Cover-64 Report-Law and Justice-13-14

REPORT NO. 64

DEPARTMENT-RELATED PARLIAMENTARY STANDING COMMITTEE ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE

SIXTY FOURTH REPORT The Judicial Appointments Commission Bill, 2013

(Presented to the Rajya Sabha on 9th December, 2013) (Laid on the Table of Lok Sabha on 9th December, 2013)

Rajya Sabha Secretariat, New Delhi December, 2013/Agrahayana, 1935 (Saka) Website: http://rajyasabha.nic.in E-mail: [email protected] 117

Hindi version of this publication is also available

CS (P & L) - 127

PARLIAMENT OF INDIA RAJYA SABHA

DEPARTMENT-RELATED PARLIAMENTARY STANDING COMMITTEE ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE

SIXTY FOURTH REPORT

The Judicial Appointments Commission Bill, 2013

(Presented to the Rajya Sabha on 9th December, 2013) (Laid on the Table of Lok Sabha on 9th December, 2013)

Rajya Sabha Secretariat, New Delhi December, 2013/Agrahayana, 1935 (Saka)

CONTENTS

PAGES

1. COMPOSITION OF THE COMMITTEE ...... (i)-(ii)

2. INTRODUCTION ...... (iii)-(iv)

3. ACRONYMS ...... (v)

4. REPORT ...... 1—9

A. Overview...... 1—2

B. Need for Judicial Appointments Commission ...... 2—4 C. Provisions of the Bill and suggestions received from Stakeholders ...... 4—7

D. Committee’s Recommendations/Observations ...... 7—9

5. RECOMMENDATIONS/OBSERVATIONS OF THE COMMITTEE — AT A GLANCE ...... 10—12

6. RELEVANT MINUTES OF THE MEETINGS OF THE COMMITTEE ...... 13—27

7. ANNEXURES ...... 29—99

I. The Judicial Appointments Commission Bill, 2013...... 31—39 II. Comments of the Department of Justice on the view/suggestions contained in Memoranda submitted by individuals/organizations/experts on the Bill ...... 40—97

III. List of Individuals/organizations/experts and other Stakeholders who deposed before the Committee ...... 98—99

IV. Opinion of Attorney General of India ...... 100—109

8. APPENDIX – List of Reports Presented by the Committee ...... 110—116

COMPOSITION OF THE COMMITTEE (Constituted on 31st August, 2013)

1. Shri Shantaram Naik — Chairman

RAJYA SABHA 2. Ms. Anu Aga 3. Shri Ram Jethmalani 4. Shri Sanjiv Kumar 5. Shri Parimal Nathwani 6. Shri Ram Vilas Paswan 7. Shri Sukhendu Sekhar Roy 8. Shri Ramchandra Prasad Singh 9. Dr. Abhishek Manu Singhvi 10. Shri Bhupender Yadav

LOK SABHA 11. Maulana Badruddin Ajmal 12. Shri T. R. Baalu 13. Shri E.T. Mohammed Basheer 14. Shri N.S.V. Chitthan 15. Shri P.C. Gaddigoudar 16. Shri D.B. Chandre Gowda 17. Shri Shailendra Kumar 18. Shri Jitender Singh Malik 19. Shri Arjun Meghwal 20. Shri Pinaki Misra 21. Shri Abhijit Mukherjee 22. Shri S.S. Ramasubbu 23. Shri S. Semmalai 24. Shri S.D. “Shariq” 25. Shrimati Meena Singh 26. Shri Vijay Bahadur Singh 27. Dr. Prabha Kishore Taviad 28. Shri Suresh Kashinath Taware 29. Shri Madhusudan Yadav 30. Vacant 31. Vacant

(i) (ii)

SECRETARIAT Shri Alok Kumar Chatterjee, Joint Secretary Shri K.P. Singh, Director Shri Ashok K. Sahoo, Joint Director Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Assistant Director INTRODUCTION

I, the Chairman of the Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, having been authorised by the Committee on its behalf, do hereby present the Sixty-fourth Report of the Committee on the Judicial Appointments Commission Bill, 2013 (Annexure-I). The Bill seeks for establishment of the Judicial Appointments Commission for appointments of Judges and transfer of Judges in the higher Judiciary. 2. In pursuance of the Rules relating to the Department-related Parliamentary Standing Committees, Hon’ble Chairman, Rajya Sabha referred the Bill, as introduced in the Rajya Sabha on the 29th August, 2013 and pending therein, to this Committee on the 9th September, 2013 for examination and report within three months. 3. Keeping in view the importance of the Bill, the Committee issued a Press communiqué to solicit views/suggestions from desirous individuals/organisations on various provisions of the Bill. In response thereto the Committee received numerous submissions out of which 32 memoranda containing suggestions from various organizations/individuals/experts relevant to the issues dealt in the Judicial Appointments Commission Bill, 2013 were forwarded to the Department of Justice for their comments and placed before the Committee for its consideration (Annexure-II). 4. The Committee heard the presentation of the Secretary, Department of Justice, Ministry of Law and Justice on the provisions of the Bill in its meeting held on the 20th September, 2013. During its Study Visit to Chennai, Mumbai and Jaipur from the 3rd to the 10th October, 2013 the Committee interacted with the representatives of State Governments, High Courts Bar Associations, Retired Judges, NGOs and other stakeholders on the Bill. The Committee also heard the views of Attorney General of India and Secretary, Department of Legal Affairs, Ministry of Law and Justice on the 22nd October, 2013. 4.1 In its sittings held on the 13th and the 20th November, 2013, the Committee recorded oral evidence of legal luminaries such as Shri Fali S. Nariman, Ex. M.P., Rajya Sabha and Senior Advocate (Supreme Court), Shri Ashok H. Desai, Former Attorney-General of India, Shri P.P. Rao, Senior Advocate (Supreme Court), the Bar Council of India, various experts in the legal fraternity and other stakeholders on the subject matter of the Bill. List of individuals/organizations who deposed before the Committee are appended as Annexure-III. 5. While considering the Bill, the Committee took note of the following documents/information placed before it :– (i) Background note on the Bill submitted by the Department of Justice, Ministry of Law and Justice; (ii) Supreme Court judgment in first judges, Second judges and Third Judges cases; (iii) Views/suggestions contained in the memoranda received from various organisations/ institutions/individuals/experts on the provisions of the Bill and the comments of the Department of Justice, Ministry of Law and Justice thereon; (iv) Views expressed during the oral evidence tendered before the Committee by the stakeholders such as Legal luminaries and Bar Councils/Associations; (v) Replies of Stakeholders to the questionnaire of the Committee on the Bill;

(iii) (iv)

(vi) Replies of the Department of Justice as well as stakeholders to the questionnaire of the Committee on the Bill; and (vii) Other research material/documents related to the Bill. 6. The Committee adopted the Report in its meeting held on the 27th November, 2013. 7. For the facility of reference and convenience, the observations and recommendations of the Committee have been printed in bold letters in the body of the Report.

SHANTARAM NAIK NEW DELHI; Chairman, 27th November, 2013 Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice ACRONYMS

AIJA : All India Judicial Service ARC : Administrative Reforms Commission JAC : Judicial Appointments Commission SC : Supreme Court

(v)

REPORT

The Judicial Appointments Commission Bill, 2013 seeks to set up a six member body under the Chairmanship of Chief Justice of India for the purpose of recommending names of individuals having outstanding legal acumen and impeccable integrity and credibility to the post of Judges of Supreme Court and the High Courts, to the President of India. It also recommends transfer of judges of one High Court to another to the President of India. 2. The appointment of judges to the Supreme Court and the High Courts, as per the provisions of the Constitution as it existed when Constitution was adopted, was made by the President of India in accordance with the provisions of Articles 124(2) and 217(1) of Constitution of India, respectively. Transfer of Judges from one High Court to another is done by the President of India in accordance with provision of Article 222(1) of the Constitution of India.

A. Overview 3. The appointment of Judges of the Supreme Court and High Courts and transfer of judges from one High Court to another is primarily an act of the Executive as the President acts in accordance with the advice tendered by the Council of Ministers under Article 74(1) of Constitution of India. But constitutional obligation is cast upon the President of India under Articles 124(2), 217(1) and 222(1) to consult the Chief Justice of India/Chief Justice of High Court concerned for appointment and transfer of judges of higher judiciary. It is evident from the constitutional provisions that the appointment/transfer of judges of higher judiciary is a joint venture of the Executive and the Judiciary in participative and consultative way to protect independence of judiciary which is a “Basic Structure” of the Constitution. Independence and impartibility of judiciary could only be subserved by appointing individuals of outstanding legal calibre and impeccable integrity and credibility with correct consideration to the Bench of higher judiciary. 4. Provisions of Articles 124(2), 217(1) and 222(1) have been interpreted by judiciary from time to time under Article 141 of Constitution. In the S.P. Gupta and Ors Vs Union of India 1982, 2 SCR 365 (AIR 1982 SC, 149), the majority comprising Hon’ble Justices P.N. Bhagwati, Fazal Ali, J Desai, Venkataramiah took the following views:– (a) that opinion of Chief Justice of India does not have primacy in the matter of appointments of judges of Supreme Court and High Courts; (b) the primacy is with the Union Government of India, which is to take decision after consulting all constitutional functionaries and the Union Government is not bound to act in accordance with the opinion of all constitutional functionaries; and (c) the Executive should have primacy since it is accountable to people while the Judiciary has no such accountability. 5. The Judiciary had a consultative role in the appointment of judges of higher judiciary till a nine- judge Bench of the Supreme Court overruled the majority view of the S.P. Gupta case (First Judges Case) in the Advocate on Records Vs Union Of India case (Second Judges Case) in 1993. The majority comprising Hon’ble Justices J.S. Verma, Yojeshwary Dayal, G.N. Roy, A.S. Anand and S.P. Bharucha held as under:– (a) Articles 124(2) and 217(1) of Constitution of India impose a mandate in the highest functionaries drawn from the Executive and the Judiciary to perform the constitutional 2

obligation of making appointment of judges to the Supreme Court and the High Courts collectively in consultation with each other; (b) in the event of disagreement in the process of consultation, view point of judiciary being primal has to be preferred; (c) the Executive can appoint judges only if that is in conformity with the opinion of the Chief Justice of India; (d) the opinion of the Chief Justice of India is determinative for transfer of judges of High Courts. 6. Since 1993 the recommendations of the Chief Justice of India for appointment and transfer of judges to higher judiciary became binding upon the Executive which amounted to concurrence with the opinion of the judiciary, the aid and advice tendered by the Council of Ministers to the President of India under Article 74(1) of Constitution got circumscribed by judicial interpretation of Articles 124 (2), 217(1) and 222(1) on the Second Judges Case. It made the judiciary the de facto appointing authority of themselves which was not the intention of Constitution framers as gathered from the Constituent Assembly Debates. 7. The framers of Constitution of India had given absolute discretion neither to the Executive nor to the Judiciary in the participatory and consultative process for appointment of judges to Supreme Court and High Courts. The Constituent Assembly after due deliberations, preferred the word ‘consultation’ to ‘concurrence’ in the process of appointment of judges knowing fully that appointment of Judges was the sole discretion of the Executive (The Crown) under Government of India Act, 1935. 8. The term ‘collegium’ has not been used in the Constitution of India by framers of Constitution. However, the Judiciary through its power of interpretation of Constitution under Article 141 has expanded the term ‘the Chief Justice of India’ occurring in Articles 124 (2), 217 (1) and 222(1) to mean a collegium of select Judges which was three in Second Judges Case(1993) and further extended to five in the Third Judge Cases(1998). In effect, the opinion of the Chief Justice of India really means the views of Chief Justice taken in consultation with his four senior-most colleagues. 9. The Executive made a Presidential reference under Article 143 (1) of Constitution in 1998 where the nine–Judge Bench again confirmed that the opinion of the collegium of Judges have primacy in appointment and transfer of Judges of higher judiciary. In the light of the opinion preferred by the Supreme Court, a detailed Memorandum of Procedure for the purpose of appointment and transfer of Judges of higher Judiciary was prepared by the Department of Justice, Ministry of Law and Justice. 10. While giving advisory opinion to the President of India in 1998, the Judiciary kept a condition before the then Government that the apex Court would tender the opinion if law laid down in Second Judges Case is considered binding upon the Government and the opinion to be tendered by them would also be binding upon the Government of India. The then Attorney General had accepted the condition of the Judiciary on behalf of Government of India and as a result of which the primacy of opinion of collegium of Judges in the appointment and transfer of Judges to the higher Judiciary has the validity of law of land till now.

B. Need for Judicial Appointments Commission 11. The Constitution (One Hundred and Twentieth Amendment) Bill, 2013, provides for setting up of Judicial Appointments Commission by inserting Article 124(A) to Constitution of India and also amending Articles 124(2), 217(1) and 222(1). The structure and functions of the proposed Commission are provided in the Judicial Appointments Commission Bill, 2013 which is under examination of this Committee. The proposed legislation is an ordinary legislation and amendable by simple majority. 3

12. The Commission proposed under both the Bills has to take the place of current collegium of senior-most judges of Supreme Court including Chief Justice of India. As mentioned in the Statement of Objects and Reasons to the Bill, the Judicial Appointments Commission Bill would broad-base the appointment process with equal participation of the judiciary and the executive and make it participatory so as to ensure greater transparency and objectivity in the appointments to higher judiciary. The proposed Commission has the presence of persons of eminence from civil society which is an improvement including non-constitutional functionaries in the appointment process of judges to higher judiciary. 13. The present process adopted by the collegium of judges is beset with its own problem of opacity and non-accountability besides excluding Executive entirely in the collaborative and consultative exercise for appointment of judges to Bench of higher judiciary. Because of its inherent deficiencies in the collegium, as many as approximately 275 posts of judges in various High Courts are lying vacant, which has direct bearing upon justice delivery system and thereby affecting the institutional credibility of judiciary. Arrears in courts are attributed to the large number of vacancies in the Benches of High Courts amongst other reasons. Even Late Justice J.S. Verma, who was one of the authors of Second Judges Case on a later reflection has observed that: “…my 1993 judgment has been both misunderstood and misused. Therefore some kind of rethink is required ….my judgment says that the appointment process of High Court and Supreme Court judges is basically a joint or participatory exercise between the executive and the judiciary both taking part in it”. 14. Two other distinguished jurists of the country, Justice M.N. Venkatachaliah and Justice B.R. Krishna Iyer including Late Justice Verma have suggested creation of National Judicial Commission for transparent appointment procedure to the higher judiciary. 15. Some of the Jurists who appeared before the Committee stated that the proposed Commission has representation from Executive through the Minister of Law & Justice. This will amount to interference of Executive in the appointment of judges and thereby will affect the independence of judiciary. They were of the view that the present system would have worked well had the aspects of transparency and accountability been taken care of. They also had the apprehension that the proposed Bill may not be able to sustain the test of judicial scrutiny. 16. The Committee also came across with the suggestions where some of the witnesses had expressed that the collegium was not transparent and accountability was not inbuilt. Now, through the proposed Commission, assessment of legal acumen would be done by the members of the Commission from judiciary, while members of the Commission from executive will assess antecedent/character of the candidate for appointment to the Bench of higher judiciary. It is expected that the broad base of appointment process will ensure greater transparency and objectivity in the appointments of Higher Judiciary. 17. The Committee acknowledged the recommendation of the Second Administrative Reforms Commission (ARC) in its Fourth Report titled ‘Ethics in Governance’ for establishment of National Judicial Commission. 18. Law Commission in its Two-hundred and Fourteenth Report (2008) has observed that the Indian Constitution provides a beautiful picture of check and balances under Articles 124(2) and 217(1) for the appointment of Judges of the Supreme Court and High Courts where both the Executive and Judiciary have been given an equal and balanced role. This balance has been upset by the Second Judges Case and the original balance of power needs to be restored. 19. Eminent jurists such as Shri M.N. Venkatachaliah and J.S. Verma, Chief Justices of India (Retired), Justice Ravindaran, Supreme Court Judge(Retired) and Professor Madan Gopal have expressed 4 concern at the quality and the system of appointments made to High Courts under the present collegium system where lobbying is rampant and most eligible are often ignored. They have strongly advocated for setting up of Judicial Appointments Commission to select eligible and meritorious candidate for appointment of High Court Judges. 20. The National Commission to Review the Working of the Indian Constitution (2002) recommended on the issue of appointment, transfer and removal of Judges of higher courts as under:- “It would be worthwhile to have a participatory mode with the participation of both the executive and the judiciary in making such recommendations. The Commission proposes the composition of the Collegium which gives due importance to and provides for the effective participation of both the executive and the judicial wings of the State as an integrated scheme for the machinery for appointment of Judges. This Commission, accordingly, recommends the establishment of a National Judicial Commission under the Constitution.” 21. The Attorney General for India, in 2010 was of the view that the Memorandum of Procedure for appointment of Chief Justice and Judges of Supreme Court and High Courts do not reflect the correct position in the law and requires to be revised. According to him, the Executive is also a consultee and if appointment can only be made as a result of consensus between all the consultees then a negative opinion from the Executive cannot be ignored or overridden. Another negative opinion can come from any consultee and not from the Executive alone. The entire text of opinion of Attorney General is at Annexure-IV. 22. The same Attorney General of India who appeared before the Committee on the Bill was of the opinion:–

● That appointment of judges of higher judiciary is a part of Basic Structure of Constitution and the structure of Constitution as it was at the time of its enactment in 1950 has to be considered from the point view of Basic Structure doctrine of Constitution. Judicial pronouncement in 1993 has altered the Basic structure of Constitution by interpreting the word ‘consultation’ to mean the ‘concurrence’ within the meaning of Articles 124(2) and 217(1) of Constitution.

● The present collegium which has been evolved through judicial decisions in 90s has received criticism especially from retired Chief Justices and judges for failing to attract outstanding people in legal fraternity to the Bench of higher judiciary thereby affecting independence of judiciary which is one of the Basic Structures of Constitution.

● As to the aspect of sustainability of the Bill he averred that Parliament may in its wisdom keep structure and function of Judicial Appointments Commission under a new Schedule to the Constitution to make it difficult for the Government to alter its composition through ordinary legislation in future. 23. None of the democratic countries in the world has the mechanism where Judges are appointing themselves. However, evidence of the mechanism of Commission having presence of Executive therein is found in the United Kingdom, South Africa, Russia, Canada, Sri Lanka, Japan etc.

C. Provisions of the Bill and suggestions received from stakeholders 24. In the course of examination of the Bill, the Committee came across the various suggestions from the witnesses and also from those who submitted their views in writing. The Committee went through the suggestions made by stakeholders before it. Some of the important suggestions which drew the attention of the Committee on the provisions of the Bill are enumerated in the succeeding paragraphs. 5

Structure of JAC 25. The composition of Judicial Appointments Commission as provided in the Bill (Clause 3) is as under:–

● Chief Justice of India - Chairperson - Ex-officio;

● Two senior most Judges of Supreme Court next to Chief Justice of India - Member - Ex-officio;

● Union Minister in-charge of Law and Justice - Member Ex-officio; and

● Two eminent persons to be nominated by a Committee comprising the Prime Minister, Chief Justice of India and Leader of Opposition in the House of People - Members. 26. The Secretary to Government of India in the Department of Justice would be the convener to the Commission. 27. Two eminent persons shall be nominated for a period of three years without being re- nominated. 28. The important suggestions on the composition of Judicial Appointments Commission are as under:–

● Structure and functions of Judicial Appointments Commission needs to be protected under Article 368 of the Constitution of India to safeguard independence of judiciary which is a Basic Structure of Constitution;

● The area of eminence for the Eminent members in the Judicial Appointments Commission to be specified in the Bill;

● Consensus in the Commission may be near impossible always. To avoid the tie in the Commission, composition of the Commission may be increased to seven with Hon’ble Vice President of India as Chairman;

● Bar is one of the stake holders for appointment to higher judiciary needs representation in the composition of the Commission;

● Retired Chief Vigilance Commissioner should be made the ex-officio member of the Commission;

● Registrar-General, Supreme Court of India may be convener of the Commission instead of the Secretary, Department of Justice, Ministry of Law and Justice; and

● Attorney-General for India may be a member of the Commission in place of Minister of Law and Justice.

Functions of JAC 29. The function of JAC is to recommend persons of outstanding calibre in legal profession with impeccable integrity for appointment as Chief Justice of India, Judges of Supreme Court, Chief Justices of High Courts and other Judges of High Courts to the President of India. It also recommends to President of India for transfer of Chief Justices of High Courts and other Judges of High Courts from one High Court to other High Court. The Commission will have to elicit views of Governor, Chief Minister and Chief Justice of High Court of that State for appointment of Judges of that High Court as provided in Clause 5 of the Bill. 6

30. The important suggestions on the function of Judicial Appointments Commission are as under:–

● State level Judicial Commission on the lines of JAC may be provided in the Bill;

● A body comprising Governor, Chief Minister, Leader of Opposition of Legislative Assembly, Chief Justice of High Court may be provided for consultation of names to be recommended to JAC for appointment of judges of that High Court; and

● Fifty percent of High Court Judges may be reserved for judges of Subordinate Judiciary.

Independent Secretariat 31. The Secretariat to the Commission will be constituted which will initiate the process of short- listing of candidates by rules and regulations under Clause 6 of the Bill. 32. Suggestions have been received to provide independence and permanent Secretariat to the Commission.

Filling-up of vacancies in Higher Judiciary 33. Clause 7 of the Bill provides time period within which intimation for filling up of vacancies caused by superannuation, resignation, death, etc. Two months’ period for the Government to intimate to the Commission before occurrence of vacancy on account of superannuation and two months’ period after the occurrence of resignation and death is provided in the Bill. 34. It was put forth before the Committee that the process of appointment should be initiated atleast six months before the occurrence of those vacancies arising due to superannuation while the process of initiation of filling up vacancies arising due to death or resignation of a judge, the process should be initiated seven days after its occurrence.

Procedure of Shortlisting of Candidates 35. Procedures for short-listing candidates for selection to the Bench of higher Judiciary mentioned under Clause 8(3) of the Bill is to be laid down through rules and regulations under Clauses 11 and 12 of the Bill. 36. Suggestions have been received to create a Statutory Search Committee of short-listing candidates for the consideration of JAC as members of JAC are high-profile persons having role in the selection of the candidate to the Bench of the higher Judiciary. It could be more practicable if Panel is prepared by the Search Committee for selection by the JAC.

Other Issues 37. Some important suggestions received by Committee on issues not directly connected to the provisions of the Bill are as under:-

● Laying down of guidelines for transfer of judges should be made clear by the Commission;

● Casting vote to the chairman of the Commission in the event of split in the Commission on the name of candidate for appointment to the Bench of higher judiciary;

● All India Judicial Service as envisaged of Article 312 of Constitution should be made operational to attract best available talents for subordinate judiciary which is a recruiting ground for higher judiciary. Necessary legislation be enacted for the purpose. 7

● 2/3 judges are appointed to the High Courts from the Bar of High Court. Provisions may be made in the Bill for including the Members of Bar also in the consultation process for appointment of Judges;

● Retirement age of High Courts and Supreme Court Judges to be increased from 65 to 68, respectively;

● Rotation of the post of Chief Justice of India amongst Judges of Supreme Court;

● Cooling off period of ten years for Judges for post-retirement appointment in Commissions and Tribunals;

● Keep Judicial Appointments Commission within ambit of the Right of Information Act, 2005; and

● Judicial Appointments Commission to recommend to the President of India for removal of judges and replace the cumbersome process of impeachment of judges.

