On September 23, a two-judge bench of the Supreme Court differed on the Union government's request to refer the challenge to the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, to a Constitution Bench. In his opinion, Justice Dipankar Datta called the phrase “Judges appoint Judges” a myth, observing that the executive could override the Collegium despite precedents giving primacy to the Chief Justice of India's opinion. Some recommendations, he noted, had been left to gather dust for years, even after reiteration.
The problem was visible again on September 19, when the Union government notified 14 of the 15 judicial officers recommended by the Collegium on September 10. The fifteenth name was missing, and no reason was made public.
The debate over judicial appointments usually revolves around whether the executive or the judiciary should have the final say. Critics call the Collegium opaque and unaccountable, while its defenders fear government interference. But another question deserves attention: what happens when a constitutional authority exercises power through silence?
The answer concerns not just judicial independence, but also federalism and the rule of law.
Articles 124(2) and 217(1) of the Constitution provide for judicial appointments after consultation. For High Court appointments, Article 217(1) identifies the Chief Justice of India, the Governor, and, for judges other than the Chief Justice, the Chief Justice of the High Court as consultees. Articles 222 and 224 deal with transfers and additional or acting judges. None prescribes a deadline for completing the process.
The Constitution thus envisages consultation involving the Union, the State, and the judiciary. Yet the absence of timelines allows files to remain pending without an agreed procedure for determining when a delay becomes unacceptable.
The Constituent Assembly deliberately chose consultation over concurrence. On May 24, 1949, Dr B.R. Ambedkar warned against giving the Chief Justice practically a veto upon the appointment of judges. He favoured a middle course between executive appointment in Britain and Senate concurrence in the United States. An independent judiciary was essential, but neither executive dominance nor an absolute judicial veto was desirable.
The arrangement depended on good faith. Ambedkar had cautioned on November 4, 1948: “Constitutional morality is not a natural sentiment. It has to be cultivated.”
Subsequent judicial history shows how difficult that principle has been to sustain. In S.P. Gupta v. Union of India (1981), the Supreme Court gave the executive primacy in appointments. The Second Judges Case in 1993 reversed that position, requiring effect to be given to reiterated recommendations, while the Third Judges Case in 1998 clarified the Collegium's composition.
In 2015, the Supreme Court struck down the National Judicial Appointments Commission and called for a revised Memorandum of Procedure. A decade later, the two branches have yet to jointly settle the document. The Union considers its finalisation pending, while the Court treats the existing Memorandum as operative.
The Court has repeatedly expressed concern over delays. In PLR Projects Ltd. v. Mahanadi Coalfields Ltd. (2021), it recommended timelines for processing recommendations. In 2023, it told the Union that it could not pick and choose names from Collegium resolutions. Yet compliance has remained uneven.
Executive interference is not a new concern. In 1973 and 1977, the government departed from the seniority convention in appointing Chief Justices of India, passing over judges associated with the Kesavananda Bharati and ADM Jabalpur judgments. The Law Commission, chaired by M.C. Setalvad, had criticised executive influence as well as communal and regional considerations in appointments as early as 1958.
The Collegium, too, has faced questions about transparency. Its October 2017 decision to publish reasons for recommendations was followed by barely two years of reasoned resolutions. Justice Datta acknowledged that the system had its aberrations. He also pointed to the judiciary's predicament: when the government clears only some names, the Collegium proceeds with those appointments rather than risk a confrontation that could disrupt the institution. Both sides, in effect, have learnt to live with silence.
The federal implications emerged when the Collegium recommended Justice Ashwani Kumar Mishra as Chief Justice of the Punjab and Haryana High Court. His appointment was notified on September 5, alongside seven others. The Punjab Cabinet objected that the Union had not waited for the State government's views. The Memorandum of Procedure sets no timeframe for a State's response.
There are important qualifications. Article 217(1) identifies the Governor, not the State Cabinet, as the constitutional consultee. Punjab has not publicly questioned the judge's integrity or competence, and States have no final authority to accept or reject Collegium choices. Nevertheless, the episode exposes a procedural gap: without deadlines, the treatment of a State's silence is left to discretion, potentially creating perceptions of unequal treatment.
A related question arose in the dispute over Governors withholding assent to State Bills. In its advisory opinion of November 20, 2025, the Supreme Court declined to impose fixed timelines or deemed assent. It held, however, that inaction that is “prolonged, unexplained, and indefinite” could invite a limited mandamus. Though the situations differ, both illustrate how constitutional power exercised through inaction can leave another institution waiting indefinitely.
The solution need not reopen the NJAC debate. The Union and the judiciary should jointly finalise and publish the Memorandum of Procedure, with fixed periods for every stage, including responses from States, the Union, and the Collegium.
Both sides must also explain their decisions. In May 2026, the Union Law Minister said there was no tussle with the judiciary and that names were sometimes held back because of concerns such as negative background checks. Such concerns may be legitimate, but reasons should be communicated to the Collegium within a prescribed period. The Collegium, in turn, should record its reasons when reiterating or dropping a name. Every State should receive the same period to respond, after which the process should move forward.
The danger, as Justice Datta warned, is that selective implementation may acquire the character of an accepted practice. Repeatedly withholding names without explanation could alter the working of Articles 124 and 217 without any constitutional amendment.
Judicial appointments cannot be allowed to depend indefinitely on the discretion of one institution, particularly when courts adjudicate disputes between the Union and the States. Ambedkar entrusted consultation to constitutional good faith. Seventy-six years later, good faith needs a timetable, transparency, and an obligation to explain.
(The author is an Assistant Professor (Law) at Maharashtra National Law University, Mumbai. The opinions expressed in this article are those of the author's and do not purport to reflect the opinions or views of THE WEEK.)
