LEGISLATIVE RESEARCH AND POLICY CLUB, NATIONAL LAW

UNIVERSITY, ODISHA

SUGGESTION ON THE JUDICIAL APPOINTMENTS COMMISSION BILL, 2013

The present document is submitted to the Department related Parliamentary Standing

Committee on Personnel, Public Grievances, Law and Justice., as a response to the

suggestions requested on the Judicial Appointments Commission Bill of 2013. This

submission is divided into two parts, i.e. observations with regard to the general scheme of

the Bill and recommendations with respect to specific provisions of the Bill. We are hopeful

that the Committee will find this document of good use and incorporate as many

recommendations as felt useful for the final submission.

REPORT PREPARATION: This Report was prepared by team of Legislative

Research and Policy Club.

FUNDING: The Club did not receive any funding whatsoever for the preparation of this

report. It was a voluntary exercise undertaken at the personal expenses of the writers.

CONTACT: Vivek Jain

Email id: vivekjain2190@gmail.com; Ph: +91 9040585849

Kartik Pant

Email id: kartikpant92@gmail.com; Ph: +91 78736667020

(All opinions expressed hereinafter are rendered by the members of ‘ Legislative

Research and Policy Club, National Law University Odisha’ in their individual

capacities, and do not represent the views of National Law University Odisha,

Cuttack.)

EXECUTIVE SUMMARY

The members of the Legislative Research and Policy Club (students of National Law

University Odisha, Cuttack); aspire to place a few suggestions pertaining to the Judicial

Appointments Commission Bill of 2013 for submissions to the Department related

Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice.

Initiation to the present Bill was made in tune with the purpose of ensuring transparency in

the appointment of Judges to the higher judiciary and with a view to bring about equal

participation and collaboration of the executive and judiciary, in the procedure of

appointment of Judges. As a result, the present Bill gets founded on the concept of Separation

of powers and the Doctrine of Checks and Balances; which ultimately serve the structures of

governance in ensuring the independence of the judiciary – a position which stands as a

quintessential aspect in strengthening one of the largest democracies of the world. The

fundamental clauses of the present Bill which are being dealt with in the memorandum inter

alia, include those relating to the constitution of the Judicial Appointments Commission

(hereinafter referred as ‘JAC’), functions of the Commission, procedure for shortlisting of the

candidates, and power of JAC to make regulations.

More so, the memorandum after recognising various notches of contention within the present

Bill, recommends certain clarifications in the form of suggestions; which are necessary to

achieve the objective of the present Bill. Among the many suggestions; constitutional status

to the composition of JAC, lucidity on the role played by two most senior judges of the

Supreme Court in the appointment of Chief Justice of India, inclusion of representation from

Bar Council of India at the advisory level, clarity in the procedure of the short-listing of

candidates, are amongst a few.

OBSERVATIONS IN REGARDS TO THE GENERAL SCHEME OF THE

BILL

On a due analysis of the JAC Bill, 2013, there stand some observations as to the general

scheme of the Bill, apart from those pertaining to specific provisions of the Bill. It must be

noted that the Supreme Court of India in the case of Advocates-on-Record Association v.

Union of India and through its 1998 advisory opinion in Third Judges case, discerned Art.

124(2) and Art. 217(1) of the Constitution in regards to interpretation of the term

‘consultation’ as ‘concurrence’. However, once the Constitution (One Hundred and

Twentieth Amendment) Bill of 2013 (hereinafter referred as ‘120th Amendment Bill’) is

passed, the phrase ‘after consultation with such of the Judges of the Supreme Court and of the

High Courts in the States as the President may deem necessary for the purpose’, under Art.