● Impeachment procedure of judges of higher judiciary is too cumbersome and impracticable. Removal of judges needs to be assigned to Judicial Appointments Committee for being recommended to the President of India. Necessary Constitutional amendment should be enacted.

D. Committee’s Recommendations/Observations 38. The Committee appreciates the attempt of Government to set up Judicial Appointments Commission in place of present collegium which has inherent deficiencies and problems of opacity and non-accountability and reducing the Executive to a secondary position in the process of appointment of judges to the higher judiciary. It feels that the proposed Commission would ensure equal and active participation of both the Executive and the Judiciary in collaborative and participatory manner to find best and brightest persons with impeccable integrity to the Bench of higher Judiciary for the purpose of securing independent and impartial judiciary which is a Basic Structure of the Constitution, as per judicial pronouncement, whether one agrees or not. 39. The Committee joins the concern echoed by many stakeholders who appeared before the Committee pleading for giving protection of Article 368 of the Constitution to structure and functions of JAC so as to protect the Basic Structure of Constitution. The Committee, accordingly, recommends that structure and functions of the Commission should be mentioned in the Constitution itself. The Committee while endorsing their views, observes that constitutional status to the appointment and transfer of Judges by the Commission may be given to allay apprehension expressed by legal luminaries. 40. The Committee observes the Bill is not seeking to restore the pre-1993 position which the Government could have rightfully exercised. The Committee appreciates the attempt of Government to maintain a balance between the executive and the judiciary in regard to judicial appointments. 41. The Committee observes that the present Judicial Appointments Commission is broad based having representation from Judiciary, Executive and civil society which would facilitate wider consultation for assessing the suitability and integrity of the persons to be appointed as judges to Bench of higher judiciary. In that context, the Committee suggests that there should be three eminent persons in the Commission instead of two as provided for in the Bill and at least one out of the three Members should be from SC/ST/OBC/Women/minority preferably by rotation. The Committee also suggests that the fields of eminence may be specified in the Bill. 8

42. The Committee feels that the Judicial Appointments Commission would be overridden to handle appointment of eight hundred odd Judges of 24 High Courts in the country. The only procedure prescribed in the case of appointment of High Court Judges is to elicit views of Governor and Chief Minister of concerned State and Chief Justice of concerned High Court in writing. It is not mentioned how shortlisting of candidates to the Bench of higher Judiciary would be done upon which the views of these three constitutional functionaries are to be sought. 43. The Committee notes that according to Clause 5 of the Bill the views of three constitutional functionaries of the State, namely, Governor, Chief Minister and Chief Justice of the concerned High Court would be solicited separately in writing. It implies that there will not be any consultation amongst the three constitutional functionaries of the State. The Committee feels that this process is time consuming and also limits the scope of consultation, amongst themselves. 44. Considering the responsibility of Judicial Appointments Commission to select 800 odd Judges of 24 High Courts in the country and also the fact that suitable involvement of the Constitutional and other functionaries at the State level in the process of appointment, Committee feels that in order to assist the Judicial Appointment Commission, Government may consider the feasibility and practicability of creation of State Level Commission at the earliest. The State Level Commission may be consisted of the Chief Minister of the State, Chief Justice of High Court and Leader of Opposition. The Committee hopes this would not only lessen the burden of Commission at apex level but will also provide for a more broad based appointment process. 45. One of the responsibilities of Judicial Appointments Commission is transfer of judges of High Court from one to another. The initiative of the proposal of transfer is made by Chief Justice of India whose opinion in this regard is determinative. This has been reflected in the Memoranda of Procedure for appointment and transfer of Chief Justice and Judges of High Courts prepared by Department of Justice. The Committee desires that regulations may be made at the earliest by the Commission for transfer of the judges in supersession of Memoranda of Procedure for appointment and transfer of Chief Justice and Judges and of High Courts prepared by Department of Justice. The Committee also desires that the judge of High Court who is in-charge of administration should be invariably from outside of the State concerned. 46. The objective of the Bill is not only to ensure fairness and transparency in appointment of judges to the Bench of higher judiciary, but also to ensure timely filing up of vacancies in the judiciary. The Committee desires that the Judicial Appointments Commission should initiate process for appointment to judges of High Courts well in advance so that the vacancy is filled up in time-bound manner so as to improve justice delivery system in order to gain confidence of the people. 47. The Committee notes that the Bill delegates its primary function to the Commission i.e., procedure for short-listing the candidates for their selection as High Court Judges. It implies that Parliament is delegating its legislating power to the Commission which should have been part of this Bill. The Committee feels that leaving vital thing to the regulations to be made by the Commission need not only to be reasonably restricted but also the Bill should specifically provide therefor. The Committee, therefore, suggests that the Government may consider that Clause 8(3) should lay down the broad parameters in respect of procedure for short listing the candidates for selection of Judges in the High Courts. 48. The earlier selection processes i.e. pre and post 1993, did not provide any opportunity to the aspiring eligible advocates to express their willingness to be the judge of the High Court. 9

The Committee feels that Government may consider for a procedure whereby such opportunity is given through public notification etc. to the members of Bar. The Committee recommends that the eligible member of Bar should be given an opportunity to be considered for appointment of judge of High Court in an objective and transparent manner through advertisement as is the practice in the United Kingdom. 49. The Constitution (One Hundred and Twentieth Amendment) Bill is directly linked to this Bill, whereas the Judicial Standards and Accountability Bill is also linked to both the Bills. The Committee recommends to Government that all the three Bills may be taken into consideration at the earliest. 50. All India Judicial Service has been envisaged under Article 312 of the Constitution of India. The Committee expresses its concern over the delay in its creation. The Committee insists that AIJS may be created without further delay to attract best talent to the subordinate judiciary from where 33 percent of the judicial officers are elevated to the Bench of High Courts. Reservation as per existing policy of Government of India may be made applicable in the All India Judicial Service also. 51. The Committee recommends that suitable modifications, accordingly, may be made in the proposed Bill in the light of Committee’s recommendations in the preceding paras. 10

RECOMMENDATIONS/OBSERVATIONS OF THE COMMITTEE — AT A GLANCE

1. The Committee appreciates the attempt of Government to set up Judicial Appointments Commission in place of present collegium which has inherent deficiencies and problems of opacity and non-accountability and reducing the Executive to a secondary position in the process of appointment of judges to the higher judiciary. It feels that the proposed Commission would ensure equal and active participation of both the Executive and the Judiciary in collaborative and participatory manner to find best and brightest persons with impeccable integrity to the Bench of higher Judiciary for the purpose of securing independent and impartial judiciary which is a Basic Structure of the Constitution, as per judicial pronouncement, whether one agrees or not. [Para 38] 2. The Committee joins the concern echoed by many stakeholders who appeared before the Committee pleading for giving protection of Article 368 of the Constitution to structure and functions of JAC so as to protect the Basic Structure of Constitution. The Committee, accordingly, recommends that structure and functions of the Commission should be mentioned in the Constitution itself. The Committee while endorsing their views, observes that constitutional status to the appointment and transfer of Judges by the Commission may be given to allay apprehension expressed by legal luminaries. [Para 39] 3. The Committee observes the Bill is not seeking to restore the pre-1993 position which the Government could have rightfully exercised. The Committee appreciates the attempt of Government to maintain a balance between the executive and the judiciary in regard to judicial appointments. [Para 40] 4. The Committee observes that the present Judicial Appointments Commission is broad based having representation from Judiciary, Executive and civil society which would facilitate wider consultation for assessing the suitability and integrity of the persons to be appointed as judges to Bench of higher judiciary. In that context, the Committee suggests that there should be three eminent persons in the Commission instead of two as provided for in the Bill and at least one out of the three Members should be from SC/ST/OBC/Women/minority preferably by rotation. The Committee also suggests that the fields of eminence may be specified in the Bill. [Para 41] 5. The Committee feels that the Judicial Appointments Commission would be overridden to handle appointment of eight hundred odd Judges of 24 High Courts in the country. The only procedure prescribed in the case of appointment of High Court Judges is to elicit views of Governor and Chief Minister of concerned State and Chief Justice of concerned High Court in writing. It is not mentioned how shortlisting of candidates to the Bench of higher Judiciary would be done upon which the views of these three constitutional functionaries are to be sought. [Para 42] 6. The Committee notes that according to Clause 5 of the Bill the views of three constitutional functionaries of the State, namely, Governor, Chief Minister and Chief Justice of the concerned High Court would be solicited separately in writing. It implies that there will not be any consultation amongst the three constitutional functionaries of the State. The Committee feels that this process is time consuming and also limits the scope of consultation, amongst themselves. [Para 43]

10 11

7. Considering the responsibility of Judicial Appointments Commission to select 800 odd Judges of 24 High Courts in the country and also the fact that suitable involvement of the Constitutional and other functionaries at the State level in the process of appointment, Committee feels that in order to assist the Judicial Appointment Commission, Government may consider the feasibility and practicability of creation of State Level Commission at the earliest. The State Level Commission may be consisted of the Chief Minister of the State, Chief Justice of High Court and Leader of Opposition. The Committee hopes this would not only lessen the burden of Commission at apex level but will also provide for a more broad based appointment process. [Para 44]

8. One of the responsibilities of Judicial Appointments Commission is transfer of judges of High Court from one to another. The initiative of the proposal of transfer is made by Chief Justice of India whose opinion in this regard is determinative. This has been reflected in the Memoranda of Procedure for appointment and transfer of Chief Justice and Judges of High Courts prepared by Department of Justice. The Committee desires that regulations may be made at the earliest by the Commission for transfer of the judges in supersession of Memoranda of Procedure for appointment and transfer of Chief Justice and Judges and of High Courts prepared by Department of Justice. The Committee also desires that the judge of High Court who is in-charge of administration should be invariably from outside of the State concerned. [Para 45]

9. The objective of the Bill is not only to ensure fairness and transparency in appointment of judges to the Bench of higher judiciary, but also to ensure timely filing up of vacancies in the judiciary. The Committee desires that the Judicial Appointments Commission should initiate process for appointment to judges of High Courts well in advance so that the vacancy is filled up in time-bound manner so as to improve justice delivery system in order to gain confidence of the people. [Para 46]

10. The Committee notes that the Bill delegates its primary function to the Commission i.e., procedure for short-listing the candidates for their selection as High Court Judges. It implies that Parliament is delegating its legislating power to the Commission which should have been part of this Bill. The Committee feels that leaving vital thing to the regulations to be made by the Commission need not only to be reasonably restricted but also the Bill should specifically provide therefor. The Committee, therefore, suggests that the Government may consider that Clause 8(3) should lay down the broad parameters in respect of procedure for short listing the candidates for selection of Judges in the High Courts. [Para 47]

11. The earlier selection processes i.e. pre and post 1993, did not provide any opportunity to the aspiring eligible advocates to express their willingness to be the judge of the High Court. The Committee feels that Government may consider for a procedure whereby such opportunity is given through public notification etc. to the members of Bar. The Committee recommends that the eligible member of Bar should be given an opportunity to be considered for appointment of judge of High Court in an objective and transparent manner through advertisement as is the practice in the United Kingdom. [Para 48]

12. The Constitution (One Hundred and Twentieth Amendment) Bill is directly linked to this Bill, whereas the Judicial Standards and Accountability Bill is also linked to both the Bills. The Committee recommends to Government that all the three Bills may be taken into consideration at the earliest. [Para 49]

13. All India Judicial Service has been envisaged under Article 312 of the Constitution of India. The Committee expresses its concern over the delay in its creation. The Committee 12 insists that AIJS may be created without further delay to attract best talent to the subordinate judiciary from where 33 percent of the judicial officers are elevated to the Bench of High Courts. Reservation as per existing policy of Government of India may be made applicable in the All India Judicial Service also. [Para 50] 14. The Committee recommends that suitable modifications, accordingly, may be made in the proposed Bill in the light of Committee’s recommendations in the preceding paras. [Para 51] 13

MINUTES

III THIRD MEETING

The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 3.00 P.M. on Wednesday, the 22nd October, 2013 in Room No. ‘62’, First Floor, Parliament House, New Delhi.

MEMBERS PRESENT 1. Shri Shantaram Naik — Chairman

RAJYA SABHA 2. Shri Sanjiv Kumar 3. Shri Ram Vilas Paswan 4. Shri Sukhendu Sekhar Roy 5. Shri Bhupender Yadav

LOK SABHA 6. Shri T.R. Baalu 7. Shri E.T. Mohammed Basheer 8. Shri N.S.V. Chittan 9. Shri P.C. Gaddigoudar 10. Shri Shailendra Kumar 11. Shri Pinaki Misra 12. Shri S.S. Ramasubbu 13. Shri S. Semmalai 14. Shrimati Meena Singh 15. Shri Vijay Bahadur Singh 16. Dr. Prabha Kishore Taviad

● Department of Legal Affairs 1. Dr. B.A. Agrawal, Secretary; 2. Shri D. Bhardwaj, Joint Secretary and Legal Advisors; and 3. Shri M. Khandelwal, Additional G.A.

15 16

● Legislative Department 1. Dr. Sanjay Singh, Additional Secretary; 2. Dr. G. Narayana Raju, Joint Secretary and Legislative Counsel; 3. Shri K.V. Kumar, Deputy Legislative Counsel; and 4. Shrimati Veena Kothavale, Deputy Legislative Counsel.

● Department of Justice 1. Shri Praveen Garg, Joint Secretary; and 2. Shri V.K. Tripathi, Director. III. *** 2. At the outset Chairman welcomed Members of the Committee, Attorney General of India, Law Secretary, and other Senior Officers of Department of Justice, Legal Affairs, Personnel and Training and Legislative Department. He requested the Attorney General of India to express his opinion on Judicial Appointments Commission Bill, 2013 and the Right to Information (Amendment) Bill, 2013.

The Judicial Appointment Commission Bill, 2013 3. Appreciating the proposed Commission over present collegium for the appointment of judges to higher judiciary, the Attorney General held that the reform in the appointment procedure in higher judiciary was long over due. The present collegium which has been evolved through judicial decisions in 90s has received criticism especially from retired Chief Justices and judges for failing to attract outstanding people in legal fraternity to the Bench of higher judiciary thereby affecting independence of judiciary which is one of the Basic Structures of Constitution. Replacing present collegium system by Judicial Appointments Commission, in his opinion, could ensure independence of judiciary as people of integrity, ability and standing in legal profession would be selected to the higher judiciary through wider consultation process with the involvement of judiciary executive and civil society. 4. Responding to one of the query of the Committee, the AG was of the opinion that appointment of judges of higher judiciary is a part of Basic Structure of Constitution and the structure of Constitution as it was at the time of its enactment in 1950 has to be considered from the point view of Basic Structure doctrine of Constitution. Judicial pronouncement in 1993 has altered the Basic structure of Constitution by interpreting the word ‘consultation’ to mean the ‘concurrence’ within the meaning of Articles 124(2) and 217(1) of Constitution. 5. Responding to the query as to how violation of Basic Structure doctrine of Constitution by judiciary through its judgment in 1993 has been tolerated, till now, the Attorney General submitted that an attempt was made to reopen the case by one of the presidential reference by the Government in 1998 under Article 143 of Constitution. Attorney General of India further informed the Committee that on receiving the reference from President, the Supreme Court told the Government that if they accept the correctness of 1993 judgment and accept that whatever the Supreme Court says would be binding on Government. Government or Attorney General of India gave a statement to the apex court to the effect that they accept the judgment of 1993 and the advisory opinion of that court to be tendered would be also binding on them. As a result, the interpretation of court to the word ‘consultation’ to mean as ‘concurrence ‘came into jurisprudence. Memorandum on Procedure for appointment of judges was prepared thereafter by the Department of Justice in consultation with the Chief Justice of India for appointment of judges for that purpose. 6. As to the aspect of sustainability of the Bill he averred that Parliament may in its wisdom keep structure and function of Judicial Appointments Commission under a new Schedule to the Constitution to make it difficult for the Government to alter its composition through ordinary legislation in future.

*** Relates to some other matter. 17

7. Short listing and selection of candidates for higher judiciary could be absolutely transparent and fool proof for independence of judiciary. He referred the practice in United Kingdom where applications were invited and interview of the candidates from legal fraternity conducted for becoming judge by the Commission. He desired that short listing of candidates by the Judicial Appointments Commission which to be regulated by Rules and Regulation of the Commission should take into account the best procedure available for the purpose. 8. Referring to the seniority principle on the appointment of judges as Chief Justice of India/Chief Justices of High Courts which is developed by convention has not been considered for appointment in other countries which the Committee may like to deliberate in its wisdom. 9. Queries relating to State Judicial Appointments Commission, All India Judicial Services, casting vote for Chief Justice of India being the Chairman of the Judicial Appointments Commission, representations of Bar of District judiciary for appointment of judges of High Courts were also responded to by Attorney General.

The Right to Information (Amendment) Bill, 2013 10. * * * 11.*** 12. The Secretary, Department of Legal Affairs submitted that both Constitution (One Hundred Twentieth Amendment) Bill, 2013 as well as Judicial Appointments Commission Bill, 2013 are welcome steps. The Constitution of Judicial Appointments Commission for appointment of judges to higher judiciary would sustain judicial scrutiny. Regarding composition of Judicial Appointments Commission either it may be inscribed in the Constitution itself or left to Parliament to be given by law as proposed in the Judicial Appointments Commission Bill, 2013. In that context he referred to recommendations of 214th report of Law Commission of India as well as 28th Report of this Committee. 13. * * * 14. * * * (The witnesses then withdrew) 15. A verbatim record of the proceedings of the meeting was kept.

16. The Committee then adjourned at 4.41 P.M. to meet again at 3.00 P.M. on 30th October, 2013.

*** Relates to some other matter. 18

RECORD OF DISCUSSION

The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 3.00 P.M. on Wednesday, the 13th November, 2013 in Committee Room ‘A’, Ground Floor, Parliament House Annexe, New Delhi.

MEMBERS PRESENT 1. Shri Shantaram Naik — Chairman

RAJYA SABHA 2. Shri Sanjeev Kumar 3. Shri Ram Vilas Paswan 4. Shri Sukhendu Sekhar Roy

LOK SABHA 5. Shri E.T. Mohammed Basheer 6. Shri Shailendra Kumar 7. Shri Pinaki Misra 8. Shri S.D. Shariq 9. Shrimati Meena Singh

SECRETARIAT Shri Shumsher K. Sheriff, Secretary-General Shri Alok Kumar Chatterjee, Joint Secretary Shri K.P. Singh, Director Shri Ashok K. Sahoo, Joint Director Shrimati Niangkhannem Guite, Assistant Director Shrimati Catherine John L., Assistant Director

I. Non-official Witnesses 1. Dr. Jayaprakash Narayan, MLA, Foundation for Democratic Reforms (Lok Satta), Hyderabad 2. Shri Subhash Chandra Agrawal, RTI Activist, New Delhi 3. Dr. Lokesh Kumar, RTI Activist, New Delhi 4. Shri Ishwar Dayal Goyal, Noida, U.P. 5. Shri Fali S. Nariman; Ex. M.P., Rajya Sabha and Senior Advocate, Supreme Court 6 Shri Ashok H. Desai, Former Attorney General for India 7. Shri P.P. Rao, Senior Advocate, Supreme Court Official Witnesses

● Department of Justice 1. Shri Praveen Garg, Joint Secretary 2. Shri V.K. Tripathi, Director

18 19

● Legislative Department Dr. G. Narayana Raju, Joint Secretary and Legislative Counsel 2. Chairman welcomed Members of the Committee, non-official witnesses and senior officers of Department of Justice and Legislative Department, Ministry of Law and Justice. He requested Dr. Jaiprakash Narayan to express his opinion on the Judicial Appointments Commission Bill, 2013, in addition to the written submission made by him. 3. Dr. Jaiprakash Narayan opined that some of the provisions of the Constitution of India have been misread by the Supreme Court of India in the Second Judges case in 1993, as well as in the Presidential reference, widely known as the Third Judge’s case. He is also of the view that the appointment process is increasingly becoming non-transparent and, in many cases, questionable. 4. Citing example from other democratic countries, he said that in no democratic country has the Supreme Court arrogated to itself the power to appoint Judges in the Supreme Court. He also opined that All India Judicial Services, on par with the Indian Administrative Service and the Indian Police Service, for recruitment of Judges at the Subordinate Judges level is necessary. He further opined that all the three Bills i.e The Judicial Standards and Accountability Bill, The Constitution (120th Amendment) Bill and the Judicial Appointments Commission Bill should be considered together in the same session. 5. Shri. Subash Chandra Agrawal supports the points raised by Dr. Jaiprakash Narayan, and opined that the appointment process in judiciary must involve both judiciary and legislative in a participatory manner. He further expressed his concern with the rampant lobbying to reach the Supreme Court and to deal with this problem, he suggested that the retirement age of High Courts and the Supreme Court judges should be same, i.e 65 years. He also suggested the creation of a permanent National Judicial Commission. 6. Shri Ishwar Dayal Goel, expressed his concern with the high number of vacancies and high pendency of cases in the judiciary. He pointed out that since the date of establishment of the High Court, the judges strength has never been full which has negative effect on the justice delivery system. He further opined that in order to fill up the vacancies in the Supreme Court and the High Court, three months as proposed in the Bill for the Commission to fill up vacancies may be reduced to one month. (Witnesses then withdrew) 7. The Chairman welcomed Members of the Committee, legal luminaries Shri. Fali S. Nariman, ex. M.P (Rajya Sabha and Senior Advocate), Ashok H. Desai, Senior Advocate and P.P. Rao, Senior Advocate and senior officers of Department of Justice and Legislative Department, Ministry of Law and Justice. 8. Shri Fali S. Nariman expressed that the collegium system has failed entirely. Therefore, an alternative has to be tested whose results can be known only when it starts working and the proposed Judicial Appointments Commission must be given a try. He opined that it is vital to include the provision in Section 3 about appointment of a Judicial Appointments Commission in the Constitution itself to guard it against political interference. 9. He is of the view that the appointment through the High Courts is the bedrock of the judicial system, as such the present Bill should make a more detailed and elaborate provision for it. He advocated for a Judicial Appointments Commission for the High Courts to guard it against political interference. He also opined that in case of tie or deadlock in appointment, the Chief Justice may be given a casting vote. 10. Shri Ashok H. Desai shared similar concern and opined that the collegium has failed to deliver a transparent system. He further opined that the Bill should be a part of the Constitution itself and not a standalone Bill as proposed. He suggested that the appointment should be based on transparency, 20 merit and integrity, and seniority should only be one of the factors, unlike the present system where seniority is a crucial factor. He said that the appointment should be made by a mix of various stakeholders, including Bar and civil society, none of whom will have a dominating influence. He also opined that an independent full time Secretariat may be established for keeping record of all the judges at national level. 11. Shri P.P. Rao opined that the word collegium mentioned in Clause 3(1)(d) should be dropped because of the in-breeding of disillusionment in the name of collegium and the appointments that take place. He further opined that the Basic Structure of the Constitution which is defined from time to time by the Supreme Court with vagueness, coupled with the nature of amplitude of powers and thereby makes it the most powerful institution today in the Constitutional set up. He also opined that judicial independence forms the Basic Structure of the Constitution and therefore the Bill is dealing with a part of Basic Structure of the Constitution. He pointed out that the basic feature of the Constitution, which cannot be amended and abridged by Parliament, cannot be made through indirect process of leaving the composition of the Commission to be decided by law, which can be amended easily, by simple majority vote in the Parliament, which needed to be part of the Constitution. He pointed out those provisions in Part V of the Constitution. 12. Speaking on the ‘eminent persons,’ he said that the words ‘two eminent persons’ may be substituted with the words, ‘two persons of ability, integrity and eminence known for their knowledge and experience in judiciary, administration, education, journalism, law or public affairs.’ He also opined that a Search Committee of eminent persons may be constituted for recommending candidatures for appointments. (The witnesses then withdrew) 13. Verbatim record of meeting of the Committee was kept.

