HINDU

The Rajya Sabha

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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 collegiums system of appointing
judges to higher courts, disturbing the delicate balance between the judiciary, the legislature
and the executive, he said.
Allaying the BJPs 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 governments 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.

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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.


Defence of collegiums system by sc chief justice the hindu
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The Chief Justice of India, P Sathasivam, on Saturday defended the collegium system for
appointment of judges in higher judiciary but said it is a prerogative of the Centre to bring a
bill to change it.
Now as CJI, I am not going into the contents of the bill and how it was passed as it is the
prerogative of the government and it is for the people to accept it or not. It is too early for me
to say anything on Judicial Appointment Commission or Committee, Justice Sathasivan said
while inaugurating a seminar on Rule of Law.
His remarks came after the President of Bar Association of India, Anil Divan, raised
questions on the way the Centre brought the bill without taking members of judicial
fraternity into confidence and rushed it through in Rajya Sabha.
He said they never received any response from the Law Minister on the letter dated April 17
by top jurists of the country seeking a draft copy of the bill.
No name is finalised until clearance
The CJI said that the government and its agencies have a say in the present collegium system
and their views are also taken into consideration for appointment of judges.
Justice Sathasivam said that no name is finalised until it gets clearance from the Law
Minister, the Prime Minister and the President and in the whole mechanism, inputs from
intelligence bureau, respective high courts and eminent people like sons of the soil, are taken
into consideration.
He said Judicial function is universally recognised as distinct and separate in the system of
government and is the very heart of the republic and the bulwark of democracy.
Judicial accountability
He said judicial accountability is fostered through the process of selection, discipline and
removal found in the Constitution.

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...The success of a democracy largely depends upon an impartial strong and independent
judiciary endowed with sufficient power to administer justice, the CJI said.
Although both judicial independence and judicial accountability are vital for maintaining the
rule of law, they are sometimes projected as conflicting phenomenon. Judicial accountability
has become an indispensable counterbalance to judicial independence.
In that connection, accountability is fostered through the process of selection, discipline and
removal found in the Constitution and the statutes in various judicial systems, he said.
Stressing the need for an independent judiciary, he said, without it, there is a little hope for
the rule of law. .
Thus, the need for judicial independence is not for judges or the judiciary per se but for the
people, he said.
Confidence in judiciary is growing
Justice Sathasivam said It is the trust and confidence of the people in this great institution to
deliver true, fearless and impartial justice that keeps the system thriving irrespective of
shortcomings like backlog of cases which is fast growing.
While admitting that courts are struggling to clear a large number of pending cases, he added,
We need not take these arrears as barriers.
He said all sorts of cases are coming in courts because people have become more aware of
their rights and instead of approaching the executive, they are taking path of judiciary to get
their grievances redressed.
So dont be afraid of backlogs, he said while emphasising the need for adopting technology
to reduce the pendency.
He said institutions are the bloodline of a democracy which include the elected legislatures,
functional executives, vigilant judiciary, free press and specialised bodies like Election
Commission, NHRC, CAG.
Democratic system
Democratic systems consist of networks of interwoven and mutually reinforcing
relationships between key institutional spheres. Even a partial failure of one organ will
hamper the whole mechanism of governance since the potential of these institutions primarily
lies in their interactions and interdependence on each other.
Democracy is such a form of governance where no one is superior to another and more
importantly one cannot exist without another, he said.
The framers of our Constitution have intentionally instituted the idea of check and balance
system so that we need no outsider to judge us rather our own institutions will govern each
other.
He said every time, there may seem to be a difference of opinion but it neednt necessarily be
a conflict but an intimidation for improvement.
Only when the interaction among the institutions is healthy can the country occupy a
prominent position in the world politics. We should cultivate and foster such interactions
among the democratic institutions if we envision to be a predominate power in the world
politics in the near future, he said.
Maintaining an independent judiciary is essential to the attainment of the judiciarys rule of
law governance objective and the proper performance of its functions in a free society.
Judicial independence ensures that powerful independence must conform to the law.
With an independent judiciary, no one is above the law and no one is below the law.
Without it, there is a little hope for the rule of law. Thus, the need for judicial independence
is not for judges or the judiciary per se but for the people, he said.
Keywords: Chief Justice of India, P. Sathasivam, Collegium of judges, collegium
system, appointment of judges, Rajya Sabha, President of Bar Association of India, Anil
Divan