124 of the Constitution of India, would be substituted by ‘on the recommendation of the

Judicial Appointments Commission as referred to in article 124A”. Similar changes are

scheduled to be induced within Art. 217 and Art. 222 of the Constitution of India. This

amounts to legislative overruling of the earlier judgements of Supreme Court of India; as has

already been mentioned above. Also, this would have an effect of nullifying the

interpretation of provisions pertaining to appointment and transfer of judges which are

founded on the earlier phrase, which awaits amendment. Since these verdicts held the

president to act on the opinion of the collegium, the proposed amendment creates a doubt in

regards to the term ‘recommendation’ and whether it would be binding on the President of

India, or not. Henceforth, a clarification is needed in this aspect.

The second observation has been drawn in relation to expanding the scope of people, who are

selected as judges. Here, it must be taken into account that the Constitution of India under the

Art. 124, provides for three separate qualifications apart from him being a citizen of India, for

a person to be appointed as a judge of Supreme Court of India. But it has been a consistent

practice in the past, that only the judges of the High Court are elevated to the Supreme Court

of India. This practice in the present scenario is limited only, to the elevation of the Chief

Justices of various High Courts in India. Therefore, this prevailing practice shows disregard

to the other criterion that has been mentioned in the Constitution of India i.e., a person who

has been for at least ten years an advocate of a High Court or of two or more such Courts in

succession, or a person who in the opinion of the President is a distinguished jurist. Hence it

is suggested that there is a serious need to explicitly mention that a person from Bar or a jurist

may also be appointed as the judge of the Supreme Court of India. Moreover, in relation to

Art. 124(3)(c) of the Constitution of India, it is suggested that the JAC may recommend to the

President of India, to form an opinion as to whether a distinguished jurist, be made a judge

of the Supreme Court of India.

OBSERVATIONS AS TO THE SPECIFIC PROVISIONS OF THE BILL

COMPOSITION OF JUDICIAL APPOINTMENTS COMMISSION (JAC) AS SPECIFIED UNDER

CLAUSE 3 OF THE BILL

A. Since the JAC has bearing over the basic structure of the constitution (Separation of

Power, Checks and Balances & Independence of Judiciary); should not its composition be

determined by a special majority rather than an ordinary law directed by simple majority?

I. OBSERVATIONS:

The Composition of JAC will have no constitutional status and it may be a victim of

legislative whim.

II. SUGGESTIONS:

The composition of JAC as detailed within Clause 3 of the Bill, should also be specified

within the Constitution of India under the proposed Article 124; through the

Constitution (One Hundred and Twentieth Amendment) Bill of 2013.

The major issue arising in the Judicial Appointments Commission Bill of 2013 (hereinafter

referred as ‘JAC Bill’) is related to the power of Parliament to amend an Act vis-à-vis the

composition of the JAC. By proposing the insertion of Article 124A in the Constitution of

India by The Constitution (One Hundred and Twentieth Amendment) Bill of 2013

(hereinafter referred as ‘120th

Amendment Bill’), the JAC will get the constitutional status.

As such, Article 124A does not provide for the composition of the JAC; the same would only

be determined by the JAC Bill, which if passed, will be an ordinary law as the Parliament has

the power to amend such law by virtue of a simple majority.

The two Bills together have replaced the collegium system of appointments to the JAC,

which has representatives from both the judiciary and the executive. Article 368 of the

Constitution of India provides the Parliament, the power to amend the Constitution of India.

Clause 2 of the Article 368 prescribes that to amend the Chapter IV of Part V i.e., The Union

Judiciary (under which Article 124A would fall), the Parliament requires two-thirds majority

as well as the ratification by the legislature of not less than one-half of the States, by a

resolution to that effect passed by those legislatures, before the Bill making provision for

such amendment is presented to the President for assent.1

The above mentioned procedure is confined only up to the Constitutional Amendment under

Article 368 of the Constitution of India. For passing or amending an ordinary Act, the only

simple majority is required in the Parliament. The serious threat to alteration of the

composition of the JAC may arise here because the composition of the JAC is mentioned

under the JAC Bill, which if passed, will be an ordinary law as the Parliament has the power

to amend such law by virtue of a simple majority.

