NEW DELHI, Aug 7: The Opposition is unlikely to have a direct say in appointment of senior members of the judiciary in a fresh government proposal to replace the two-decade-old collegium system under which judges appoint judges.
The Union Cabinet is likely to consider tomorrow a Law Ministry proposal to set up the National Judicial Commission (JAC) to ensure say for the Executive in appointment of judges of the Supreme Court as well as of the 24 High Courts.
The proposed JAC will be a six-member body headed by the CJI. Two judges of the Supreme Court, the Law Minister and two eminent persons will be the members. Secretary (Justice) in the Law Ministry will be the member secretary.
While an earlier proposal circulated in April this year said “One view has been that the Leader of the Opposition should be made a member of the JAC. This suggestion could be considered,” according to the fresh note, the Leader of the Opposition will not be part of the proposed body.
However, the Leader of the Opposition of either House of Parliament will be part of a committee to be set up to nominate two eminent persons to the JAC. The committee will also have the Chief Justice of India and the Prime Minister as other members.
“In a way, the the opposition, by way of the Leader of the Opposition, will have an indirect say in appointment of judges as he or she will select the two eminent personalities to be nominated to the JAC,” said a senior government functionary.
The earlier proposal had said that two eminent jurists will be part of the JAC. But these have been replaced with two eminent personalities.
This would mean that the JAC will have three judges, including the CJI and three non-jurists, including the Law Minister.
The fresh changes are understood to have the approval of the BJP as Law Minister Kapil Sibal had recently shared the draft of the JAC bill will Leader of the Opposition in the Rajya Sabha Arun Jaitley who had suggested replacing jurists with eminent personalities.
The move to set up JAC would entail amendments to five Articles of the Constitution and insertion of a fresh one.
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.
Bar associations, jurists and other bodies may also be asked to suggest names.
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.
“Any person who is not recommended for appointment as a judge by the JAC shall not be appointed by the President,” the note says.
The Department of Justice in the Law Ministry will process the recommendations made by the JAC for seeking approval of the Prime Minister and the President.
Justifying the move to scrap the collegium system, the Law Ministry said, “The need for this proposal arises primarily because the present system of appointment of judges in the country is unprecedented as in no other country in the world, does the judiciary makes appointments for itself.”
It said the present system has resulted from the decisions of the Supreme Court “which it is believed are inconsistent with the constitutional scheme.”
The note said the collegium system has no constitutional backing or Parliamentary endorsement.
“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 in any way compromising the independence of the judiciary,” the Cabinet note reads.
The practice of judges appointing judges started after 1993, replacing the system of government picking judges for higher judiciary comprising the Supreme Court and High Courts.
The move to set aside the 1993 Supreme Court judgement, which led to the collegium system, will require Constitutional amendment.
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.
Amid government’s plan to overturn the collegium system, successive CJIs, including incumbent P Sathasivam have strongly defended the present practice saying appointments to the higher judiciary are made after “intense deliberations”.
The Supreme Court collegium consists of five top judges of the apex court, headed by the Chief Justice of India. (PTI)
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