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Appointment of judges: Govt mulling more powers to Executive

New Delhi: Amid rising demands for greater transparency in appointment of judges of the Supreme Court and High Courts, the government is working on a proposal to put in place a new system to give the Executive more say in such decisions.

Under the present Collegium system, the executive has no say in appointments as the recommendations of the Collegium are final and binding on the government.

India may be among the few countries in the world where judges appoint themselves. This practice started after 1993, replacing the system of government picking judges for higher judiciary.

Under the proposal, which in the draft stage, government plans a two-tier system with one servicing the Supreme Court and the other, the 21 High Courts of the country.

Sources in the government said under the Law Ministry proposal, a National Judicial Commission headed by the Chief Justice of India would be set up. It would also comprise an eminent jurist and the Law Minister for making appointments to the apex court.

For the High Courts a separate body will be set up for appointment of judges.
The move to set aside the 1993 Supreme Court judgement which led to the Collegium system will require a Constitutional amendment.

The last effort to replace the collegium system in 2003 could not succeed. The then NDA government introduced a Constitution Amendment Bill, but the Lok Sabha was dissolved when the bill was before a Standing Committee.

The day Salman Khurshid took over as Law Minister in July, he had said a lot of models have been suggested and several inputs provided.

“At a given time it was assumed that the best system of appointment was the collegium system. Now the vast experience of all these years and the emergences of new challenges, people are beginning to think of new generation institution to look after appointment of judges,” he had said.

Khurshid’s predecessor M Veerappa Moily had said the changes could be made either through judicial action or legislative method.

It seems the government is now veering towards the legislative method to change the system.

“The 1993 Supreme Court judgement and the 1998 Supreme Court judgement led to the present memorandum of procedure (which governs the appointment of judges of the Supreme Court and high courts). But the system does not fully reflect the two judgements in their letter and spirit,” Moily had said.

The draft of revised memorandum of procedure was referred to the then Chief Justice of India K G Balakrishnan for his opinion. Justice Balakrishnan had referred the matter to the present incumbent Justice S H Kapadia to take a call.

A vision statement of the Law Ministry issued in October, 2009 had said the present Collegium system of appointment of judges to the higher judiciary was hindering the efforts to end shortage of judges and suggested involvement of executive and legislature to hunt for the best talent.

“The increased number of members of Collegium has made the consultation process cumbersome and hence there is delay in the selection and elevation of judges,” the statement had said.

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