Overcoming resistance from the judiciary, a Bill to scrap the collegium system of appointing judges to the Supreme Court and High Courts was introduced in the Rajya Sabha on Thursday.
The Bill, which entails a Constitutional amendment, seeks to set up a Judicial Appointments Commission (JAC) to recommend appointment and transfer of Supreme Court and High Court judges. It states that the JAC will make the participants in the selection accountable and introduce “transparency” in the process.
With the creation of the proposed body, the Executive seeks to have a say in appointment of members to the judiciary.
The Bill seeks to set up a panel headed by the Chief Justice of India (CJI) to appoint and transfer senior judges.
The other members of the proposed Commission would be two senior-most judges of the Supreme Court, the Law Minister, Secretary (Justice) in the Law Ministry as Convener and two eminent persons as members.
“The proposed Bill would enable equal participation of judiciary and executive, make the system of appointments more accountable, and thereby increase the confidence of the public in the institutions,” reads the Statement of Objects and Reasons of the Bill.
The Law Ministry has been pushing the proposal, but some sections in the government as well as judiciary had reservations over its certain provisions.
The Leader of the Opposition of either House of Parliament will be part of the committee that will be set up to nominate two eminent persons to the JAC. The committee will also have the CJI and the Prime Minister as other members. The eminent persons will be nominated for a period of three years and will not be eligible for re-nomination.
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.
Under the proposal, the Centre will intimate the Commission about vacancies in SC and HCs.
It specifies that no act or proceedings of the JAC shall be questioned or shall be invalidated merely on the ground of existence of any vacancy in the panel or defect in the constitution.
“After review of the pronouncements of the Supreme Court and relevant constitutional provisions, it was felt that a broad based JAC could be established for making recommendations for selection of judges,” reads the Bill.
It says that the proposed body would provide a “meaningful role” to the Executive and judiciary to present their view points and make the participants accountable “while introducing transparency” in the selection process.
The move to set aside the 1993 Supreme Court judgement, which led to the collegium system, requires amendment to Articles 124, 217, 222 and 213 of the Constitution. Government also proposes to insert a new Article 124A to set up the proposed Commission.
The practice of judges appointing judges started after 1993, replacing the system of the government picking judges for higher judiciary comprising the Supreme Court and High Courts.
Successive CJIs, including the present incumbent Chief Justice of India 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 CJI.