Dr.

Ram Manohar Lohiya National Law University, Lucknow

BASICS OF LEGISLATION
FINAL DRAFT - 2014

TOPIC THE JUDICIAL

APPOINTMENTS COMMISSION
BILL, 2013
Submitted to: -

Submitted by:-

Mr. Anil Sain

Lakshya Dheer

Asst. Professor (Law)

B.A.LL.B (Hons.)
Roll No. 72

RMLNLU

RMLNLU

Signature

Signature

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Dr. Ram Manohar Lohiya National Law University, Lucknow

TABLE OF CONTENTS
Table of Contents

INTRODUCTION......................................................................................................................3
Prevalent System of Appointment of Judges to the Higher Judiciary System...........................5
How are judges selected under the collegium system now?..................................................5
Does the government have any role in the selection of the judges?.......................................6
What if the government does not agree with the names suggested by the collegium?..........6
What does the Judicial Appointments Commission Bill, 2013 propose?................................7
A Comparison How the bill will benefit our Judicial System?...............................................8
How are Bills passed in the Parliament (Procedure)?..............................................................10
What is the difference between a Bill and an Act?..........................................................10
Procedure relating to an ordinary bill in the Union Parliament:-.........................................11
BIBLIOGRAPHY....................................................................................................................13

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INTRODUCTION
The objective of the Bill is to provide for the composition of the Judicial Appointments
Commission for the purpose of recommending persons for appointment as Chief Justice of
India and other Judges of the Supreme Court, Chief Justices and other Judges of High Courts,
its functions, procedure to be followed by it and for matters connected therewith or incidental
thereto.1

This project critically analyses the pending bill in the Parliament, which is The Judicial
Appointments Commission Act, 2013, which further will tell us the importance of such
recommendations made to the Parliament and covering the specific topic of the
aforementioned bill. As law students, we need to know the procedure as to how the bills are
made into legislations and then are enforceable.
As we all know as law students that the in the selection process of the Honble Judges, there
is no committee present who represent the executive. This Bill seeks to change that by way of
a Constitutional Amendment which will insert a Judicial Appointment Commission (JAC),
which, once created, will replace the collegium system of appointments to High Courts and
Supreme Court. The bill has been introduced in conjunction with The Constitutional (120 th
Amendment) Bill, 2013, which will further amend Article 124(2) and insert Article 124A,
providing for the setting up of a JAC, and is pending before the Parliament.
In my personal opinion, this will be a great way to enable equal participation of Judiciary and
Executive, ensuring that the appointments to the higher judiciary are more participatory,
transparent and objective.

1 Para 1, The Judicial Appointments Commission Bill, 2013

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Also, the project will take into consideration and talk about how laws in India are made. India
is a federal country; therefore laws can be made separately at different levels, by the Union
Government (Federal Government) for the entire country and by the State Governments for
their respective states. The legislative procedure in India for the Union Government requires
that proposed bills pass through the two legislative houses of the Indian parliament. The
legislative procedure for states with bicameral legislatures requires that proposed bills be
passed firstly in the state's Vidhan Sabha (Lower House) and then in the State Vidhan
Parishad (Upper House). In states with unicameral legislatures, laws and bills need only be
passed in the state's Vidhan Sabha, for there is no Vidhan Parishad.

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Prevalent System of Appointment

of Judges to the Higher Judiciary
System
How are judges selected under the collegium system now?
In the High Courts, the process is initiated by the respective Chief justices. In the Supreme
Court, the Chief Justice of India (CJI) takes the initiative. The final decision is taken by five
Supreme Court judges, including the CJI.
A person should have practised at least 10 years as a lawyer to become a High Court judge.
The Chief Justice of the High Court, with the help of two other senior-most judges, draws up
a panel of prospective candidates. There is no system of public intimation or advertisements
eliciting applications for the posts. After examining the credentials of the judges on factors
such as competence and integrity and state intelligence inputs, the High Court Chief Justice
forwards the names of the prospective judges to the CJI for confirmation.
The CJI consults the collegium of four other senior-most judges of the apex court. The CJI
and the collegium can approve or reject the names.
If the collegium approves the names, they are sent to the President of India through the Union
government for appointments.
Supreme Court judges are appointed from among the Chief Justices of the various High
Courts or the senior-most presiding judges of the High Courts.
The Supreme Court has the prerogative of appointing prominent lawyers with over 10 years
experience as a judge of the apex court. Justice Santosh Hegde and Justice Kuldeep Singh
(both have retired) were appointed to the Supreme Court directly from the bar where they
were practising. But the convention had been stopped since then.

