Govt fine tunes shape of proposed body to replace collegium

Keen to bring a bill to scrap the present system of appointment of judges, government is weighing its options on the shape of the proposed body to replace the collegium system.

While some legal luminaries are of the view that the proposed Judicial Appointments Commission should be a 'permanent' body with its chairperson and members having a fixed tenure, others feel that an 'ex officio' body, as proposed by the previous UPA government in its bill, was sufficient.

Working to bring the bill in the ongoing session of Parliament, government is learnt to be looking into both the options.

While a permanent body would mean that the chairperson and other members would have a fixed tenure, in an ex officio commission, members would become part of it by virtue of holding a certain post.

The UPA bill had proposed that the JAC would be headed by the Chief Justice of India and would have two senior judges of the Supreme Court, two eminent persons and the Law Minister as its members.

In the ex officio set up, a person would continue to be a part of the Commission as long as he holds a certain post.

Sources said the NDA government is not averse to the previous UPA government's plan to put the composition and functions of the proposed Judicial Appointments Commission Bill in Constitution.

By giving the composition and functions of the proposed commission Constitutional status, UPA had sought to ally fears of the judiciary that the composition and functions can be tweaked by any future government.

BJP, then in Opposition, had also raised the issue of constitutional status for the proposed body.

While a constitutional amendment bill requires two-third majority for passage in a House, a normal legislation needs just a simple majority.

But the NDA government is learnt to be planning to rejig the composition of the proposed panel, the sources said.

They said the NDA government has found "certain infirmities" in the UPA version.

The UPA bill had proposed that the Commission be headed by the Chief Justice of India with two senior judges of the Supreme Court, two eminent persons and the Law Minister as its members.

The Secretary (Justice) in the Law Ministry was to be the convenor.

UPA had proposed that the two eminent persons on the Commission be selected by a panel consisting of the Prime Minister, the CJI and Leader of the Opposition in the Lok Sabha.

The NDA government could increase the number of judges in the proposed Commission to give the judiciary an upper hand.

A Constitutional Amendment Bill to set up the proposed commission has lapsed following the dissolution of the 15th Lok Sabha and an accompanying bill is pending in Rajya Sabha.

An earlier effort by the NDA-I government in 2003 to replace the collegium system met with no success. The then NDA government had introduced a Constitution amendment bill but Lok Sabha was dissolved when the bill was before a Standing Committee. Finance Minister Arun Jaitley was the Law Minister then.

After any Constitutional amendment bill gets Parliamentary nod, it is sent to all the states and 50 per cent of the state legislatures have to ratify it. The process could take up to eight months.

After ratification, the government sends it to the President for his approval.

The practice of judges appointing judges started after 1993, replacing the system of government picking judges for higher judiciary comprising the Supreme Court and high courts.

The move to set aside the 1993 Supreme Court judgement, which led to the collegium system, requires a Constitutional amendment.