We have always heard how the appointment to key posts like Governor, SC judges, Election Commissioner have resulted to controversy and there are concerns about their opaqueness.
For e.g., the SC judges are appointed by the SC Collegium. Collegium essentially means the Chief Justice and 4 senior judges and are alleged to act in a Opaque manner. The appointment of state governors is done with political bias and hence many Governors are not respected.
I this article I would suggest to have an independent body which I will call “National appointment council(NAC)” to do all such appointments.
This is how I will propose to be added in the constitution for defining the role, power, privileges and immunities of NAC.
- NAC will consist of 5 members(or a higher number as specified by Parliament by law) with the senior most member(in terms of age) being the Chairman. All decisions will be taken based on majority votes, those who are present and voting. Seniority will be defined by age.
- No decision of NAC will be invalid due to vacancies in NAC or absence of members in the meetings.
- Every member of NAC should be eligible to be a Governor and should not be a MLA/MP or hold any office of profit. The Parliament, by law may specify additional qualifications for the members for NAC.
- Every member shall serve for a term of 6 years and shall be eligible for reappointment.
- The president (without acting on advise on Council of ministers as specified in Article 74[so that central government will not have a role in recommending names]) will recommend names of such persons to the parliament. The President shall appoint the member after (s)he is vetted by Lok Sabha and Rajya Sabha each by a 2/3rd majority(and al least 50% members present) and a resolution by at least 50% of state legislatures approving the appointment.
- There shall be 3 more members(appointed in the same manner as regular members) as back-up to care of vacancies in NAC due to death, resignation or removal. The backup members will automatically move to NAC, based on seniority in case any vacancy arises in the NAC or the term of members is over.
- Every member of NAC(not the standby members) will have same salary and privileges as an Union cabinet minister and his/her privileges and salaries cannot be varied to his disadvantage during his tenure.
- A member can be removed only in the manner a SC judge can be removed.
- NAC will recommend the names of persons for the office of Governor, SC Judges, CAG, Central Election commissioners, Members/Chairman of UPSC, Chairman/Vice Chairman and members of National commission for Scheduled castes and National commissions for STs and National Commission for OBCs.
- The decisions of NAC cannot be challenged in any court.
- All civil and judicial authorities shall provide all required assistance when requested by NAC necessary for filling up any post.
- After a recommendation of appointment is made by the NAC, the appointing authority i.e. the president or Governor or any one else, may request the NAC to reconsider the nomination, after which the NAC shall reconsider and the second recommendation shall be accepted. Any recommendation of appointment made by NAC shall be accepted within a period of not more than 6 months.
- Parliament by law will determine the procedure of appointment and additional qualifications of members of NAC. (What it means is: for e.g. there is a vacancy of Governor/SC judge: What should be the procedure of making the request to NAC, what criteria will NAC use to decide and how will NAC recommend the name of the selected person, whether to maintain a secretariat etc. )
Propose the below changes for SC and HC in the constitution:
- Define SC/HC collegium comprising of CJ and 4 senior most judges.
- All decisions in SC/HC collegium shall be taken by majority votes of people present and voting.
- Define “seniority” of SC judges in constitution. Seniority shall be defined by SC collegium in consultation with President. Performance of the judges will have a play a role in determining seniority.
- In a similar manner, define the seniority of HC judges.
- Explicitly state in constitution that senior most judge of SC and HC shall be the chief justice, so that PMs like Indira Gandhi cannot appoint CJI like A.N.Ray and we wont see cases like habeas corpus.
- SC Collegium shall recommend the names of judges of HC. Any recommendation for the appointment or transfer of HC judges shall be complied within 90 days, provided that the president may ask the SC Collegium for reconsidering, the SC Collegium shall reconsider a second time after which the SC Collegium decision will be final.
- Same will apply for HC. HC Collegium will recommend names of judges for lower judiciary. Any recommendation for the appointment or transfer of District judges shall be complied within 90 days, provided that the Governor may ask the HC Collegium for reconsidering, the HC Collegium shall reconsider a second time after which the HC Collegium decision will be final.
This requires an amendment of Constitution. The article defining the NAC should also require approval from 50% of state legislatures for any amendment along with 2/3rd majority of Lok Sabha and Rajya Sabha. Suitable changes need to be made in article 368 (which speaks about amendment of constitution).
What will happen if such a system is in place:
- Appointment of key constitutional posts will become completely independent.
- There can be no more political appointments. If there are, there will be a broader consensus.
- NAC will be an autonomous body who cannot be pressurized and the NAC members will represent the will of people.
- As said in #4, Since President will act of his own in recommending the NAC member (w/o government recommendation) and vetted by parliament, state legislatures, this will ensure that the capable people will get in to NAC.
- NAC will appoint SC judges, SC judges will appoint HC judges, and HC judges will appoint District judges. This will make the judiciary independent but subversive to the will of the will of the people. SC wont strike this down just as NJAC.
- Keeping a strict timeline for President/Governor for vetting the recommendation will ensure that judicial vacancies filled up, and the govts. don’t sit on the recommendations for long.
- Will separate the roles of executive and judiciary. Executive cannot meddle in affairs of judiciary.
If we have such a system, I strongly feel judiciary and to some extent the executive will be cleaned up.
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