Elders clear bill on judges' appointment

Symbolising a decisive assertion of the executive’s primacy, the Rajya Sabha passed a Constitution amendment bill that enables Parliament to set up a judicial appointment commission to appoint judges to the Supreme Court and high courts.

The Constitution (120th Amendment) Bill, 2013, paves the way to bring an end to the collegium system and allows the executive an effective participation in the appointment of judges. 

Though there seems to be a free flow of criticism of the judiciary, the BJP advised caution in passing the bill by asking it to be sent to the standing committee. After failing in its efforts, the BJP staged a walkout and the bill was passed in its absence with 131 members voting for and one against.

However, on the insistence of opposition parties, a related bill that deals with the composition of the judicial appointment commission (The Judicial Appointment Commission Bill 2013) has been referred to the standing committee, meaning the government cannot proceed with the formation of the commission.  The bill seeks to amend Articles 124, 217, 222 and 231 of the Constitution. According to the provisions in these articles, the President appoints judges of the Supreme Court in consultation with judges of the apex court.

The President appoints judges of the high courts in consultation with the chief justice of India (CJI), the governor and the chief justice of the high court concerned.  According to these articles, the President has to transfer the judges in consultation with the CJI.

The Supreme Court interpreted the word “consultation” as “concurrence” and the collegium of judges came into existence in 1993, which ended the role of the executive. 

Appointments of judges in the Supreme Court and the high courts and their transfers are being done on the recommendations of the collegium constituted by the CJI.     The articles have been amended to replace the process of consultation with the recommendation of the judicial appointments commission.

 Law Minister Kapil Sibal said that “it would provide a meaningful role to the executive and judiciary” and “make the participants accountable while introducing transparency in the selection process.” 

While moving the bill, Sibal said the judiciary “rewrote the Constitution” in 1993 when the collegium system of appointing judges to higher courts was adopted which disturbed the delicate balance between the judiciary, the legislature and the executive.

“Nobody knows how a judge is chosen under the collegium system,” Sibal remarked.
Underlining that the appointment of judges “has nothing to do with judicial function,” he said, “The acts of appointments are executive acts.”

Leader of the Opposition in the Rajya Sabha Arun Jaitley said, “When other establishments of democracy do not infringe upon functioning of the judiciary, then why would it ask the government to do this or do that and direct even on the economic policy of the government.”

MPs from across parties alleged corruption, nepotism and inefficiency in the judiciary. They also attacked the courts for “obstructing economic growth.”