NJAC To CEC Law: The Long Executive-Judiciary Battle Over Who Gets To Appoint Whom | India News

Last Updated:September 24, 2026, 11:26 IST

The Centre’s reference to the collegium system of appointments and Justice Datta’s response to it has reopened an old constitutional fault line between the executive and judiciary.

Justice Dipankar Datta’s sharp response to the Centre’s defence of the law governing the appointment of India’s Election Commissioners has reopened a much older battle between the executive and the judiciary. At the heart of the latest confrontation is a deceptively simple question of who should have the decisive say in appointing the people who occupy India’s most powerful constitutional institutions.

The immediate dispute concerns the Election Commission. The 2023 law replaced the selection mechanism laid down by the Supreme Court in Anoop Baranwal, under which the Prime Minister, Leader of the Opposition and Chief Justice of India were to select the Chief Election Commissioner and Election Commissioners until Parliament enacted a law. Parliament subsequently replaced the CJI with a Union Cabinet minister nominated by the Prime Minister, giving the government two members on the three-member panel.

Justice Datta has now questioned whether such a structure can provide the Election Commission with not merely independence, but the appearance of independence. He said the presence of the Leader of the Opposition could become “largely ornamental” when the other two members are the Prime Minister and a minister nominated by him. He also said the challengers’ argument that the law gives the executive overwhelming control over appointments and thereby undermines the ECI’s perceived independence “does appear to have substance”, while making clear that these were prima facie observations.

But the more revealing part of his opinion came when the Centre sought to defend the law by invoking the judiciary’s own appointment system.

Justice Datta rejected the popular description of the collegium as a system in which “judges appoint judges”, calling it a myth and pointing to the executive’s role in vetting, processing and implementing collegium recommendations. He also questioned the government’s selective implementation of recommendations.

That exchange, however, has a much longer history.

The Argument Predates The Modi Government

The criticism of the collegium did not begin with the BJP government after 2014. Arun Jaitley was making substantially the same argument years earlier, when he was the Leader of the Opposition in the Rajya Sabha.

In a 2011 article, Jaitley wrote that India had moved from a system in which the executive appointed judges in consultation with the Chief Justice to one in which judicial interpretation had effectively made the Chief Justice’s advice binding. His conclusion was blunt: “We are living in a system where judges appoint judges.”

The issue had also surfaced in Parliament. In 2009, Jaitley, a lawyer by profession, questioned why the existing system lacked a statutory definition of merit for judicial appointments, arguing that the process left too much to the subjective discretion of the recommending authority.

By 2013, when Parliament debated a proposed Judicial Appointments Commission, Jaitley’s criticism had become even more pointed. He argued that the collegium lacked transparency and accountability, saying that “judges appoint themselves and judges are accountable to judges.” He also questioned the practice of judges taking post-retirement government positions, arguing that such prospects could potentially affect perceptions of judicial independence.

This is an important context for the present controversy. The government’s objection to the collegium is not an argument invented to defend the CEC law. It has been a longstanding political and constitutional position, shared by governments and Opposition parties at different points.

The Judicial Standards And Accountability Bill

The Judicial Standards and Accountability Bill, 2010, introduced by the UPA government, sought to create a statutory framework for judicial standards, declarations of assets and liabilities, complaints against judges and mechanisms for investigating allegations of misconduct. It proposed a National Judicial Oversight Committee along with complaint-scrutiny and investigation mechanisms.

The Bill was referred to a parliamentary standing committee, which submitted its report in 2011. The government subsequently began work on amendments. The significance of the episode is that accountability and appointments were increasingly becoming part of the same institutional debate.

If judges exercised considerable influence over who entered the higher judiciary, what mechanism would ensure that those judges were themselves accountable? And if the executive was given a larger role in appointments, would that improve accountability or compromise judicial independence? Those questions never really disappeared.

NJAC: Modi Government’s Big Answer

The BJP government eventually attempted to resolve both the appointment question and, indirectly, the criticism of the collegium through the National Judicial Appointments Commission. In 2014, Parliament passed the Constitution (99th Amendment) and the NJAC Act.

The proposed six-member NJAC comprised the CJI, two senior-most Supreme Court judges, the Union Law Minister and two eminent persons. The latter were to be selected by a committee comprising the Prime Minister, the CJI and the Leader of the Opposition.

The government’s case was straightforward. The collegium was opaque, insufficiently accountable and that the executive and wider society needed a role in selecting judges. The then Law Minister Ravi Shankar Prasad argued in Parliament that the move was not simply a BJP initiative. He pointed to recommendations from various commissions and said the question of replacing the collegium had been under consideration for around two decades.

