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Govt voices stand on judges’ posts

Ravi Shankar Prasad

New Delhi, July 28: The Centre today said it did not want to restore the executive’s primacy in the appointment of Supreme Court and high court judges but, all the same, wanted to replace the present collegium system, sources told The Telegraph.

Law minister Ravi Shankar Prasad articulated this view at a three-hour brainstorming session this evening at Vigyan Bhavan that was kept out of bounds for the media.

Prasad chaired the meeting and held wide-ranging discussions with legal luminaries. Finance minister Arun Jaitley attended the meeting briefly.

The sources said the “unanimous” view was that the collegium system ought to be replaced by something “more transparent”, whose contours are yet to be worked out.

Among those at the meeting were four former Chief Justices of India: Justices A.M. Ahmadi, A.S. Anand, V.N. Khare and R.C. Lahoti.

Also present were Law Commission chairperson A.P. Shah; former attorneys-general K. Parasaran, Soli Sorabjee and Ashok Desai; eminent lawyers Fali Nariman, Shanti Bhushan, Anil Divan and K.K. Venugopal; attorney-general Mukul Rohatgi and solicitor-general Ranjit Kumar.

Under the current system, only the Chief Justice of India and four other senior judges decide the appointment of apex court judges, while the Chief Justice of India and two others decide judges’ appointment to the high courts.

One of the most significant statements at the meeting came from Prasad, who said the government did not want to restore the pre-1993 situation, when the executive called the shots in the judges’ appointment process.

He made it clear that all the government wanted was to bring in more transparency.

Almost all the legal experts who spoke at the meeting said the judiciary should have the final say in appointing senior judges, echoing a 1993 ruling by a Supreme Court constitution bench that ended the executive’s primacy in the matter.

The government has proposed a Judicial Appointments Commission to replace the present collegium system. The bill for the commission was introduced in the Rajya Sabha on August 29 last year but the House’s Chairperson wanted to elicit the views of various stakeholders such as legal luminaries, bars and NGOs.

What the new government has done is put the Chairperson’s suggestion in motion.

Under the bill in its current form, the commission would have the Chief Justice of India as its chairperson. It would include the two senior-most judges of the Supreme Court, the Union law and justice minister, and two eminent people nominated by a committee made up of the Prime Minister, Chief Justice of India and the leader of the Opposition in the Lok Sabha.

Sources said the experts suggested the proposed commission be put under the purview of Article 368 of the Constitution, which grants certain enactments by Parliament immunity from judicial scrutiny.

In 1993, a nine-judge Constitution bench had ruled that the Constitution had given primacy in the appointment of judges to the judiciary itself to insulate it from executive or legislative control and ensure its independence.

The bench had passed the ruling on a petition from the Advocates on Record Association relating to certain disputes on the transfers and appointments of judges.

The Advocates on Record are a class of lawyers who alone have the right to file any petition in the apex court.