Amid the tussle between the government and the Supreme Court over judicial appointments, a parliamentary committee Thursday said appointment of judges to the higher judiciary is essentially the function of executive, and asked the government to take appropriate steps to reverse the “distortions” in the original mandate of the Constitution. The Parliamentary Standing Committee on Law and Personnel said the “distortions” in the original mandate of the Constitution have arisen out of various Supreme Court orders which gave birth to the collegium system.
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The report comes a little over a year after the Supreme Court struck down the National Judicial Appointments Commission Act which had sought to scrap the collegium system of judges appointing judges. It also said that instead of five, a minimum of 11 judges of the Supreme Court should hear cases involving the validity of a Constitutional amendment.
It also recommended cases involving interpretation of Constitution should not be heard by a Bench of less than 7 judges. Over the course hearing on three cases, the Supreme Court has evolved the principle of judicial independence to mean that no other branch of the state, including the legislature and the executive, would have a major say in the appointment of judges.
The court then created the collegium system, which has been in use since the judgement in the Second Judges Case was delivered in 1993. “After having gone through the Constitutional provisions, the intent behind them as enshrined in the debates of the Constituent Assembly, the developments following four Supreme Court judgments in Judges cases and the views expressed by the legal luminaries and the Bar, the Committee is of the opinion that appointment of judges of higher judiciary is essentially an executive function and is envisaged as a participatory Constitutional function to be jointly performed by the Judiciary and the Executive,” the committee said in its report tabled in Parliament today.
It said the deliberate use of word ‘consultation’ in place of ‘concurrence’ in relevant provisions of the Constitution strengthens this opinion. It said the panel is of the view that judicial appointments are a shared responsibility of the Executive and the Judiciary to be exercised jointly “with neither organ of the state having a primacy over the other”.
“The Committee, accordingly recommends that the distortion in the original mandate of the Constitution arising from the judgments of the apex court in the Second Judges case and subsequent cases needs to be reversed and the original Constitutional position needs to be respected in letter and spirit for which government may take appropriate measures.”