Case not closed – Appointment of judges

Parliament is considering a proposal to change the process of appointment of judges to the Supreme Court and High Courts.  A Constitutional Amendment Bill has been introduced in Rajya Sabha that enables the formation of a Judicial Appointments Committee (JAC), and states that the composition and functions of the JAC will be detailed in a law enacted by Parliament.  The appointments will be made according to the recommendations of the JAC.  This body replaces the current process of “consultation” with the Chief Justice of India (CJI) and other senior judges.

An ordinary Bill has also been introduced in Rajya Sabha which seeks to establish the JAC.  The composition of the JAC will be the CJI, the next two judges of the Supreme Court in terms of seniority, the law minister and two eminent persons.  These two eminent persons will be selected by a collegium consisting of the CJI, the prime minister and the leader of opposition in the Lok Sabha.  In case of High Court Judges, the JAC will consult with the chief minister, the governor of the state and the Chief Justice of the High Court.

The new system is widening the selection committee.  It includes representatives of the executive and senior judiciary, as well as two persons who are jointly selected by the executive (PM), judiciary (CJI), and the legislature (leader of opposition).

However, it may be diluting some of the safeguards in the Constitution.  At a later date, the composition of the JAC can be amended by ordinary majority in Parliament.  [For example, they can drop the judicial members.]  This is a significantly lower bar than the current system which requires a change to the Constitution, i.e., have the support of two thirds of members of each House of Parliament, and half the state assemblies.

The 120th Constitution Amendment Bill and the JAC Bill are listed for consideration and passing in Rajya Sabha today.  Given that these Bills propose fundamental changes to the process of appointments to key constitutional bodies, it is important that there be a wide debate.  The Rajya Sabha must refer these Bills to the Standing Committee for careful examination of various issues.

I have written a piece on this issue in the Indian Express today.

 

 

 

 

  1. Tanveer
    September 5th, 2013 at 16:53 | #1

    Don’t you think the widening of selection committee is infringing Article-50 of Indian constitution – Separation of judiciary from executive ?

  2. Venkatesh C Patil
    September 5th, 2013 at 20:56 | #2

    In think in the composition of JAC, Secretary of Law Ministry is also included. Though Bill tries to encompass Judiciary,Executive, Civil Society ( a true representative Democracy ), the provision that at later stages it can be altered through an Ordinary Majority is dangerous proposition!. It may be violative of ” Basic Structure of Constitution”. Instead, if the constitutional amendability for the bill is retained, then it may serve true purpose.

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