The hindu pros of judicial bill
The proposed Judicial Appointments Commission, in
which judges will be marginally outnumbered, will make
the selection system more transparent and help to assess
professional merit in a better way
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Now that the Union Cabinet has decided on the composition of the proposed Judicial
Appointments Commission (The Hindu, August 23, 2013), an informed debate becomes
possible. The commission will be presided over by the Chief Justice of India, and will include
two Supreme Court judges. The non-judges will be the Law Minister, two eminent persons
and the Justice Secretary, who will be the Member-Secretary. The Leader of the Opposition
in either House will be part of a committee which nominates the eminent persons, the other
members being the Prime Minister and the Chief Justice. Thus, all the organs of the State, as
also the citizenry, will be represented. And the judges will be marginally outnumbered. This
is as it should be.
Checks and balancesl
Recent reactions of senior leaders of the Bar seem to take the view that the independence of
the judiciary would be compromised by outside participation. The Chairman of the Bar

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Council of India is reported to have said that we are totally against this National Judicial
Appointment[s] Commission Bill because of the fact that in the process of appointment of
judges, we do not want any interference from any outsider, including the executive (PTI
report, August 2, 2013). A later press release of the Bar Council of India (August 10, 2013)
says . lawyers of the country are not going to tolerate the replacement of the existing
collegiums with the proposed Commission, without the representation of the Bar Councils
and the (Bar) Associations. The president of the Supreme Court Bar Association is reported
to have said that loading the Commission with more members from the Executive and
including fewer members from the judiciary would curtail the independence of the judiciary
and that the cure should not be worse than the disease. The Bar will not agree to transfer the
power of appointment to the executive. The collegium system can be improved by making
methods of selection more transparent (The Hindu, August 16, 2013).
So far, the central issue of democratic accountability has either not been addressed, or swept
under the carpet. This is the first reason why the collegium system needs to be scrapped. The
Constitution functions under a system of checks and balances. Judges of the superior courts
are given the power to strike down laws of Parliament and the State Legislatures, which in
their view violate the provisions of the Constitution. The judiciary has, in addition, given
itself the power to annul amendments to the Constitution if they violate the basic structure
(Kesavananda Bharati, 1973), and the political class has acquiesced. It is completely
undemocratic if the selection to such a powerful institution is to be left entirely to a body of
men and women concededly learned in the law, but unelected, and in practice virtually
irremovable, thanks to a complicated impeachment procedure.
This self-selecting procedure, created by the judges themselves in 1993 is unique to our
country. Other democracies are not worse off in the matters of judicial independence only
because they have more participatory systems of appointment. Independence is nice, but
with accountability, it is better.
Not their sole prerogative
There is a second reason why judicial appointments should not be the sole preserve of judges
or even a body of judges and lawyers. The legal profession will assess professional merit only
in terms of technical skills.
Forty years ago, in less salubrious times, the late Mohan Kumaramangalam created fear by
stressing the importance of the social philosophy of judges to justify the supersession of
three senior judges of the Supreme Court for appointment as Chief Justice of India. It is now
time to think dispassionately. While the supersession of a judge can never be justified on the
basis of his social or constitutional philosophy, surely it is a relevant factor to be taken into
account at the time of appointment. Even if they consult senior lawyers, the collegiums only
look at technical competence. While selecting lawyers for the High Court they look at their
levels of practice, their incomes, their major arguments and their courtroom etiquette. And
when judges are selected from the High Courts for the Supreme Court, it is mainly on the
basis of their seniority (subject of course to the rejection of those whom the collegium
decides to treat as unfit). Any interrogation on constitutional philosophy is outside the
scope of this exercise. There is only one philosophy say judges and eminent lawyers and
that is the philosophy of the Constitution. And, pray, what is that philosophy? We all know,
after all, that the Constitution is what the judges say it is.
A recent Constitution Bench judgment has created consternation. In another of those rapid
judgments, a five judge bench of the Supreme Court held that reservation in super specialities
in the faculty of the All India Institute of Medical Sciences was unconstitutional. The
correctness of that judgment is not the subject of todays comment, though there is scope for
two views on it. What is disturbing is an observation in the penultimate paragraph that the
very concept of reservation implies mediocrity. There is no nuance here, no qualification,
just a bald statement. The judgment is authored by the outgoing Chief Justice, who was of
course under pressure of time. But four other judges who signed the judgment have not had a
problem with the language. This is the judicial perception of reservation, while applying a 63-
year-old Constitution which has affirmative action written into it. Can we seriously find fault
with a legislator who wants to know what a judges constitutional philosophy is?
Tenure
And there is a third reason why outsiders become relevant. Manpower planning is not a
concept which the judiciary has ever considered important. Over the years both in pre- and
post-collegium days, we have witnessed the spectacle of Chief Justices of India occupying
office for periods like 41 days in the case of Justice G.B. Pattanaik, approximately one month
in the case of Justices Rajendra Babu and J.C. Shah and as few as 18 days in the case of
Justice K.N. Singh. There has not been a single occasion when a judge has renounced the
high office to make way for a colleague who would have a longer tenure and would thus
serve the institution better. The proposed commission needs to bring in human resource
consultants as well, to ensure that only those with sufficient tenures will occupy these
positions.
Similarly, High Court Chief Justices have occupied their positions for as little as three to six
months en route to the Supreme Court. Little concern has been shown for the effect that these
short-term appointments have on administration in the High Courts. Nor has there been too
much worry about the quality of recommendations for judicial appointments by collegiums
presided over by such short-term Chief Justices, who would really have had no occasion to
assess the competence of such persons. There have also been instances where senior judges
have been appointed as High Court Chief Justices for just a few days before their retirement,
so that they do not lose out on the benefits of retiring from that higher position. While the
judiciary has found it perfectly reasonable and legitimate to mandate a two-year term for
Directors General and Inspectors General of Police (Prakash Singh, 2006), that unfortunately
is not sauce for the gander.
(Raju Ramachandran is a senior advocate, Supreme Court of India.)