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In 1993, in what is popularly known as the Advocates on Record case 2, a nine-judge

Constitution bench of the Supreme Court ruled that the statute had given the power and
primacy of appointments of judges to the judiciary to insulate it from executive or legislative
control and to ensure its absolute independence. The bench had given the ruling on a petition
filed by the Advocates on Record Association, relating to disputes on transfer and
appointments of judges.
Does the government have any role in the selection of the judges?
The government does not have the final say in the matter as the entire power is vested in the
collegium and the CJI.
What if the government does not agree with the names suggested by the collegium?
There is no alternative but to accept the collegiums decision. The Union government,
through the law ministry, can raise queries on suitability or eligibility of the candidates.
Beyond this, the government can do little.

2Supreme Court Advocates-on-Record Association & Anr. v Union of India, AIR 1994 SC 268
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What does the Judicial

Appointments Commission Bill,
2013 propose?
The Judicial Appointments Commission Bill defines the establishment of the proposed body
to recommend appointment and transfer of judges of the Supreme Court and the High Courts.
Under Section 4 of the Bill, which talks about the functions of the commission as follows:It shall be the duty of the Commission,
(a) To recommend persons for appointment as Chief Justice of India,
Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High
Courts;
(b) to recommend transfer of Chief Justices of High Courts and the Judges of High Courts
from one High Court to any other High Court; and
(c) to ensure that the person recommended is of ability, integrity and standing in the legal
profession.3
The Judicial Appointments Commission (JAC) Bill, 2013 seeks to set up a six-member body
under the chairmanship of the Chief Justice of India for recommending names to the
President of individuals with outstanding legal acumen and impeccable integrity and
credibility for judgeship in the Supreme Court and the High Courts. It would also recommend
transfer of judges of one High Court to another.
3 S. 4, The Judicial Appointments Commission Bill, 2013
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The Constitution (120th Amendment) Bill, 2013, provides for setting up of a Judicial
Appointments Commission by inserting Article 124 (A) in the Constitution and amending
Articles 124(2), 217(1) and 222(1). The structure and functions of the proposed commission
are provided in the JAC Bill.
The JAC, once created, will replace the collegium system of appointments to the High Courts
and the Supreme Court.

A Comparison How the bill will

benefit our Judicial System?
Since the inception of the Indian Constitution, there has been no formal or codified system to
appoint judges. In other words, an informal process existed then, too, but the executive had a
role. Judges were appointed largely through consultations between the Chief Justice of India
and the Union government. The judiciary and the executive were more or less equal partners
in the consultation process
In 1993, in what is popularly known as the Advocates On Record case 4, a nine-judge
Constitution bench of the Supreme Court ruled that the statute had given the power and
primacy of appointments of judges to the judiciary to insulate it from executive or legislative
control and to ensure its absolute independence. The bench had given the ruling on a petition
filed by the Advocates on Record Association, relating to disputes on transfer and
appointments of judges.

The parliamentary panel for the JAC has said: The present process adopted by the collegium
of judges is beset with its own problem of opacity and non-accountability besides excluding
the Executive entirely in the collaborative and consultative exercise for appointment of
judges to a Bench of the higher judiciary. Because of its inherent deficiencies in the

4 Supreme Court Advocates-on-Record Association & Anr. v Union of India, AIR 1994 SC 268
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collegium, as many as 275 posts of judges in various High Courts are lying vacant, which has
a direct bearing on the justice delivery system and thereby affecting the judiciary.5
Parliament is trying to ensure a role by the executive and indirect role by leader of Opposition
in the Lok Sabha. Under the new proposal, the selection panel will have the Union law
minister and two eminent persons from different walks of life, besides the CJI and two
senior-most judges. The names of the eminent persons will be suggested by a separate panel
of the Prime Minister, the CJI and leader of Opposition in the Lok Sabha.
The new system, if it clears all the hurdles, will have six persons, unlike the five earlier. Of
the six, three will not be apex court judges, unlike the existing system where all the five
persons are Supreme Court judges.

