The Parliamentary Standing Committee on Law and Justice has recommended that the structure and functions of the Judicial Appointments Commission (JAC) — which will replace the present collegium system — be mentioned in the Constitution itself so as to protect the basic structure of the Constitution.
A report, submitted to Parliament early this week by committee Chairman Shantaram Naik, said the panel shared the concern voiced by many stakeholders, who appeared before it seeking the protection of Article 368 (which regulates the procedure for amending the Constitution) to the JAC structure and functions so as to protect the basic structure of the Constitution. “The committee, while endorsing their views, observes that constitutional status to the appointment and transfer of judges [made] by the Commission may be given to allay apprehension expressed by legal luminaries.”
The Judicial Appointments Commission Bill, 2013 seeks to set up a six-member body, under the chairmanship of the Chief Justice of India, for recommending to the President the names of persons with outstanding legal acumen and impeccable integrity and credibility for the post of judges of the Supreme Court and the High Courts. It will follow a similar procedure for transfer of High Court judges.
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The report pointed out that some jurists who appeared before the committee said representation on the JAC from the Executive through the Law and Justice Minister “will amount to interference of the Executive in the appointment of judges, and will thereby affect the independence of judiciary.” They were of the view that the present system would have worked well had transparency and accountability been taken care of. “They, however, had the apprehension that the proposed Bill may not be able to sustain the test of judicial scrutiny.”
The report said the collegium process was “beset with its own problem of opacity and non-accountability,” besides excluding the Executive entirely in the collaborative and consultative exercise for appointments. Because of such inherent deficiencies, about 275 judge posts in various High Courts were lying vacant and this “has a direct bearing upon the justice delivery system.”
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The former CJIs M.N. Venkatachaliah and the late J.S. Verma; the retired Supreme Court judge, Justice Ravindaran, and Professor Madan Gopal expressed concern over the appointments made to the High Courts under the present collegium system in which, they said, lobbying was rampant and the most eligible were often ignored. They strongly advocated the setting up of a JAC to select eligible and meritorious candidates as High Court judges, the report said.
The committee suggested that there should be three eminent persons in the commission, instead of only two as provided for in the Bill. At least one of the three members should be from SC/ST/OBC/women/minority, preferably by rotation. Considering the JAC’s responsibility to select 800-odd judges of 24 High Courts, the “committee feels that in order to assist the Judicial Appointment Commission, the government may consider the feasibility and practicability of creation of a State-level commission at the earliest.” It may consist of the Chief Minister, the Chief Justice of the High Court and the Leader of the Opposition. This, the committee hopes, “will not only lessen the burden of the commission at the apex level but will provide for a more broad-based appointment process.”
The committee wants the government to incorporate amendments in the Bill as suggested by it.