Amid demands by jurists and BJP, government on Thursday gave the go ahead to grant constitutional status to a proposed Commission for appointment and transfer of judges to the higher judiciary to ensure that its composition cannot be altered through an ordinary legislation.

A Parliamentary standing committee which examined the Judicial Appointments Commission (JAC) Bill, 2013 had also made a similar recommendation.

There were demands that the composition as well as the functions of the proposed Judicial Appointments Commission (JAC) should be mentioned in the Constitution as a safeguard against future changes.

The decision was taken at the Cabinet meeting held in New Delhi on Thursday.

According to the proposal, while new Article 124 A of the Constitution will define the composition of JAC, Article 124 B will define its functions.

At present, the composition of the proposed panel is defined in the Judicial Appointments Commission Bill, 2013 which was introduced along with a separate constitutional amendment bill in Rajya Sabha during the Monsoon Session.

The constitutional amendment bill says there will be a JAC but does not say it will be headed by the CJI or mentions the composition.

While the constitutional amendment bill – an enabling bill – was passed by the Upper House, the main bill – the Judicial Appointments Commission Bill, 2013–was referred to the standing committee.

The Judicial Appointments Commission Bill defines the establishment of the proposed body to recommend appointment and transfer of judges of the Supreme Court and the high courts.

“We have made compromises to make the bill palatable to all. We have satisfied all demands…. The bill with official amendments will be tabled in the Lok Sabha now,” Law Minister Kapil Sibal said.

While a constitutional amendment bill requires two-third majority for passage in a House, a normal legislation just needs a simple majority.

The bill seeks to scrap the present collegium system under which judges appoint judges.

Some jurists and BJP had expressed the apprehension that any future government can tamper with the composition of the commission which could alter the balance.

They had said that as amending Constitution was not an easy task, CJI as the head of the panel should find mention in the constitution amendment bill.

 

Apart from CJI, two Supreme Court judges, the Law Minister and two eminent citizens – to be selected by a panel comprising the Prime Minister, CJI and Leader of the Opposition in Lok Sabha – will be its members.

Secretary (Justice) in the Law Ministry will be the convener of JAC. The Law Ministry is learnt to have not accepted the other recommendation of the parliamentary panel to have a separate state-level JAC to appoint and transfer judges of the 24 high courts.

The parliamentary panel had also recommended that it should be made a seven-member body by having three eminent citizens instead of two.

Sources said odd numbers would avoid a possible deadlock in case of a tie while taking a decision.

It said one of the three eminent personalities should either be a woman or a member from the minority community or SC/ST by rotation.

But the ministry has left the number of members in the JAC to the selection committee.

Though the Law Ministry was opposed to the idea of having one eminent person by rotation from the minority community or SC/ST/OBC, Sibal is learnt to have convinced the Cabinet that one of the two eminent persons can be from the categories mentioned.

“I congratulate the Cabinet for having a big heart to move forward so that the cause of justice is served…. This is a welcome compromise (to accept the various demands). While everybody was in favour of the bill, there were demands which have been met now,” Sibal said.

Another recommendation of the standing committee which the government accepted relates to informing the JAC six months in advance of any vacancy arising in the higher judiciary — Supreme Court and the High Courts– so that steps can be initiated to fill the posts.

In case a judge dies in office or steps down, the JAC will be informed about the development within one month so that necessary action can be initiated.

Government now hopes to get the measure passed in the next session of Parliament.