Reviving the old debate on who should be entrusted with the task of appointing judges in the country, the Union Cabinet is all set to discuss a Bill on Thursday that seeks to give Government an equal say in the appointment process, which has been dominated by judiciary since 1993.
A note circulated by the law Ministry tabling the National Judicial Appointments Bill for the Cabinet meet on Thursday indicated the move of the Government to replace the existing five-member collegium system comprising Chief Justice of India and four senior most judges.
The purposed panel, to be headed by Chief Justice of India, is known as Judicial Appointments Commission (JAC). In addition, two judges of the Supreme Court will be its members. The law Minister will be present in the panel as a representative of the Government. The Bill also provides for two eminent jurists to be recommended by the President as part of the panel. So far, the leader of Opposition in the lok Sabha is not part of the proposed panel, but the Government is open to consider this suggestion.
The Cabinet note said, “The proposed amendments will provide constitutional backing to the process of consultation through the institution of JAC and will make the process truly participatory between the Executive and the Judiciary without compromising the independence of the Judiciary.”
This exercise will require amendment to several provisions in the Constitution — Articles 124, 217, 222 and 231 — and insertion of Article 124 A. Support across the political spectrum is a must as such an amendment would require support of two-thirds of the House present and voting.
Interestingly, eminent jurists in the country have openly come out against the Government’s move. In a signed representation to law Minister, senior advocates Fali Nariman, former Attorney General Ashok Desai, PP Rao, KK Venugopal, Shanti Bhushan, Anil Divan of Bar Association of India, and MN Krishnamani, who is president of SC Bar Association, said, “A permanent independent body with substantial representation and a transparent, open and broad-based selection system…needs serious consultation, debate and discussion.”
In appointing a Supreme Court judge, Article 124 of the Constitution mandates consultation of the CJI. In 1983 (SP Gupta case), the consultation of CJI was given primacy which meant the executive had to go by the opinion of the CJI. By 1993 (Supreme Court AOR Association case), consultation was given a broader interpretation to mean CJI may consult other judges in the Supreme Court as well. The system was clarified by a nine-judge bench in 1999 on a Presidential reference. It laid down the composition of collegium to be CJI and four SC judges for appointing SC judges and CJI with two senior most judges for selecting High Court judges.
The law Ministry note criticised the collegium system stating it was unprecedented as in no other country in the world the judges appointed judges. Moreover, it had no constitutional backing or endorsement of any legislation. While the Department of Justice Secretary will be the convener of JAC, the recommendation by JAC would require approval of the Prime Minister and the President.
The views of the Governors, Chief Ministers and respective Chief Justices of the 24 High Courts will be elicited in writing for appointment of judges as per the procedure which could be determined by the JAC. The proposed body will recommend appointment of judges of the Supreme Court and Chief Justices and judges of the High Courts. The panel will also recommend transfer of Chief Justice and judges of the High Courts.
The last effort to replace the collegium system in 2003 did not succeed. The then NDA Government had introduced a Constitution Amendment Bill, but the lok Sabha was dissolved when the Bill was before a Standing Committee.