The collegium system of appointment of judges is likely to stay for the time being as Parliament could not pass a constitutional amendment bill in the last session of the Lok Sabha to put in place a new mechanism giving the Executive a say in the matter.
Parliamentary nod to the Judicial Appointments Commission Bill eluded despite government agreeing to the demands by jurists and BJP to grant constitutional status to a proposed commission for appointment and transfer of judges to the higher judiciary to ensure that its composition cannot be altered through an ordinary legislation.
The Winter session of Parliament -- the last session of the 15th Lok Sabha -- was adjourned sine die on Friday. A previous effort to replace the collegium system in 2003 had also not succeeded.
The then National Democratic Alliance government had introduced a Constitution Amendment Bill but the Lok Sabha was dissolved when the bill was before a Standing Committee. Leader of the Opposition in the Rajya Sabha Arun Jaitley was the Law Minister then.
According to the bill, while new Article 124 A of the Constitution will define the composition of JAC, Article 124 B will define its functions.
Before the changes agreed by the Union Cabinet on December 26, the composition of the proposed panel was defined in the Judicial Appointments Commission Bill, 2013 which was introduced along with a separate constitutional amendment bill in Rajya Sabha during the Monsoon session.
The constitutional amendment bill says there will be a JAC but does not say it will be headed by the CJI or mentions the composition and its functions.
While the constitutional amendment bill -- an enabling bill -- was passed by the Upper House, the main bill -- the Judicial Appointments Commission Bill, 2013 -- was referred to the standing committee.
The Judicial Appointments Commission Bill defines the establishment of the proposed body to recommend appointment and transfer of judges of the Supreme Court and the high courts.
The proposed JAC will be headed by the Chief Justice of India and will have two Supreme Court judges, the law minister and two eminent citizens -- to be selected by a panel comprising the Prime Minister, CJI and Leader of the Opposition in Lok Sabha -- as its members.
Secretary (Justice) in the Law Ministry will be the convener of JAC.
While a constitutional amendment bill requires two-third majority for passage in a House, a normal legislation just needs a simple majority.
After any constitutional amendment bill gets Parliamentary nod, it is sent to all the states and 50 per cent of the state legislatures have to ratify it. The process could take up to eight months.
After ratification, the government sends it to the President for his approval.
The practice of judges appointing judges started after 1993, replacing the system of government picking judges for higher judiciary comprising the Supreme Court and high courts.
The move to set aside the 1993 Supreme Court judgement, which led to the collegium system, requires a constitutional amendment