Judges should dominate panel to pick judges: Law Commission Chairman A P Shah

The Law Commission of India Chairman and former Delhi High Court Chief Justice A P Shah has proposed that a seven-member Judicial Appointments Commission (JAC) instead of six- member commission as per the Bill.

The JAC Bill 2013, introduced in the Rajya Sabha by the previous UPA government, also proposed the inclusion of two “eminent persons” in the JAC, both selected by the same committee as suggested by Shah. But the Bill proposed a six-member JAC.

As per A P Shah, the main reason in the seven-member JAC is to increase predominant influence of members of the judiciary by adding one more member from judiciary in the proposed bill.

It should be set up to make recommendations to the President on transfer and appointment of judges to the higher judiciary.

Shah, in a note sent to Union Law Minister Ravi Shankar Prasad, has said that the JAC’s recommendations should ordinarily be binding on the President and in case the President rejects any name, it should be open to judicial review.

In the note sent to Union Law Minister Ravi Shankar Prasad, A P Shah mentioned following

• The proposed commission must have a preponderance of members of the judiciary since this is a key facet of securing judicial independence, which is part of the basic structure of the Constitution.
• The principles to be used for determining the composition of the JAC must be “continuity and participatoriness”.
• Chief Justice of India (CJI) should be the chairperson of the proposed body, with three sitting judges of the Supreme Court, the Minister of Law and Justice, an eminent jurist and an eminent member of civil society as its other members.
• The last two must be chosen by a committee comprising the CJI, Prime Minister and leader of the single largest party in the opposition in the Lok Sabha.
• Need for constitutional backing- This scheme would be adversely affected were the composition of the JAC not to be provided in the Constitution but in statute. Besides, making such provision in the Constitution will make amendment more onerous, thereby lending greater stability and certainty to the new framework. JAC should be a “permanent body and must not be constituted on an ad hoc basis as and when the need arises”.
• On the system for selection of judges by the proposed body- This decisions should be taken by consensus. If consensus is elusive, decisions may be made by majority, with all dissenting notes accompanied by reasons being recorded in writing.
• In order to ensure transparency in the entire process- “Entire record of the process, starting from the nominations received up to the final recommendation made to the President, must be publicly disclosed”.
• Tenure of members of JAC- A fixed tenure of two years for the CJI, and an increase in the retirement age of HC Judges to 65 years to bring it at par with that of SC Judges.

The Judicial Appointments Commission Bill, 2013

The Judicial Appointments Commission Bill, 2013 was introduced in the Rajya Sabha on August 24, 2013 by the Minister of Law and Justice, Mr. Kapil Sibal.

The Bill has been introduced in conjunction with the Constitutional (One Hundred and Twentieth Amendment) Bill, 2013.

By the 120^th Constitutional Amendment Bill, 2013 it inserts Article 124A, by providing for the setting up of a Judicial Appointments Commission (JAC).

This bill is still pending before Parliament.

This Bill provides for the composition, functions and procedure of the JAC.

Aim of the Judicial Appointments Commission (JAC)-

This Commission is sought to be established for the purpose of recommending persons for appointment as Chief Justice of India (CJI) and other Judges of the Supreme Court, and 

Chief Justice and other Judges of High Courts.

The Bill seeks to enable equal participation of Judiciary and Executive, ensure that the appointments to the higher judiciary are more participatory, transparent and objective.

Establishment and composition of Commission

• The Commission shall be chaired by the Chief Justice of India (CJI).
• It shall comprise of two other senior most Judges of the Supreme Court.
• Union Minister for Law and Justice, and
• Two eminent persons to be nominated by the collegium.

The collegium comprises the Prime Minister, the CJI and Leader of Opposition of the Lok Sabha.

The eminent members will retain membership for a three year period and are not eligible for re nomination.

The Secretary to the Government of India in the Department of Justice shall be the convener of the

Functions of Judicial Appointments Commission (JAC)

The Commission seeks to perform functions that relate to appointment, transfer and quality of candidates.

Those functions include

1. Recommending persons for appointment as Chief Justice of India; judges of the Supreme Court, Chief Justices of High Courts and other judges of High Courts.
2. Recommending of transfer of Chief Justices of High Courts and the judges of High Courts, from one High Court to any other High Court.
3. Ensuring that the person recommended is of ability, integrity and standing in the legal profession.

The procedure for recommendation with respect to appointment of High Court Judges includes eliciting views of the Governor, Chief Minister and Chief Justice of High Court of the concerned state, in writing.

This shall be in accordance with procedure specified by regulations made by the Commission.

In case of vacancies

• Upon the arising of a vacancy in the High Court and Supreme Court, references to the Commission shall be made by the Central Government.
• Intimation of existing vacancies shall be made within a period of three months from the date of coming into force of this Act.
• In the case of vacancy due to the completion of term, reference shall be made two months prior to the date of occurrence of vacancy.
• In the case of vacancy due to the death, resignation, reference shall be made within a period of two months from the date of occurrence of vacancy.

Procedure for short listing of candidates

• Process for selection shall be initiated by the Convener, by inviting recommendations from the Chief Justices of High Courts, the Central Government and the State Governments, for candidates fulfilling eligibility criteria.
• The Commission may make regulations to specify the procedure for short listing of candidates for considering their appointment as Judges to the High Court and Supreme Court.