As per the120th

Amendment Bill, the proposed Article 124A only grants constitutional status

to the JAC, but not to its composition. For securing the constitutional status of its

composition, the Parliament should expressly mention the composition of the JAC within

Article 124A so that it would not be subjected to the ordinary law of the Parliament as

mentioned above.

1 The Constitution of India (1950), Article 368 (2).

With regard to the120th

Amendment Bill, the proposed Article 124A lowers the bar of the

constitutional safeguard of the law pertaining to the appointment and transfer of judges.

Article 124A (2) states that the Parliament may, by law, provide for the composition of the

JAC, etc. This gives power to the Parliament to make changes by virtue of simple majority as

it will be subject to making of law under Article 246 of the Constitution of India.

If the composition of the JAC is subjected to ordinary law then,s a political party which is

enjoying majority in the Parliament may, on its own whims and fancies, amend or repeal the

provisions relating to the composition of the JAC and as a result the JAC may be victimised

by legislative whim. In the present situation, if the JAC Bill 2013 is passed, it will become an

ordinary Act and then the legislature will have the power to exclude the judiciary or the

executive or both from the composition of JAC by passing an amendment by a simple

majority in the Parliament.

Thus, if JAC gets the constitutional shield then it may be protected from the rapid amendment

in its composition. It can be amended and repealed only through the procedure mentioned

under Article 368 (2) of the Constitution of India and the functioning of the JAC will not alter

according to the whims of political interest. This is necessary so as to bring the provisions of

the present Bill in tune with the very object of ensuring accountability and transparency in

appointment of judges to the higher judiciary as envisaged within the Bill itself. More so, this

is felt to be extremely desirable as per the policy enunciated by the present Act whereby it is

clear that equality is to be ensured at the time of appointment and transparency in relation to

the executive and the judiciary.

B. Recommendations pertaining to the consequences of the inclusion of two senior-most

judges of the Supreme Court within the JAC, under Clause 3 (1)(b), as they are the

interested parties for the appointment of Chief Justice of India.

I. OBSERVATIONS:

a. The role of two senior most judges in the appointment of Chief Justice of India

(hereinafter referred as ‘CJI’) is not clear.

b. For the appointment of the CJI, the two senior most judges should not be present in the

JAC. If the two senior most judges are not separated from the JAC, then are they going

to be excluded from the position of the CJI?

i. If yes then, on what grounds?

ii. If not then, on what grounds the Parliament can justify their presence despite they

are the interested party?

II. SUGGESTIONS:

The Parliament may add an explanation to Clause 8 of the present Bill, expounding the

position of the two senior most judges with respect to either their appointment as the CJI

or their exclusion, as the case may be.

From the conjoint reading of Clause 3 (1)(b) and the current conventional practise of

selecting the senior most judge of the Supreme Court as the CJI2, it can be construed that the

person eligible for getting selected is himself a part of the Commission. This cannot be the

case as it is against the principle of nemo judex in causa sua (no one should be a judge in

2 Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441; In Re: Appointment

and Transfer of Judges, (1998) 7 SCC 739.

their own case).3 As far as the appointment of the CJI is concerned, the two senior most

judges are the interested parties and henceforth cannot recommend themselves for the post of

CJI. Thus, the only presumption which can be deduced out of Clause 3 read with Clause 4(a)

is that the seniority criterion for appointment of CJI is now getting removed. Following are

the suggestions:

a. Assuming that the seniority criterion for the selection of CJI has been removed from the

present Bill, the question which needs consideration is whether or not these two senior

most judges who are a part of the JAC can be recommended to become the CJI? The

answer lies in the fact that since they are the part of the JAC they cannot recommend

themselves to be the CJI and thereby are excluded from the list of candidates for the

position of the CJI. Therefore, the Parliament is required to clear the position of these

two senior most judges on the aspect of the appointment of CJI and the reasons for their

exclusion, if any.

b. If there is anything contrary to the above presupposition then in such a situation, it is

required to remove these two judges from the JAC as they are the interested parties and

their inclusion as the members of the commission will hinder the principles of natural

justice. Nevertheless, this removal will go against the very purpose and objective of the

present Bill which is ensuring equal participation of the executive and the judiciary in

the appointment procedure, the reason for this being that only the CJI will be left in the

JAC as a member from the judiciary.

