On the day the Rajya Sabha voted overwhelmingly to junk the collegium system of appointments to the higher judiciary,three former Chief Justices of India,while acknowledging that the opaqueness of the collegium system was responsible for the outcry against it,raised questions about the composition of the proposed Judicial Appointments Commission (JAC).
The Judicial Appointments Commission Bill,2013,which defines the establishment of the proposed JAC and its composition,was on Thursday referred to the Personnel,Public Grievances,Law and Justice. Once passed by both Houses of Parliament by a simple majority,the JAC would be a six-member body,with the CJI its chairperson. The other members of the JAC would be two Supreme Court judges next to the CJI in seniority ,Union Law Minister,and two eminent persons nominated by a collegium consisting of the PM,the CJI and Leader of the Opposition in the Lok Sabha.
As of now,the CJI is the chairman. But tomorrow,a government can easily change the composition of the JAC,including making somebody other than the CJI its chairman,through a simple majority in both Houses of Parliament. Also,there is no clarity on what will happen if the six members dont agree on the same names. Will the majority prevail? If yes,what if there is a tie? Who will have the casting vote? The government needs to explain how this system will be more transparent than the current one. Will the selection process be open to public scrutiny under the RTI Act? asked a former CJI,who did not wish to be named.
Former CJI and NHRC chairperson K G Balakrishnan said the proposed system has many loopholes. How will the JAC members,all of them based in Delhi,know if the candidates they are recommending for,say J&K High Court,are the best ones for the job? Also,how will this system be better than the collegium system? Will there be a fixed time-line within which a vacant post in a High Court will be filled? What is the guarantee that in future somebody other than the CJI will not be made chairperson of the JAC?, he told The Indian Express. I think it should have been said in the Constitution Amendment Bill,which was passed by Rajya Sabha,that the CJI would be chairperson of the JAC. This would have made it difficult,if not impossible,for any government to do away with the primacy of the CJIs role.
Former CJI M N Venkatachaliah,who headed the National Commission to Review the Working of the Constitution that,in March 2002,recommended the establishment of the JAC,said it would be dangerous if the primacy of the CJI in the appointment process was done away with. It would be against the basic structure of Constitution. The CJI must always be chairperson of the JAC. That is why it was important that this should have been part of the Constitution amendment bill. Now,there will always be a fear of this happening, he said.