The government has finally decided to not let judges appoint themselves anymore. The Union Cabinet is likely to soon consider a bold proposal to replace the collegium system of appointment of judges of the Supreme Court and high courts where the Chief Justice of India, along with four senior-most judges of the apex court, enjoy the prerogative of picking up members of higher judiciary.
According to sources, government proposes to vest the power of appointment of judges of the SC in a broad-based mechanism which will consist of the leader of opposition, an eminent jurist and the law minister, besides the CJI and two senior-most judges of the top court.
Similarly, for appointments of HC judges, the government proposes a panel consisting of the leader of opposition and law minister of the state concerned, an eminent jurist and the chief justice of the high court.
Sources said the law ministry will put up the Judicial Appointments Commission Bill which proposes the radical break from the current practice before the Cabinet by April 22 when Parliament reassembles after the recess. The ministry is waiting for Prime Minister Manmohan Singh's approval.
The government had the upper hand in appointment of judges until 1993 when judiciary acquired primacy in the process courtesy an SC judgment. The judgment turfed out the executive completely, vesting the prerogative solely in the CJI and four of his senior-most colleagues in the apex court.
The judgment said the constitutional provision for consulting judges should be interpreted as a requirement of their concurrence: something that at once transformed the requirement to consult judges into an obligation to heed them.
Although government can return the recommendations of the collegium for its reconsideration, it has no role to play if the CJI and his colleagues stick to their choices.
Judiciary's monopoly over appointments of judges of the SC and HCs has been a source of serious heartburn to the political class, while even judges, including former CJI J S Verma who accorded primacy to judiciary, have acknowledged that the collegium system in practice has been prone to favouritism and needs to be reformed.
The move to challenge the status quo is likely to find broad support from the political class, with the resentment of judicial overreach likely to be the additional driver.
Sources said the BJP has indicated its "in-principle" support to the move that seeks to make the system of judicial appointments more transparent. According to them, government had consulted leader of opposition in Rajya Sabha Arun Jaitley while drafting the JAC Bill.
Sources in the BJP confirmed this, but said there was no understanding on the specifics. For instance, they pointed out that Jaitley had suggested that two eminent citizens should be part of the collegium, cautioning that the inclusion of eminent jurists -- for all practical purposes a lofty descriptttttion of lawyers with rich clientele -- may lead to conflict of interest
Sources also said Jaitley asked for the collegium to have the final say in the disciplining mechanism as well.
Earlier, there was a proposal to include the prime minister in the commission. The idea was dropped after government recognized that the CJI could not head a panel which included the PM. Accordingly, it was decided to include the law minister as government's representative to the panel.
At the recently-concluded chief ministers and chief justices conference, sources said the government didn't find much support from the top judiciary on its proposed changes in the appointments systems. Even for the all-India Judicial Services that will be responsible for recruitment of judges for subordinate courts, the chief justices of high courts and judges of the apex court expressed reservation though chief ministers were in agreement. The judges were more in favour of continuing with the current practice.
Before giving final shape to the proposed bill, the law ministry held several rounds of discussions with the country's top jurists. Those consulted include Justices J S Verma and Justice M N Venkatachaliah. The government also had a communication from Justice V R Krishna Iyer.
All of them favoured broad-basing the commission, though with majority from the judges of the apex court with representation from the government and the opposition, a law ministry official said.