3 I.P. Massey, Administrative Law 201 (7th ed. 2008).

C. Composition of the JAC pertaining to “eminent persons” to be appointed under Clause

3(1)(d) requires an explanation pertaining to their capacity keeping into account the

qualification for the appointment of judges under Clause 4(c)?

The JAC Bill proposes an inclusion of two "eminent persons" instead of persons from

legal background/jurists in a six-member commission that will seek to strike a balance.

I. OBSERVATIONS:

a. The term ‘Eminent Persons’ mentioned in Clause 3 of the JAC Bill has not been

defined.

b. The term ‘Eminent Persons’ gives wide discretion to the selection committee to choose

any person as a member of the JAC.

II. SUGGESTIONS:

a. An explanation as to ‘Eminent Persons’ may be added in Clause 3 of the JAC Bill

describing some basic qualifications;

b. Such explanation may include persons possessing elementary knowledge as to

functioning of legal structures or may belong to other backgrounds; such as those

who are members of civil society having minimum prudence for deciding as to who is

the best person suited for the post in appointment of judges.

There is discretion given to the Prime Minister and Leader of Opposition along with the CJI

to choose the eminent persons. As the intention of the proposed Bill is to enable equal

participation of the judiciary and the executive to make the system of appointment more

accountable to ensure greater transparency. Therefore, it is necessary to give a certain amount

of discretion to the executive as such discretion will ensure equal contribution by the

executive in the appointment of judges .Reading Clause 3 (1)(d) together with Clause 4(c) it

is clear that the person who are to be recommended should be having ability, integrity and

standing in the legal profession. It should be noted that a recommendation on these criteria

can only be made by a person who is well versed in the legal field or, is himself of a legal

profession. Therefore, if this obvious interpretation is taken into account then the whole

purpose of granting discretion to selection committee would be defeated. They, then, would

be confined to select the eminent persons from the legal background.

Hence, there is a requirement to include the clarification for the same expounding the

discretion of the selection committee for appointing eminent persons. Our suggestion of

inclusion of clarification for providing the basic qualification for the eminent persons would

also restrict the discretion of the selection committee. Now, we will be referring to the laws

of various countries pertaining to similar commissions whereby it will justify the non-

restriction of the interpretation of ‘eminent persons’ to a legal background or legal profession.

a. The eminent person can be from civil society or a person having legal knowledge so as

to appreciate the task of judicial appointments in a true sense. For instance, the Judicial

Appointments Board for Scotland is a public body responsible for making

recommendations on appointments to judicial offices in Scotland. The board consists of

five lay members, three judicial members and two legal members and the board is

headed by any of the lay members. At present, the lay members in the board are

professors and experts who generally have social or legal knowledge.

b. Similarly in the UK, the Judicial Appointments Commission consists of fifteen

members that make recommendation. Among them two members are from the legal

profession, i.e. one barrister, one solicitor, five judges, one tribunal member, one lay

magistrate, six lay people, including the chairman. The six lay members usually hold

‘Royal, Noble or Chivalric Ranks’ awarded by the crown or related to the field of

education. It can be presumed from the above that the intention behind including lay

member of the commission is to reduce the monopoly of judiciary in appointment of

judges and bring transparency in the appointment process. Furthermore, in Israel the

Judicial Selection Committee which is responsible for all the judicial appointments

includes two representatives from the Bar association along with the other judicial and

executive members.4 The Bar association members do not form any part of the

judiciary or the executive, but they are well aware of the problems faced by various

courts and thus have a greater chance to appoint a judge who is really appropriate for

appointment.

