New Delhi, September 15
The proposed law to set up a Judicial Appointments Commission (JAC) will ensure the selection of judges in a fair and transparent way without giving any room for allegations of favouritism and nepotism, top Law Ministry sources asserted today.

Introduced in the Rajya Sabha on August 29, the JAC Bill 2013 has been referred to the Parliamentary Standing Committee on Law to suggest improvements in the legislation through wider consultation with all the stakeholders and the general public.

The Rajya Sabha has already passed the related Constitutional Amendment Bill that is necessary to change the present Collegium system of appointment introduced by the Supreme Court through its two judgments by its Constitution Benches under which the selection of candidates for the post of judges to the high courts and the SC lies solely with the judiciary.

Under the proposed Act, the JAC would have three Judges of the Supreme Court - the Chief Justice of India (CJI) and two senior-most judges, — the Union Law Minister and two eminent persons who would be selected by a three-member panel comprising the Prime Minister, the CJI and the Leader of Opposition in the Lok Sabha.

The sources said the composition of the JAC was finalised after a great deal of deliberations on the need for maintaining a fine balance, without giving primacy either to the members from the judiciary or the others. Any imbalance in the JAC’s composition would result in the majority group ignoring the proposals and objections by the other members and this would defeat the very purpose of putting in place a new mechanism for the appointment of judges. With three members from the judiciary and the other three from outside, the JAC would be left with the only option of selecting the candidates through unanimity and this would ensure that only persons with merit and integrity are appointed as HC and SC judges. In constitutional bodies such as the proposed JAC, even if one member objected to the selection of a candidate, the name was dropped immediately, the sources pointed out.

Asked about the possibility of any ruling combine changing the JAC’s composition in future through an amendment to the JAC Act, for which just a simple majority in Parliament would be sufficient in order to further minimise judiciary’s say in such appointments, the sources allayed the apprehension, pointing out that this would give a valid ground for the SC to strike down the amendment holding that it had affected judiciary’s independence, a basic feature of the Constitution.

The sources said most of the political parties agreed on the need for giving a say to the executive in the appointment of judges following complaints from various quarters, including the legal fraternity. Further, nowhere in the world was this kind of Collegium system prevalent, denying an opportunity to the executive even to propose the names for appointment of judges for the higher judiciary.

Under the Collegium system, the CJI and four senior-most judges of the SC recommend to the government the names of candidates to be appointed as judges of the 24 HCs and the apex court. The government can raise objection and return the file to the collegium for a re-consideration. But if the collegium refused to withdraw the candidate, the government is bound to forward the name to the President for appointment.

Present CJI P Sathasivam and his predecessors have consistently opposed the government’s move to tinker with the existing system, contending that any other system would only worsen the perceived problems, which could be dealt with without resorting to any drastic changes.