The proposed system of judicial appointments drops important safeguards.
The government has introduced two bills in Parliament on the appointment of judges of the Supreme Court and high courts. One of these is a Constitution amendment bill, which proposes that the current system of consultation with the chief justice of India and other senior judges be replaced by recommendations from a new body called the judicial appointments commission (JAC). The other bill specifies the composition of the JAC and its functions. Together, these two bills may have enabled the dilution of some of the safeguards in the current system of appointments.
Currently, Article 124(2) of the Constitution states that "Every judge of the Supreme Court shall be appointed by the president... after consultation with such of the judges of the Supreme Court and the high courts in the states as the president may deem necessary. Provided that in case of appointment of a judge other that the chief justice, the chief justice of India shall always be consulted." Over time, the judiciary has interpreted this clause to mean that a collegium of judges shall select new judges, who will then be appointed by the president.
The process of judges selecting their new colleagues is sought to be modified so that the executive also has a role to play. The Constitution is being amended so that the process of "consultation" with judges is replaced by "the recommendation of the judicial appointments commission". The Constitution amendment bill also removes the proviso that requires consultation with the CJI. It adds a new Article 124A, which states that Parliament may, by law, determine the composition of the JAC, the appointment, qualification and terms of service of its chairperson and members, its functions and the manner of selection of judges.
Similar changes are proposed in Article 217, which deals with the appointment of judges to high courts. Instead of the "consultation with the chief justice of India, the governor of the state and, in case of a judge other than the chief justice, the chief justice of the high court", the new process will be based on the recommendations of the JAC.
A bill has been introduced that constitutes the JAC. It will consist of the CJI, the next two senior judges of the Supreme Court, the law minister, and two eminent persons. These two eminent persons will be selected by a collegium consisting of the prime minister, the CJI and the leader of the opposition in the Lok Sabha. The JAC will recommend appointments of judges and chief justices of the Supreme Court and high courts as well as transfers of chief justices and judges of high courts. In case of the appointment of high court judges, the views of the chief minister, governor and chief justice of the high court will be obtained in writing.
These two bills together change the system from the current collegium-determined appointments to a JAC, which has representatives from both the judiciary and the executive. However, an important safeguard has been removed in the process of delegating the role to the JAC.
The current system ensures that any change in the process of selection would require an amendment to the Constitution. Article 368(2), which details the process of amending the Constitution, has an added requirement. All constitutional amendments require the support of two-thirds of members voting, and at least half the total membership in each House of Parliament. Amendments related to the Supreme Court and high courts require the ratification by the legislatures of half the states. Indeed, the proposed Constitution amendment bill will have to go through these steps, including ratification by 14 state legislatures.
After the change, the composition of the JAC and its functions will be determined, by law, by Parliament. This means that Parliament can amend the law any time with a simple majority and change the composition of the JAC. Indeed, it would have the power to drop the judicial members from the JAC by passing an amendment with a simple majority.
To sum up, the composition of the JAC is not being specified in the Constitution. Instead, it is being specified in a proposed act of Parliament. It leaves scope for amending that act at a later date. This would remove the safeguard that any change in the selection process requires not just a two-thirds majority in each House of Parliament but also the approval of half the state legislatures. This is a point that parliamentarians and state legislators must consider while examining the 120th Constitution Amendment Bill.