Thus, by not limiting the definition of eminent persons in the JAC to a person from legal

background would eventually ensure a greater transparency in the appointment of judges.

D. Would the even number of members within the commission pose a hurdle in rendering

their recommendations? Should their recommendation be unanimous or merely supported

by a majority?

I. OBSERVATIONS:

The even composition of the JAC would create hindrance in case of a tie, as their votes

will not lead to a valid conclusion. In such a situation, there is no clarity whether the

4 David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, (1st

ed. 2002).

decision of the CJI (who will be acting as the Chairman of the JAC) will be taken as the

final resort.

II. SUGGESTIONS:

a. A proviso may be added to Clause 3, which would explain that in case of a tie, the

decisive factor should be the observation made by the Chairman of the JAC, i.e.,

the Chief Justice of India;

Or

b. The decision may be made on the basis of confirmation of all the members;

Or

c. The number of members may be raised from even composition to odd

composition.

It has been clearly mentioned in the Bill that the Chief Justice of India is the ex officio

Chairman of the JAC. It can be said that a special recognition has been provided to the

Chief Justice of India as he is heading the third wing of the State. Hence by virtue of

special recognition provided by the legislature, the opinion of the Chairman in relation to

the appointment and transfer of judges can be a decisive factor. This will further ensure

the independence of the judiciary.

The second aspect of curing the defect can be by explicitly stating that the decision by the

JAC would be on the basis of confirmation of all the members. It is further clarified that in

such an arrangement if one member of the JAC is against a particular decision then that

decision will not be passed until the JAC reaches the mutual consensus.

The third suggestion suggests that there should be an odd numbered commission instead of

an even one as it would ensure that the situation of a tie would never exist. The same can

be illustrated by taking instances from various legal systems around the world. In UK,

Australia, Canada, Ireland, Israel etc. the number of members of the Judicial

Appointments Committee or similar committees functioning are having an odd numbered

composition.

The additional member, so specified, may come from the civil society, the Bar Council of

India, member of academia, retired judges of the Supreme Court and the list may be made

inclusive.

PROCEDURE FOR THE SHORTLISTING OF CANDIDATES AS ENUMERATED UNDER CLAUSE 8

OF THE BILL

The Judicial Appointments Bill of 2013, under Clause 8 talks about the procedure of

shortlisting of candidates for appointment to higher judiciary. Clause 8(1) states that the

initiation of a process of selection of the candidates by the convener of the JAC, by inviting

recommendations from the Chief Justices of the High Court, the Central Government and the

State Government.

I. OBSERVATIONS:

a. Ambiguity in the use of the word ‘recommendation’ in Clause 8 (1) and the use of the

word ‘recommend’ in Clause 4(a).

b. Scope of recommendations for short listing has been restricted under Clause 8(1) by

virtue of inviting the recommendations only from the entities/persons mentioned

therein.

c. The scope of the regulation making power of the JAC under Clause 8(2) and 8(3)

requires further explanation. As it is can be said that the word regulation in Clause 8(2)

and 8(3) is only confined to the procedure for short listing and setting eligibility criteria

for the candidates.

II. SUGGESTIONS:

a. The ambiguity with the word recommendation may be resolved by scripting

Clause 8(1) to reads as follows, “The Convenor of the Commission shall initiate the

process for selection by inviting recommendations for shortlisting from the Chief

Justices of High Courts, the Central Government, the State Governments and the Bar

Council of India in respect of candidates fulfilling the eligibility criteria.”

b. Alternatively, Clause 8(1) may also be made to read as “The Convenor of the

Commission shall initiate the process for selection by inviting recommendations from

the judges of the Supreme Court, the Chief Justices of High Courts, the Central

Government, the State Governments and the other entities in respect of candidates

fulfilling the eligibility criteria.”

c. Further, an Explanation may be added in Clause 8(1) to bring about clarity with

regards to the power of JAC in making regulations. In addition too this, clause 8(2)

and 8(3) may accompany a rider for providing an explanation of the word

‘regulations’.

