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The government is said to have decided to give constitutional status to the Chief Justice of India as the head of the proposed Judicial Appointments Commission (JAC) which will appoint judges to the higher judiciary.
The move comes in the light of continued criticism that the legislation that proposes to replace the collegium system of appointing judges to the higher judiciary does not safeguard the position of the CJI in the new system.
Law Minister Kapil Sibal is learnt to have told senior officials in his ministry that to end the confusion over the status of the CJI in the JAC, he might add a clause to this effect when the Constitution (120th Amendment) Bill, 2013, which was passed by Rajya Sabha on September 5, comes to the Lok Sabha in the winter session of Parliament.
Under the current format, while the constitutional amendment does away with the collegium system, bringing in the JAC, the structure and composition of the JAC is provided for in the Judicial Appointments Commission Bill, 2013. However, this provision can later be amended through a simple majority in both houses.
The JAC will be a six-member body with the CJI as its chairperson. The other members will be the two most senior Supreme Court judges after the CJI, the union law minister and two eminent persons nominated by a collegium consisting of the Prime Minister, the CJI and leader of opposition in the Lok Sabha.
Several jurists and legal experts, including NHRC chairperson and former CJI K G Balakrishnan and former CJI M N Venkatachaliah, have opposed the Bill in its present form, underscoring the vulnerable position of the CJI as the chairperson of the JAC.
Fears have been expressed that a future government with absolute majority in both House may well change, through legislation, the constitution of the JAC and thereby exclude the judiciary from the process of appointment, Sibal said when reached for comment. I believe that this fear is unfounded because neither the independent media nor the courts will allow this to happen. Exclusion of the judiciary will also not stand the test of judicial scrutiny.
However, to allay all fears and to set at rest any speculation, I will be very happy to ensure that the