14. The meeting adjourned at 5.55 P.M. to meet again at 11 A.M. on 20th November, 2013. 21

RECORD OF DISCUSSION

The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 11.00 A.M. on Wednesday, the 20th November, 2013 in Main Committee Room, Parliament House Annexe, New Delhi.

MEMBERS PRESENT 1. Shri Shantaram Naik — Chairman

RAJYA SABHA 2. Shri Ram Vilas Paswan 3. Shri Sukhendu Sekhar Roy

LOK SABHA 4. Shri T.R. Baalu 5. Shri Shailendra Kumar 6. Shri Pinaki Misra 7. Shri Abhijit Mukherjee 8. Shri S. Semmalai 9. Shri Vijay Bahadur Singh 10. Dr. Prabha Kishore Taviad

II. NON-OFFICIAL WITNESSES

Forenoon Session - 11.00 A.M. 1. Bar Council of India (i) Shri S. Prabakaran, Co-Chairman (ii) Shri Ramchander Rao, Member (iii) Shri Nilesh Kumar, Member (iv) Shri Bhoj Chander Thakur, Member (v) Shri J.R. Sharma, Member

21 22

(vi) Shri Ashok K. Pandey, Member (vii) Shrimati Shiva Priyamvadu, Member

2. The Madras Bar Association, Chennai (i) Shri R. Muthukumaraswamy, President (ii) Shri V.R. Kamalanathan, Secretary

3. Advocates forum for Social Justice, Tamil Nadu (i) Shri K. Balu, President (ii) Shri K. Muthuramalingam

4. Association of Lawyers Against Corruption & Oppression, Chennai Shri A.P Surya Prakasam

5. Shri Naik. Holiyappa. Kanna (Adv. Supreme Court), New Delhi

6. Shri Radhey Shyam Gora (Advocate, Supreme Court), New Delhi

7. Shri Suniti Kumar Chaudhuri (Advocate) Hooghly, West Bengal

8. Dr. Durlabh Chandra Bhattacharyya (Advocate Calcutta High Court), Kolkata

Afternoon Session - 2.30 P.M. 1. Association of Retired Judges of Supreme Court & High Courts of India (UP State Chapter), Lucknow. Justice K.L. Sharma

2. Justice A.N. Gupta (Retd.), Lucknow

3. Shri V.P. Singh, District Judge (Retd.) 4. Madras High Court Advocates Association (i) Shri R.C. Paul Kanagaraj, President (ii) Shri N. Kannan, Advocate (iii) Shri C. Kanagaraj, Advocate (iv) Shri S. Arivazhagan, Advocate

5. Women Lawyers’ Association, Chennai (i) Shrimati D. Prasanna, President (ii) Shrimati V. Nalini

6. Shri Harvinder Oberoi, New Delhi

7. Shri T.G.N. Kumar, Kochi

8. Shri Abhishek Sudhir, (Advocate) Bangalore

9. Suraz India Trust, Rajasthan (i) Shri Rajiv Daiya, Chairman 23

(ii) Shri Narender Bhansali, Advocate (iii) Shri L.P. Upadhyay, Judge (Retd.)

II. OFFICIAL WITNESSES Department of Justice, Ministry of Law and Justice 1. Shri Praveen Garg, Joint Secretary 2. Shri V.K. Tripathi, Director

Legislative Department, Ministry of Law and Justice Dr. G. Narayana Raju, JS and LC

2. The Chairman welcomed the witnesses and senior officers of the Department of Justice and Legislative Department, Ministry of Law and Justice. The Chairman requested Shri. S. Prabakaran, Co- Chairman, BCI to express their opinion on the provisions of the Judicial Appointments Commission Bill, 2013, in addition to the written submission made by them.

3. Shri. S. Prabakaran opined that in view of the provisions of Article 124(2) of the Constitution, the Bill is completely against the basic structure of the Indian Constitution. He also opined that the proposal relating to the composition of Judicial Appointments Commission, its selection, appointment of Supreme Court Judges, transfer of Chief Justice and Judges of High Courts, etc., will practically be subjected to the pleasure of the Government in power on that day.

4. The witness expressed that the original Constitution does not permit any outsider except the President of India and members of higher judiciary in the appointment of higher judiciary. However, this Bill intends not only to replace the Collegium, but also to include politicians, nominees of the politicians in the process of appointments, transfers and disciplinary action against the Judges of the High Courts and the Supreme Court. He therefore, felt that this Bill is totally unconstitutional.

5. Shri R. Muthukumaraswamy put forward that just as the other Constitutional bodies, the proposed Judicial Appointments Commission, its constitution, composition, functions, etc., must be part of the Constitution to safeguard the independence of judiciary. He felt that qualifications of the term ‘two eminent persons’ must be prescribed. He further said that the Law Minister is a political personality and is a part of the Government and therefore his inclusion in the proposed Commission should be deleted and can be replaced with three eminent persons instead of two as proposed now. He also opined that, the Secretary to the Law Department is a Government officer and is subordinate to the Law Minister. Therefore, in place of Secretary, the Registrar-General or the Registrar Judicial may be made the Convener.

6. Shri K. Balu, supporting the proposed Judicial Appointments Commission opined that the present system of selection needs to be changed for three reasons. as, there is no transparency in the present system; absence of merit assessment process in the present system; and no proper representation for all sections of the society. He further opined that there should be three eminent persons in place of two, including representation from backward sections of the society. He further submitted that India is the only country where judges are selected by the judges themselves.

7. Shri Radhey Shayam Gora desired that there should have been a thorough exercise before introducing this Bill in the Parliament and submitted that the present collegium, despite its shortcomings have produced some brilliant jurists of international repute. However, he opined that the present collegium system require some improvement and the All India Judicial Services may be created to fulfill the rising aspirations of the students of law. 24

8. Dr. Durlabh Chandra Bhattacharya expressed his belief that the proposed Bill will bring transparency in the judicial system. He submitted that clause 10 of the Bill relating to acts or proceedings of the Commission may be clarified.

(Witnesses then withdrew)

9. Justice (Retd.) K.L. Sharma opined that the constitution of the Commission should be made more broad-based and supported involving both the executive and legislature in the constitution of the proposed Commission. He said that the Speaker of the Lok Sabha should be made an ex officio member in addition to other two members and there should be three eminent persons instead of two to be nominated for a period of two years by a collegium comprising the Prime Minister of India, the Chief Justice of India and the Leader of Opposition in the Lok Sabha. He further opined that the time gap of three months for filling up of vacancies as proposed in clause 7(1) may be reduced to one month and the Central Government should intimate the sanctioned strength of judges of each High Court to the Registrar-General of the High Courts and of Supreme Court to the Registrar-General of the Supreme Court and to the Chairman of the Commission. The Registrar General of the Supreme Court should be made responsible to compile vacancies in the High Courts and the Supreme Court and inform the Chairman of the Commission on 1st January and 1st July every year, so that he can initiate the process with the Chairman of the Commission in accordance with the regulations to be made by the Commission.

10. Shri V.P. Singh, District Judge (Retd.), supported the Bill, however, he proposed that the appointment to High Court Judges should be made in the ratio of 50:50 from Higher Judiciary officers/ District Judges and from Advocates of Bar respectively.

11. Shri R.C. Paul Kanagaraj opposed the Judicial Appointments Commission Bill, 2013 in its entirety and opined that the Bill should not be allowed to be passed in its present form, as it takes away the safeguards provided to the judiciary in the Constitution of India and brings in political intervention. He opined that any change in the process of selection and appointments of Judges of the Supreme Court and High Courts can only be done by constitutional amendment under Article 368 and not through legislation. He further pointed out that the exiting collegium system needs to bring some transparency and accountability into it.

12. Smt. D. Prasanna opposed the Bill in its entirety and opined that it will affect the independence of judiciary. She also opposed the presence of Law Minister of India in the Commission as he is a political personality functioning under the Government whose political compulsion and actions come under the judicial scrutiny of High Court and Supreme Court. She further opined that 33 percent reservation to women may be included with Bill.

13. Shri Abhishek Sudhir while supporting the Bill was hopeful that it would bring much-needed accountability in the judiciary. However, he also voiced concern over the even number of members in the proposed Commission, i.e. six members. He felt that in case of a tie, the chairperson of the Commission should be given the casting vote. He desired to replace the words ‘two eminent persons’, with ‘two distinguished jurists’ citing the use of distinguished jurists in article 124 (3). He also expressed concern with the short tenures of the Chief Justices of the higher judiciary in recent times and said that it has become like a ceremonial position. He further opined that the practice of appointment of Chief Justice in the United Kingdom could be followed. He also desired that the Bill be given Constitutional status.

14. Shri Rajiv Daiya pointed out that there was no methodology in the Constitution of India for appointment of judges of higher judiciary by Collegium but the Supreme Court by judicial verdict took 25 away the power of the Parliament to appoint judges of High Courts and the Supreme Court. He opined that judiciary cannot function as a third house, and must function within its limit. The President of India being the head of the nation, and the head of the Legislature, Executive and Judiciary, the Collegium which is the part of judiciary cannot undermine the President of India by bringing the head of the nation under judicial subordination. He further opined that unless Constitutional Amendment process for institutionalizing of the Commission is completed no judicial appointment or no Act can be brought under the Constitutional provisions.

15. A verbatim record of the proceedings of the meeting of the Committee was kept.

16. The meeting adjourned at 3.52 P.M. 26

VI SIXTH MEETING

The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice met at 11.30 A.M. on Wednesday, the 27th November, 2013 in Room No. ‘63’, First Floor, Parliament House, New Delhi.

MEMBERS PRESENT 1. Shri Shantaram Naik — Chairman

RAJYA SABHA 2. Ms. Anu Aga 3. Shri Parimal Nathwani 4. Shri Ram Vilas Paswan 5. Shri Sukhendu Sekhar Roy 6. Shri Ramchandra Prasad Singh

LOK SABHA 7. Shri T.R. Baalu 8. Shir P.C. Gaddigoudar 9. Shri Shailendra Kumar 10. Shri Pinaki Misra 11. Shri Abhijit Mukherjee 12. Shri S.S. Ramasubhu 13. Shrimati Meena Singh 14. Shri Vijay Bahadur Singh 15. Dr. Prabha Kishore Taviad 16. Shri Suresh Kashinath Taware

WITNESSES *** 2. * * * 3. * * *

*** Relates to some other matter.

26 27

4.*** 5.*** 6. The Committee then took up for consideration its draft Sixty-third and Sixty-fourth Reports on the Rajasthan Legislative Council Bill, 2013 and the Judicial Appointments Commission Bill, 2013. The Members expressed their views on the draft Reports and adopted the same with some minor modifications. 7. The Committee then authorized the Chairman and in his absence, Shri Sukhendu Sekhar Roy to present the Reports in the Rajya Sabha and Shri Shailendra Kumar and in his absence, Shri Abhijit Mukherjee to lay the same on the Table of the Lok Sabha, on Friday, the 6th December, 2013. 8. A verbatim record of the proceedings of the meeting of the Committee was kept.

9. The meeting adjourned at 12.48 P.M.

*** Relates to some other matter.

ANNEXURES

ANNEXURE-I

AS INTRODUCED IN THE RAJYA SABHA

19 Aug., 2013

Bill No. LXI of 2013

THE JUDICIAL APPOINTMENTS COMMISSION BILL, 2013

A BILL to provide for the composition of the Judicial Appointments Commission for the purpose of recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court, Chief Justices and other Judges of High Courts, its functions, procedure to be followed by it and for matters connected therewith or incidental thereto.

BE it enacted by Parliament in the Sixty-fourth Year of the Republic of India as follows:—

1. (1) This Act may be called the Judicial Appointments Short title and Commission Act, 2013. commencement. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. In this Act, unless the context otherwise requires,— Definitions. (a) “Chairperson” means the Chairperson of the Judicial Appointments Commission referred to in clause (a) of sub- section (1) of section 3;

31 32

(b) “Commission” means the Judicial Appointments Commission referred to in sub-section (1) of section 3; (c) “Member” means a Member of the Commission and includes its Chairperson; (d) “prescribed” means prescribed by the rules made under this Act; (e) “regulations” means the regulations made by the Commission under this Act.

Constitution of 3. (1) The Judicial Appointments Commission, referred to in Judicial clause (1) of article 124A of the Constitution, shall consist of— Appointments Commission. (a) the Chief Justice of India, Chairperson, ex officio; (b) two other Judges of the Supreme Court next to the Chief Justice of India in seniority—Members, ex officio; (c) the Union Minister in charge of Law and Justice— Member, ex officio; (d) two eminent persons, to be nominated by the collegium consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People—Members: Provided that the eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination. (2) The Secretary to the Government of India in the Department of Justice shall be the convener of the Commission. (3) The fee and allowances payable to the eminent persons shall be such as may be prescribed.

Functions of 4. It shall be the duty of the Commission,— Commission. (a) to recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts; (b) to recommend transfer of Chief Justices of High Courts and the Judges of High Courts from one High Court to any other High Court; and (c) to ensure that the person recommended is of ability, integrity and standing in the legal profession.

Procedure for 5. In case of appointment of Judge of a High Court, the views recommendation of the Governor and the Chief Minister of the concerned State as also with respect to appointment of of the Chief Justice of High Court shall be elicited in writing in High Court accordance with the procedure as may be specified by regulations Judges. made by the Commission.

Officers and 6. (1) The Central Government may appoint such number of employees of officers and other employees as it may consider necessary for the Commission. discharge of functions of the Commission under this Act. 33

(2) The terms and other conditions of service of the officers and other employees of the Commission appointed under sub-section (1) shall be such as may be prescribed.

7. (1) The Central Government shall, within a period of three Reference to months from the date of coming into force of this Act, intimate the Commission for filling up of vacancies existing in the Supreme Court and a High Court to the vacancies. Commission for making of its recommendations. (2) The Central Government shall, two months prior to the date of occurrence of any vacancy by reason of completion of the term of Judge of the Supreme Court and a High Court, make a reference to the Commission for filling up the vacancies. (3) The Central Government shall, within a period of two months from the date of occurrence of any vacancy by reason of death, resignation of the Judge of the Supreme Court and a High Court, make a reference to the Commission for filling up the vacancies.

8. (1) The Convenor of the Commission shall initiate the process Procedure for for selection by inviting recommendations from the Chief Justices of short-listing of High Courts, the Central Government and the State Governments in candidates. respect of candidates fulfilling the eligibility criteria. (2) The Commission may, by regulations, specify the procedure for short-listing of candidates for considering their appointment as Judges to the Supreme Court. (3) The Commission may, by regulations, specify the procedure for short-listing of candidates for considering their appointment as Judges to the High Court.

9. (1) The Commission shall meet at such time and place as the Meetings of Chairperson may decide. Commission. (2) The Commission shall have the power to specify, by regulations, the procedure for the discharge of its functions under the Act.

10. No act or proceedings of the Commission shall be questioned Vacancies, etc., or shall be invalidated merely on the ground of existence of any not to invalidate proceedings of vacancy in, or defect in the constitution of, the Commission. Commission.

11. (1) The Central Government may, by notification in the Power to make Official Gazette, make rules to carry out the provisions of this Act. rules. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:— (a) the fee and allowances payable to the eminent persons under sub-section (3) of section 3; (b) the terms and other conditions of service of officers and other employees of the Commission under sub-section (2) of section 6; 34

Power to make 12. (1) The Commission may, by notification in the Official regulations. Gazette, make regulations consistent with this Act and the rules made thereunder to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:— (a) the procedure for recommendation with respect to appointment of Judge of a High Court under section 5; (b) the procedure for short-listing of candidates for considering their appointment as Judges of the Supreme Court under sub-section (2) of section 8; (c) the procedure for short-listing of candidates for considering their appointment as Judges of the High Court under sub-section (3) of section 8; (d) the procedure to be followed by the Commission in discharging of its functions under sub-section (2) of section 9; (e) any other matter which is required to be, or may be, specified by regulations or in respect of which provision is to be made by regulations.

Rules and 13. Every rule and regulation made under this Act shall be laid, regulations as soon as may be after it is made, before each House of Parliament, to be laid before while it is in session, for a total period of thirty days, which may be Parliament. comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.

Power to 14. (1) If any difficulty arises in giving effect to the provisions remove of this Act, the Central Government may, after consultation with the difficulties. Commission, by an order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty: Provided that no such order shall be made after the expiry of a period of three years from the date of commencement of this Act. (2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament. 35

STATEMENT OF OBJECTS AND REASONS

The Judges of the Supreme Court are appointed by the President under clause (2) of article 124 of the Constitution while the Judges of the High Courts are appointed by the President under clause (1) of article 217 of the Constitution. The President is required to hold consultation with such of the Judges of the Supreme Court and of the High Courts in the States as he may deem necessary for the purpose. However, every Judge of a High Court shall be appointed by the President after consultation with the Chief Justice of India, the Governor of the State and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

2. The transfer of Judges from one High Court to another High Court is made by the President after consultations with the Chief Justice of India under clause (1) of article 222 of the Constitution.

3. As regards the appointment of Judges of Supreme Court and High Courts, the Supreme Court in the matters of the Supreme Court Advocates-on-Record Association Vs. Union of India and its Advisory Opinion 1998 in Third Judges case, had interpreted articles 124(2) and 217(1) of the Constitution with respect to the meaning of “consultation” as “concurrence”. It was also held that the consultation of the Chief Justice of India means collegium consisting of Chief Justice and two or four Judges, as the case may be. This has resulted in a Memorandum of Procedure laying down the process which is being presently followed for appointment of Judges to both the High Courts and the Supreme Court. The Memorandum of Procedures confers upon the Judiciary itself the power for appointment of Judges.

4. After review of the pronouncements of the Supreme Court and relevant constitutional provisions, it was felt that a broad based Judicial Appointment Commission could be established for making recommendations for selection of Judges. It would provide a meaningful role to the executive and judiciary to present their view points and make the participants accountable while introducing transparency in the selection process.

5. Thus, the Judicial Appointments Commission Bill, 2013 seeks to broad base the appointment process and make it more participatory to ensure greater transparency and objectivity in the appointments to higher judiciary.

6. The proposed Bill provides for the constitution of the Judicial Appointments Commission, comprising of —(a) the Chief Justice of India, an ex officio Chairperson; (b) two other Judges of the Supreme Court next to the Chief Justice of India in seniority as ex officio Members; (c) the Union Minister in charge of Law and Justice as

35 36 ex officio Member; and (d) two eminent persons, to be nominated by the collegium consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People, as members. 7. 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. 8. The Bill seeks to achieve the above objectives.

NEW DELHI; KAPIL SIBAL The 24th August, 2013 37

FINANCIAL MEMORANDUM

Sub-clause (1) of clause 3 of the Bill provides for establishment of the Judicial Appointments Commission, referred to in clause (1) of article 124A of the Constitution, comprising — (a) the Chief Justice of India an ex officio Chairperson; (b) two other Judges of the Supreme Court next to the Chief Justice of India in seniority as ex officio Members; (c) the Union Minister in charge of Law and Justice as ex officio Member; and (d) two eminent persons to be nominated by the collegium consisting of Prime Minister, Chief Justice of India and the Leader of Opposition in the Lok Sabha. Sub-clause (2) of clause 3 provides that Secretary to the Government of India in the Department of Justice be the convener of the Commission. Sub-clause (3) of clause 3 provides that the fee and allowances payable to eminent person shall be such as may be prescribed. Sub-clause (1) of clause 6 provides that the Central Government may appoint such number of officers and other employees as it may consider necessary for the discharge of functions of the Commission under this Act. The expenditure on account of the aforesaid provisions would be negligible. At this stage, it is not practicable to make an estimate of expenditure likely to be involved in the financial year 2013-2014, both recurring and non-recurring. However, the expenditure would be met from the Consolidated Fund of India.

37 38

MEMORANDUM REGARDING DELEGATED LEGISLATION

Clause 11 of the Bill confers power upon the Central Government to make rules for carrying out the provisions of the Bill. The matters in respect of which rules may be made are—(a) the fee and allowances payable to the eminent persons under sub-section (3) of section 3; (b) the terms and other conditions of service of officers and other employees of the Commission under sub-section (2) of section 6; and (c) any other matter which is to be or may be prescribed, in respect of which provision is to be made by the rules. 2. Clause 12 of the Bill confers power upon the Judicial Appointments Commission to make regulations consistent with the Act and the rules made thereunder to carry out the provisions of the Act. The matters in respect of which, regulations may be made are matters relates to—(a) the procedure for recommendation with respect to appointment of Judge of a High Court under section 5; (b) the procedure for short-listing of candidates for considering their appointment as Judges of the Supreme Court under sub-section (2) of section 8; (c) the procedure for short-listing of candidates for considering their appointment as Judges of the High Court under sub- section (3) of section 8; (d) the procedure to be followed by the Commission in discharging of its functions under sub-section (2) of section 9; and (e) any other matter which is required to be, or may be, specified by regulations or in respect of which provision is to be made by regulations. 3. The rules made by the Central Government and the regulations made by the Commission shall be laid as soon as may be after they are made before each House of Parliament. 4. The matters in respect of which the rules and regulations may be made are generally matters of procedure and administrative detail and it is not practicable to provide them in the Bill itself. The delegation of legislative power is, therefore, of a normal character.