Successive CJIs and the present incumbent, P. Sathasivam, have strongly opposed any
tinkering with the collegium system. The advocates or the bar community are also fiercely
opposed to any executive involvement in the appointment process on the ground that it would
erode the independence of the judiciary. Justice Sathasivam had earlier told The Telegraph:
The government cannot include their names as, by and large, the High Court and the
Supreme Court collegium keep everything in mind while giving representations to all
sections. Law officers like Advocate- Generals, Additional Advocate- Generals, Central
Government law officers and government pleaders are provided representation in the
appointments.6

5 http://www.thehindu.com/news/national/cabinet-clears-constitutional-status-for-judicial-appointmentscommission/article5504171.ece
6 http://www.telegraphindia.com/1130906/jsp/nation/story_17318049.jsp
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How are Bills passed in the

Parliament (Procedure)?

India is a quasi-federal country; therefore laws can be made separately at different levels, by
the Union Government (Federal Government) for the entire country and by the State
Governments for their respective states. The legislative procedure in India for the Union
Government requires that proposed bills pass through the two legislative houses of the Indian
parliament. The legislative procedure for states with bicameral legislatures requires that
proposed bills be passed firstly in the state's Vidhan Sabha (Lower House) and then in the
State Vidhan Parishad (Upper House). In states with unicameral legislatures, laws and bills
need only be passed in the state's Vidhan Sabha, for there is no Vidhan Parishad.

What is the difference between a Bill and an Act?

Legislative proposals are brought before either house of the Parliament of India in the form of
a bill. A bill is the draft of a legislative proposal, which, when passed by both houses of
Parliament and assented to by the President, becomes an Act of Parliament. As soon as the
bill has been framed, it has to be published in the newspapers and the general public is asked
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to comment in a democratic manner. The bill may then be amended to incorporate the public
opinion in a constructive manner and then may be introduced in the Parliament by ministers
or private members. The former are called government bills and the latter, private members'
bills. Bills may also be classified as public bills and private bills. A public bill is one referring
to a matter applying to the public in general, whereas a private bill relates to a particular
person or corporation or institution. The Orphanages and Charitable Homes Bill or the
Muslim Waqfs Bills are examples of private bills.

Procedure relating to an ordinary bill in the Union Parliament:-

First reading - introduction stage

Any member or member-in-charge of the bill seeks the leave of the house to introduce a bill.
If the bill is an important one, the minister may make a brief speech, stating its main features.
After the bill has been introduced, the first reading is deemed to be over. Therefore, in the
first stage, only the principles and provisions of the bills are discussed.
Second reading - discussion stage
This stage concerns the consideration of the bill and its provisions and is further divided into
three stages.
First stage
On a date fixed for taking up consideration of the bill, there takes place a general discussion
when only the principles are taken up for discussion. At this stage, three options are open to
the house. The bill may be straightaway be taken into consideration or it may be referred to
any of the Standing Committees or it may be circulated for the purpose of eliciting general
opinion thereon
Second stage, that is, discussion on the report

