The Rajya Sabha on Thursday passed a Constitution amendment Bill to create a Judicial Appointments Commission (JAC) which will replace the collegium system of appointing judges to higher courts. The BJP walked out in protest demanding that the Bill be referred to a standing committee so that all stakeholders could participate in the process that would lead to changing the two decades-old system.

The Constitution (120th Amendment) Bill, 2013 envisages setting up of the JAC, to be decided by Parliament, that will recommend appointment and transfer of Supreme Court and High Court judges. Currently, the collegium consisting of five top judges of the Supreme Court, headed by the Chief Justice of India, decides the appointment of judges to higher courts.

“Transparent system”

“Appointment of judges is the role of the executive and not the judiciary. By this amendment, we are not trying to interfere with the judicial processes … We are trying to have a transparent system of appointment and participate with the judiciary to have best judges for a better future,” Law Minister Kapil Sibal said taking part in the debate. It was in 1993 that the judiciary “rewrote the Constitution” when it introduced the collegium system of appointing judges to higher courts, disturbing the delicate balance between the judiciary, the legislature and the executive, he said.

Allaying the BJP’s fears that passing this Constitution Amendment Bill while sending the main Bill — the Judicial Appointments Commission Bill, 2013, which defines the establishment of the proposed body — to the standing committee for vetting would lead to “a constitutional hiatus,” the Minister said that by the time the standing committee returned the Bill, the Centre would seek ratification of all States on the amendment which would take six to eight months.

However, the BJP was not convinced and denounced the government’s “piecemeal” approach to the issue. Leader of the Opposition Arun Jaitley said the government was unnecessarily hastening the passage of the Bill that was of “extraordinary” importance.

“When we are changing a system, all stakeholders should be allowed to participate in the process. Sending a Bill to the standing committee is part of the legislative process … why deny this privilege of procedure to stakeholders who might come up with better suggestions that could help improve the Bill,” he said, and demanded that both the Bills, after vetted by the standing committee, could be taken up in the winter session.

However, Deputy Chairman P.J. Kurien said the Bill could not be sent back to the Standing Committee until Mr. Sibal withdrew it. He noted that the matter was discussed at the business advisory committee meeting in the morning where the BJP did not ask for sending the Bill to the standing committee. When Mr. Sibal refused to withdraw the Bill, the BJP walked out in protest. The Bill was then put to vote — 131 votes were cast in favour and one against it.

The lone MP who opposed the Bill was Ram Jethmalani. He said: “Both Bills are evil ... it will disturb the basic feature of the Constitution. The government was trying to demolish the collegium system and slowly creating a new system that is against the basic nature of the Constitution. I hope people avoid digging grave of the Constitution. The Bill is wholly unconstitutional … It is useless.”

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