A Constitutional Amendment Bill paving way for the creation of a Judicial Appointments Commission to replace the present collegium system to appoint judges to higher courts was passed in the Rajya Sabha on Thursday amid high drama with the Bharatiya Janata Party walking out.
A push by the BJP for referring the Constitution (120th Amendment) Bill, 2013 to the Parliamentary Standing Committee on law failed and it was passed by 131 votes in favour and one against.
The BJP supported scrapping of the collegium system and replacing it with JAC and walked out as its voice was not heard after passionate arguments between Law Minister Kapil Sibal and Leader of Opposition Arun Jaitley, both noted lawyers. The main bill -- the Judicial Appointments Commission Bill, 2013 -- which defines the establishment of the proposed body was referred to the standing committee.
Jaitley said the "piecemeal" approach of the government was not practical as passage of the Constitutional Amendment would create a Constitutional hiatus as the collegium system would be repealed without a new mechanism in place.
He said the standing committee could complete its work before the Winter Session and his party would support the bill on the very first day of the next session. Sibal rejected Jaitley's apprehension about a Constitutional hiatus and said government will not take the Constitutional amendment for Presidential approval till the JAC bill is passed.
Earlier, the government and the opposition were united in criticising the functioning of the judiciary while seeking to scrap the collegium system of appointing judges to higher courts, saying it is essential to restore the delicate balance of power which has been disturbed.
Moving the bill, Sibal said the executive must have a say in appointment of judges as the present system of appointment of judges to the Supreme Court and the 24 High Courts has not worked well.
Sibal said the Judiciary "rewrote Constitution" in 1993 when the collegium system of appointing judges to higher courts was adopted which disturbed the delicate balance between the Judiciary, the Legislature and the Executive.
Underlining that appointment of judges has "nothing to do with judicial function", he said, "The acts of appointments are executive acts."
Defending the government's move to get the Constitutional amendment bill passed and let the main bill go to the standing committee for vetting, he said by the time the report of the Parliamentary panel on the JAC Bill comes, the Centre will seek ratification of all states on the Constitutional amendment which will take six to eight months.
He said after getting ratification of at least 50 per cent of the states, the government will not seek President's approval on the Constitutional amendment till the time the main JAC Bill is passed.
The move to set up the JAC will entail amendments to Articles 124, 217, 222 and 231 of the Constitution and insertion of a new Article 124 A. Overcoming resistance from the judiciary, the bill to scrap the collegium system of appointing judges to the Supreme Court and high courts was introduced in the Rajya Sabha last week.
The bill, which entails Constitutional amendment, seeks to set up a to recommend appointment and transfer of Supreme Court and high court judges. The JAC Bill states that the JAC will make the participants in the selection accountable and introduce "transparency" in the selection process.
With the creation of the proposed body, the executive seeks to have a say in appointment of members to the higher judiciary. India perhaps is the only country where judges appoint judges. The Bill seeks to set up a panel headed by the Chief Justice of India to appoint and transfer senior judges.
The other members of the proposed Commission would be two senior-most judges of the Supreme Court, the Law Minister, two eminent persons as members and Secretary (Justice) in the law Ministry as convener.
"The proposed bill would enable equal participation of judiciary and executive, make the system of appointments more accountable, and thereby increase the confidence of the public in the institutions," reads the Statement of Objects and Reasons of the Bill.
The law ministry has been pushing the proposal, but some sections in the government as well as judiciary had reservations over its certain provisions. 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, will require Constitutional amendment. The last effort to replace the collegium system in 2003 did not succeed. 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.
Amid government's plan to overturn the collegium system, successive CJIs, including the present incumbent P Sathasivam, have strongly defended the present practice saying appointments to the higher judiciary are made after "intense deliberations"
The Supreme Court collegium consists of five top judges of the apex court, headed by the CJI.