicial officers present today to always remember the 5 principles D (Dharma), S (Satya),  N (Nitin), N (Nyay) and S (Shanti)," Justice Datta said. 

Explaining these principles, Justice Datta emphasised that the Dharma is not about any religion but about righteousness and how the judges must always do what is right and correct. Further, he said judges must always strive to find the Satya. 

"N is Niti, which would mean principles of law, Constitution, the Statute, the precedents. Let's not forget and rather we must abide by these principles. Otherwise critics will say we are overreaching and thus by adhering to principles we will not cross the Lakshman Rekha of judicial terrorism," Justice Datta said. 

The second N he said refers to Nyay, which is basically the quality of justice that judges dispense to the persons before them.

"And all this (DSNN) is to ensure the last S which is Shanti - peace in society. We are an important stake holder in the society and we along with other organs must strive to ensure there is no Ashanti because of our orders," he concluded.