Three months after the Judicial Appointments Commission Bill, 2013 (Bill) was referred to a Parliamentary Standing Committee, the Committee has come out with a host of recommendations. Of these recommendations, one of the most significant one is granting the protection of Article 368 of the Indian Constitution to the Judicial Appointments Commission. In other words, the Committee recommends that the, “structure and functions of the Commission should be mentioned in the Constitution itself.”
After examining the jurisprudence of judicial appointments, and the Supreme Court’s judgments in the “Judges cases”, the Committee has held that the JAC Bill seeks to restore the “pre-1993 position” wherein both the Executive and the Judiciary had an equal role in the appointment of the judiciary. In 1993, a 9-judge Bench of the Supreme Court delivered its judgment in the “Second Judges” case, holding that the Judiciary exercised primacy over the Executive when it came to judicial appointments and transfers. It was this decision that gave rise to the “collegium” system of appointments that is currently in practice.
Concluding that the current collegium system as suffering from “opacity and non-accountability” and also entirely excluding the Executive from the process of judicial appointments, the report states that
“[The] proposed Commission would ensure equal and active participation of both the Executive and the Judiciary in collaborative and participatory manner to find best and brightest persons with impeccable integrity to the Bench of higher Judiciary for the purpose of securing independent and impartial judiciary which is a Basic Structure of the Constitution…”
When it comes to the composition of the JAC itself, the Committee has advised making a number of changes including increasing the number of members to seven from the current six, with the Vice President as Chairman. Given that the Bar is an important stakeholder, the Committee had recommended a representative from the Bar to be in the Commission and also have the Attorney General as a member instead of the Minster of Law & Justice. Commenting on the difficulty for one JAC to appoint close to 800 judges across the higher judiciary, the Committee has also asked for the creation of a “State Level Commission” for appointments to the various High Courts.
The Committee has pushed for the creation of an All India Judicial Service (AIJS) holding that,
“The Committee insists that AIJS may be created without further delay to attract best talent to the subordinate judiciary from where 33 percent of the judicial officers are elevated to the Bench of High Courts
The Committee has recommended increasing the retirement age of High Court judges to 65 and Supreme Court judges to 68, a time-bound appointment process to fill up judicial vacancies, and the introduction of an “objective and transparent” method for elevating members of the Bar to the Bench. Another significant change recommended by the Committee is for a ten-year “cooling off period” after retirement for judges before they can be appointed to different Commissions and Tribunals.
The Committee has also examined the manner in which judges can be removed from office. Criticizing the current impeachment process as “too cumbersome and impracticable”, the Committee has asked for the JAC to recommend removal of a judge to the President of India.
