The Parliamentary standing committee on the Judicial Appointments Bill 2013 asked for constitutional status to the JAC, speedy creation of the All India Judicial Services, a change in the composition of JAC as suggested currently in the bill, and tightening the noose around higher judiciary vacancies among other things.

The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice came out with its 64th report on Tuesday. 30 pages of the report focus on the history behind, the objectives, the composition and the functions of the Judicial Appointments Commission Bill 2013.

According to the historical context provided in the report, the framers of the constitution had intended the process of appointment and transfer of higher judiciary judges to be a joint venture between the executive and the judiciary, with the executive consulting the judiciary. But the Supreme Court, through its Article 141 power of interpretation of the constitution, slowly usurped the prerogative in favor of the judiciary post 1993.

By replacing the Supreme Court collegium, the Judicial Appointments Commission (JAC) seeks to bring back “the original balance of power” between the executive and the judiciary in the appointment and transfer process.

The JAC proposed in the bill has a mix of executive and judicial members. The judiciary would assess legal acumen of the proposed judges while the executive will assess the antecedents and character.

After considering the Ministry of Law & Justice’s background note on the bill, the SC judgments in the first judges, second judges and third judges case, 32 memoranda considering organizational, individual and expert suggestions on the bill’s issues, views of stakeholders such as legal luminaries and bar councils and associations and other documents related to the bill, the committee gave 14 recommendations.

Legally India’s gist of the 14 dense recommendations is as follows:

1. The government has been the bigger person by not going for its pre-1993 upper-hand in deciding higher judiciary appointments and transfers, but trying to bring a balance of power in the process between itself and the judiciary.

2. Make it difficult for the government to alter the JAC, by giving it a constitutional status through protection under Article 368.

3. 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.

4. Please don’t over-burden the JAC with the job of appointing 800-odd judges for India’s 24 high courts. Provide some short-listing mechanism. It is the job of the legislature to state such mechanism within the bill itself, instead of leaving it to the JAC. The creation of a State Level Commission to assist the JAC is an option. State Commission may consist of state chief minister, leader of state opposition and chief justice of the state’s high court.

5. The clause of the Bill providing for separate opinions from the Governor, the chief minister and the chief justice of the concerned high court is not only unnecessarily time consuming but wrongly limits the scope of consultation.

6. The JAC should immediately make regulations for transfer of judges, which should be over and above the memoranda currently governing the procedure for such transfer. And the judge responsible in any high court for administration (i.e., for such transfers) should be from outside the state in which that high court is.

7. Reducing vacancies is also a major objective for creation of the JAC. Part of the suggestions considered in the report was that future vacancies should be officially detected six months in advance, and be filled within a week of arising. The committee finally recommended that the JAC should initiate process of appointment of judges “well in advance” and the vacancies should be filled up “in a time-bound manner”.

8. The judges’ selection process should be such as will provide an opportunity to members of the bar to express a desire to become judges of the high court. Presently no such mechanism exists.

9. 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. Take all three into consideration at the earliest.

10. Create the All India Judicial Service immediately to attract the best talent to the lower judiciary from where 33 per cent of the higher judiciary is created.

11. Accordingly make suitable modifications in the proposed bill.