38 39

RAJYA SABHA

(Shri Kapil Sibal, Minister of Law and Justice)

39 40 II - NNEXURE A Response of Government The composition of the JAC ensures that views Executive, and other stake-holders are effectively Judiciary, represented in the process of appointment judges. The Union Minister of Law and Justice, as a democratically elected public representative, would represent and articulate the perspective and views of Government, accountable to the Parliament. The proposed JAC can always invite Attorney General, without his being a Member opinion of the of JAC. The inclusion of two eminent persons as members the Commission has been made to facilitate wider democratic consultation for assessing the suitability and integrity of persons to be appointed as judges. The eminent could belong to legal profession or from civil society. The role and responsibilities of the officers other employees of the JAC is a secretarial nature to provide administrative and logistics support. The officers employees would· have no role in decision making process in the Commission. Commission Bill, 2013 Comments/Suggestions Part I : Comments and Suggestions on the Bill (i) Make Attorney General of India an (i) Make ex-officio member in place of Union Minister of Law and Justice under clause (c) of subsection (1) section 3. (ii) Some reservations about the term ‘eminent persons’ and that ‘eminence’ in which field needs to be specified and clarified. Eminent persons must have integrity and standing in adequate ability, the legal profession upto Supreme Court level. the before the word ‘may’ alter To (iii) word appoint in section 6 (i), add ‘in consultation with the Commission’. Sri Bipin Bihary Ratho 1. 12 3 4 Replies of Department Justice on the views/suggestions individuals, organisations Judicial appointments Sl. Name of the No. Organisation/individual 41 which entails consideration

make reference to the Commission

Clause 7(1) The Central government shall, within a period of three months from the date coming into Act, intimate the vacancies existing in force of this the Supreme Court and High court to Commission for making its recommendations. Clause 7(2) states: The Central Government shall, two months prior to the date of occurrence any vacancy by reason of completion the term Judge of the Supreme Court and a High Court, make a reference to the Commission for filling up the vacancies. Clause 7(3) states: The Central Government shall, within a period of two months from the date occurrence of any vacancy by reason death, resignation of the judge Supreme Court and a High Court, for filling up the vacancies. The expenditure on the officers and employees of Commission would be out of the budget DoJ. The (i) of the Bill, may Central Government, under section 11 by notification in the Official Gazette make rules to determine the terms and other conditions of service officers other employees of the Commission under sub-section (2) of section 6. The time limits for intimation of vacancies to the Commission have been indicated in clause 7. It is not possible to prescribe a time limit for completion of the process appointments in view complex nature of the appointments process, of diverse factors before recommendations for appointments are made. (iv) Under section 6 (ii) of the Bill, terms and conditions of service should be on par with the officers and other employees of the Supreme Court specific time limit may be fixed for A (v) the Commission to recommend persons for filling up the vacancy(s} referred to therein 42 of Judicial rd and 33-1/3 , February 2000 from the then Minister; th December 1999. It was resolved that the th and 4 rd Officers from the Subordinate Judiciary. A copy of the A from the Subordinate Judiciary. Officers letter dated 24 complement of Judges each High Court would consist of 66-2/3% members the Bar Annexure-1 for information. Clause 8(2) and (3) of the proposed JAC Bill provide for the Commission to specify procedure for short-listing of candidates for appointment as Judges to the High Courts and Supreme Court. The determination of ratio between the members of bar and judicial service does not fall within the purview of this clause. for Law; Justice and Company Affairs is attached at Affairs for Law; Justice and Company The JAC would be serviced by DOJ. It would situated at an appropriate location. See reply to view (iv) which This provision provides for removal of difficulty, normally would come to light within the first three years. This is a standard provision in the removal of difficulty clause. The matter relating to the ratio of Judges in each High Court was discussed in the Chief Justices conference held on 3 (vi) For convenience the office of Commission should be located either within the Supreme Court premises or nearer to the said premises Section 6(2) the As suggested under (vii) terms and other conditions of service officers and other employees of the Commission under sub-section (2) of section 6 should be in par with the terms and other conditions of services officers and other similar employees of the Supreme Court of India (viii) The “proviso” of section 14(2) to be deleted. (i) Section (4) may be added to clause 8 of the Bill stating that appointments to high court judges may be made in the ratio of 50:50 from bar and higher judiciary officers/district judges respectively 2. Shri Harvinder Oberoi 12 3 4 43 , the procedure for inter alia that “person shall not be qualified for appointment Suggestion may be considered by the Parliamentary Standing Committee. Clause 8(2) and (3) provide for the Commission to specify the procedure for short-listing of candidates appointment as Judges to the High Courts and Supreme Court. The whole purpose of JAC is to ensure transparency in the integrity and standing in the selection of persons ability, legal profession as a Judge. The JAC will evolve its own procedures to ensure transparency in the selection process. Art 124(3) of the Constitution India lays down qualification of Judges the Supreme Court. It states, inter alia as a Judge of the Supreme Court unless he has been for at least five years a Judge of High Court or two more such courts in succession, or has been for at least ten years an advocate of a High Court or two more such courts in succession, or is the opinion of President a distinguished jurist”. No changes are proposed to be made the constitutional provisions. Clause 12 (1) of the JAC Bill provides that Commission may make regulations and rules to carry out the provisions These include, Act. of the (a) recommendation with respect to appointment of High Court Judges, (b) shortlisting of candidates for considering their appointment as Judges of the Supreme Court and High Court. (ii) Section 7(3) may be amended to the extent that the Central Government shall within a period of ‘6 months rather than 2 months’, from the date of occurrence of any vacancy…..make a reference to the Commission for filling up vacancies (i) The Bill does not fulfill the criteria of transparency and objectivity as the Commission can only scan the names forwarded by a Collegium of three judges for appointment of judges to High Court. This is as good the existing procedure Against appointment by the Collegium. for one post, the Collegium should forward the names of at least three persons. Judge of High Court shall be qualified A (i) for appointment as a Judge of the Supreme Court if he has been for at least ten years Judge of a High Court or two more High Courts in succession, and no advocate of a High Court shall be qualified for such appointment. Advocates may be selected on an all (ii) India basis after initial nomination by the Chief Justice of the High Courts for appointment as Judges of High Courts. Shri J.S. Raina Shri Suniti Kumar Chaudhuri 3. 4. 44 The proposed JAC provides for nomination of two eminent persons by a body comprising the Chief Justice of India, the Prime Minister and leader of opposition in Lok Sabha. The inputs of the Chief Justice India would be crucial if the eminent persons are nominees from legal fraternity. The JAC Bill under Clause 12 provides that Commission may make regulations to carry out the provisions of proposed Bill. The JAC, after coming into existence would specify the procedure with regard to transfer of Judges from one High Court to another. Clause 3 (l)(d) provides for two eminent persons to be nominated to the Commission by a Collegium comprising Chief Justice of India, and the leader of Prime Minister, the Opposition in house of people. The JAC Bill does not envisage a separate Collegium in the state for appointment of High Court Judges. The JAC will frame appropriate rules and regulations as regards the appointment of Judges and short-listing candidates for considering their appointments as Judges of Supreme Court and High Court. may be transferred within 30 days of appointment as judge to any other High Court if his relatives are practicing or is a judicial officer in the same High Court. (8) An advocate or judicial officer (ii) Other judges who have no relatives should to transferred the other High Courts after 3 years. (iii) For appointment as High Court Judges, the Collegium may consist of Chief Justice, senior most judge, Speaker of leader Assembly, of legislative opposition, and two eminent persons of the state nominated by Chief Minister, one of whom should be Padma Bhushan, Gnanpith awardee. or Vibhushan Padma (vi) The Judges appointed to High Courts must not be below fifty years, have 25 year of practice, and should not elevated to High Court unless he has 5 years to retire (i) The nomination of two eminent persons in the Commission may be done by a Prime President, Vice body consisting of of the opposition in and leader Minister, the Lok Sabha, which means substituting Vice the Chief Justice of India by President of India Dr. Lokesh Kumar Dr. Shri Prasanta Kumar Khuntia 5. 6. 12 3 4 45 The JAC will select Judges for the Supreme Court and High Courts, and in doing so it will consult different constitutional functionaries, including Chief Justices of the High Courts. The JAC Bill provides for the appointment of two eminent persons. If found suitable by the Collegium referred to in Clause 3, the President of Bar Council India can also be considered under this category. Clause 8(1) significantly broadens the sources from where recommendations are invited, to specifically include and directly invite recommendations from the Central and State Governments, and High Courts. The JAC would formulate Act which can further rules and regulations under the elaborate the process for receiving recommendations of persons. The procedure for seeking names will be evolved by the JAC. Nothing prevents Bar Council of India to suggest names for consideration. Clause 12 of the proposed JAC Bill provides that Commission will make regulations by specifying procedures for recommendations appointment of Judges; this includes the procedure to be followed in case there is no agreement on the name(s). The inclusion of two eminent persons as members the Commission has been made to facilitate wider democratic consultation for assessing the suitability and integrity of persons to be appointed as Judges. The Committee consisting the Chief Justice of India and of the Primes Minister, leader of the opposition in Lok Sabha may their wisdom (i) Instead of two senior most judges Supreme Court, there should be one Judge of the Supreme Court. The other should be senior most Chief Justice of the High Courts. membership of the Commission Total (ii) may be increased from 6 to 7 by inclusion of President Bar Council India. At the preliminary stage, all the bar (iii) councils of High Courts and Supreme Court should recommend the names of the prospective advocates and district judges to the Commission. (i) The Bill should mandate that the views of the majority will prevail in situations where a consensus cannot be reached on prospective appointee. The Bill must mention which member of the Commission will be vested with the casting vote in event of a tie. The Chief Justice must be vested with the casting vote. (ii) Replacement of two eminent persons by distinguished jurists under Clause 3 of Bill. Shri C D Mohapatra Shri Abhishek Sudhir 7. 8. 46 consider the names of eminent jurists and other legal luminaries, under the category of eminent persons, as members of the Commission. Clause 12 of the proposed JAC Bill provides that Commission will make regulations by specifying procedures As per Clause 12 (2)(e), any other for recommendations. matter specified by regulations or in respect of which provision is to be made by regulations would notified and made by the Commission. Amendment) Bill is an enabling The Constitutional (99th legislation to provide for the JAC Bill, which delineates all aspects for the smooth functioning of JAC, including its composition and functions. It enables the Parliament to Any apprehension legislate on the composition of JAC. that the composition of JAC in Bill could be changed in the future is unwarranted view of power of Judicial Review enshrined in the Constitution. Government is aware that any reduction in the representation of the Judiciary would have serious implications for There should be no independence of the Judiciary. apprehension that any attempt will be made to change the balance in the future. The Parliament, Executive and Judiciary would actively guard the independence of Judiciary. Committee may take a view. The Standing No comments. incumbent Chief Justice, from

(iii) The procedure to be followed when appointing the Chief Justice of India should be provided for in the Bill, and must necessarily exclude the two judges of the Supreme Court, next in seniority to the being part of the selection process (iv) Entire Clause 3 of the Bill dealing with the composition of Commission should be included in the Constitution Amendment Bill 2013, so that the composition of the Commission is contained in the constitution and is just not an ordinary piece of legislation. This act may be called the National Judicial Appointments Commission Act 2013, (Reason: in order to provide a scope for the respective states to enact, if need be, a state level commission for judges of Supreme Court and High Courts of India Shri Justice K.L. Section (1) Verma, 9. Association of retired 12 3 4 47 No comments. The Standing Committee may take a view. The Standing No comments. The composition of the JAC has been proposed after due consultation, and the number of eminent persons is proposed to be retained at two. The rationale for increasing the number of eminent persons from two to three so that one eminent person each is nominated by the Prime Minister, the Chief Justice of India and Speaker Lok Sabha is not desirable, since the nomination of eminent persons is expected to be a consensual exercise. Can be provided in the Rules to framed under clause 11. appointments to the District Judiciary. The appointments to the District Judiciary. Twentieth constitution (One Hundred Amendment) Bill, 2013 as passed by Rajya Sabha omits to prefix the word, “National” to the name of commission but it is still to be passed by Lok Sabha. The select committee may make a recommendation in this regard also, if, considered appropriate). The word “National” be prefixed to the word ‘Judicial’ wherever appearing in these sections. Insert Clause “(d) the leader of opposition in the house of people (Lok Sabha) member ex officio”. Re-describe the existing clause (d) as (e) and be replaced by the following clause (e) :- Three eminent persons as members from amongst those person who are or have been constitutional functionaries or eminent jurist declared as such by the supreme Court, having been nominated one each by the Prime Minister of India, the Chief Justice of India and Speaker of the House People (Lok Sabha)”. Replace the word “three” by to used in the proviso the word “Two” Add Clauses (f) and (g) as section 3(1). follows: (f) “Every member shall before entering upon his office, subscribe an oath of independence and objectivity, secrecy, fairness in the discharge of his functions.” Section 2 (a) and (b) and Section 3 (1) Section 3 (1) (c) 48 that a inter alia Can be provided in the Rules to framed under clause 11. The appointments of Judges are processed for seeking Presidential approval in the Department Justice has Therefore, Secretary, of Justice. been proposed as Convenor of the JAC. The role of the JAC is to make recommendations to the President for· appointment of Judges. Therefore, the word ‘select’ is not appropriate. No comments, Standing Committee may take a view on this. Art 124 and 217 provide person will not be qualified for appointment as Judge in the Supreme Court or High Court unless he is a citizen of India. The other conditions stated above may be covered of in the Rules to be framed under clause 11 the proposed JAC Bill. related to any member of the commission; Government of India, Parliament, Supreme High Legislature, Court, Sate Government, State administration, Territory Union Court or Board Authority, Statutory council or assembly or by Union public Service debarred or Tribunal or public Service the State Commission or Commission or any court of Law; I. is not a citizen of India; II. has more than one living spouse; IV. is removed or dismissed from service under the III. is (g) “A nominated member shall cease to be a if he or she fails to attend three consecutive meetings of the commission or may resign his office and then the chairperson shall inform nomination authority for a fresh nomination within fortnight.” This should be replaced by the sub-section (2): Secretary General Supreme court of India shall be the convener of Commission (reason: to promote expedient and coordinated functions of the commission). “Select and” between the words, Word Insert the and the word “Recommend”. “To” Add, at the end of clause (c):- “Salutary reputation, good conduct and behaviour”. that no further ensure To Add clause (d) to section 4: person is recommended for appointment if he or she: Section 3 (2) Section 4 (a) Section 4 (a) Section 4 (d) 12 3 4 49 The Chief Minister is included in his capacity as the head of a democratically elected Government in the State. The role and responsibilities of the officers and other employees of the JAC is a secretarial nature to provide administrative and logistics support. The officers and employees would have no role in decision making process in the Commission. This will be addressed in the Rules to framed under clause 11. While the intimation of sanctioned strength of the High Courts can be made within one month, the intimation of High Court-wise vacancies, as presently provided under clause 7(1) will take upto three months. appearing in

involved in any litigation, offence, criminal any political party; and sovereignty to the security, prejudicial and is defiant of integrity of India and the State the constitution of India and Laws in force; activity or has been convicted of any offence involving moral turpitude. line of sub-section (1). Add sub-section (3) to line of sub-section (1). V. Is or has been member of is associated with nd VI. Is associated with an organization which is VII. Is Delete the words “and The Chief Minister” (Reason: The Governor acts on the advice of Chief Minister and so the views of Chief Minister will be obtained through the Governor and article 217(1) of Constitution of India merely mentions the Governor and Chief Justice of India the of the State Justice of the high Court. Insert the words “in consultation with commission” between the words “necessary” and “for” 2 section 6. All the officers and other employees of commission shall work under control, superintendence and supervision of the chairperson who shall be their appointing and disciplinary authority. This sub-section should be replace by: “The Central Government shall within a period of one month from Act, intimate the of this the date of coming into force sanctioned strength of the permanent and temporary posts of Judges in each High Court India and also Section (5) Section 6 (1) Section 6 (3) Section 7 (1) 50 The suggestion for Registrar General of each High Court to intimate the convener occurrence of vacancy of a Judge or Chief Justice the High court within 7 days of its occurrence can be incorporated in the Regulations under clause 12. The suggestion here cannot replace the existing clause 7(3) which relates to intimation of vacancies arising out unforeseen circumstances such as death or resignation. The provision made for inviting recommendations from the Chief Justices of High Courts, the Central Government and the State Governments in respect of candidates fulfilling January st shall be duty and

July of every year by reason st the sanctioned strength of permanent and temporary posts of Judges in the supreme court of India to the convener and shall keep him fully informed of the changes if any”. (reason: with a view to eliminate delay and promote expediency in the selection process). Should be replaced by the substitution of sub-section (2) “it shall be the duty of the Registrar General of each High Court to intimate the convener occurrence of the vacancy a Judge or Chief Justice of the High court within 7 days its occurrence” This sub-section should be replaced by the sub-section (3) “it responsibility of the convener to compile the vacancies arising in each High Court and the Supreme Court as on 1 superannuation, resignation, transfer, superannuation, resignation, promotion death or otherwise and shall obtain the orders of chairperson for initiation of the process selection”. (Reason: with a view to eliminate delay and promote expediency in the selection process ad no need of any reference by the Central Government to the Commission) Should be replaced by sub-section (1) as follows: “The convener of the commission shall initiate the process for selection of and 1 Section 7 (2) Section 7 (3) Section 8 (1) 12 3 4 51 the eligibility criteria may be supplemented/elaborated in Regulations under clause 12. The word ‘candidate’ presently used in the JAC Bill is a broader word, and can include eminent jurists who be Article 124 as Supreme Court Judge. appointed under This suggestion relates to procedure, which shall be provided in the Rules/Regulations to be formulated under clauses 11 and 12 of the Bill. This can be provided in the Regulations under Clause 12. The role of the JAC is to make recommendations President for appointment of Judges. Therefore, the word judicial officers and advocates immediately in accordance with the Regulations”. Insert the words “Selection of Judicial officers and advocates for” before the word “short listing” appearing in sub- section (3)”. Insert sub-section (4) to section 8 in these words:- “Soon after short-listing of the candidates for considering their appointments as judges to the High Court, the convener shall send their names and Bio-datas to the Governor of concerned state and the Chief Justice of High Court and the Central Government for obtaining their views in respect of suitability of each the candidates or in the event of adverse view with cogent reasons, within the specified period”. Insert sub-section (3) to section 9 in the following words: “the quorum at every meeting of the commission should be five members including the chairperson. If there is any disagreement in the views of the members of commission, decision about an eligible candidate should be based on the majority view of at least three members present at the meeting and having adjudicatory experience (Reason : this provision appears to be necessary in view of the multi member commission). Insert the words “Selection and” before the word “recommendation” used in Section 8 (3) Section 8 (4) Section (9) Section 12 (2) (a) and (c) 52 ‘select’ is not appropriate The Bill provides that the JAC would under Clause 12 (2) (b) and (c) make the procedure for shortlisting of candidates for considering their appointment as Judges of the Supreme Court and the High Courts by way of regulations. These regulations may take different stakeholders on board including the Bar and Bench to make process transparent and participatory. In the proposed Bill, JAC has Chief Justice of India along with two senior-most Judges of the Supreme Court, and as elaborated in the preceding response JAC would lay down the procedure for short-listing of candidates. The proposed JAC Bill sets out the broad policies and guidelines on the subject matter as enumerated in (2), as it can be seen from Clause 3 to 8 A Article 124 of the proposed Bill. The present composition of JAC is broad based with Executive and Civil Society. representation of Judiciary, The JAC Bill provides for appointment of a Judge the High Court under Clause 5. The suggestion of a State-level body for recommending the name of a person Judge of the High Court is not envisaged in proposed JAC Bill as Clause 5 provides for consultation with State-level constitutional authorities. The fear that this process is cumbersome is unfounded. The consultation process as proposed in the JAC Bill is widespread and elicits views of the Judiciary clause (a) and before the word “short- listing” used in clause (c). The Bar and bench representing the judicial fraternity is required to have a say in the appointment process apart from Governments to make Central and State the appointment process transparent and participatory. Participation of Judges Supreme Court and High Courts Parliament to enact the substantive Act itself as necessitated law/enabling (2) of the Constitution 124A Article under of India. Composition of the proposed Judicial Appointments Commission (JAC) consultation process The State-level Appointments. towards High court The Consultation process at the JAC level Shri Rajeev Daiya (Suraz India Trust) Jayaprakash Narayan Dr. 12 3 4 10. 53 Executive so it meets the recommendations of report prepared by three eminent jurist Shri Justice M.N. and Shri Justice V.R. Verma Shri J.S. Venkatachaliah, Krishana Iyer together with the foundation for Democratic Reforms (FDR). The proposed JAC would by making regulations under Clause 12 for transfers of Judges from one High Court to another would ensure a transparent and credible policy. Amendment) Bill is an enabling The Constitutional (99th legislation to provide for the JAC Bill, which delineates all aspects for the smooth functioning of JAC, including its composition and functions. It enables the Parliament to Any apprehension legislate on the composition of JAC. that the composition of JAC in Bill could be changed in the future is unwarranted view of power of Judicial Review enshrined in the Constitution. a. & b. The JAC will formulate rules and procedures to integrity ensure that the person recommended is of ability, and standing in legal profession. The Commission shall enumerate rules and procedure about the presence of senior most Supreme Court Judges in the zone of consideration for appointment as CJI and would make regulations such eventualities the appointment of judges in Chief Justice of India (hereinafter referred as ‘CJI’) is not clear. the two senior most judges should not be present in the JAC. If the two senior most judges are not separated from the JAC, then are they going to be excluded from the position of CJI? (a) The role of two senior most (b) For the appointment of CJI, Transfer of Judges Transfer Observation The composition of JAC will have no constitutional status and it may be victim of legislative whim. Suggestion The composition of JAC as detailed within Clause 3 of the Bill should also be specified within the Constitution of India 124; through Article the proposed under the Constitution (One Hundred and amendment) Bill of 2013. Twentieth Observations Legislative Research and Policy Club, National Law University, Odisha 11. 54 The inclusion of two eminent persons as members the Commission has been made to facilitate wider democratic consultation for assessing the suitability and integrity of persons to be appointed as judges. The eminent could belong to legal profession or from civil society by a the Chief of Collegium comprising the Prime Minister, India and the Leader of Opposition in Lak Sabha. the Parliament can justify their presence despite they are the interested party? mentioned in Clause 3 of the JAC Bill has not been defined. wide discretion to the selection committee to choose any person as a member of the JAC. Persons’ may be added in Clause 3 of the JAC Bill describing some basic qualifications; (i) If yes then, on what grounds? (ii) If not them, on what grounds (a) The term ‘Eminent Persons’ (b) The term ‘Eminent Persons’ gives (a) An explanation as to ‘Eminent Suggestion The Parliament may add an explanation to Clause 8 of the present Bill, expounding the position of two senior most judges with respect to either their appointment as the CJI or their exclusion, case may be. Observations Suggestions 12 3 4 55 The present composition of JAC is broad based with It Executive and Civil Society. representation of Judiciary, is for the JAC to lay down procedure appointment of Judges. xplain that in case e the Chief Justice of India; persons possessing elementary knowledge as to functioning of legal structures or may belong to other backgrounds; such as those who are members of civil society having minimum prudence for deciding as to who is the best person suited for post in appointment of judges. which would of a tie, the decisive factor should be the observation made by the Chairman of JAC, i.e. Or the basis of confirmation all the members; Or raised from even composition to odd composition. (b) explanation may include Such (a) A proviso may be added to clause 3 (b) The decision may be made on (c) The number of members may be Observation The even composition of the JAC would create hindrance in case of a tie, as their votes will not lead to a valid conclusion. In such a situation, there is no clarity whether the decision of CJI (who will be acting as the Chairman of JAC) will be taken as the final report. Suggestions 56 recommendations from the Chief Justices of High Courts, the Central Government and State Governments in respect of candidates fulfilling the eligibility criteria may be supplemented/elaborated in the Regulations under clause 12. The role of JAC is to make recommendations the President for appointment of Judges. enshrined in JAC Bill Clause 8(2) and (3). The Commission will devise its procedure for shortlisting the candidates for consideration to be appointed as Judges to the Supreme Court and High Courts respectively. a. & b. The provision made for inviting c. There is no ambiguity in the role of Commission as ‘recommendation’ in Clause 8 (1) and the use of word ‘recommend’ in Clause 4 (a) short listing has been restricted under Clause 8(1) by virtue of inviting the recommendations only from the entities/persons mentioned therein. making power of the JAC under Clause 8 (2) and 8(3) requires As it is can explanation. further be said that the word regulation in Clause 8(2) and 8 (3) is only confined to the procedure for short listing and setting eligibility criteria for the candidates. recommendation may be resolved by scripting Clause 8(1) reads as follows, “The Convenor of the Commission shall initiate the process for selection by inviting recommendations for shortlisting from the Chief Justices of High Courts, the Central Government, Governments and the the State Bar Council of India in respect of candidates fulfilling the eligibility criteria.” (a) Ambiguity in the use of word (b) Scope of recommendations for (c) The scope of the regulation (a) The ambiguity with the word Observations Suggestions 12 3 4 57 The JAC is the broad based institution giving a. & b. Executive and Civil Society. representation to Judiciary, The recommendation for appointment of a person as Judge to the higher judiciary will be as per a procedure laid down by the JAC, and apprehensions raised are ill founded. The role of Executive shall be participative and in It no way encroach upon the independence of judiciary. will in no way affect the separation of power Judiciary from Executive as enumerated in the Constitution of India. also be made to read as the convenor of the Commission shall initiate the process for selection by inviting recommendations from the judges of the Supreme Court, the Chief Justices of High Courts, the Central Government, Governments and the the State other entities in respect of candidates fulfilling the eligibility criteria.” added in Clause 8(1) to bring about clarity with regards to the power of JAC in making regulations. In addition to this, Clause 8 (2) and (3) may accompany a rider for providing an explanation of the word ‘regulations’. members of the Judiciary is vacant than the executive will have a greater say in the selection. The larger say of the executive would eventually affect the independence of the judiciary and will hinder the separation of power which is the basic structure of the constitution. (b) Clause 8(1) may Alternatively, (c) an Explanation may be Further, (a) If the seat of one Observations 58 of Judicial rd December 1999. It was resolved that the th and 4 rd Officers from the Subordinate Judiciary. Officers Clause 8(2) and (3) of the proposed JAC Bill provide for the Commission to specify procedure for short-listing of candidates for appointment as Judges to the High Courts and Supreme Court. complement of Judges each High Court would consist and 33-1/3 of 66-2/3% members the Bar, The matter relating to the ratio of Judges in each High Court was discussed in the Chief Justices conference held on 3 whole