Proposed Judicial Appointments Commission provides for
broad-based process
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appointment/article5086983.ece
The Judicial Appointments Commission (JAC) provides for a broad-based appointment
process for judges of High Courts and the Supreme Court and gives equal say for the
executive.
The Judicial Appointments Commission Bill, 2013 introduced in the Rajya Sabha last week
provides for constitution of the JAC comprising the Chief Justice of India, an ex-officio
chairperson; two Supreme Court judges next to the CJI in seniority as ex officio members;
the Union Law Minister and two eminent persons, to be nominated by the collegium
consisting of the Prime Minister, the CJI and the Leader of the Opposition in the Lok Sabha,
as members. The Secretary in the Department of Justice in the Law Ministry will be the
convener.
The government also introduced a Constitution Amendment Bill for amending the relevant
provisions relating to the appointment of High Court and Supreme Court judges.
Once the Bill is passed by both Houses of Parliament, it will have to be ratified by at least 50
per cent of the Assemblies. Only thereafter the JAC Bill will become an Act.
According to the Statement of Objects and Reasons, after review of the Supreme Court
pronouncements on the collegium system of appointments and relevant Constitutional
provisions, Articles 124 (2) and 217 (1), it was felt that a broad-based JAC could be
established for making recommendations for selection of judges.
It 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 proposed Bill would enable equal participation of the judiciary and the executive, make
the system of appointments more accountable, and thereby increase the confidence of the
public in the institution.
According to the Bill, the Commission will be duty-bound to recommend persons for
appointment as CJI, judges of the Supreme Court; Chief Justices of the High Courts and other
judges of the High Courts; to recommend transfer of Chief Justices of the High Courts and
judges of the High Courts from the High Court to any other High Court and to ensure the
person recommended is of ability, integrity and standing in the legal profession.
In the case of appointment of the High Court judge, the views of the Governor and the Chief
Minister as also of the Chief Justice of the High Court will be elicited in writing. Within three
months of the Act coming into force, the Central government will intimate to the
Commission the number of vacancies in the Supreme Court and the High Courts for making
its recommendations.
The Central government will also ensure that two months prior to the retirement of a judge in
the High Court or the Supreme Court, the Commission is intimated.
The Commission will meet at such time and place as the chairperson may decide and have the
power to specify by regulations the procedure for discharge of its functions under the Act.