The Judicial Appointments Commission bill has reportedly been pushed into a state of latency by the NDA Government. The Judicial Accountability Bill has also met the same fate.
This bill proposes the replacement of the collegium system of appointment of judges to the High Courts and the Supreme Court. Even though the UPA Government had undertaken an intense consultation process, receiving suggestions from the Parliamentary Standing Committee as well, the NDA Government has now decided to hold fresh discussions with jurists, judges and members of the bar, after the Budget session.
This move comes in the wake of the recent uproar over Government’s rejection of Gopal Subramanium’s candidature for Supreme Court judgeship, after he had been recommended unanimously by the collegium headed by Chief Justice of India R.M. Lodha. In such an atmosphere, the Government has apprehensions of rejection of any new law by a bigger bench and hence, it has put the bill on abeyance to avoid that disappointment. Read more news about the controversy here.
The JAC Bill seeks to set up a six-member body under the chairmanship of the Chief Justice of India for recommending names to the President of individuals with outstanding legal acumen and impeccable integrity and credibility for judgeship in the Supreme Court and the High Courts. It would also recommend transfer of judges of one High Court to another.
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 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 proposes giving statutory recognition to the code of conduct evolved by the judiciary to avoid any future altercation and also contains provision restraining the judiciary from making remarks on constitutional bodies and authorities in open court.
Law Commission of India chairman Justice A.P. Shah, in an interview to The Hindu, said that the Judicial Appointments Commission was a step in the right direction to free judicial appointments from “inappropriate politicization.” “Ultimately, the rationale of having the Commission instead of the collegium system is to strengthen the quality of appointments made, promote diversity and sustain public confidence in judicial system,” he added.
However, according to him, the Bill provides no provision for transparency during the process. Nor does it offer any role to the civil society in judicial appointments. According to him, “the collegium system is a solution which has proved much worse than the disease,” adding that, “Judges are today chosen on undisclosed criteria in largely unknown circumstances. Justice Ruma Pal [a former woman Supreme Court judge] remarked that it is one of the best-kept secrets in the country. The system is completely opaque”.
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.