members selected is vacant than the Judiciary will have a greater say in the selection. In this situation the judiciary will become the major role player in the appointment of judges of the Supreme Court and High Court and also in cases of the transfer of the judges. This will eventually defeat the purpose of the act which is to ensure checks and balances system on the judiciary. clause will not be applied in cases where final recommendation of the selection of judges is being made” may be introduced. Or removed. (b) If the seat of one two (a) An explanation stating: “This (b) The impugned clause may be Suggestions Administration give effective Judicial To level it is obviously A.D.R at the root and required that their must be 50% of high Court Judges to be given subordinate Judiciary accordingly further 50% of Supreme court Judges post also to be given to Subordinate Judiciary with an internal ratio of 50% each for direct District Judges and primitives from Munsif level out of the above 50% subordinate Judiciary Post Shri R. Paranjothi 12 3 4 12. 59 December, 2010, and December, st Response of Government referred to the Parliament Standing Committee on Personnel, Public Grievances and Law Justice for examination and report. The Parliamentary Standing Committee after wide consultation finalized its report containing the recommendations, which was presented to the Parliament The proposed JAC Bill is concerned with the appointment of Judges to High Courts and Supreme Court, not for appointments to judicial panels and commissions. A bill is under consideration for increasing the age of High Court Judges to 65 years. The issue post-retirement assignment for judges is not the subject matter of the proposed JAC Bill. Accountability Bill 2010 was and The Judicial Standard introduced in Lok Sabha on 1 Commission Bill, 2013 Comments/Suggestions Part II : Other issues not covered by the Bill (i) Post retirement assignments for judges be banned till 2 years of their retirement. The proposed JAC should also be assigned task of appointing members all judicial panels and commission, either by Union Governments. State or (iv) The age of the Supreme Court Judge to be raised 68 years, and the High Court Judge to 65 years respectively (v) There should be no post-retirement appointments of Supreme Court and High Court Judges. The statutory posts of Judges in bodies like Human Rights Commission, National Consumer etc., to be filled by Commission, CAT sitting Judges. of Judges incorporate the provisions To Accountability Bill in the Judicial Appointment Commission Bill on the premise of Section 16 the General Clauses Act. Shri Subhash Chandra Agrawal Shri Prasanta Kumar Khuntia Shri Prasanta Kumar Khuntia Shri Rajeev Daiya (Suraz India Trust) 12 3 4 13. 14. 15. 16. Replies of Department of Justice on the views/suggestions of individuals, organisations on the Judicial Appointments Replies of Department of Justice on the views/suggestions individuals, organisations Judicial Sl. Name of the No. Organisation/individual 60 -Same as above- August, 2011. The Lok Sabha passed the Bill on August, 2011. th March, 2012. It is pending before Rajya Sabha. th 29 on 30 To amend the Judges (Enquiry) Act, 1968 amend the Judges (Enquiry) To Appointments suitably empowering Judicial Commission to conduct enquiry against judiciary. the Judges of higher 12 3 4 61 Response of Government The Constitution (Ninety Ninth Amendment) Bill, 2013, an The Constitution (Ninety Ninth enabling legislation to provide for the JAC Bill delineating all aspects for the smooth functioning of JAC including its composition and functions, was considered passed 2013 by Rajya Sabha on 5th September, The proposed JAC Bill is concerned with the appointment and of Judges to the Supreme Court and High only, not for appointments to Gram Nyayalayas, and district subordinate courts. may be made Commission Bill, 2013 Comments/Suggestions Courts. from lower Judiciary to Higher enactment of the JAC Bill, Suitable Constitution Amendment first Legislation may be introduced by making necessary amendment in the constitution for creation of full fledged Constitutional body like UPSC which may cover entire Judicial appointments i.e. Judiciary. Accordingly National Judiciary Service Commission [NJSE] may be constituted and services under National Judicial Service Commission may be classified as –Indian Judicial Services (IJS) covering the following. (a) Appointments for Gram Nyayalaya (b) Appointments for District Courts. (c) Appointments for Higher courts. Part 1 : Comments and Suggestions on the Bill i. Before proceeding further for ii. In place of JAC Bill, 2013 a suitable Shri Radhey Shyam Gora, Advocate, Supreme Court 12 3 4 17. Replies of Department of Justice on the views/suggestions of individuals, organisations on the Judicial Appointments Replies of Department of Justice on the views/suggestions individuals, organisations Judicial No. organisation/individual Memo Name of the 62 to consider in the procedure laid down

The point regarding use of advanced technology is noted. It is for the JAC under clause 8 of the proposed Bill for appointments to Higher Judiciary. Appointments to the Higher Judiciary are made from as well members of the bar. cadre of Judicial Officers AIJS will address the appointments of Judicial Officers The It will however, to the Higher Judicial Service in States. not directly address the appointments of members the Bar as Judges of High Courts and Supreme Court. AIJS is quite distinct from Therefore, the creation of Appointments Commission. the establishment of Judicial The proposed JAC Bill is concerned with the appointment of Judges to Supreme Court and High Courts, not for district and subordinate courts. The matter relating to the ratio of Judges in each High Court was discussed in the Chief Justices conferences 1999. It was resolved that held on 3rd and 4th December, the complement of Judges each High Court would and 33- consist of 66-2/3% be members the Bar, 1/3rd of Judicial Officers from the Subordinate Judiciary Clause 8(2) and (3) of the proposed JAC Bill provide for the Commission to specify procedure for short-listing of candidates for appointment as Judges to the Supreme Court and High Courts. The determination of ratio between the members of bar and judicial service does not fall within the purview of this clause. As regards recruitment of Judicial Officers for district and Art 235 subordinate courts, it may noted that in terms of of the Constitution, control over district and subordinate System and impact of fast growing advance technology for evolving suitable system a National Level Committee may be constituted on the above referred subject matter. Judicial Service. Judiciary Reduction in the maximum age for recruitment of Judicial Officers from 35 to 27 years. High Court and the Supreme Court. service must stop immediately. stop and Higher Judicial Service Examination should be conducted by Public Service Commission. i. Immediate necessity of creating Indian ii. Filling up of vacancies in the district v. Direct recruitment to higher judicial iii. In view of Globalization of Legal iii. iv.Advocate/Judges in the Dominance of vi. Recruitment by the High Court must Judge, High Court (Retd.) 12 3 4 18. Justice A.N. Gupta 63 courts, including the posting and promotion of persons belonging to Judicial Service vests with the High Courts. The procedure of transfer Judges from one High Court to another will be laid down by the JAC. The current practice of making available reports the Intelligence Bureau may be continued enable the JAC to determine the suitability candidates for appointment of Judges to the High Courts. The composition of the JAC ensures that views judiciary, executive and other stake holders are effectively represented in the process of appointment Judges. The eminent person may be from legal profession or civil society. recording of court proceedings is a desirable objective, Video but is not the subject matter of present legislation. The proposed JAC provides for Commission to make regulations specify criteria and procedures for recommendations of Judges which will ensure that persons recommended are standing in legal profession. of ability integrity and Three fourth of the Judges should be transferred to other High Court. Intelligence wings should be made available to the Chief Justice of Supreme Court to determine the suitability of the candidates for appointment of Supreme Court /High Court Judges heavily represented by the Judiciary. The JAC, proposed strength of six should be increased to seven by increase of two independent members to 3. The three independent may not be eminent Jurist at least one member should be a layman. in appointment but every aspects of administration of justice, and, in video-recording of Court particular, to proceedings; Assets By Judges; Declaration of Judges practising in the very same Court where their ‘Godfathers’ officiate; where the litigant public, lawyers and all stakeholders could put across their grievances and secure redressal. i.Appointment Bill, 2013 is The Judicial ii. They should be transparency not only v. Introduction of a Judicial Ombudsman, iii. iv. Banning by law the kith and kin of vii. viii. Lawyers campaign of Judicial Transparency and Reforms. 19. 64 by warrant under his hand and seal President “Every Judge of the Supreme Court shall he appointed “Every Judge of the Supreme by the after consultation with such of the Judges as Court and of the High Court in the States Supreme may deem necessary for the purpose ....” the President Pursuant to the 1993 Judgement, Supreme Court set up a ‘Collegium’ for appointment of judges. The word ‘Collegium’ does not exist in the Constitution of India. The Supreme Court rewrote the constitution through a process of interpretation, which was not envisaged by the constitution makers. it may be noted that appointments are an Further, the executive, not a judicial function. Moreover, JAC is chaired by the Chief Justice of India, who is also involved in the process of identification eminent persons to be appointed the Commission; The present Bill envisages a participatory and collaborative process to Therefore, the present Amendment Bill and the Ninety Ninth Constitutional Appointments Commission Bill does not Judicial abrogate the principle of separation powers enshrined in the Constitution. Appointments commission legislation on judicial which would exclude judiciary in the process of appointment. to the posts of judges in High Courts and Supreme Court. Judiciary being an important element in the consultative process. i.Art 124 (2) reads as follows: Presently ii. It is submitted that it would be difficult to visualize to be

Amendment Constitutional independence of the Judiciary in as much as the provisions at present in the Constitution regarding selection of Judges is being taken out the Constitution and is relegated to an ordinary law to be made by the Parliament. Such a change will have very serious and drastic consequences affecting each and every person in this country and especially the legal Further such an amendment fraternity. would tantamount to abrogation of the concept and principle of separation powers enshrined in our Constitution which is essential for preservation of democracy. proposes to take away, the Supreme Court proposes to take away, and High Courts Judges appointment, provisions from the Constitution to Judicial Appointments Commission (JAC) passed by the Parliament. Due to this change, the Supreme Court and High Appointment provisions shall Judges Court’s Article 368 of not have the protection of the Constitution, which prescribes stringent method for amendment. i. The JAC Bill directly affects the ii. The proposed 12 3 4 20.Association The Madras Bar 65 of the JAC

Convenor Amendment) Bill is an th The Bill preserves the balance

Member-Convenor. Government is aware that any reduction in the representation of the Judiciary would have serious implications for the independence of Judiciary. There should be no apprehension that any attempt will be made to change the balance in future. The Parliament, Executive and the Judiciary would actively guard the independence of judiciary. enabling legislation to provide for the JAC Bill, which delineates all aspects for the smooth functioning of the JAC, including its composition and functions. It enables the Parliament to legislate Any apprehension on the composition of JAC. that the composition of JAC in Bill could be changed in the future is unwarranted view of the power Judicial Review enshrined in the Constitution. The Constitutional (99 The Constitutional iii. and not a between the executive and judiciary in matter of appointment of judges, and does not in any way affect the which is part of the Basic independence of the Judiciary, Structure of the Constitution. In fact, this Bill provides for a collaborative selection process which while upholding independence of judiciary restores the role executive in the appointments of Judges. The appointments of Judges are processed seeking presidential approval in the Department of Justice. Therefore, Secretary Justice has been proposed as convener of JAC. It may be noted that Secretary is its selection,

When, Supreme Court and High Courts Judges, appointment provisions are Appointments taken to the Judicial Act, the said provisions Commission would become easily amendable as an ordinary law made by the Parliament by simple majority of Members present and voting. It necessarily means the entire provision, contained in the Appointments Commission Bill/ Judicial Act will be subject to amendment as per the will and pleasure of party/ In other parties in power on the day. words the law relating to, composition of JAC, appointments of Supreme Court and High Court Judges, transfer of Chief Justices and Judges of High Courts etc. will practically subject the pleasure of the Government in power on which will seriously undermine day, not only independence of the Supreme Court and High Courts its composition of Judges. (Justice) is to function as the Convenor of the Commission. It would be apparent from the composition of Commission the executive representatives is given equal say in the appointment and transfer of Judges, Chief Justice. This will undermine the independence of the Judiciary. iii. iv. The Secretary to Government of India, 66 September, 2013. The JAC, 2013. September, th Two Bills were Proposed for introduction in the Rajya Two Hundred and A Sabha namely the Constitutional (One Amendment) Bill, 2013 and the Judicial Twentieth Appointment Commission Bill, 2013. The Constitution Amendment) Bill, 2013 Twentieth (One Hundred and to constitute a Article 124A proposes to insert a new Appointment Commission for making Judicial recommendation with respect to the appointment of The Constitution (One Judges in the Higher Judiciary. Amendment) was considered and Twentieth Hundred and passed by the Rajya Sabha as Constitutional (Ninety Amendment) Bill on 5 Nine Bill should be schedule to the

th the separation of Judiciary from Constitution and not as an Act of Constitution and not as an Parliament passed by the Parliament as a Amendment along with and Constitution Article 124A as a part of the proposed and appended as 13 vested with the power, to convene the vested with the power, JAC Meeting and also to call for names for the appointment of Judges from Chief Justices of the High Court’s concerned, Central Government and State Governments of the concerned High Courts. The calling of names from the State Governments and Central Government may result in induction of candidates with political affiliation. he will under two masters. Frequently, have to face contradictory/different directions from the Law Minister and the Chief Justice of India, offending the basic features of the. constitution i.e. the Executive. The Proposed JAC v. Secretary (Justice) as the convenor is vi. Secretary (Justice) cannot function vii. 12 3 4 67 Bill has been referred to the Parliament Standing Committee. Clause 2(d) relates to the definition of word ‘prescribed’, which is a standard provision and needs to be retained. The inclusion of the Union Minister Law and Justice in the JAC is required as he a democratically elected public representative, representing and articulating the perspective and views of the Government. The composition of the JAC has been proposed after due consultation and the number of eminent persons is proposed This ensures that views of judiciary, to be retained at two. executive and other stake holders are effectively represented in the process of appointment Judges. The Committee consisting of the Prime Minster Chief Justice India and Leader of opposition Lok Sabha may in their wisdom consider the names of eminent Jurists and other legal luminaries under the category of eminent persons, as members of the Commission. The rationale for keeping the tenure a period of three years is to enable two eminent persons as members have reasonable time to contribute the functioning of As such there would not be any prescribed Commission. age limit for the eminent members. Schedule to the constitution. th Sub Section D of Clause 2 the JAC Bill, 2013 shall be omitted and the contents of the Rule should be spelt out and incorporated as part of the proposed 13 the Law Minister as one of Member. nominated by the collegium consisting of PM, CJI and Leader opposition in Lok Sabha should be replaced by nomination of three eminent Jurist by collegium consisting of PM, CJI or Acting CJI and Leader of opposition Lok Sabha. The eminent person may be a retired Judge of Supreme Court, High Court, retired professor of a university recognised by UGC. Retired professor of National Law College/ School with a PHD Degree in law or Advocate in Supreme Court. Senior eligible for re-nomination in respect of eminent persons should be deleted and he should be nominated for a period of 3 years or till he attains the age 75 years whichever is earlier. x. The two eminent persons to be xi. Provision of 3 years tenure and not ix. The composition of JAC should omit viii. 68 Commission. Therefore, it is for the Central

It has proposed in the JAC Bill 2013 that fee and allowance payable to the eminent person shall be such as may be prescribed. The Commission will make regulations by specifying procedures for recommendations appointment of Judge; this includes the procedure to be followed in case there is no agreement on the name(s). The Chief Justice of the High Court has a crucial role to play in appointment of judges that High Court. He has intimate knowledge about advocates practicing in that High Court. Hence deletion of the term Chief Justice from Section 5 is not tenable. The role and responsibilities of the officers other employees of the JAC is a Secretarial nature to provide administrative and logistic support. The officers employees would have no role in decision making process in the Government to appoint the officers and employees of Commission. The nominated members shall be entitled to the pay and allowances and all other perquisites at applicable to the Judge of Supreme Court India. Insert sub Clause (d) to Section 4 of the JAC Bill relating to functions of the Commission as follows: (d). (i) The JAC shall endeavour to take decisions unanimously. (ii) The recommendations of the JAC shall be valid only they are approved by at least five of its members present and voting. Section 5 regarding procedure for recommendation with respect to appointment to High Court Judges. regarding officers and employees of Commission by inserting the following: The Chief Justice of India may appoint such number of officers and other employees as it may consider necessary for the discharge of functions Act form Commission under this among the employees of Supreme Court on deputation with lien, subject to the Same service conditions. xii. xv. Delete Clause 1 and 2 from Section 6 xiii. xiv. Delete the term Chief Justice from 12 3 4 69 The appointment of Judges is an executive Act. The JAC Act. The appointment of Judges is an executive would device an appropriate system through rules and regulations to fill these vacancies. The major bottleneck in Appointment of the present system is that proposals for Judges are not initiated in time from the High Court. Hence the word “Central Government” in Clause 2 and 3 Section 7 is appropriate. Clause 8 (1) significantly broadens the sources from where recommendations are invited, to specifically include and directly invite recommendations from the Central and State governments, and High Courts. The word “the Central Government and the State Government” in Clause 1 of Section 8 is apt. from the Convener or on his own motion, the Chief Justice of concerned High Court shall recommend names after consulting with the ten senior most Judges of the High Court. In the event of there been less than ten Judges, after consulting all the Judges. recommending the names shall obtain and forward to the JAC, the bio data of proposed persons to be selected for appointment as Judges of the High Delete section 7 (1) relating to reference to Commission for filling up of vacancies and replace the word Central Government in Clause 2 of section 7 with the words “the Chief Justice of the Supreme Court or High Court, as the case may be”. Replace the word Central Government in Clause 3 of Section 7 with the words “the Chief Justice of the Supreme Court or the High Court, as the case may be”. “the Central Words Delete the Government and the State Government” from Clause 1 of Section 8 relating to procedure for short listing of Add Clause 1 (a) and (b) candidates. as Follows: (a) Upon the receipt of request (b) The Chief Justice while xvi. xvii. 70 should have the autonomy

to devise its own procedures for functioning, which can evolve with time and experience. It is for this purpose that the power to lay down procedures has been vested with the Commission through regulations, subject to regulations being laid on the table of Parliament. This is a general Clause to protect the decisions of Commission. The addition proposed in Section 10 is not required. This issue has been addressed in the reply to xviii above. The JAC will be headed by the Chief Justice of India with distinguished members. The JAC th Commission may make

