The Centre for Law and Policy Research presents its working paper on “Recasting the Judicial Appointments Debate: The Constitutional (120th Amendment) Bill, 2013 and Judicial Appointments Commissioner Bill, 2013” (available here)
1. The debate on the proposal for a Judicial Appointments Commission (“JAC”) to appoint judges of the higher courts, recasts appointments in a new institutional niche that potentially encourages a transparent collaborative process between the executive and the judiciary. The current debates, however, suggest that the proposed JAC reverts to past errors in an older model of appointment prescribed by the Constitution of India, 1950 which provides for executive dominance in political appointments. The paper addresses the misconceived claim that ‘independence of judiciary’ and the ‘rule of law’ necessarily means that the judiciary must have primacy among constitutional institutions in the judicial appointments process.
2. Two models dominate the current appointment processes in constitutional democracies around the world: (i) “Executive-Judiciary model” where the executive appoints judges in consultation with the judiciary, as was the earlier practice in India; (ii) “Executive-Legislature model” like Supreme Court appointments in the United States where the President appoints judges with a confirmation by Congress. The recent trend in most constitutional democracies is towards a JAC model, which creates a new institutional niche where two separate institutions collaborate and act in concert.
3. Though the JAC as a model is constitutionally justifiable, the present proposal needs significant changes. The preamble and object of the Judicial Appointments Commission Bill, 2013 (“bill)” is inadequate. We recommend that it be framed broadly, to mandate the appointment of a competent, independent and impartial judiciary through a process that ensures selections solely on merit and encourages diversity in the range of persons appointed.
4. Certain provisions of the bill including the composition of the JAC and the process of appointment of judges must be constitutionally entrenched through the proposed Article 124-A of The Constitutional (120th Amendment) Bill, 2013 (“Constitutional Amendment”).
5. Further, the bill must clear the procedure for the JAC in discharging its functions including inter alia, regulations, and quorum of meetings of the commission, a basic procedural framework for making appointments, eligibility of candidates and regulations specifying time-frames during within which recommendations are made and vacancies are filled.
6. The bill must clearly state that the selection of judges be solely on merit and must encourage diversity in the appointment, in terms of gender, religion, caste, and ethnicity.
7. The Constitutional Amendment must clarify the powers of the President with respect to the recommendations made by the JAC. There is a lack of clarity in the nature of JAC’s ‘recommendations’ and the extent of discretion the President has in the appointment of judges.