New Delhi: Overcoming resistance from the judiciary, the government on Thursday took a significant decision to scrap the collegium system of appointing judges to the Supreme Court and high courts.
The Cabinet today approved the bill which entails replacing the collegium system with a Judicial Appointments Commission wherein it will have a say in appointment of judges of the Supreme Court and the 24 high courts.
Under the proposal, the government seeks to set up a panel headed by the Chief Justice of India (CJI) to appoint and transfer senior judges.
The other members of the proposed Commission would be two judges of the Supreme Court, the Law Minister, two eminent persons as members and Secretary (Justice) in the Law Ministry as Member Secretary.
The Law Ministry has been pushing the proposal, which will require a Constitutional amendment, but some sections in the government as well as judiciary had reservations over its certain provisions.
An earlier proposal circulated in April had incorporated the view that the Leader of the Opposition should be made a member of the JAC.
According to the fresh note, the Leader of the Opposition will not be part of the proposed body.
However, the Leader of the Opposition of either House of Parliament will be part of a committee to be set up to nominate two eminent persons to the JAC.
The committee will also have the CJI and the Prime Minister as other members.
A constitutional amendment bill will be moved in Parliament next week, sources said.
The move to set up JAC would entail amendments to Articles 124, 217, 222 and 231 of the Constitution and insertion of Article 124 A.
The views of the governors, chief ministers and respective chief justices of the 24 high courts will be elicited in writing for appointment of judges as per the procedure which could be determined by the JAC.
Bar associations, jurists and other bodies may also be asked to suggest names.
Justifying the move to scrap the collegium system, the Law Ministry said, "The need for this proposal arises primarily because the present system of appointment of judges in the country is unprecedented as in no other country in the world, does the judiciary makes appointments for itself."
It said the present system has resulted from the decisions of the Supreme Court "which it is believed are inconsistent with the constitutional scheme".
The note said the collegium system has no constitutional backing or Parliamentary endorsement.
"The proposed amendments will provide constitutional backing to the process of consultation through the institution of JAC and will make the process truly participatory between the executive and the judiciary without in any way compromising the independence of the judiciary," the Cabinet note reads.
The practice of judges appointing judges started after 1993, replacing the system of government picking judges for higher judiciary comprising the Supreme Court and High Courts.
The move to set aside the 1993 Supreme Court judgement, which led to the collegium system, will require Constitutional amendment.
The last effort to replace the collegium system in 2003 did not succeed. The then NDA government had introduced a Constitution Amendment Bill but the Lok Sabha was dissolved when the bill was before a Standing Committee.
Amid government's plan to overturn the collegium system, successive CJIs, including the present incumbent P Sathasivam have strongly defended the present practice saying appointments to the higher judiciary are made after "intense deliberations".
The Supreme Court collegium consists of five top judges of the apex court, headed by the CJI.
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