Court, in the appropriate format (Appendix I, II and III) as the case may be. Section 10 relating to vacancies Regulations for giving effect to the provisions of this Schedule in particular and without prejudice to the generality The word “Act” in Section 9 (2) relating to meetings of Commission may be replaced with the word “the schedule 13”. schedule to the Constitution. Replace sub-Clause 1 & 2 of Section 12 regarding power to make regulations and replace with the following:- Subject to the provisions of this schedule, the etc. not to invalidate proceedings of Commission add the following. Provided that the defect shall not include ineligibility or disqualification or undesirability of the member to hold such high office. rules should be omitted and incorporated as part of the 13 xx. relating to power make Section 11 xix. In xviii. 12 3 4 71 The Parliament has the power to accept or modify annul such rule and regulations without prejudice to the validity of anything previously done under that rule or regulation. This will ensure transparency in the formulation of rules and regulations, functioning the JAC. This is standard provision which provides for removal of difficulty which normally would come to light within the first 3 years. This section may be retained. The inclusion of two eminent persons as Members the Commission has been made to facilitate wider democratic consultation by broad basing the representation of civil society in the JAC. The eminent members could also be human rights activists and social reformers. The rational for keeping the tenure a period of three years is to enable two eminent persons as members have reasonable time to contribute the functioning of Commission. The proposed JAC Bill provides for Commission to make regulations to specify criteria and procedures for recommendations of Judges which will ensure that persons integrity and standing in the recommended are of ability, legal profession. The JAC, after coming into existence would specify the procedure with regard to the transfer of Judges from one High Court to another of the foregoing power, the regulations of the foregoing power, may provide for all or any of the following matters, namely:- (e) may be retained. To (a) Section 13 relating to rules and regulations to be laid before parliament may be deleted. Section 14 relating to power remove difficulties should be deleted. from Human Right activists and Social Reformers. The clause to be nominated for three years and barred re- nomination may be considered. and transfer of Judges are to be based on strict criteria of professional basis. i. The two eminent persons to be selected ii. The recommendations for appointment xxi. xxii. Dr. Durlabh Chandra Dr. Bhattacharyya 21. 72 , the procedure for (a) carry out the provisions

inter alia Unlike the present collegium system, which is restricted to the judiciary for appointment of judges, proposed JAC will be a broad-based, collaborative, participative mechanism. Clause 12(1) of the JAC Bill provides that Commission may make regulations and rules to These include, Act. of the recommendation with respect to appointment of High Court Judges, (b) shortlisting of candidates for considering their appointments as Judges of the Supreme Court and High functions under the Commission’s Court, (c) discharging Act. Further clause 13 provides that every rule and the Act shall be laid before each House of regulation under the Parliament, which has the power to accept, or modify annul such rule or regulation without prejudice to the validity of anything previously done under that rule or regulation. These provisions, which ensure that all rules and regulations are placed before the parliament, will ensure transparency in the formulation of rules and regulations, and functioning of the JAC. The expenditure on the officers and employees of Commission would be out of the Budget Department of Justice. The composition of the JAC ensures that views judiciary, executive and other stake holders are effectively represented in the process of appointment Judges. The Union ulations to be made by the enditure likely to be involved Commission should follow the procedure adopted by the present collegium system. appointment of officers and employees by the Central Government should follow the central code. commission should be strictly Act. consistent with the before each House of Parliament. in the Financial year 2013-2014 both recurring and non-recurring to be met from the Consolidated Fund of India. interference in the appointment power. Law Minister and two eminent persons i. There should be no political executive v. The Regulations to be made by the iv. and conditions of the Terms The iii. The reg vi. Orders under this section shall be laid vii. The exp Lajpat Rai Thakral, B.A., Amritsar CALLB., PGDM, 12 3 4 22. 73 to prescribe a time limit for Minister of Law and Justice, as a democratically elected public representative would represent and articulate the perspective and views of the Government, accountable to the Parliament. The recommendation for appointment of a person as Judge to the Higher Judiciary will be per procedure laid down by the JAC, and apprehensions raised are ill founded. The role of the Government shall be participative and in no way interfere upon the independence of the Judiciary. The appointments of Judges are processed seeking presidential approval in the Department of Justice. Therefore, Secretary Justice has been proposed as convener of JAC. Secretary (Justice) would play his/her assigned role in the Commission. Clause 4(b) provides for the Commission to recommend transfer of Chief Justices High Courts and the Judges of the High Courts from one Court to any other Court. Recommendations for amendment to clauses 7(1), 7(2) and 7(3) are acceptable to the Department. it is not possible However, completion of the process appointment in view complex nature of the appointment process which entails consideration of diverse factors before recommendations for appointments are made. will act in favour of the Government. The Government can also influence appointments by giving various gains like appointing Governors or other lucrative posts, hence chances of obeying Government will be more. Justice who has direct knowledge and who is well versed with the subject pertaining to the persons who can be appointed as Judges in the Supreme Court and High Courts, should be made an ex-officio member of the Judicial Appointments Commission. Judges of the various High Courts in India should be bought within the purview of consideration the Judicial Appointment Commission, being constituted. which are as:– within a period of three months from the date of coming into force this act, intimate the vacancies existing in the Supreme Court and a High to the Commission for its recommendations. i. Department of Law and The Secretary, i. Section 7(1), 7(2) and 7(3) be amended ii. The issue of transfer and posting (1) 7(1) The Central Government shall, Shri T.G.N. Kumar, 33/3004 Kumar, Shri T.G.N. Eranakulam, P.O. Vennala Kochi Shri Ishwar Dayal Goyal, Member ZRUCC, Northern TAC, Member, Railway, Tele Ministry of Communication 23. 24. 74 (The word three months be replaced by one month) months prior to the date of occurrence of any vacancy by reason completion of the term judge Supreme Court and a High Court, make a reference to the commission for filling up the vacancies. (The word two months be replaced by six months) within a period of two months from the date of occurrence any vacancy of death, resignation the judge the Supreme Court and a High Court, make a reference to the commission for filling up the vacancies. (The word two months be replaced by one month) General of Supreme Court and High Court to intimate the date of occurrence of any vacancy by reason of death, resignation the Supreme Court and a High Judges immediately and six months prior on retirement of the judges. recommendation process within two months from the date of intimation vacancy of the Central Government. (2) 7(2) The Central Government shall two (3) 7(3) The Central Government shall, (4) That it will be the duty of Registrar (5) (l) The Commission shall complete the 12 3 4 75 The JAC Bill does not envisage hiring of Judges and Prosecutors on contract basis. The leader of opposition is not a member JAC. However he along with the Prime Minister and Chief Justice of India would nominate two eminent persons as members of the JAC. The appointments of Judges are processed seeking presidential approval in the Department of Justice. Therefore, Secretary Justice has been proposed as convener of JAC. The proposed JAC bill is concerned with the appointment of Judges to Supreme Court and High Courts. The issue of post-retirement assignment for judges is not the subject matter of the proposed JAC Bill. decide and published notified the name of the judges in official gazette within two months and the recommendation of the Judicial Appointments Commission Bill, 2013 or reject the recommendation. Lok Sabha in the JAC by Chairman of the Bar Council of India assisted by the Chairman of respective State Bar Council in case of candidate belonging to a particular State of particular High Court. No role should be assigned to the Prime Minister of India as member of JAC. and Justice may be replaced by the Secretary General of the Supreme Court of India assisted by the Registrar General of the respective High Court to which the prospective candidate belongs. The Judges of Supreme Court and High Courts should not get further appointment to any Commission or Authority. or Tribunal i. Replacement of leader opposition in ii. The Secretary in the Ministry of Law iii. (5) (2) The Central Government shall High Courts and Governments need to prepare Advocate to work on lists of Competent contract basis as Judges and prosecutors and when required. Shri Santokh Singh Sahi, Administrator : Indo- American Law Centre Shri K.M.M. Khan, Advocate, Supreme Court of India. 25. 26. 76 of Judicial rd December 1999. It was resolved that the th Officers from the Subordinate Judiciary. The suggestion is from the Subordinate Judiciary. Officers in accordance with the prevalent system The present collegium system of appointment Judges is proposed to be replaced by the JAC. The JAC Bill provides for Commission to make regulations specify criteria and procedures for recommendations of Judges which will ensure that persons recommended are of ability, integrity and standing in legal profession. The JAC Bill is not concerned with the age of retirement of Judges. complement of Judges each High Court would consist and 33-1/3 of 66-2/3% members the Bar, The matter relating to the ratio of Judges in each High Court was discussed in the Chief Justices conference held on 3 rd and 4 of the Draft Bill be added to extent that the appointment to High Court Judges shall be made in the ratio of 66:34 from Higher Judiciary officers/ Advocates at District Judges and from Bar respectively. conducted in a fair and frank manner and people particularly the Bar should know in advance about the Bio-data of the aspirants so that bar can also assist the consent selection committee about the pros and cons of the aspirants. Further the system of collegium has caused irrevocable damage to the In Judicial System of this country. several cases judges were appointed not on the basis of merits but several other consideration and the entire system was rotten with allegations of favoritism and nepotism. increase the retirement age of Judges as large number of talented advocates are available in this country and shutting their opportunities will cause irreparable damages to the also wish to state We Judicial system. that already retired judges are being i. An additional section in 8(4) i. Appointment of judges should be ii. further oppose the move to We Shri V.P. Singh, Shri V.P. District Judge, Firozabad Surya Prakasam, A.P. Shri Advocate 12 3 4 27. 28. 77 of Judicial

rd December 1999. It was resolved that the th of members of the Bar, and 33-1/3 of members the Bar,

and 4 rd Officers from the Subordinate Judiciary. Officers complement of Judges each High Court would consist of 66-2/3% Appointment of Judges the Supreme Court and High Article 124 and 217 of the Courts are made under which do not provide Constitution of India respectively, for reservation any caste or class of persons. The matter relating to the ratio of Judges in each High Court was discussed in the Chief Justices conference held on 3 re-employed in various tribunals and it is not fair to claim that their experience is wasted. level should be given to women. to Judicial Service rather than advocate for appointment as High Court Judges. The present system of elevation is against the real spirit of constitution envisaged under article 217, Hence 50% must be given to Judicial Service. i. Proportionate representation at the apex ii. Our constitution envisages Preference Smt. R. Tharani, Principal District Judge, Dharmapuri. 29. 78 Every Judge of Article 217 of the Constitution India stipulates that: a High Court shall be appointed by after consultation with the President the Chief Justice of India, Governor of the State, and in case of appointment a Judge other than the Chief Justice, Justice of the High Court. Clause 8(1) of the present JAC Bill significantly broadens the sources from where recommendations are invited, to specifically include and directly invite recommendations from the Central and State Governments and High Courts. The JAC would formulate rules and regulation under the act which can further elaborate the process for receiving recommendations of persons. The procedure for seeking names will be evolved by the JAC. For selecting the Judges of Supreme Court and High Courts the JAC will consult different constitutional functionaries including Chief Justices of the High Courts. Jayachandran system apart from Chief Justice of concerned High Court the senior judges of those High Court are also consulted before short listing the candidates for appointment of High Court judges. In the Judicial Appointments Commission Bill, there is no provision for consulting the senior judges of the High Court. The Chief Justice of High Court are from other states therefore without consulting senior Judges of the respective State the list proposed by the Chief Justice may not be a complete recommendation. Further the eminent persons selected by the collegium consisting of Prime Minister, Chief Justice and the Leader of the opposition in Lok Sabha may not have sufficient inputs about the aspirants throughout Therefore while short Country. listing the candidates for High Court the Commission should have provision to co-opt 1. Presently under the collegium Secretariat Judicial Appointments Commission Bill, 2013 Judicial senior most judges of Supreme Courts headed by Chief Justice of India is in existence since 1993 for appointment and transfer of Judges in Supreme Court and 24 High Courts. Appointments The Judicial Commission Bill, 2013 intends to replace the present collegiums with another broad based collegiums having participation of executive and civil judiciary, How do you appreciate society. the proposed Commission over the present collegiums for purpose of appointment and transfer of judges in Supreme Court and High Courts? 1. A collegium comprising five Replies of Department Justice on the views/suggestions individuals, organisations Personal Comments and Suggestions of Shri Gopalan Jayachandran, Law Govt. of Secretary, Nadu in his Tamil individual Capacity on the Questionnaire for Holders Stake circulated by Rajya Sabha Secretariat. 12 3 4 5 30. No. Organisation/individual Memo Name of the Questionnaire from Rajya Sabha of Shri Gopalan Views/Comments Response of Government 79 The Bill provides that the JAC would under Clause 12(2) (B) & (C) make the procedure for short-listing of candidates for considering their appointment as Judges of the Supreme Court and High Courts by way of regulations. These regulations may take different stakeholders on board including the Bar and Bench to make the process transparent and The procedure of participatory. transfer of judges from one High Court to another will be laid down by the JAC. No Comments required. eminent persons of concerned state in the collegium to provide inputs relevant to the respective States (to avoid favouritism, such eminent persons should not Advocate.) be a practicing Commission will provide for fair consultation process and Independence of transparency. Judiciary predominantly lie on the integrity of judge and the manner a dispute is decided by him and not in the method of appointment. The process contemplated under the proposed Act has sufficient check and balance of powers among the Therefore executive and judiciary. there is no ground for any apprehension that the independence of judiciary will be affected by inserting answering Article 124A. 2.Appointment The Judicial appointment and transfer of Judges in Supreme Court and High Courts is an invention of judiciary while interpreting the words after consultation in Article 124(2) of Constitution. Article along with The said Article 217(1) of the constitution is proposed to be deleted through the Constitution (One Twentieth Hundred and Amendment) Bill, 2013 (which has been passed by Rajya Sabha in the last Monsoon Session) for creation of Judicial Appointments Commission by Article 124(2) and the deletion of Article 217(1) and insertion of 124-A could any manner affect the independence of judiciary 2. The present Collegium for 80 The proposed JAC Bill is concerned with the appointment of Judges to Supreme Court and High Courts. The issue of post-retirement assignment for judges is not the subject matter of the proposed JAC Bill. the Judges definitely undermines the independence of Judiciary. It is evident from the conduct of few sitting judges who are at the verge of retirement expecting favour from the ruling party behave differently from what they normally use to or expected behave. Similarly the conduct to retire judges lobbying with power centre is also evident. Therefore we cannot turn out a to the reality. ‘Nelson eye’ Statutes such as Human rights Act, Act, Consumer Protection Law Commission etc., which provide post retirement opportunities for the judges should be suitability amended. At the same time while imposing a prohibition on judges from taking up post retirement assignment serious consideration is required to enhance the retirement age of High Court Judges and Supreme Court Judges thereby serving judges hunting for post retirement assignment can be substantially avoided. 3. Post retirement appointment to which is perceived to be a Basic Structure of Constitution. supersession of judges by the executive in the past for post of Chief Justice India was an attempt to create It is also committed judiciary. equally perceived that post retirement appointment of judges particularly Chief Justice of India affects their conduct in pre- retirement time of a judge Supreme Court which has direct bearing upon the independence of judiciary. What are the ways and means to check such trend of any judge being influenced by post retirement appointment/benefits by the Government compromising independence of Judiciary? Whether this Bill should also cove this aspect? 3. It is widely perceived that the 12 3 4 5 81 Amendment) th Bill is an enabling legislation to provide for the JAC Bill, which delineates all aspects for the smooth functioning of the JAC, including its composition and functions. It enables the Parliament to legislate Any on the composition of JAC. apprehension that the composition of the JAC in Bill could be changed in the future is unwarranted in view of the power Judicial Review enshrined in the Constitution. Government is aware that any Appointments to the Higher Judiciary are made from the cadre of Judicial Officers as well members of the AIJS will address the The Bar. appointments of Judicial Officers to the Higher Judicial Service in not directly It will however, States. address the appointments of members of the Bar as Judges the High Courts and Supreme Court. AIJS Therefore, the creation of is quite distinct from the establishment of the Judicial Appointments Commission. The proposed JAC Bill is concerned with the appointment of Judges to Supreme Court and High Courts, and not for district subordinate courts. The Constitutional (99 of the High rd Court strength is selected All India Judicial Service through Examination and posted as District Judges for 5 years (as Probationers) and then posted as High Court Judges, it will give the necessary result. Appointment Commission through ordinary legislation will definitely open the flood gate in Act. future by tinkering the Therefore, the provisions should be incorporated in the Constitution itself. successfully implemented only if uniform language policy is adopted throughout the country the in all courts. Further, representation of the States should be proportionate to the sanctioned cadre strength of the cadre in each State. Since High Court Judges are transferable instead throughout the country, All India Judicial of having Service at the level of District Judge cadre, if 1/3 5. Setting up of Judiciary 4. All India Judicial Service can be gate for committed of All India Judicial Service of Article 312 of Constitution under to attract best talent in judiciary through competitive manner who All India basis could transfer to particular in relation to creation Appointments of Judicial Commission for appointment and transfer of judges in Supreme Court and High Courts? Appointments of Judicial Commission through ordinary legislation has chance of getting altered the composition of Judicial Appointments Commission in future by the Government thereby opening the flood judiciary? 4. What is your reaction of creation 5. Do you feel that setting up 82 of existing vacancies on Act. DoJ enforcement of the 1. Three months for intimation reduction in the representation of the Judiciary would have serious implications for the independence of There should be no the Judiciary. apprehension that any attempt will be made to change the balance in the future. The Parliament, Executive and the Judiciary would actively guard the independence of judiciary. The JAC Bill, 2013 proposes to remove opaqueness and to make the selection process objective and more transparent by making the process of appointment more participatory and collaborative. The composition of the JAC as suggested in Bill ensures that the views of judiciary, executive and other stake holders are effectively represented in the process of the appointment judges. The JAC can expeditiously fill up the judicial vacancies as Bill mentions the procedure for reference to commission for filling up of vacancies along with time- frames. The JAC Bill specifies the following time frame for intimation of vacancies as reasonable: to remove the present shortcomings found in the Already under collegium system. the present system, collegium is not able to fill up the vacancies in time. The present Bill which has more procedures certainly will take more time than the present. 6. The present Bill has no answer for appointment of Judges in Supreme Court and High Courts what To is alleged to be opaque. extent the present Bill removes such opaqueness and how the selection process proposed by the Bill can be made objective and more transparent? 6. The present collegiums system 12 3 4 5 83 has agreed in response to an earlier suggestion to replace the words ‘three months’ by the words ‘one month’. of occurrence any vacancy by reason of completion of the term Judge of the Supreme Court or High Court. DoJ has agreed in response to an earlier suggestion to replace the words ‘two months’ by the words ‘six months’. date of occurrence vacancy by reason of death or resignation. DoJ has agreed in response to an earlier suggestion to replace the words ‘two months’ by the words ‘one month’. 2. months prior to the date Two 3. two months from the Within However, it is not possible to However, prescribe a time-limit for completion of the process appointment in view of the complex nature appointment process which entails consideration of diverse factors before recommendations for appointments are made. This can be considered in the regulations under Section 12. the Chairman commission should have a provision to co- 7. Instead of giving casting vote to Judicial Appointments Commission is 6 whether the 7. Since the Composition of 84 opt a member from the respective States in the commission whenever short listing of candidates for high court is done. Likewise while deciding the selection of Supreme Court Judges, the former President or Chief Justice of Supreme court shall be co- opted. Chairman of Judicial Appointments Commission need to be given a casting vote? If so, does it required to be Act or leave to mentioned in the the Government to mention same in the rules and regulations thereunder? 12 3 4 5 85 th Amendment) Bill th Twentieth Amendment) was Twentieth The Constitutional (99 Response of Government is an enabling legislation to provide for the JAC Bill, which delineates all aspects for the smooth functioning of JAC, including its composition and functions. The Bill has been referred to the Parliament Standing Committee. Clause 2(d) relates to the definition of word ‘prescribed’, which is a standard provision and needs to be retained. The inclusion of the Union Minister Law and Justice in the JAC is required as he a democratically elected public representative, representing and articulating the perspective and views of the Government. September, 2013. September, Two Bills were proposed for introduction in the Rajya Two Twentieth Sabha namely the Constitutional (One Hundred and Appointment Amendment) Bill, 2013 and the Judicial Commission Bill, 2013. The Constitution (One Hundred Amendment) Bill, 2013 proposes to insert a Twentieth and Appointment to constitute a Judicial Article 124A new Commission for making recommendation with respect to The the appointment of Judges in Higher Judiciary. Constitution (One Hundred and considered and passed by the Rajya Sabha as Amendment) Bill on 5 Constitutional (Ninety Nine schedule th Schedule to the th Commission Bill, 2013 , the legislature (Parliament) viz. Comments/Suggestions to the Constitution. the Law Minister as one of Member. Constitution and not as an Act of Constitution and not as an Parliament. Sub-Section (d) shall be omitted and the contents of Rule now itself should be spelt out and incorporated as part of the proposed 13 appointment of the Judges should be contained in the constitution itself and it would not be appropriate to delegate which is fundamental for such power, uploading the rule of law and maintaining the Independence of of the to another Organ Judiciary, State passed by the Parliament as a Amendment along with and constitution Article 124A as part of the proposed and appended as 13 i. The procedure for the selection and ii. The proposed JAC Bill should be iv. The composition of JAC should omit iii. Women Lawyers’ Women Association, Chennai 12 3 4 31. Replies of Department of Justice on the views/suggestions of individuals, organisations on the Judicial Appointments Replies of Department of Justice on the views/suggestions individuals, organisations Judicial No. Organisation/individual Memo Name of the 86 of the JAC

Convenor Member-Convenor. and not a It has proposed in the JAC Bill, 2013 that fee and allowance payable to the eminent person shall be such as may be prescribed. The composition of the JAC has been proposed after due consultation and the number of eminent persons is proposed This ensures that views of judiciary, to be retained at two. executive and other stake holders are effectively represented in the process of appointment Judges. The Committee consisting of the Prime Minster Chief Justice India and a Leader of opposition Lok Sabha may in theirwisdom consider the names of eminent Jurists and other legal luminaries under the category of eminent persons, as members of the Commission. The rationale for keeping the tenure a period of three years is to enable two eminent persons as members have reasonable time to contribute the functioning of As such there would not be any prescribed Commission. age limit for the eminent members. The appointments of Judges are processed seeking presidential approval in the Department of Justice. Therefore, Secretary Justice has been proposed as convenor of JAC. It may be noted that Secretary is nominated by the collegium consisting of PM, CJI and Leader opposition in Lok Sabha should be replaced by nomination of three eminent Jurist by collegium consisting of PM, CJI or Acting CJI and Leader of opposition Lok Sabha. The eminent person may be a retired Judge of Supreme Court, High Court, retired professor of a university recognised by UGC. Retired professor of National Law College/ School with a PHD Degree in law or Advocate in Supreme Court. Senior eligible for re-nomination in respect of eminent persons should be deleted and he should be nominated for a period of 3 years or till he attains the age 75 years whichever is earlier. Department of Replace the Secretary, Justice as convenor of the Commission by the Registrar General of the Supreme Court or any Registrar of the Supreme Court appointed by the Chief Justice of India. The nominated members shall be entitled to the pay and allowances all other perquisites applicable to the Judge of the Supreme Court India. v. The two eminent persons to be vi. Provision of 3 years tenure and not vii. viii. 12 3 4 87 The Commission will make regulations by specifying procedures for recommendations appointment of Judge; this includes the procedure to be followed in case there is no agreement on the name(s). The Chief Justice of the High Court has a crucial role to play in appointment of judges that High Court. He has intimate knowledge about advocates practicing in that High Court. Hence deletion of the term Chief Justice from Section 5 is not tenable. The role and responsibilities of the officers other employees of the JAC is a Secretarial nature to provide administrative and logistic support. The officers employees would have no role in decision making process in the Commission. Therefore, it is for Central Government to appoint the officers and employees of Commission. The JAC Act. The appointment of Judges is an executive would device an appropriate system through rules and regulations to fill these vacancies. The major bottleneck in Appointment of the present system is that proposals for Judges are not initiated in time from the High Court. Hence the word “Central Government” in Clause 2 and 3 the JAC Bill relating to functions of the Commission as follows: (i) The JAC shall endeavour to take decisions unanimously. (ii) The recommendations of the JAC shall be valid only they are approved by at least five of its members present and voting. Section 5 regarding procedure for recommendation with respect to appointment to High Court Judges. regarding officers and employees of Commission by inserting the following: The Chief Justice of India may appoint such number of officers and other employees as it may consider necessary for the discharge of functions of the Commission under Act from among the employees this of the Supreme Court on deputation with lien, subject to the same service conditions. Delete section 7 (1) relating to reference to Commission for filling up of vacancies and replace the word Central Government in Clause 2 of section 7 with the words “the Chief Justice of the Supreme Court or x. Delete the term Chief Justice from xi. Delete Clause 1 and 2 from Section 6 ix. Insert sub Clause (d) to Section 4 of xii. (d). 88 Section 7 is appropriate. Clause 8 (1) significantly broadens the sources from where recommendations are invited, to specifically include and directly invite recommendations from the Central and State Governments, and High Courts. The word, “the Central Government and the State Government” in Clause 1 of Section 8 is apt. The JAC will be headed by the Chief Justice of India with distinguished members. The JAC should have the autonomy to devise its own procedures for functioning, which can evolve with time and experience. It is for this purpose that the power to lay down procedures has been vested High Court, as the case may be”. Replace the word Central Government in Clause 3 of Section 7 with the words “the Chief Justice of the Supreme Court or the High Court, as the case may be”. “the Central Words Delete the Government and the State Government” from Clause 1 of Section 8 relating to procedure for short listing of Add Clause 1 (a) and 1 (b) candidates. as Follows: the Convenor or on his own motion, the Chief Justice of concerned High Court shall recommend names after consulting with the ten senior most Judges of the High Court. In the event of there been less than ten Judges, after consulting all the Judges. the names shall obtain and forward to the JAC, bio data of proposed persons to be selected for appointment as Judges of the High Court, in appropriate format (Appendix I, II and III) as the case may be. relating to meetings of Commission may be replaced with the word “the schedule 13”. (a) Upon the receipt of request from (b) The Chief Justice while recommending xiii. xiv. The word “Act” in Section 9 (2) 12 3 4 89 with the Commission through regulations, subject to regulations being laid on the table of Parliament. This is a general Clause to protect the decisions of Commission. The addition proposed in Section 10 is not required. This issue has been addressed in the reply to xiv above. The Parliament has the power to accept or modify annul such rule and regulations without prejudice to the validity of anything previously done under that rule or regulation. This will ensure transparency in the formulation of rules and regulations, functioning the JAC. th etc. not to invalidate proceedings of Commission add the following: Provided that the defect shall not include ineligibility or disqualification or undesirability of the member to hold such high office. relating to power make Section 11 rules should be omitted and incorporated as part of the 13 schedule to the Constitution. Replace sub Clause 1 and 2 of Section 12 regarding power to make regulations and replace with the following:- Subject to the provisions of this schedule, the Commission may make Regulations for giving effect to the provisions of this Schedule in particular and without prejudice to the generality the regulations of the foregoing power, may provide for all or any of the following matters, namely:- (e) may be retained. To (a) Section 13 relating to rules and regulations to be laid before Parliament may be deleted. xv. In Section 10 relating to vacancies xvi. xvii. 90 Amendment) Bill is an enabling th by warrant under his hand and seal after President legislation to provide for the JAC Bill, which delineates all aspects for the smooth functioning of JAC, including its composition and functions. It enables the Parliament to Any apprehension legislate on the composition of JAC. that the composition of JAC, its functions and power, duties as well eligibility in the JAC Bill could be changed by a law enacted in Parliament is unwarranted view of the power of Judicial Review enshrined in Constitution. The inclusion of two eminent persons as Members the Commission has been made to facilitate wider democratic consultation by broad basing the representation of civil society in the JAC. The eminent members could also be administration, education, from the fields of judiciary, This is standard provision which provides for removal of difficulty which normally would come to light within the first 3 years. This section may be retained. Article 124 (2) reads as follows: Presently Court shall be appointed by “Every Judge of the Supreme the Court consultation with such of the Judges Supreme may as the President and of the High Court in States deem necessary for the purpose ...” Pursuant to the 1993 Judgement, Supreme Court set up a ‘Collegium’ for appointment of judges. The word ‘Collegium’ does not exist in the Constitution of India. The Supreme Court rewrote the constitution through a process of interpretation, which was not envisaged by the constitution makers. The Constitutional (99 the Supreme i.e. Section 14 relating to power remove difficulties should be deleted. Commission pertains to the basic structure of the composition superior judiciary Court and the High Courts. Therefore, the composition of Commission, its functions powers, duties as well as eligibility for membership should all be part of the Constitution itself. They cannot be regulated by a law enacted by Parliament. eminence known for their knowledge and experience in judiciary, administration, education, journalism, or public affairs. law, i.Appointments The proposed Judicial ii. integrity and persons of ability, Two xviii. Shri P.P. Rao, Shri P.P. Senior Advocate, Supreme Court 12 3 4 32. 91 recommendations

