How to choose a judge

The collegium system is flawed. But more debate is needed before the judicial appointments bill is passed.

There is now an impasse on the question of the proper method of appointment of the judges of the Supreme Court and high courts. It is acknowledged that the two-decades-old current system of appointment by a collegium of five judges of the SC, prescribed by two SC judgments in 1993 and 1998, has failed as it lacks legitimacy, transparency and accountability. The late Justice J.S. Verma, author of the first majority judgment of the SC, later reflected himself that a rethink was required on the collegium method. In this situation, the government has proposed legislation for the method of appointment of judges of superior courts by a judicial appointments commission. But there is little possibility of this legislation being passed in the near future.

The Judicial Appointments Commission Bill, 2013 proposes the appointment of judges by a judicial appointment commission (JAC) composed of the Chief Justice of India as ex-officio chairman, two other seniormost SC judges as ex-officio members, the Union minister of law and justice, and two "eminent persons" nominated by a

body consisting of the prime minister, CJI and leader of opposition in the Lok Sabha. The JAC would recommend to the government persons for appointment to the offices of Chief Justice of India, judges of the SC, chief justices of the high court and other judges of the high court. Simultaneously, a constitutional amendment providing for the recommendation of the JAC for appointment of judges to the government is proposed to be made by the Constitution (120th Amendment) Bill, 2013.

The JAC bill was introduced in the Rajya Sabha on August 29 and referred to a parliamentary standing committee. The standing committee presented its report to both Houses on December 9. The Constitutional (120th Amendment) 2013 Bill was passed hastily by Rajya Sabha on September 5, but because of a technical hitch, it could not be passed by Lok Sabha before adjournment. Both bills are unlikely to be passed in the budget session next year. Consequently, the present system of appointment of judges by the collegium will continue, despite general disapproval. This is disquieting as, in the next year, probably as many as 11 vacancies will open up in the SC, and 275 posts of high court judge are lying vacant.

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