The Centre is of the view that a law enacted to annul the judge-appointing-judge system, devised by the SC through two judgments in 1993 and 1998, will run the risk of getting struck down by the apex court.
It feels that since there is an ambiguity in the constitutional provisions about the process and mechanism for appointment of judges to the SC and HCs and the present practice, it would be better to adopt the constitutional amendment route to specify the procedure for selection and appointment of judges to constitutional courts.
Article 124(2) says, “Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and the high courts in the states as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years.”
It also provides that “in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted”. For appointment of a high court judge, Article 217(1) mandates the President to consult the CJI, governor of the state and chief justice of the HC.
These two articles provide that the executive, through the President, would have primacy in appointment of judges. This is how it was till 1993, when a constitution bench of the Supreme Court held that the Chief Justice of India would have primacy in appointment of judges.
Five years later, through another constitution bench judgment, the Supreme Court stripped the executive of any significant say in the appointment of judges to constitutional courts by devising the CJI-headed collegium system. The scheme, which has been called judicial usurpation by others but justified by judges by invoking judicial independence, has lately been under the scanner for opaqueness. So much so that former CJI J S Verma, author of one of the judgments by which the judiciary conferred upon itself the right to appoint judges, sought a review.
Efforts of the executive to do away with the collegium system began under UPA but failed to fructify. While in opposition, BJP supported the move but demanded that the Judicial Appointments Commission, which is proposed to select judges, should be fortified with a constitutional amendment in view of a likely challenge in judiciary.
It reiterated its support for JAC after coming to power, and the disclosure made by retired SC judge Markandey Katju about a former CJI acquiescing into political pressure to extend the tenure of a “corrupt” judge is likely to provide fresh justification for its plans.
The Judicial Appointments Commission Bill, 2013 proposes replacing the collegium with a six-member panel headed by the CJI and comprising two SC judges, the law minister and two eminent citizens as its members. The bill provides for selection of eminent citizens through another high-level committee comprising the prime minister, the CJI and the leader of opposition in Lok Sabha.
A parliamentary standing committee examined the bill and recommended that the JAC panel, headed by the CJI, should be a seven-member committee instead of six as proposed. It had suggested for three eminent persons instead of two proposed in the bill, with one of them either a woman or from the minority community or from SC/ST community.