The Parliament today cleared a Constitution amendment bill that will facilitate setting up of a commission for appointment of judges, replacing the 20-year-old collegium system which has been under severe criticism. A day after passage in the Lok Sabha, the Constitution Amendment Bill was cleared by the Rajya Sabha with 179 votes in favour and one abstention of noted lawyer Ram Jethmalani.
The bill will make way for the setting up of the National Judicial Appointments Commission which will appoint and transfer judges to the Supreme Courts and the 24 High Courts. The bill will come into force after ratification by 50 percent of the state legislatures. The process could take up to eight months. After ratification, the government will send it to the President for his assent.
With the passage of the bill, the collegium system of judges choosing judges is set to be changed in the coming months. The Constitution amendment bill will grant Constitutional status to the NJAC and its composition. Under the statute amendment bill, the Chief Justice of India will head the NJAC. Besides the CJI, the judiciary would be represented by two senior judges of the Supreme Court. Two eminent personalities and the Law Minister will be the other members of the proposed body. The prominent persons, one of whom will belong to either of SC/ST, OBC, minorities or a woman, will be selected by a panel of Prime Minister, Chief Justice of India and the leader of the opposition in the Lok Sabha or the leader of the largest opposition party in the lower House.
Moving the Bill, Law Minister Ravi Shankar Prasad said the measure is not being brought in haste as there have been several committees in the past that have recommended for bringing a change in the collegium system of appointing judges. "Why is Parliament wary of using its powers? Parliament must have full trust in the ability of Parliament to pass the law," he said. Prasad said the power of appointing a judge rests with the President of India. "This House respects the independence of the judiciary and this House also respects the power of Parliament," he said.
On doubts of some members on the appointment of eminent persons on the all-important Judicial Appointments Committee, he said, they will be appointed by the Prime Minister, the Chief Justice of India and the leader of the opposition or largest opposition party in the Lok Sabha. "Should we not trust their collective wisdom. If they can govern the country well, they can select eminent persons as well," he said.
Finance Minister Arun Jaitley said in the interest of judiciary there should be an element of primacy in the institution of judiciary. He said the process of appointments in judiciary today is not only by judicial primacy and has "virtually boiled down to a system of judicial exclusivity and the role of other institutions is almost negligible." Jaitley said the independence of the judiciary is part of the basic structure of the Constitution and it must be maintained, but an elected government is also part of the structure and questioned if it was not an aberration if its views are not considered.
"The balancing act is to let this power be collectively exercised," he said so that best judges can be appointed to higher judiciary. "We are restoring the spirit of the Constitution...while maintaining the primacy of the judiciary," he said. "Today judges appoint judges and they will probably take the views of the Executive. There is only a marginal role of the consultation with the executive. There is hardly any role that the Governor and Chief Minister has and if the Executive has a contrarian view and there is strong reason for that contrarian view and it conveys to to the judiciary...It is considered as a view not taken," he said.
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