The Government on 3 August 2013 proposed inclusion of two eminent persons in the six-member Judicial Appointments Commission instead of the two jurists. The decision was made to create a balance and avoid the extra weightage to judiciary in the body.
The decision on the proposed changes was made by the Union Law Ministry in a separate note to the Cabinet Secretariat. The cabinet note says "Constitution uses consultation but interpreting it as concurrence in the face of clear language to establish primacy of the opinion of the Chief Justice of India is contrary to constitutional scheme. Also, in the constitutional scheme there is no hierarchy among consultees”.
As per the new proposal the six members Judicial Appointments Commission would comprise of the Chief Justice of India, two Supreme Court judges, Union Law Minister and two eminent persons, instead of two jurists. The inclusion of the two jurists was proposed earlier. The previous proposal also mentioned that the leader of opposition would not be the member of the commission.
To appoint the two eminent persons for the appointments commission would be done by the collegium that will include the Prime Minister of India, the Leader of Opposition and the Chief Justice of India. The secretary of the Law Ministry will act as the convenor of the Judicial Appointment Commissions but not the member of the commission.
Impact of the changes
• The proposed changes will allow non-jurists to be the part of the judicial appointments commission as its member surpassing the limitation of the membership of the person from judicial background only
• As per the Cabinet note, the Judicial Appointments Commission will be responsible for recommending the name of the Chief Justice of India, Judges of Supreme Court and Chief justices of high courts as well as Judges at other levels.
• Transfer of judges would also be recommended by the Appointments Commission based on the person’s ability integrity and standing in the legal profession.
The UPA Government’s proposal would seek an approval for the amendment of Article 124, 217, 222 and 231 of the Constitution of India. Apart from this, it proposes the insertion of Article 124 (A) in the Constitution. It also seeks introduction of the Judicial Appointments Commission Bill in the Parliament.
The decision has been taken to do away the Collegiums System of Appointment of Judges that allows Judges to make their own appointments.
About the Collegiums System of Appointment of Judges
Two judgments of the Supreme Court resulted in the formation of the Collegium System. The Judgment in support of the system was delivered on 6 October 1993 by a nine Judge Bench. Justice M N Venkatachaliah the then Chief Justice of India was not the member of the nine Judge Bench.
The collegium system of appointment of Judges in the Supreme Court and High Courts of the country was introduced by a Judicial Legislation by a majority Judgment in the Second Judges Case. The first judgment interpreted Article 124 of the Constitution in a manner in which consultation process with the judiciary by the President was deemed concurrence.
The Judgment held: in matters relating to appointments in the Supreme Court, the opinion given by the Chief Justice of India in the consultative process has to be formed taking into account the views of the two senior most judges of the Supreme Court.
The system for the first time came into attack, since its formation after, Justice Bhaskara Bhattacharya the Chief Justice of Gujarat High Court (appointed on 21 July 2012) took on the system openly after he was not elevated to the Supreme Court. He alleged that his elevation was barred from elevation because he opposed the elevation of Justice Altamas Kabir’s sister in Calcutta High Court.