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The next stage consists of a clause-by-clause consideration of the bill as reported by the
committee. When all the clauses have been put to vote and disposed of, the second reading of
the bill is over.
Third stage
Changes or amendments to the bill can be made only in this stage. Amendments become a
part of a bill if they are accepted by a majority of the members present and voting.
Third reading - voting stage
The next stage is the third reading. The debate on the third reading of a bill is of a restricted
character. It is confined only to arguments either in support of the bill or for its rejection as a
whole, without referring to its details. After the bill is passed, it is sent to the other house. If
the number of votes in favour and against the bill are same, then the Presiding officer
(Speaker of the Lok Sabha or the Chairman of the Rajya Sabha or anyone who is acting on
their behalf) of the house get a chance to cast his/her vote which is referred to as a Casting
Vote Right. If the number of votes against the bill is greater, the house/government will
dissolve.
Bill in the other house
After a bill, other than a money bill, is transmitted to the other house, it goes through all the
stages in that house as that in the first house. But if the bill passed by one house is amended
by the other house, it goes back to the originating house. If the originating house does not
agree with the amendments, it shall be that the two houses have disagreed.
Joint-session of both houses
In case of a deadlock between the two houses or in a case where more than six months lapse
in the other house, the President may summon a joint session of the two houses which is
presided over by the Speaker of the Lok Sabha and the deadlock is resolved by simple
majority. Until now, only three bills: the Dowry Prohibition Act (1961), the Banking Service
Commission Repeal Bill (1978) and the Prevention of Terrorist Activities Act (2002) have
been passed at joint sessions.7
President's approval
7 "Is any deadlock between the two Houses possible?", rajyasabha.nic.in
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When a bill has been passed, it is sent to the President for his approval. The President can
assent or withhold his assent to a bill or he can return a bill, other than a money bill which is
recommended by president himself to the houses, with his recommendations. If the President
gives his assent, the bill is published in The Gazette of India 8 and becomes an Act from the
date of his assent. If he withholds his assent, the bill is dropped, which is known as pocket
veto. The pocket veto is not written in the constitution and has only been exercised once by
President Zail Singh: in 1986, over the postal act where the government wanted to open
postal letters without warrant. If the president returns it for reconsideration, the Parliament
must do so, but if it is passed again and returned to him, he must give his assent to it. In the
case of a Constitutional Amendment Bill, the President is bound to give his assent. In case of
the State Governments, the consent of the State's Governor has to be obtained.9

8 "Amendments to Sebi Act gets Presidential assent", PTI. 18 Sep 2013. Retrieved 23 September 2013. "It has
now been published in the Gazette of India, Extraordinary, Part-II, Section-1, dated the 13th September 2013 as
Act No. 22 of 2013"
9 Gupta, V. P. (26 Aug 2002). "The Presidents role". Times of India. Retrieved 4 January 2012
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Conclusion
To conclude my project, I would just like to say that India, being the Worlds biggest
democracy should update its laws according to the present need of the society as Law and
Society cannot be separated. The present bill might draw some attention along with some
controversies, but nonetheless, it will definitely help the country in the long run and will
definitely bring the other organs of the Government, except the Judiciary.
In the words of Law minister Kapil Sibal, We have made compromises to make the Bill
palatable to all. We have satisfied all demands. The JAC Bill, 2013 with official amendments
will be tabled in the Lok Sabha now,
Thus, I conclude my project by saying that, in my opinion, the Judicial Appointments
Commission Bill, 2013 should be passed.

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BIBLIOGRAPHY
1) The Judicial Appointments Commission Bill, 2013
2) www.prsindia.org - http://www.prsindia.org/billtrack/the-judicial-appointmentscommission-bill-2013-2906/ ; www.prsindia.org/downloads/bills-pending-inparliament/
3) www.thehindu.com - http://www.thehindu.com/news/national/cabinet-clearsconstitutional-status-for-judicial-appointments-commission/article5504171.ece
4) http://parliamentofindia.nic.in - http://parliamentofindia.nic.in/ls/intro/p24.htm
5) http://indiatoday.intoday.in/story/cabinet-nod-judicial-appointment-commission-billjudge-transfer/1/333070.html
6) http://en.wikipedia.org/wiki/
7) Gupta, V. P. (26 Aug 2002). "The Presidents role". Times of India.
8) http://rajyasabha.nic.in
9) http://www.telegraphindia.com/
10) "Amendments to SEBI Act gets Presidential assent", PTI. 18 Sep 2013.
11) Manupatra

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Dr. Ram Manohar Lohiya National Law University, Lucknow

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