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Report No. 80

Appendix 2

Questionnaire Issued by The Law Commission of India

Note

The Law Commission has been asked to study the question of the appointment of Judges of the High Court and the Supreme Court in depth and to explore the possibilities of improvement in the existing method of appointment. Reference has also been made to a suggestion that there should be an Informal Consultative Panel consisting, perhaps, of three retired Chief Justices of the Supreme Court. View in this respect has been expressed containing various suggestions as under:-

"(1) As the provisions of the Constitution stand at present, the appointment of an informal Consultative Panel in connection with the appointment of Judges of the High Court and the Supreme Court, is of doubtful constitutional validity.

(2) In case it is decided to amend the provisions of the Constitution, we must guard against putting the whole matter of the appointment of the Judges at large and thus open Pandora's Box. The attempt should be made to plug the loopholes in the present system with a view to eliminate favouritism or the impact of any political or party consideration in the matter of appointment rather than to make any radical changes. Radical changes would be necessary if we find the method devised by our Constitution for the appointment of Judges to be basically wrong and intrinsically defective.

In case, however, we find that the scheme of our Constitution for the appointment of Judges is, by and large, sound, but some defects or lacunas have come to surface in the actual working of the scheme, in that event, what would be required is not radical change but such modifications as may strong then the scheme and eliminate the defects and lacunae. The scheme for appointment of Judges in our Constitution, prima facie, belongs to the latter category. By and large, the method devised for this purpose by our founding fathers was well considered. Defects, no doubt, have been noticed in the working of the scheme but they are of such a character as can be rectified without throwing overboard the whole scheme. Efforts should, therefore, be made to rectify the defects and plug the loopholes.

(3) After we have crossed the constitutional hurdles, the appointment of the Informal Consultative Panel (perhaps, it would be better to call it "Judges Appointment Commission"), (hereinafter referred to as the "Commission") is desirable.

(4) The Members of the Commission should consist of:-

(a) Chief Justice of India (ex-officio);

(b) Minister of Law, Justice and Company Affairs (ex-officio); and

(c) three persons, each of whom has been the Chief Justice or a Judge of the Supreme Court.

The members of the Commission in category (c) should be appointed for a period of four years to prevent appointment of persons who have, with the passage of time, lost touch with the Judges and the lawyers. The persons belonging to category (c) should be normally these who have been on the Bench of the Supreme Court within six years of their appointment to the Commission under category (c) should consist only of retired Supreme Court Chief Justice is not feasible because this would circumscribe the choice within a very narrow limit which would, perhaps, be not desirable.

The sitting Chief Justice should be the Chairman of the Commission. The Commission should express its views to the Government about the suitability of persons to be appointed as Judges and Chief Justices of the High Court and the Supreme Court. In case of any difference between the members of the Commission the view of the majority should be considered to be the view of the Commission. The consultation with the Commission would be in addition to the present practice in accordance with the existing constitutional provisions. The consultation with the Commission would take place at the final stage before the President is advised to appoint a person.

One effect of the above proposal would be that the Chief Justice of India would come into the picture at two stages one, earlier in accordance with the constitutional provisions and the practice prevailing at present and, second time, as Chairman of the Commission. This cannot, in the very nature of things, be helped. The Chief Justice in the meeting of the Commission can apprise the other members of facts which might have come to his notice. He might also clarify some matters. It would be open to the Commission, in case they consider it proper in any particular matter, to informally consult any of the members of the bar, including the Attorney-General, Solicitor-General and the Advocate-General.



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