The clarification should be brought about in the light of the fact that the word

‘recommendation’ has been used twice in the JAC Bill and in different contexts. The first

one is mentioned in Clause 8(1) as aforementioned and the second was in respect of the

final list of shortlisted candidates, which has to be recommended by JAC under Clause

4(a). However, Clause 4(a) already mentions that the recommendation is for the purpose

of appointment but Clause 8(1) makes no such explanation.

Thus, in order to differentiate between the word ‘recommendation’ as used in Clause 8(1)

and ‘recommend’ in Clause 4(a), a clarification must be there in which the word

‘recommendation’ is followed by ‘for short listing’ which restricts the scope of the word

‘recommendation’ in Clause 8(1).

It is suggested that the other entities which is used for the shortlisting of candidates may

include bodies like the Bar Council of India, members of civil society, retired judges of the

Supreme Court and the list can be made inclusive.

Regarding the power of JAC for appointment of judges into higher judiciary is concerned;

it is pertinent to note that the power is not limited to the boundaries of Clause 8(1). For the

purposes of shortlisting of candidates, the JAC has the power to make regulations under

Clause 12 (2)(b) read with Clause 8(2) for appointment of Judges to Supreme Court and

under Clause 12 (2)(c) read with Clause 8(3) for the appointment of Judges of High

Courts. If Clause 8(2) and 8(3) are given literal readings then it is seen that the

recommendations is not just restricted to the three entities mentioned in Clause 8(1). Thus,

the JAC has been delegated the power, by the Parliament, to specify its own procedure for

inviting recommendations, shortlisting of candidates and discharge of functions.

Without stating such procedural details and merely mentioning the word ‘regulations’,

brings about opaqueness in the working of this Bill. Thus, it is suggested that a

clarification regarding the procedural aspect be given so as to bring about transparency in

the appointments process, which is one of the objects of this Bill.

THE PROVISION BARRING INVALIDATION OF ANY PROCEEDING ON THE GROUND OF

EXISTENCE OF VACANCIES OR DEFECT WITHIN THE CONSTITUTION OF THE COMMISSION AS

SPECIFIED UNDER CLAUSE 10

The proceedings of the commission shall not be questioned or be invalidated merely on the

grounds of the existence of any vacancy in, or defect in the constitution of, the commission.

The literal reading of clause 10 is silent about the situation where members of Judicial

Appointments commission, without a sufficient quorum sends their recommendation to the

President. The preliminary reading of the clause seems to give an impression that the vacancy

in the Commission during selection of the Judge is not subject to challenge in any Judicial

Proceeding. This comes out as a violation of the object of the act which requires equal

representation of the Judiciary and the Executive during selection and transparency.

I. OBSERVATIONS:

a. If the seat of one of the members of the Judiciary is vacant than the executive will have

a greater say in the selection.

The larger say of the executive would eventually affect the independence of the

judiciary and will hinder the separation of power which is the basic structure of the

constitution.

b. If the seat of one the two members selected is vacant than the Judiciary will have a

greater say in the selection.

In this situation the judiciary will become the major role player in the appointment of

the judges of the Supreme Court and High Court and also in cases of the transfer of the

judges. This will eventually defeat the whole purpose of the act which is to ensure

checks and balances system on the judiciary.

II. SUGGESTIONS:

a. An Explanation stating: “This clause will not be applied in cases where final

recommendation of the selection of the judges is being made” may be introduced.

Or

b. The impugned clause may be removed.

These recommendations would ensure equal representation of the executive and the judiciary

(as required in the statement and object of the Act) during the time of the recommendation for

the appointment, and for the transfer of judges. This would ensure proper balance between

the Separation of Power and Checks and Balances.

***END OF REPORT***

TEAM OF LEGISLATIVE RESEARCH & POLICY CLUB