He also challenged the assumption that the collegium necessarily produced the best judges, noting that the pre-1993 system had produced many highly regarded judges as well. But the Supreme Court struck down the NJAC in 2015.

The Constitution Bench held that the participation of the Union Law Minister in the final selection process undermined judicial independence and violated the basic structure of the Constitution. The Court specifically rejected the argument that executive participation could be justified simply because other countries had executive or legislative involvement in judicial appointments.

That judgment effectively restored the collegium. And this is where the present CEC controversy becomes particularly interesting.

The Same Principle, In Reverse

The argument now appears almost symmetrical. In the NJAC battle, the Court said that the executive cannot have a decisive role in selecting judges because judicial independence is part of the Constitution’s basic structure.

In the CEC case, the challengers say that the executive cannot have overwhelming control over selecting election commissioners because an independent Election Commission is essential to free and fair elections.

The Centre’s answer, in effect, questions why the Election Commission should have a more independent selection mechanism when the judiciary itself has a collegium in which outsiders do not participate.

Justice Datta’s response is essentially that the comparison does not hold. He argued that the executive is involved in judicial appointments at several stages, including credential verification, and that every appointment ultimately bears the President’s imprimatur. He also criticised what he described as selective clearance of collegium recommendations.

That is why his description of “judges appoint judges” as a myth is more consequential than a passing observation since it challenges one of the central political arguments that has been used for years to justify greater executive participation in judicial appointments.

The Executive’s Push Back

The appointments battle is part of a broader constitutional friction. Successive governments have objected when the judiciary has appeared to move beyond adjudication into areas traditionally regarded as belonging to the executive or legislature. Governments have challenged judicial interventions involving policy, administration, appointments and institutional functioning, while the court has repeatedly stressed that constitutional review cannot be excluded merely because a matter concerns executive action.

The underlying disagreement is about institutional boundaries. Where does judicial review end and executive discretion begin? Who decides when an institution requires insulation from the government? And, most importantly, who appoints the people who exercise that power?

The government’s analogy too is not entirely frivolous. Judicial appointments and Election Commission appointments involve different constitutional provisions, institutional functions and accountability structures. The judiciary decides disputes, while the Election Commission administers the electoral process itself.

Parliament also has an explicit constitutional role under Article 324 in legislating on the appointment mechanism for Election Commissioners. Justice Datta himself acknowledged that the Anoop Baranwal arrangement was “interim” and “transient”, rather than a permanent constitutional formula that Parliament was bound to replicate.

So the question before the Constitution Bench, if one is constituted, may not simply be whether the government can ever have a role in choosing Election Commissioners but whether the particular balance created by the 2023 law is compatible with the constitutional requirement of an independent Election Commission.

The Irony In Government’s Defence

The irony is that the Centre’s reliance on the collegium has now produced a judicial response that takes the debate somewhere the government may not have intended. For years, the executive’s critique has been that judges cannot be allowed to effectively choose their own successors.

Justice Datta’s response is, in essence, that the executive is far more involved in that process than the phrase “judges appoint judges” suggests. That does not settle the debate over the collegium. The system has long faced criticism over opacity, consistency and accountability, and even Justice Datta acknowledged its “opacity and imperfections”.

But it does expose the difficulty of using one controversial appointment mechanism as the justification for another. The deeper constitutional question is whether independence requires insulation from the executive, or whether accountability requires executive participation. India has spent decades oscillating between those two impulses.

The 1993 and 1998 judgments that produced the modern collegium moved power away from the executive. The Judicial Standards and Accountability Bill represented an attempt to impose a statutory accountability framework. The NJAC attempted to fundamentally alter the appointment architecture. The Supreme Court struck the NJAC down and restored the collegium. Now the CEC law has reopened the same fault line from the other direction.

Battle Not Really About ‘Who Appoints Whom’

It is ultimately about something more fundamental. How do you design a constitutional institution that is independent of the government but accountable to the constitutional system? The executive has repeatedly argued that judicial control over judicial appointments creates an accountability deficit.

The judiciary has repeatedly argued that executive control over judicial appointments creates an independence deficit. And now, in the CEC case, the same contest is playing out over the Election Commission.

That makes Justice Datta’s intervention worth more than the immediate controversy over his remark. It brings the argument full circle.

The government spent years saying that the judiciary had too much power over who became a judge. The Supreme Court is now asking whether the government has too much power over who becomes an election referee. The eventual Constitution Bench ruling on the CEC law could therefore mark a new chapter in a much older institutional struggle over where India should draw the line between executive authority and institutional independence.

Read More