Reasons Given by the Government For Bringing the Judicial Appointments Commission Bill, 2013

Emblem of the Supreme Court of India.

Presently, the Judges of the Supreme Court are appointed by the President under clause (2) of article 124 of the Constitution while the Judges of the High Courts are appointed by the President under clause (1) of article 217 of the Constitution.

The President is required to hold consultation with such of the Judges of the Supreme Court and of the High Courts in the States as he may deem necessary for the purpose. However, every Judge of a High Court shall be appointed by the President after consultation with the Chief Justice of India, the Governor of the State and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

Also, the transfer of Judges from one High Court to another High Court is made by the President after consultations with the Chief Justice of India under clause (1) of article 222 of the Constitution.

As regards the appointment of Judges of Supreme Court and High Courts, the Supreme Court in the matters of the Supreme Court Advocates-on-Record Association v. Union of India and its Advisory Opinion 1998 in Third Judges case, had interpreted articles 124(2) and 217(1) of the Constitution with respect to the meaning of "consultation" as "concurrence".

It was also held that the consultation of the Chief Justice of India means collegium consisting of Chief Justice and two or four Judges, as the case may be. This has resulted in a Complex Procedure laying down the process which is being presently followed for appointment of Judges to both the High Courts and the Supreme Court. The Memorandum of Procedures confers upon the Judiciary itself the power for appointment of Judges.

Today, some sections of the society feel that the members of the Judiciary appoint themselves without effectively consulting the other pillars of the State. The Apex Court is accountable to no one in terms of the appointments made and many a times, the government felt that the appointments made are biased and prejudiced. The Government feels that the process followed in appointment of Judges is too exclusive and it has virtually has no say in the process. The Government also felt that executive needs to have a more meaningful role and equal participation in the appointments as it would infuse an element of accountability, objectivity and transparency in the selection process.

In the subsequent posts, I will explain the salient features of the Bill brought by the government in this regard. I will also share my opinion on the present bill.

Next: Some Important Features of the Judicial Appointments Commission Bill.