Judges’ appointment: Cabinet clears proposal to replace collegium system

Zee Media Bureau

New Delhi: In a significant development, the Union Cabinet on Thursday cleared a proposal, which seeks to scrap the collegium system of appointing judges to the Supreme Court and High Courts. The proposal calls for setting up a Judicial Appointments Commission that will replace the collegium system of appointing judges to higher courts. The development comes days after Law Minister Kapil Sibal informed the Lok Sabha that there is a proposal to establish a Judicial Appointments Commission (JAC) that would replace the present collegium system. The government has the in-principle support of political parties to bring such a bill which will require amendment to the Constitution, Sibal had said then. The JAC will give the executive a say in appointment of Supreme Court and high court judges. Under the proposal, the government 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 judges of the Supreme Court, the Law Minister, two eminent persons as members and Secretary (Justice) in the Law Ministry as Member Secretary. The Law Ministry has been pushing the proposal, which will require a Constitutional amendment, but some sections in the government as well as judiciary had reservations over its certain provisions. An earlier proposal circulated in April had incorporated the view that the Leader of the Opposition should be made a member of the JAC. According to the fresh note, the Leader of the Opposition will not be part of the proposed body. However, the Leader of the Opposition of either House of Parliament will be part of a committee to 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. A constitutional amendment bill will be moved in Parliament next week, sources said. The move to set up JAC would entail amendments to Articles 124, 217, 222 and 231 of the Constitution and insertion of Article 124 A. 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. Bar associations, jurists and other bodies may also be asked to suggest names. Justifying the move to scrap the collegium system, the Law Ministry said, "The need for this proposal arises primarily because the present system of appointment of judges in the country is unprecedented as in no other country in the world, does the judiciary makes appointments for itself." It said the present system has resulted from the decisions of the Supreme Court "which it is believed are inconsistent with the constitutional scheme". The note said the collegium system has no constitutional backing or Parliamentary endorsement. "The proposed amendments will provide constitutional backing to the process of consultation through the institution of JAC and will make the process truly participatory between the executive and the judiciary without in any way compromising the independence of the judiciary," the Cabinet note reads. The move to set aside the 1993 Supreme Court judgement, which led to the collegium system, will require Constitutional amendment. The last effort to replace the collegium system in 2003 did not succeed. The then NDA government had introduced a Constitution Amendment Bill but the Lok Sabha was dissolved when the bill was before a Standing Committee. Amid government`s plan to overturn the collegium system, successive CJIs, including the present incumbent P Sathasivam have strongly defended the present practice saying appointments to the higher judiciary are made after "intense deliberations". As of now, the judges of the apex court are appointed by a collegium comprising the CJI and four senior-most judges of the Supreme Court. The appointment of judges of the 24 high courts is initiated by the Chief Justice of the concerned HC in consultation with two senior-most judges of that court. The Chief Minister and Governor of the state concerned are also consulted. The recommendations are referred to the CJI, who in turn consults two senior judges in the SC who have experience in that HC. The recommendations of the collegium are then sent to the government for approval. The government can return the file only once, but cannot reject the recommendation. With PTI inputs