The Union Cabinet has paved way for providing Constitutional status to the National Judicial Appointment Commission which proposes to provide equal say and veto power to the Judiciary as well as the Executive in matters pertaining to appointment of Judges. A Constitutional Amendment Bill which provides for such a change in the system has been cleared by the Cabinet.
Earlier, the Government had accepted the report by the Parliament Standing Committee on Law and Justice, which had laid down the structure and functions of the JAC, replacing the present system of recommendation by the collegium. The parliamentary panel had said: “The present process adopted by the collegium of judges is beset with its own problem of opacity and non-accountability besides excluding the Executive entirely in the collaborative and consultative exercise for appointment of judges to a Bench of the higher judiciary. Because of its inherent deficiencies in the collegium, as many as 275 posts of judges in various High Courts are lying vacant, which has a direct bearing on the justice delivery system and thereby affecting the judiciary.”
The bill also states that before recommending a name for appointment as a judge of the HC the commission must take the view of the chief minister and the governor of the concerned state in writing.
The Constitution (120th Amendment) Bill, 2013, provides for setting up of a Judicial Appointments Commission by inserting Article 124 (A) in the Constitution and amending Articles 124(2), 217(1) and 222(1). The structure and functions of the proposed commission are provided in the JAC Bill. The proposal approved by the Cabinet provides for the new Article 124A of the Constitution of India, which will define the composition of the JAC. Article 124B will identify its functions.
NJAC will be the authority for appointment of Chief Justice and Judges of the Supreme Court and High Courts. It will also have the authority to initiate transfers of High Court Judges. The bill states that before recommending a name for appointment as a judge of the HC the commission must take the view of the chief minister and the governor of the concerned state in writing.
The NJAC will be composed of six members, comprising of the Chief Justice of India, Law and Justice Minister, two senior most Judges of the apex Curt and two eminent persons. The choice of these “eminent persons” will be left to the Prime Minister, Chief Justice of India and the Leader of Opposition Party or the leader of the largest party in Opposition. Moreover, these two eminent persons would belong to the Schedule Caste, Schedule Tribe, women or minority community, preferably by rotation and will have tenure of three years.
The Bill provides that no candidate, the appointment of whom is opposed by two or more members of the Commission, can go through. Hence, neither the Judiciary, nor the Executive can assert autocratic will over any appointment.
The bill will facilitate wider consultation, from Bar bodies, senior advocates and eminent persons, by the collegium of the HC before recommending a name for consideration by NJAC for appointments.
The process of selection of a Judge would commence six months before a vacancy arises. The Justice Department Secretary will be the convenor of NJAC.
However, the bill does not propose to change the memorandum of procedure provided for appointment of the CJI. The senior-most judge of the SC will be appointed, after the incumbent CJI demits office.
The magnitude of responsibility conferred on the JAC, as well the involvement of Constitutional and State functionaries, resulted in the recommendation of State-level Commissions.
Earlier, Law Minister Ravi Shankar Prasad had reportedly written to 26 parties, inviting their views, in order to obtain consensus. While the Modi Government has a comfortable majority in the Lok Sabha, it is in a minority in the Rajya Sabha and needs the support of Opposition parties to push the legislation through.
According to a report in The Hindu, even though a final Cabinet nod is waited for the bill, "the government, however, is said to be keen that a Bill to constitute the NJAC be passed in the current session of Parliament itself.”
The Bill is being viewed by many as a key judicial reform, aimed at providing the much required transparency in the entire process of judicial appointments. The Constitutional amendment bill will have to be passed with a two-third majority in the Parliament, according to the procedure laid down under Article 368 of the Constitution.
However as Upendra Baxi notes in this opinion piece in the Indian Express, questions how the Commission will function noting that,
"If the advice of the CJI and his companion justices is to have an 'edge' or 'dominance', how is it to be achieved? Should the JAC then adopt a weighted voting procedure, not unlike the United Nations Security Council? If the JAC is to decide by consensus, what will happen if the justices do not yield? What if some other eminent members, including the Union law minister, remain recalcitrant? And how much weight, if any, should be given to the Intelligence Bureau reports on prospective candidates?"
Even the Law Commission chief in India had not approved of the Judicial Standards and Accountability Bill, 2012 as it could compromise the independence of the judiciary.
At a meeting convened by the Centre on July 28 however, most top jurists had reportedly shown their inclination and support for the scrapping of the collegium system.
Currently, the appointment of judges to the Supreme Court and the High Court is provided for, under Article 124(2) and Article 217(1) of the Constitution of India, 1950. The President of India is required to “consult” with the Chief Justice of India and in case of High Court appointments, to consult the Governor and the Chief Justice of the respective High Court. The Supreme Court in the case of Supreme Court Advocates-on-Record Association v. Union of India1 in dealing with Article 124(2) and 217(1) of the Constitution interpreted the word “consultation” to mean “concurrence”. The Advisory Opinion of the Supreme Court in Special Reference No. 1 of 1998 prescribed a distinct process of appointment whereby the judiciary through its “collegiums” consisting of the Chief Justice and two or four senior judges, as the case may be, would recommend names to the President, who then is bound by the decision of the Collegium.
The fate of the Bill rests in the hands of the Parliament now.
Read more news about the Bill here.