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), with a “preponderence of members of the judiciary”, should be set up to make recommendations to the President on transfer and appointment of judges to the higher judiciary.
In a note sent to Union Law Minister Ravi Shankar Prasad, Shah has said 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.
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,” he has said, adding that the principles to be used for determining the composition of the JAC must be “continuity and participatoriness”.
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Shah has said the 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, he has said.
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.
Underlining the need for constitutional backing, Shah has said, “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.”
He has stressed that the 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, Shah has said that the 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,” he has said.
In order to ensure transparency in the entire process, Shah has recommended that the “entire record of the process, starting from the nominations received up to the final recommendation made to the President, must be publicly disclosed”.
Shah has also favoured 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.