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The Times of India

Title : LEGALLY SPEAKING - JAC gives primacy to judiciary, but final veto with government
Author : Dhananjay Mahapatra
Location :
Article Date : 08/11/2014

The NDA government has proposed a new mechanism for appointment of judges to the Supreme Court
and high courts.
The process had been a seesaw between the executive and the judiciary .
The executive's primacy in appointing judges to higher judiciary was taken away by the SC through two
judgments nearly two decades back. Voices for junking the judges-appointing-judges system has grown
shriller over the years.
Justice J S Verma, who had authored the 1993 judgment which became the basis for the SC's 1998
judgment taking away the executive's primacy , had also joined those questioning the manner in which
the system for appointment of judges operated.
Law minister Ravi Shankar Prasad's new proposal provides for a six-member Judicial Appointments
Commission (JAC) comprising the Chief Justice of India, two senior-most judges of the SC, the law
minister and two eminent jurists. The eminent jurists would be chosen by a high-level committee
comprising the PM, the CJI and the leader of opposition.
In contrast to the existing system, the JAC attempts to strike a balance between the roles of judiciary and
executive in scrutinizing credentials of a person placed in the zone of consideration for appointment as a
It provides that to be recommended for appointment as a judge, a candidate must get at least five votes
in the JAC. If two of the six members do not agree to a name, then the candidate will not be rec
ommended to the President.
This means, in recommending names for appointment as judges, the judiciary will still retain a major
say. No person can be made a judge of the SC or HCs without the concurrence of the judiciary , which
has three members in the JAC in the CJI and two senior-most judges.
The executive is repre sented in JAC through the law minister. The govern ment cannot be assured of
the support of eminent jul rists in JAC as they are to be selected by a body in which the PM's choice
could get re jected if the CJI and the leader of opposition disagree.
, So, would the judiciary still be able to walk away with the cake in the appointment of judges under the
new process? Not really . Here comes the catch -the veto power re mains with the government.
The provisions of the pro posed bill say that if the Presi dent returns a name to the JAC for
reconsideration, then the reiteration of the name for ap pointment as judge would have to be by
unanimity , which means by a 6-0 vote in the JAC.
Let us take an example.
The law minister casts a nega tive vote while the CJI, two SC judges and the eminent jurists approve a
name and recom mend it to the President for herhis appointment as judge The government, which has
serious objection to the name, would advise the Presi dent to return the name for reconsideration by the
JAC In this scenario, the law min ister's single negative vote, or the veto, would shelve the ap pointment.
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Thus, under JAC the judiciary enjoys primacy in getting a name recom mended for appointment as a
judge but without the govern ment's concurrence, no ap pointment can come through Another significant
aspect of the JAC is the provision for wider consultation for appointment of HC judges. The HC chief
justice would still retain the privilege of initiating the process for filling vacancies in the HC by scouting
for names. But before sending it to the JAC, he must have a far wider consultation than is being done at
Each HC, depending on its working strength, will have a unique collegium. The law minister argues that
the width of collegium for Allahabad HC, which has nearly 100 judges, cannot be the same as that for
Sikkim HC, which has three judges.
Larger the number of judges in a HC, proportion ately big would be the strength of the collegium.
The consultation process will also be broad-based to man date taking views of senior advocates and
advocate asso ciations, he says and insists that it will lend transparency to the selection process.
Under the present system, the HC collegium merely in. timates the governor and the chief minister while
sending a name for appointment as HC judge to the CJI-headed collegium, which in turn rec. ommends
it to the President after verifying the person's credentials and suitability to be appointed as a judge.
, Given the unquestionable primacy enjoyed by the judiciary , the governor or the chief minister seldom
send a dissent note on a name to the collegium headed by the CJI.
. But the proposed system warrants the JAC to seek the views of the governor and the CM in writing
before recom mending the name for appointt ment as a judge of the HC.
The proposed system appears to follow what H M Seer vai had told the Supreme Court decades ago on
conflict of powers between executive and judiciary in K M Nanava ti case [1961 SCR (1) 497].
t He had said, There is no clash between the two powers.
The powers of the executive do not collide with the powers of the judiciary . The prerogative of the king
or the president can never be in conflict with the judiciary , executive or the legislature. Prerogatives
come to aid the process of justice.
We hope the proposed sys, tem brings in that envisaged transparency and merit in the selection of judges
to the higher judiciary.

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