Report of the Law th wider acceptance of the from the Central and State Governments, High Courts. Commission of India, which had made comprehensive recommendations as to the method of appointment High Court and Supreme Judges. The proposed JAC may draw on the wisdom of similar reports and international integrity and experiences in ensuring that persons of ability, standing in the legal profession are appointed as Judges to Section 8 (1) significantly broadens the higher judiciary. the sources from where recommendations are invited, to specifically include and directly invite journalism, law, or public affairs. journalism, law, The suggestion has been noted. The Leader of Opposition in Lok Sabha has been included as per convention in similar bodies for selection of the Chief Information Commissioner, Vigilance Chief This will ensure Commissioner. nominated persons in the JAC. The suggestion has been noted. proposed JAC Bill provides for Commission to make regulations specify criteria and procedures for recommendations of Judges which will ensure that persons recommended is of ability, integrity and standing in legal profession. In this connection, attention is invited to the 80 suggest substituting the word ‘collegium’ by the word ‘Committee’ or ‘body’ because the word collegium has acquired a certain connotation. It is better to avoid the word ‘collegium’ in the Bill as we want to switch over from the present collegium system of selection of Judges to a new system. the Opposition by Other Leaders of the two Houses of Parliament’ may be substituted. statutory Search Committee for preparing, from time to time, panels of eligible and suitable candidates for Appointments candidates by the Judicial Commission for elevation to High Court or the Supreme with variable composition in the case of each High Court. It may include recently retired Chief Justices and Judges of the High Courts, retired Judges of Supreme Court residing in and eminent leader of the Bar. a State The Search Committee should also include representatives of the Union and State Governments. The Chairman could be a Senior Judge of the Supreme Court or the Chief Justice of each High Court as the case may v. I strongly recommend a broad-based iii. I iv. Replacement of the word ‘Leader 92 of Judicial rd December 1999. It was resolved that the th and 4 rd Officers from the Subordinate Judiciary. The need to make from the Subordinate Judiciary. Officers post is a desirable objective but even the District Judge’s it is not a subject matter of the JAC Bill as relates to appointment of Judges to Higher Judiciary. The JAC Bill is not concerned with the retirement age of judges. However a Bill for increasing the retirement age of complement of Judges each High Court would consist and 33-l/3 of 66-2/3% members the Bar, The matter relating to the ratio of Judges in each High Court was discussed in the Chief Justices conference held on 3 Member- of the vacancies th ex officio inducement to Judges suggest enlargement of the scope to be filled in the Supreme Court on a regular basis in order to infuse fresh blood into the system. For this, Judgeship has to be made much more attractive that what it is now. The need to make even District post more attractive is felt in Judge’s every state. reputation and maintain their integrity, be. The Secretary to the Government of India in the Department Justice may be the Secretary of the Search Committee. consequential changes may be made providing for inviting recommendations from the Search Committee or Committees concerned to be placed Appointments before the Judicial Commission for consideration, making it clear that will be open to the said Commission to consider suitable candidates not recommended by the Search Committee if need be, for reasons to be recorded. the proposed Bill to incorporate following aspects: Direct appointment from the Bar are necessary at least, to the extent of 1/4 vi. I propose that in Section 8, vii. I viii. As an 12 3 4 93 March, 2012. It is pending before Rajya th August, 2011. The Bill was passed by the Lok August, 2011. th Sabha. Sabha on 29 High Court judges from 62 to 65 is under consideration in Parliament. The subject matter of the present legislation relates solely The issue of to appointment of Judges in higher judiciary. corruption has been addressed in the he Judicial Standards This Bill incorporates a Accountability Bill, 2010. and mechanism for enquiring into complaints against the Judges of the Supreme Court and High Courts, lays down judicial standards and requires the judges to declare their assets Accountability Bill and and liabilities. Judicial Standards 2010 and 2010 which was introduced on 1st December, referred to the Parliament Standing Committee on Personnel, Public Grievances and Law Justice for examination and report. The Parliamentary Standing Committee after wide consultation finalised its report containing the recommendations which was presented to the Parliament on 30 Union of v efficiency and also to tackle the problem of dearth suitable candidates for Judgeship, I propose increasing the age of superannuation of High Court Judges from 62 to 65 years and of Supreme Court Judges from 65 to 68 years subject assessment of fitness and performance including reputation and integrity on attaining the age of 61 years in case of a High Court Judge and 64 years in the case of a Supreme Court Judge on the same lines as Supreme Court has prescribed in All in the case of judicial officers Association India Judges’ India (1993) 4 SCC 288 at 314-315 52 (b). pr. which unfortunately has entered the Judiciary and having regard to the paramount need to maintain the I propose independence of judiciary, insertion of a provision in the Constitution empowering the president of India to pass an order termination forthwith of the appointment a Judge of a High Court or the Supreme Court including the CJI on a recommendation made by the Judicial Appointments Commission stating that a particular Judge is person of whose continuance doubtful integrity, in office will not be public interest, subject to payment of appropriate ix tackle the problem of corruption, To 94 The suggestion has been noted. Bills were proposed for introduction in the Rajya Two Twentieth Sabha namely the Constitutional (One Hundred and Appointment Amendment) Bill, 2013 and the Judicial Commission Bill, 2013. The Constitution (One Hundred Amendment) Bill, 2013 proposes to insert a Twentieth and Appointment to constitute a Judicial Article 124A new compensation as may be determined by a Tribunal headed retired Chief Justice of a High Court, after hearing the judge concerned. provision in law to the effect that unless and until a judicial officer/Judge whose name has been recommended for elevation to a High Court or the Supreme Court, as the case may be, Appointments by the Judicial Commissions pronounces the judgments and orders in all cases where hearing has concluded and judgments or orders are reserved, the warrant of appointment shall be withheld. I have myself seen several cases where without delivering judgments which were reserved after long hearing, judicial officers and Judges take the oath on their elevation necessitating re- hearing of the same cases by another Judge, which is indeed regrettable. It causes underserved hardship and irreparable loss to the unfortunate litigants. Appointments Bill as it the Judicial would violate the present provisions Article 124. It is true that the of Amendment Bill, 2013 Constitutional which was passed by Rajya Sabha i. Parliament would not be able to pass x. There is need for a mandatory Shri Ashok H. Desai Shri 12 3 4 33. 95 Amendment) Bill is an enabling th September, 2013. The JAC, Bill has been referred to the 2013. September, th legislation to provide for the JAC Bill, which delineates all aspects for the smooth functioning of JAC, including its composition and functions. It enables the Parliament to legislate on the composition of JAC. It is submitted that it would be difficult to visualize Appointments Commission which legislation on Judicial would exclude judiciary in the process of appointment to the posts of judges in High Courts and Supreme Court. Judiciary being an important element in the consultative process, any legislation which excludes judiciary from such It a process would be struck down under judicial review. is pertinent to mention here that though the process of appointment of judges is an executive process, yet the judiciary has a significant role to play in this regard. the present Bill provides Chief Justice of Accordingly, Appointment Commission which India to chair the Judicial will also include two senior most Judges of the Supreme Court. The JAC Bill makes the process of appointment more participatory and collaborative. The composition of the Executive and JAC ensures that the views of Judiciary, other Stake holders are effectively represented in the process of appointment Judges. The provision under Section 8 Parliament Standing Committee. Once the requisite approvals are received, both the Bills will be moved simultaneously for seeking the assent of President. The Constitutional (99 Commission for making recommendation with respect to The the appointment of Judges in Higher Judiciary. Amendment) was Twentieth Constitution (One Hundred and considered and passed by the Rajya Sabha as Amendment) Bill on Constitutional (Ninety Nine 5 seeks to amend Article 124 of the seeks to amend Article 124A. Constitution and to add In my view the present Bill by itself cannot be passed by Parliament unless Amendment is a suitable Constitutional passed. manner of appointment Judges by future amendments of the Judicial Act would Appointments Commission fall foul of the constitutional provisions regarding amendment to chapters in the Constitution relating to judiciary. Any process of appointment should be by a body composed of the representatives of Judiciary, Executive, the Bar and Civil Society without anyone of them ii. Any changes of material nature in the 96 Clause (1) significantly broadens the sources from where recommendations are invited, to specifically include and directly invite recommendations from the Central and State Governments, and High Courts. The Rules Regulations Act can further elaborate the process for framed under the receiving recommendations of persons fulfilling the eligibility criteria from Central and State Governments, High Courts. In the proposed JAC Bill, names would first be shortlisted the Commission Secretariat and then views of The Authorities would be obtained. Constitution different Secretariat would also maintain permanent records of appointments which will ensure transparency in appointments. The expenses of the Judicial Commission would be borne out of the budget Department Justice. May see reply to memo 32(i) above. maintaining enjoying dominance; The process should be well defined and transparent. It should provide for wide consultation with various stakeholders including the Bar; The primary criterion for appointment should be merit. Seniority only be one factor; There should be a full time independent secretariat and registry relevant records. One, way of assuring such independence could be on the Article 146 providing for lines of Officers and Servants expenses of the Supreme Court. The expenses of the Judicial Commission should be charged on the Consolidated Fund of India. These features should be incorporated in the Constitution itself. This has been done in different ways the Constitution including in the case of Union Public Service Commission Article 313), to a lesser degree (under Article for Election Commission (under 324) and in greater details Part Panchayats and Village relating to Municipalities, namely Part IX and IXA iii. 12 3 4 97 The High Courts are sovereign in their own rights the Appointment Commission further strengthens the Judicial independence of the High Court judges. The issue increase in the retirement age of High Court judges has Bill for A been engaging the attention of Government. increasing the retirement age of High Court judges from 62 to 65 is under consideration in Parliament. at this stage. The power of the collegiums to govern the destiny of High Court Judges has been perceived in such a manner by the Judges themselves that the High Court Judges are in danger of being deferential to the Supreme Court. The Appellate Court which Court is the can reverse the High Court. But Constitution does not envisage any subordination. One way to avoid this is to have parity in the age of retirement for both High Court and Supreme Court Judges so that High Court Judges also retire at 65. This would also require a Constitutional amendment which is something to be considered for recommendation of the Committee. iv. There is one another point to be made 98

ANNEXURE-III

List of individuals/organizations/experts and other stakeholders who deposed before the Committee

1. Dr. Jayaprakash Narayan, MLA and President, Foundation for Democratic Reforms (Lok Satta), Hyderabad; 2. Shri Subhash Chandra Agrawal, RTI Activist, New Delhi; 3. Dr. Lokesh Kumar, RTI Activist, New Delhi; 4. Shri Ishwar Dayal Goyal, Noida, U.P.; 5. Shri Fali S. Nariman; Ex. M.P., Rajya Sabha and Senior Advocate, Supreme Court; 6 Shri Ashok H. Desai, Former Attorney General of India; and 7. Shri P.P. Rao, Senior Advocate, Supreme Court 8. Bar Council of India: (i) Shri S. Prabakaran, Co-Chairman (ii) Shri Ramchander Rao, Member (iii) Shri Nilesh Kumar, Member (iv) Shri Bhoj Chander Thakur, Member (v) Shri J.R. Sharma, Member (vi) Shri Ashok K. Pandey, Member (vii) Shrimati Shiva Priyamvadu, Member 9. Madras Bar Association, Chennai: (i) Shri R. Muthukumaraswamy, President (ii) Shri V.R. Kamalanathan, Secretary 10. Advocates Forum for Social Justice, Tamil Nadu: (i) Shri K. Balu, President (ii) Shri K. Muthuramalingam (iii) Shri Karunakaran 11. Shri A.P. Surya Prakasam, Association of Lawyers Against Corruption and Oppression, Chennai 12. Shri. Naik. Holiyappa. Kanna (Advocate, Supreme Court), New Delhi 13. Shri. Radhey Shyam Gora (Advocate, Supreme Court), New Delhi 14. Dr. Durlabh Chandra Bhattacharyya (Advocate Calcutta High Court), Kolkata 15. Justice K.L. Sharma Association of Retired Judges of Supreme Court and High Courts of India (U.P. State Chapter), Lucknow

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16. Shri V.P. Singh, District Judge (Retd.) 17. Madras High Court Advocates Association: (i) Shri R.C. Paul Kanagaraj, President, (ii) Shri N. Kannan, Advocate (iii) Shri C. Kanagaraj, Advocate (iv) Shri S. Arivazhagan, Advocate 18. Women Lawyers’ Association, Chennai: (i) Shrimati D. Prasanna, President (ii) Shrimati V. Nalini, Secretary 19. Shri T.G.N. Kumar, Kochi 20. Shri Abhishek Sudhir, (Advocate) Bangalore 21. Shri Rajiv Daiya, Chairman, Suraz India Trust, Rajasthan 22. Shri Mathews J. Nedumpara, President, National Lawyers Campaign for Judicial Transparency and Reforms, Mumbai 100

ANNEXURE-IV

Opinion of Attorney General of India

G. E. VAHANVATI ATTORNEY GENERAL FOR INDIA

OPINION Subject: Re-visiting the Memorandum of Procedure for appointment of Chief Justice and the Judges of the Supreme Court and High Courts in light of the Constitution Bench Judgment in Supreme Court Advocates on Record Association v. Union of India, (1993) 4. SCC 441, and the Advisory Opinion in Special Reference No. 1 of 1998, Re, (1998) 7 SCC 739. 1. The Memorandum of Procedure for appointment of Chief Justice of India and the Judges of the Supreme Court provides in para 3.5 that “After receipt of the final recommendation of the Chief Justice of India, the Union Minister of Law, Justice and Company Affairs will put up the recommendations to the Prime Minister who will advise the President in the matter of appointment”. Similar provisions have been made in para 6 and para 15.1 of the Memorandum of Procedure for appointment and Transfer of Chief Justices and Judges of High Courts. Though not expressly stated, the implication of the above paras is that what is described as the “final recommendation” of the Chief Justice of India is binding on the Executive. 2. In my opinion this is not the correct position in law and requires to be revised. In my opinion, the Union Executive has the power to disagree with and reject the recommendation made by the Collegium, even if it is reiterated for the second time. I shall now proceed to give the reasons for my opinion. 3. The decision of the Hon’ble Supreme Court in the case of Supreme Court Advocates-on- Record Association v. Union of India, (1993) 4 SCC 441, needs to be carefully analysed: (i) The Judgment was passed by a Bench of 9 Hon’ble Judges. The majority decision has been given by Justice J.S. Verma (as his Lordship .then was), speaking for himself, Yogeshwar Dayal, G.N. Ray; A.S. Anand and S.P. Bharucha, JJ. The relevant paragraphs pertaining to the appointment of Judges to the Supreme Court (particularly with regard to the nature of the consultation process) are paragraphs 462 and 468 of the SCC Report, which read as follows:

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462. The constitutional purpose to be served by these provisions is to select the best from amongst those available for appointment as judges of the superior judiciary, after consultation with those functionaries who are best suited to make the selection. It is obvious that only those persons should be considered ·fit for appointment as judges of the superior judiciary who combine the attributes essential for making an able, independent and fearless judge. Several attributes together combine to constitute such a personality. Legal expertise, ability to handle cases, proper personal conduct and ethical behaviour, firmness and fearlessness are obvious essential attributes of a person suitable for appointment as a superior judge. The initial appointment of Judges in the High Courts is made from the Bar and the subordinate judiciary. Appointment to the Supreme Court is mainly from amongst High Court Judges, and on occasions directly from the Bar. The arena of performance of those men are the courts. It is, therefore, obvious that the maximum opportunity for adjudging their ability and traits, is in the Courts and, therefore, the Judges are best suited to assess their true worth and fitness for appointment as Judges. This is obviously the reason for introducing the requirement of consultation with the Chief Justice of India in the matter of appointment of all Judges, and with the Chief Justice of the High Court in the case of appointment of a Judge in a High Court. Even the personal traits of the members of the Bar and the Judges are quite often fully known to the Chief Justice of India and the Chief Justice of the High Court who get such information from various sources. There may, however, be some personal trait of an individual lawyer or Judge, which· may be better known to the executive and may be unknown to the Chief Justice of India and the Chief Justice of the High Court, and which may be relevant for assessing his potentially to become a good Judge. It is for this reason, that the executive is also one of the consultees in the process of appointment. The object of selecting the best men to constitute the superior judiciary is achieved by requiring consultation with not only the judiciary but also the executive to ensure that every relevant particular about the candidate is known and duly weighed as a result of effective consultation between all the consultees before the appointment is made. It is the role assigned to the judiciary and the executive in the process of appointment of Judges which is the true index for deciding the question of primacy between them, in case of any difference in their opinion. The answer which best sub serves this constitutional purpose would be the correct answer.

468. The rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines to ensure non- arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon high functionaries and, whenever feasible, introducing the element of plurality by requiring a collective decision, are further checks against arbitrariness. This is how idealism and pragmatism are reconciled and integrated, to make the system. workable in a satisfactory manner. Entrustment of the task of appointment of superior judges to high constitutional functionaries; the greatest significance attached to the view of the Chief Justice of India, who is best equipped to assess the true worth of the candidates for adjudging their suitability; the opinion of the Chief Justice of India being the collective opinion formed after taking into account the views of some of his colleagues; and the executive being permitted to prevent an appointment considered to be unsuitable, for strong reasons disclosed to the Chief Justice of India. provide the best 102

method, in the constitutional scheme. to achieve the constitutional purpose without conferring absolute discretion or veto upon either. the judiciary or the executive, much less in any individual, be he the Chief Justice of India or the Prime Minister.

