The Times of India

Title : The Right Balance

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Article Date : 08/11/2014

Create two Judicial Appointment Commissions to select judges and make their composition
constitutional
Former Supreme Court judge Markandey Katju's recent disclosures have firmed up the emerging
consensus that the current system of appointment of judges to superior courts by a collegium of Supreme
Court judges needs to be changed to ensure greater transparency and accountability . This newspaper
supports the legislative move to create a Judicial Appointments Commission which was initiated by the
UPA and is now being pushed forward by the Modi government, as long as there are enough safeguards to
insulate the judiciary from political interference.
Legislation will entail a constitutional change, through the Constitution (120th) Amendment Bill, to allow
the setting up of such a commission and empower Parliament to pass a law providing for its composition,
functions and procedures. The move is in the right direction but two provisos are in order. First, not just
the proposed Judicial Appointments Commission itself but its composition should also be given
constitutional status. Else, a future government can always change the com position of the commission to
suit parti san political purposes.
The current draft of the Bill envisages a 50:50 break-up between judicial and non judicial members: the
Chief Justice of In dia, the two senior-most judges of the Sup reme Court, the Union minister for law and
justice and two eminent people to be nomi nated jointly by the prime minister, chief justice and leader of
opposition or single largest opposition party. Such a body would balance legal expertise with
representation from the executive and civil society. However, unless protected by constitutional
guarantees, any future government wanting to change this delicate balance would only need a simple
majority in Parliament.
Second, it would be too much work for a single commission to be responsible for appointing all 31 judges
in the Supreme Court and over 800 judges in the 24 high courts, as well as their transfers. A simple
solution is to have two levels: one commission for the Supreme Court and a separate state level
commission. This would not only lessen the burden of the commission but also provide for a more broad-
based appointment process. While making any change to the current system of appointments, it is
imperative that the government does not turn the clock back and impede the hard-fought gains in
autonomy that the judiciary has made from the days when it was expected to be ``committed'' not just to
the country, but to the government of the day.


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