New Delhi, July 6
The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice has asked the Union Law Ministry to evolve a new system for appointment of Judges of the Supreme Court and the High Courts (HC) so that the Executive too can have a prominent say in who gets to sit on the Bench.

What the recommendation means is that the Parliamentary panel is all for reverting back to the pre-1993 position when the Chief Ministers of the states too had a say in the selection of Judges of their respective High Courts. This measure, if implemented, is sure to put the Judiciary at loggerheads with the Legislature and the Executive.

The recommendation is in direct conflict with the judgements of the Supreme Court of India (SC) in two prominent cases dealing with the issue of appointment of Judges as well as the majority opinion of a nine-Judge Bench of the SC delivered in 1998 on a Special Reference made to it by the then President, Mr K.R. Narayanan.

The majority view in the Supreme Court Advocates-on-Record Association versus Union of India case, better known as the Second Judges case, was that in matters of appointment of Judges to the SC and the HCs, the opinion of the Chief Justice of India (CJI) has primacy. This opinion, the judgement said, has to be formed in consultation with a collegium of Judges.

Similarly, answering the questions posed to it by the then President, the SC again reiterated that the CJI should make the recommendation for appointment of a person as Judge of the SC in consultation with four senior-most Judges of the SC. As for appointment of Judges to the HCs, the CJI was bestowed the right to recommend the names in consultation with two senior-most Judges of the SC. The consultation process is binding upon the CJI and he can't do away with this system.

However, in its recommendation, presented to both Houses of the Parliament on May 22, the Parliamentary Standing Committee observed that there had "not been any perceptible improvement in the position of vacancies of Judges in the Supreme Court and High Courts under the post-1993 arrangement".

Sources in the Union Law Ministry said the report would be carefully deliberated upon and opinion of experts would be sought before proceeding in the matter.

The 48-page report, a copy of which is in possession of The Tribune, further says: "The Committee feels that time has come when the issue has not only to be deliberated at the highest level, but also to be debated in the public domain so that there could emerge an alternative system which could bring about an overall improvement in the situation. The Committee, therefore, calls upon the Ministry to come forward with a concrete alternative, addressing the issue of appointment of Judges of the higher judiciary by evolving a suitable mechanism through the Executive decision with judicial scrutiny, instead of allowing the judiciary alone to choose the judges."

Interestingly, the report also says that this step would go a long way in avoiding a vicious circle created in the judiciary "so that the vacancies could be filled up on the date of their occurrence".

Explaining the rationale behind the recommendation, Mr E.M. Sudarsana Natchiappan, a Congress Rajya Sabha Member who is Chairman of the Committee, said the members of the panel felt that the present system of appointment was not functioning properly. The panel, incidentally, has members drawn from a number of political parties, including the opposition BJP.

"We would like the Executive and the Judiciary to work in tandem to fill up the vacancies. However, the Judiciary will continue to have pre-eminence under the new system also," Mr Natchiappan told The Tribune.

He pointed out that that as per the figures made available to the Committee, out of the strength of 26 Judges, the SC had 23 Judges on March 22. Similarly, on the same date, there were 108 vacancies of Judges in various HCs.

"We felt that the present system is not functioning satisfactorily. We have recommended that the Chief Ministers of the states should be allowed to send a panel of names to the Chief Justice of the respective HCs through the Advocate-General of the State. The Chief Justice would then study the panel, add his own recommendations and hold consultation with the collegium. Then the names would be sent to the CJI for further action. In this way, the Chief Minister, who is the elected representative of the people, would also have a say in the appointments," Mr Natchiappan said.