[Emphasis Supplied] (ii) It is clear from these two paragraphs. that the majority clearly recognized a. That the consultation process is based on consensus; b. That the Executive may itself be in possession of information relating to in individual lawyer or a Judge, which may have a bearing on his suitability for appointment; c. That the Executive is one of the Consultees in the process of appointment; d. The object is to select the best men to constitute the higher judiciary; e. This can only be achieved by consultation between the judiciary and the executive; f. Every relevant particular about the candidate must be duly weighed; and g. Both the executive and the judiciary participate to sub serve the constitutional objective. If the Executive is also a Consultee and if appointment can only be made as a result of consensus between all the Consultees then a negative opinion from the Executive cannot be ignored or over-ridden. In fact, a negative opinion can come from any Consultee and not just from the Executive alone. This is important because the whole purpose behind the consultation process, according to this Judgment, is to identify the best available candidate for appointment. (iii) It is true that in paragraph 468 it is also stated that the Executive is permitted to prevent an appointment considered to be unsuitable for strong reasons disclosed to the Chief Justice of India. The strong reasons referred to here have to be read in conjunction with paragraph 462, which elaborates that the unsuitability in the opinion of the Executive may be on account of possessing knowledge of some personal trait that may render the candidate’s appointment unsuitable. (iv) Significantly, neither para 462 nor para 468 discuss the question of “reiteration”. Paragraphs 477 and 478 set out the norms which are “expected to be observed” by the functionaries to regulate the exercise of their discretionary powers in, the matter of appointments. The conclusions are set out in paragraph 486. (v) The relevant sub-paragraphs are sub-para (7) of the Norms and sub-para (5) of the Conclusions, both of which provide that if a recommendation is, after consideration of the reasons disclosed by the ‘Executive, unanimously re-iterated by the Chief Justice and the other Judges along with reasons, “then that appointment as a matter of healthy convention ought to be made” [Sub-para (5) of the Conclusions uses the words “should be made”]. In my opinion, this does NOT show that the judgment intended that a re-iterated recommendation of the that Chief Justice is absolutely binding. On the contrary, if one has regard to the stated constitutional objective, i.e., to clear the best available candidate, then the interpretation that a re- iterted recommendation is mandatory and binding would go against this objective. 103

4. The real difficulty seems to stem from the Advisory Opinion of the Supreme, Court in Special Reference No. 1 of 1998, decided on 28th October, 1998 and reported in (1998) 7 SCC 739:

(i) In the first place, it must be noted that the questions referred to the Supreme Court for its consideration were 9 in number and read as follows:

(1) Whether the expression ‘consultation with the Chief Justice of India’ in Articles 217(1) and 222(1) requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India or does the sole individual opinion of the Chief Justice of India constitute consultation within the meaning of the said articles;

(2) Whether the transfer of Judges is judicially reviewable in the light of the observation of the Supreme Court in the aforesaid judgment that ‘such transfer is not justifiable on any ground’ and its further observation that limited judicial review is available in matters of transfer and the extent and scope of judicial review;

(3) Whether Article 124(2) as interpreted in the said judgment requires the Chief Justice of India to consult only the two senior-most Judges or whether there should be wider consultation according to past practice;

(4) Whether the Chief Justice of India is entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court in respect of all materials and information conveyed by the Government of India for non- appointment of a Judge recommended for appointment;

(5) Whether the requirement of consultation by the Chief Justice of India with his colleagues, who are likely to be conversant with the affairs of the High Court concerned refers to only those Judges who have that High Court as a parent High Court and excludes Judges who had occupied the office of a Judge or Chief Justice of that Court on transfer from their parent or any other court;

(6) Whether in the light of the legitimate expectations of senior Judges of the High Court in regard to their appointment to the Supreme Court referred to in the said judgment, the ‘strong cogent reason’ required to justify the departure from the order of the seniority has to be recorded in respect of each such senior Judge, who is overlooked, while making recommendation of a Judge junior to him or her;

(7) Whether the Government is not entitled to require that the opinions of the other consulted Judges be in writing in accordance with the aforesaid Supreme Court judgment and that the same be transmitted to the Government of India by the Chief Justice of India along with his views;

(8) Whether the Chief Justice of India is not obliged to comply with the norms and the requirement of the consultation process in making his recommendation to the Government of India;

(9) Whether any recommendations made by the .Chief Justice of India without complying with the norms and consultation process are binding upon the Government of India? 104

(ii) All the 9 questions are concerned with the nature and manner of the consultation required between the Chief Justice and tile other Judges. None of these questions deals with the issue whether the reiterated recommendation of the Chief Justice and other Judges is binding or not. (iii) Despite this, the Advisory Opinion travels far beyond the reference and deals with the issue (in paragraph 23) of non-appointment of a person recommended on the ground of unsuitability. It is important to note that in this paragraph what is quoted is only from paragraph 478 of the SC Advocates-on-Record Association case (dealing with the Norms which are “expected to be observed”). The Advisory Opinion does not even refer to the paragraphs 462 and 468 which I have referred to above. Yet, the Opinion in paragraph 23 states that “It is only if it (recommendation) is unanimously reiterated that the appointment must be made”. This must be read in perspective. (iv) In my opinion this observation does not reflect the correct position. Firstly, it is not in conformity with the majority decision, which I have analysed above. The words “must be made” carry a connotation that is contrary to the words “should be made” or “ought to be made” (as a healthy convention) as used in the majority decision. Secondly, this issue was not a part of the questions referred to the Supreme Court travels and beyond the reference. Thirdly, in my respectful opinion, this is not a correct reading of the majority decision. 5. For these reasons, I am of the opinion that paragraph 3.5 of the Memorandum of Procedure for appointment of Chief-Justice of India and the Judges of the Supreme Court and para 6 and para 15.1 of the Memorandum of Procedure for appointment and Transfer of Chief Justices and Judges of High Courts do not correctly reflect the position in law. These have to be revised accordingly to reflect the correct legal position, i.e., the Executive as an important Consultee in the consultation process, has the constitutional obligation and a right to prevent an unsuitable person from being appointed.

Goolam E. Vahanvati Attorney General for India

NEW DELHI 11 January, 2010 105

G. E. VAHANVATI ATTORNEY GENERAL FOR INDIA

SECRET/CONFIDENTIAL 20.1.2010

Dear Mrs. Prasad,

With reference to the meeting with the Hon’ble Law Minister yesterday, I am sending you herewith the proposed changes ‘in Paragraph 3.5 of the Memorandum of the Procedure for Appointment of Judges of the Supreme Court and Para 15.1 of the Memorandum relating to the Procedure for appointment of Judges of the High Court.

With regards,

Yours sincerely,

(G. E. Vahanvati)

Mrs. B. Prasad Secretary Department of Justice Jaisalmer House NEW DELHI-110011

Encls: as above.

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PROPOSED CHANGES

1. Instead of the existing para 3.5, the following should be inserted: “After receipt of the names for appointment, the Union Minister for Law and Justice shall cause independent enquiries to be made and shall put up the file to the Prime Minister. If the Prime Minister is of the opinion that a particular appointment should not be made, the file will be sent back to the Chief Justice for reconsideration. If the Chief Justice and the Collegium unanimously reiterate the proposal, the Prime Minister shall ordinarily advise the President in the matter of appointment, unless for reasons to be recorded in writing, he is satisfied that such an appointment should not be made.” 2. In para 15.1 of the High Court Judges Memorandum, delete the last six lines, namely, commencing with the words “However, where it is considered expedient... in the matter of appointment” and substitute the same with the following: “On receipt of the names from the CJI, the file shall be placed before the Prime Minister. If the Prime Minister is of the opinion that a particular appointment should not be made, the file will be sent back to the Chief Justice for reconsideration. If the Chief Justice and the Collegium unanimously reiterate the proposal, the Prime Minister shall ordinarily advise the President in the matter of appointment, unless for reasons to be recorded in writing, he is satisfied that such an appointment should not be made.” 107

G. E. VAHANVATI ATTORNEY GENERAL FOR INDIA

17.1.2010

Dear Mrs. Prasad,

This refers to my conversation with you regarding the opinion already given in relation to Memorandum of Procedure for Appointment of Judges. I am sending herewith an Additional Opinion in relation to whether the opinion rendered under Article 143(1) is binding as law declared by the Supreme Court.

With regards,

Yours sincerely,

(G. E. Vahanvati)

Mrs. B. Prasad Secretary Department of Justice NEW DELHI-110011

Encls: as above.

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G. E. VAHANVATI ATTORNEY GENERAL FOR INDIA

ADDITIONAL OPINION

Re: Memorandum of Procedure for Appointment of Chief Justice and the Judges of the Supreme Court and the High Courts 1. I have already rendered my opinion on 11th of January, 2010 in relation to the Memorandum of Procedure for Appointment of Chief Justice and the Judges of the Supreme Court and the High Courts in light of the Constitution Bench Judgment in Supreme Court Advocates- on-Record Association vs. UOI (1993) 4 SCC 441 and the Advisory Opinion in Special Reference No.1 of 1998, Re:, (1998) 7 SCC 739. 2. This opinion deals with the further question as to whether an opinion rendered under Article 143(1) of the Constitution of India is binding as law declared under Article 141 of the Constitution. In my opinion, the position of law in relation to Advisory Opinion under A1iicle 143(1) is as follows: (A) In the first place it is well settled that the Supreme Court is not bound to give an opinion if a reference is received by it. See the decision in Special Reference No. 1 of 1964 (1965) 1 SCR p. 413. (B) In the case of The Ahmedabad St. Xavier’s College Society vs. State of Gujarat (1974) 1 SCC 717, the Supreme Court had occasion to refer to the opinion given by it earlier in the Presidential Reference in relation to the Kerala Education Bill, 1957. In para 51of the judgment, it is clearly recorded that though the opinion is not binding on the Court in a subsequent matter, it is entitled to agree to it. (C) This position was considered by a Bench of 7 Judges in re: the Special Courts Bill, 1978 reported in (1979) 1 SCC 380 (para 104). Para 104 shows: (i) that the Court did not go into whether the opinion rendered under Article 143 (1) is binding as law declared under Article 141 of the Constitution but said that this will have to be considered later. (ii) Reference was made to the cases of the Estate Duty Bill, the UP Legislative Assembly case. the St. Xavier’s College Society case and the Judgment of

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the Privy Council in Attorney General for Ontario vs. Attorney General for Canada to the effect that Advisory Opinions do not have the binding force of law. In fact, the Privy Council has held that the opinion expressed by the Court in its Advisory Jurisdiction will have no more effect than the opinions of Law Officers. (iii) Having noted this, the Court felt that the opinion will be binding in the courts in the country. In any case, all that it did was to reiterate the view in the St. Xavier’s College Society case that such opinions would be entitled to great weight. (iv) Finally, the learned Judges quoted the opinion of Mr. H.M. Seervai in his Book Constitutional Law of India that the Advisory Opinion given by the Supreme Court has high persuasive authority but it is not law declared by in within the meaning of Article 141. 3. Apart from this, in my opinion, there is no question of the opinion being binding in relation to issues which were not the subject matter of the reference. I have already analysed at length the aspect (viz. that the opinion travels beyond the questions asked) in my earlier opinion, to which this is the Supplementary.

(G. E. VAHANVATI) ATTORNEY GENERAL FOR INDIA NEW DELHI; DATED: 17.1.2010 110

APPENDIX

LIST OF REPORTS PRESENTED BY THE COMMITTEE

Report Subject of the Report Date of Date of Session No. Adoption Presentation No. 1 2 3 4 5

1st Report on Demands for Grants 23.08.2004 Presented to Rajya Sabha on 203 (2004-05) of the Ministry of 26.08.2004 and Laid on the Table of Personnel, Public Grievances and Lok Sabha on 26.08.2004. Pensions.

2nd Report on Demands for Grants -do- -do- 203 (2004-05) of the Ministry of Law and Justice.

3rd Report on the Right to 16.03.2005 Presented to Rajya Sabha on 204 Information Bill, 2004. 21.03.2005 and Laid on the Table of Lok Sabha on 21.03.2005.

4th Report on the Andhra Pradesh 22.03.2005 Presented to Rajya Sabha on 204 Legislative Council Bill, 2004. 24.03.2005 and Laid on the Table of Lok Sabha on 24.03.2005.

5th Report on Demands for Grants 11.04.2005 Presented to Rajya Sabha on 204 (2005-06) of the Ministry of 20.04.2005 and Laid on the Table of Personnel, Public Grievances and Lok Sabha on 20.04.2005. Pensions.

6th Report on Demands for Grants -do- -do- 204 (2005-06) of the Ministry of Law and Justice.

7th Report on the Hindu Succession 10.05.2005 Presented to Rajya Sabha on 204 (Amendment) Bill, 2004. 13.05.2005 and Laid on the Table of Lok Sabha on 13.05.2005.

8th Report on the Scheduled Castes, 07.06.2005 Presented to Hon’ble Chairman, Rajya 204 Scheduled Tribes and other Sabha on 29th June, 2005 and Backward Classes (Reservation forwarded to Hon’ble Speaker, Lok in Posts and Services) Bill, 2004. Sabha on 29th June, 2005. Presented to Rajya Sabha on 26.07.2005 and Laid on the Table of Lok Sabha on 26.07.2005.

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9th Report on the Arbitration and 28.07.2005 Presented to Rajya Sabha on 205 Conciliation (Amendment) Bill, 04.08.2005 and Laid on the Table of 2003. Lok Sabha on 04.08.2005.

10th Report on the High Court and 02.08.2005 Presented to Rajya Sabha on 205 Supreme Court Judges (Salaries 04.08.2005 and Laid on the Table of and Conditions of Service) Lok Sabha on 04.08.2005. Amendment Bill, 2005.

11th Report on the National Tax 02.08.2005 -do- 205 Tribunal Bill, 2004.

12th Report on the Contempt of 23.08.2005 Presented to Rajya Sabha on 205 Courts (Amendment) Bill, 2004 29.08.2005 and Laid on the Table of Lok Sabha on 29.08.2005.

13th Report on the Prevention of 27.10.2005 Presented to Rajya Sabha on 206 Child Marriage Bill, 2004. 29.11.2005 and Laid on the Table of Lok Sabha on 29.11.2005.

14th Report on Demands for Grants 17.05.2006 Presented to Rajya Sabha on 207 (2006-07) of the Ministry of 22.05.2006 and Laid on the Table of Personnel, Public Grievances and Lok Sabha on 22.05.2006. Pensions.

15th Report on Demands for Grants -do- -do- 207 (2006-07) of the Ministry of Law and Justice.

16th Report on the Representation of 02.08.2006 Presented to Rajya Sabha on 208 the People (Amendment) Bill, 04.08.2006 and Laid on the Table of 2006. Lok Sabha on 04.08.2006.

17th Report on the Administrative 09.11.2006 Presented to Rajya Sabha on 208 Tribunals (Amendment) Bill, 05.12.2006 and Laid on the Table of 2006. Lok Sabha on 05.12.2006.

18th Report on the Electoral Reforms 27.02.2007 Presented to Rajya Sabha on 208 (Disqualification of persons from 15.03.2007 and Laid on the Table of contesting elections on framing Lok Sabha on 15.03.2007. of charges against them for certain offences)

19th Report on Demands for Grants 08.05.2007 Presented to Rajya Sabha on 209 (2007-08) of the Ministry of 10.05.2007 and Laid on the Table of Personnel, Public Grievances and Lok Sabha on 14.05.2007. Pensions. 112

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20th Report on Demands for Grants 08.05.2007 Presented to Rajya Sabha on 209 (2007-08) of the Ministry of 10.05.2007 and Laid on the Table of Law and Justice. Lok Sabha on 14.05.2007.

21st Report on the Judges (Inquiry) 01.08.2007 Presented to Rajya Sabha on 210 Bill, 2006, Ministry of Law and 17.08.2007 and Laid on the Table of Justice (Department of Justice). Lok Sabha on 17.08.2007.

22nd Report on the Gram Nyayalayas 29.08.2007 Presented to Rajya Sabha on 210 Bill, 2007, Ministry of Law and 06.09.2007 and Laid on the Table of Justice, Legislative Department. Lok Sabha on 06.09.2007.

23rd Report on the Government’s 06.09.2007 Presented to Rajya Sabha on 210 Policy of Appointment on 07.09.2007 and Laid on the Table of Compassionate Ground Ministry Lok Sabha on 07.09.2007. of Personnel, Public Grievances and Pensions (Department of Personnel and Training)

24th Report on Working of Central 04.03.2008 Presented to Rajya Sabha on 213 Bureau of Investigation (CBI) 11.03.2008 and Laid on the Table of Ministry of Personnel, Public Lok Sabha on 11.03.2008. Grievances and Pensions (Department of Personnel and Training)

25th Report on Demands for Grants 24.04.2008 Presented to Rajya Sabha on 213 (2008-09) of the Ministry of 29.04.2008 and Laid on the Table of Personnel, Public Grievances and Lok Sabha on 29.04.2008. Pensions.

26th Report on Demands for Grants -do- -do- 213 (2008-09) of the Ministry of Law and Justice.

27th Report on Action Taken Replies -do- -do- 213 on Law’s Delays : Arrears in Courts (85th Report of Home Affairs)

28th Report on The Supreme Court 01.08.2008 Presented to the Hon’ble Chairman, 214 (Number of Judges) Amendment Rajya Sabha on 04.08.2008.Laid on Bill, 2008 the Tables of the Rajya Sabha and Lok Sabha on 22nd October, 2008

29th Report on Public Grievances 21.10.2008 Presented to Rajya Sabha on 214 Redressal Mechanism 23.10.2008 and Laid on the Table of Lok Sabha on 23.10.2008. 113

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30th Report on Constraints Being 21.10.2008 Presented to Rajya Sabha on 214 Faced by Kendriya Bhandar 23.10.2008 and Laid on the Table of Lok Sabha on 23.10.2008.

31st Action Taken Replies of the 16.12.2008 Presented to Rajya Sabha on 214 Government on the 19.12.2008 and Laid on the Table of Recommendations/Observations Lok Sabha on 19.12.2008. contained in the 25th Report on Demands for Grants (2008-09) of the Ministry of Personnel, Public Grievances and Pensions

32nd Action Taken Replies of the 16.12.2008 Presented to Rajya Sabha on 214 Government on the 19.12.2008 and Laid on the Table of Recommendations/Observations Lok Sabha on 19.12.2008. contained in the 26th Report on Demands for Grants (2008-09) of the Ministry of Law and Justice

33rd Report on the Representation of 16.02.2009 Presented to Rajya Sabha on 215 the People (Second Amendment) 18.02.2009 and Laid on the Table of Bill, 2008 Lok Sabha on 18.02.2009.

34th Report on the High Court and 16.02.2009 Presented to Rajya Sabha on 215 Supreme Court Judges (Salaries 18.02.2009 and Laid on the Table of and Conditions of Service) Lok Sabha on 18.02.2009. Amendment Bill, 2008.

35th Report on the “Action Taken 14.12.2009 Presented to Rajya Sabha on 218 Replies of the Government 17.12.2009 and Laid on the Table of on the Recommendations/ Lok Sabha on 17.12.2009. Observations contained in the 29th Report of the Committee on “Public Grievances Redressal Mechanism”

36th Report on “The Constitution 14.12.2009 Presented to Rajya Sabha on 218 (One Hundred and Eighth 17.12.2009 and Laid on the Table of Amendment) Bill, 2008”. Lok Sabha on 17.12.2009.

37th Action Taken Replies of the 03.03.2010 Presented to Rajya Sabha on 219 Government on the 9.03.2010 and Laid on the Table of Recommendations/Observations Lok Sabha on 9.03.2010. contained in the 24th Report on “Working of Central Bureau of Investigation (CBI)” 114

1235 4 38th Report on Demands for Grants 27.04.2010 Presented to Rajya Sabha on 219 (2010-11) of the Ministry of 29.04.2010 and Laid on the Table of Personnel, Public Grievances and Lok Sabha on 29.04.2010. Pensions.

39th Report on Demands for Grants -do- -do- 219 (2010-11) of the Ministry of Law and Justice.

40th Report on The Personal Laws 29.07.2010 Presented to Rajya Sabha on 220 (Amendment) Bill, 2010. 04.08.2010 and Laid on the Table of Lok Sabha on 04.08.2010.

41st Report on Action Taken Replies -do- -do- 220 of the Government on the Recommendations/Observations contained in the 23rd Report of the Committee on “Government’s Policy of Appointment on Compassionate Ground”.

42nd Report on Action Taken Replies of 16.11.2010 Presented to Rajya Sabha on 221 the Government on the 29.11.2010 and Laid on the Table of Recommendations/Observations Lok Sabha on 29.11.2010. contained in the 30th Report of the Committee on “Constraints Being Faced by Kendriya Bhandar”.

43rd Report on Action Taken Replies -do- -do- 221 of the Government on the Recommendations/Observations contained in the 38th Report on Demands for Grants (2010-11) of the Ministry of Personnel, Public Grievances and Pensions.

44th Report on The Constitution (One 07.12.2010 Presented to Rajya Sabha on 221 Hundred and Fourteenth 9.12.2010 and Laid on the Table of Amendment) Bill, 2010. Lok Sabha on 9.12.2010.

45th Report on The Marriage Laws 02.02.2011 Presented to Rajya Sabha on 222 (Amendment) Bill, 2010. 1.03.2011 and Laid on the Table of Lok Sabha on 1.03.2011.

46th Report on The Public Interest 11.05.2011 Presented to the Hon’ble Chairman, 223 Disclosure and Protection to Rajya Sabha on 09.06.2011.Laid on Persons Making the Disclosures the Tables of the Rajya Sabha on Bill, 2010 11.08.2011 and Lok Sabha on 10.08.11. 115

1235 4 47th Report on the Judicial Standards 25.08.2011 Presented to Rajya Sabha on 223 and Accountability Bill, 2010 30.08.2011 and Laid on the Table of Lok Sabha on 30.08.2011.

48th Report on the Lokpal Bill, 2011. 07.12.2011 Presented to Rajya Sabha on 224 9.12.2011 and Laid on the Table of Lok Sabha on 9.12.2011.

49th The Administrators-General 24.01.2012 Presented to the Hon’ble Chairman, 224 (Amendment) Bill, 2011 Rajya Sabha on 02.02.2012. Laid to Rajya Sabha and Lok Sabha on 20.03.2012.

50th The Prevention of Bribery of 26.03.2012 Presented to Rajya Sabha on 225 Foreign Public Officials and 29.03.2012 and Laid on the Table of Officials of Public International Lok Sabha on 29.03.2012. Organisations Bill, 2011

51st Report on Demands for Grants 15.05.2012 Presented to Rajya Sabha on 225 (2012-13) of the Ministry of 21.05.2012 and Laid on the Table of Personnel, Public Grievances and Lok Sabha on 21.05.2012. Pensions.

52nd Report on Demands for Grants -do- -do- 225 (2012-13) of the Ministry of Law and Justice.

53rd Report on The Right of Citizens 23.08.2012 Presented to Rajya Sabha on 226 for Time Bound Delivery of Goods 28.08.2012 and Laid on the Table of and Services and Redressal of their Lok Sabha on 28.08.2012. Grievances Bill, 2011

54th Report on The Administrative 11.12.2012 Presented to Rajya Sabha on 227 Tribunals (Amendment) Bill, 17.12.2012 and Laid on the Table of 2012. Lok Sabha on 17.12.2012.

55th Report on The Registration of 22.02.2013 Presented to Rajya Sabha on 228 Births and Deaths (Amendment) 27.02.2013 and Laid on the Table of Bill, 2012 Lok Sabha on 27.02.2013.

56th Action Taken Replies of the 13.03.2013 Presented to Rajya Sabha on 228 Government on the 21.03.2013 and Laid on the Table of Recommendations/Observations Lok Sabha on 20.03.2013. contained in the 51st Report on Demands for Grants (2012-13) of the Ministry of Personnel, Public Grievances and Pensions 116

1235 4 57th Action Taken Replies of the 13.03.2013 Presented to Rajya Sabha on 228 Government on the 21.03.2013 and Laid on the Table of Recommendations/Observations Lok Sabha on 20.03.2013. contained in the 52nd Report on Demands for Grants (2012-13) of the Ministry of Law and Justice

58th Report on Demands for Grants 23.04.2013 Presented to Rajya Sabha on 228 (2013-14) of the Ministry of 25.04.2013 and Laid on the Table of Law and Justice. Lok Sabha on 26.04.2013

59th The Readjustment of 29.04.2013 Presented to Rajya Sabha on 228 Representation of Scheduled 2.05.2013 and Laid on the Table of Castes and Scheduled Tribes in Lok Sabha on 2.05.2013 Parliamentary and Assembly Constituencies Bill, 2013

60th Report on the Demands for 02.04.2013 Presented to Rajya Sabha on 228 Grants (2013-14) of the Ministry 3.05.2013 and Laid on the Table of of Personnel, Public Grievances Lok Sabha on 3.05.2013 and Pensions.

61st Report on the “Electoral 19.08.2013 Presented to Rajya Sabha on 229 Reforms-Code of Conduct for 26.08.2013 and Laid on the Table of Political Parties and Anti Lok Sabha on 26.08.2013 Defection Law”

62nd Report on the “Status of Women 29.08.2013 Presented to Rajya Sabha on 229 Government Employees, Service 30.08.2013 and Laid on the Table of Conditions, Protection against Lok Sabha on 30.08.2013 exploitation, Incentives and other related Issues”

63rd Report on the Rajasthan 27.11.2013 Presented to Rajya Sabha on 230 Legislative Council Bill, 2013 09.12.2013 and Laid on the Table of Lok Sabha on 09.12.2013 Printed at : Bengal Offset Works, 335, Khajoor Road, Karol Bagh, New Delhi-110005.