1. P1: Judicial appointment commission
  2. P2: Fixed Tenure for CJI?

P1: Judicial appointment commission

  • At present, the judges in SC/HC are selected via a collegium method. But this method is opaque, and lacks accountability. Therefore, Parliamentary Standing Committee on Law and Justice recommended creating JAC.
  • In December 2013, UPA cabinet cleared two bills related to this.

Bill #1: 120th Constitutional Amendment bill 2013

Adds two new Articles to Constitution

  1. 124A: JAC composition will be created by an ordinary act
  2. New Article 124B: JAC functions listed here.

additionally,

  • ti’ll modify Article 124(2) President shall appoint judges on recommendation of Judicial appointment commission (JAC)
  • will amend 217: Appointment of HC judges
  • will amend 222: transfer of HC judges
  • will amend 231: common court for two or more states and provision related to judges-transfer in such case. (e.g Seemandhra and Telangana)
  • Terms and functions will be defined in Constitution itself.
  • so they cannot be amended later on without 2/3rd majority in parliament.

Bill #2: Judicial appointments commission Bill 2013
This ordinary bill/Act will define the composition of JAC

  • Chief Justice of India as chairman
  • Two Supreme court judges
  • Law minister
  • Law Secretary (as convenor)
  • Two eminent persons (PM+Opposition leader+CJI will select them)

Rajya Sabha has passed this bill. But with dissolution of 15th Lok Sabha, bill lapsed. (Ref. PRSINDIA link)Introduced in Rajya Sabha but referred to standing Committee on law. Current status: PENDING. (Ref. PRSINDIA Link)

Overall, JAC will have two functions:

  1. Will replace the collegium system of appointing SC/HC judges
  2. Recommend transfer of judges from one high court to another.
parliamentary panelā€™s recommendations Did UPA cabinet accept it?
three eminent persons in the commission only two eminent persons
At least one out of them should be an SC/ST/OBC/woman/minority, preferably by rotation. NO
~800 judges in the highcourt. So, itā€™ll be better to have state level JAC for their appointment. NO
if judge dies/ steps down then JAC should be informed within a month so new recruitment can be done yes
JAC should be informed 6 months in advance about the upcoming retirements and vacancies in SC/HC yes

P2: Chief Justice of India: Fixed tenure or not?

At present, CJI is selected on the seniority principle.

Different opinions on fixed tenures
40th CJI-P. Sathasivam 41st CJI R.M.Lodha
recommended 2years fixed term for CJI and Chief justices of high courts. no need for fixed tenure to CJI.
  • A short tenure does not provide space to CJI to implement any reforms or decisions
  • no CJI appointed before age of 55. and they retired at age of 65 they donā€™t have much time left.
  • Average tenure of Supreme Court judges is less than four years
  • if one judge is given two years fixed term then other judges may not get any chance to become CJI.
  • In last 20 years we saw 16 CJI
  • out of them only 4 had tenure more than 2 years
  • some less than one year.(Sathasivam himself only 9 monthsā€™ tenure!)
  • one CJI had even less than a monthā€™s tenure!!
 If law is enacted to make tenure of CJI fixed, itā€™ll undermine independence of judiciary
Since CJI is frequently changed, he cannot implement full scale judicial reforms, which require his personal supervision for longer period.
  • Judicial institutions run on discipline.
  • if good people with impeccable character are appointed judges then everything will work out smoothly.
if the kith and kin of the judges practice in the same court, then bar council should take action against them.

14th Report of the Law Commission (Motilal Staved )

  • This JAC formation will not bring any change if its basic criterion for selection will be same as earlier ā€“ principle of seniority.
  • CJI selection should be different from the method of selection of other judges of SC and HC
  • In past, CJIs could not serve their best capacity, because of limited tenure they retired too soon.
  • Due to seniority principle, many deserving judges retire before they can become CJI
  • JAC should fix this issue by selecting most competent person in administrative, judicial and leadership skills; social and constitutional philosophy, instead of just focusing on seniority.

Mock Questions

Q1. Consider following Constitutional amendments

  1. 118th: Changes under Article 16 about reservation.
  2. 119th: transfer of territories between India and Bangladesh
  3. 120th: judicial appointment commission

Which of them are correctly matched?

  1. only 1 and 2
  2. only 2 and 3
  3. only 1 and 3
  4. none of them

Q2. Suppose JAC was created then

  1. President would appoint CJI and other judges in supreme court, as per JAC recommendations
  2. Governor would appoint judges of high court as per JAC recommendations.
  3. Both A and B
  4. Neither A nor B

Q3. Suppose, PM wants to reduce salaries of the judges of SC, what should he do?

  1. get President to declare financial emergency
  2. get article 125 amended
  3. Either A or B
  4. It is not possible because their salaries are charged upon the consolidated fund of India hence outside parliamentā€™s scope.

Q4. Suppose, PM wants that President should appoint judges of SC/HC only from the names shortlisted by PMO, THEN, which articles will he need to modify?

  1. 124 and 125
  2. 217 and 218
  3. 124 and 217
  4. It is not possible because of the collegium system.

Interview Question: Should CJI have fixed tenure of 2 years- CJI Lodha says no, Ex-CJI Sathasivam says yes. Whatā€™s your stand?
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