Judges should dominate panel to pick judges, CJI should head it: Law Commission

AP Shah: Proposes 7-member judicial appointments panel with constitutional support

Written by Maneesh Chhibber | New Delhi | Updated: July 29, 2014 8:26 am
 Justice Shah wants 7 members instead of 6 ; Bill says 3 SC judges plus CJI, Shah says 4 SC judges plus CJI. Source Express photo Justice Shah wants 7 members instead of 6; Bill says 3 SC judges plus CJI, Shah says 4 SC judges plus CJI. (Source: Express photo)

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”.

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.

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  1. A
    A S
    Jul 29, 2014 at 5:34 am
    It is also important to provide for enquiries relating to the judges in a time bound manner and time bound action for removal where justified. Based on past experience it is important that representation to the civil society should be better in such enquiries.
    1. J
      Jul 29, 2014 at 5:48 am
      Shah being a former judge has shown his partiality towards dominance of judges in the panel. It will be meaningless if it is so where judges decision will be final. The commission should be 50-50 so that the wrong doings of judges can be checkmated. Judges should remember that they are not from Mars and subject to errors and therefore there must be checks and balances.
      1. S
        Jul 29, 2014 at 4:42 am
        So many appointments are done by collegium. it is not proper for NDA government to do away this. Please correct the system than changing the system .Every system will have its own merits and demerits. No body can find a foolproof system
        1. B
          Jul 29, 2014 at 1:21 am
          This proposal will more or less keep the status-quo, and won't eliminate the ng of the courts with judges inadequately qualified, tainted and politically connected. The Govt. should have the upper hand as it finances the w thing and also should have the ability to proceed against errant judges (corruption, misbehavior towards their staff, etc) more easily than hitherto. To clear a nominee, a 2/3 majority of the JAC members should vote in favor of that nominee instead of just majority that can often be abused.
          1. S
            Jul 29, 2014 at 5:43 am
            There must be some criterion for selection of judges. The criterion should be displa on web site..Short listed judges must meet the criterion . The names of judges in panel should be displa on the web site. The selection process must be confidential.and non challenge able.
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