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.

  1. NAC will consist of 7 members(or a higher number as specified by Parliament by law) including the Chairman.
  2. 50% of members shall belong to SC or ST or OBC or Women or Minorities.
  3. All decisions will be taken based on majority votes, those who are present and voting with Chairman having the casting vote.
  4. No decision of NAC will be invalid due to vacancies in NAC or absence of members in the meetings.
  5. 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. (The parliament should pass a NAC Act where it should mandate that 3 members should be from judicial background, 2 from political background and 2 from executive background. Appointment of the members of the NAC shall be regulated by Parliament by law. 
  6. Every member shall serve for a term of 6 years and shall be eligible for reappointment. Provided that, notwithstanding expiry of his term, every member shall continue in office till his/her successor doesn’t enter office.
  7. Resolution to propose names for members of NAC and Chairman can originate in either house of the parliament. The President shall appoint the member and the Chairman after (s)he is vetted by Lok Sabha and Rajya Sabha each by a 2/3rd majority(and at least 50% members present and voting) and vetted by Governors of 50% of the states.
  8. The members will elect another person as Vice Chairman to Preside meetings in absence of the Chairman.
  9. Every member of NAC shall have salary and privileges as Parliament may by law decide and his/her privileges and salaries cannot be varied to his disadvantage during his tenure.
  10. A NAC member can be removed only in the manner a SC judge can be removed.
  11. NAC will recommend the names of persons for the office of SC Judges, Chief Justice of India, member Judges of Supreme Court Collegium, CAG, Central Election commissioners and Chief Election Commissioner, 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.
  12. In the case of Governor, (s)he will be appointed by President but on concurrence of NAC. This will ensure that Governors uphold constitutional values and also abide by the principles of the Central Govt. 
  13. Neither any decision of NAC, nor the material behind any decision can be challenged in any court of law including the Supreme Court.
  14. All civil and judicial authorities shall provide all required assistance when requested by NAC or President or union legislature necessary for filling up any post.
  15. After a recommendation of appointment is made by the NAC, the appointing authority i.e. the president 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 3 months or else it will be deemed to have been accepted.
  16. President by rules upon concurrence with NAC shall determine the procedure of appointment to be done by NAC. 

Propose the below changes for SC and HC in the constitution:

  1. CJI, Member Judges of SC Collegium and other Judges shall be appointed by President on recommendation of the NAC. There should be no organic growth in Judiciary on basis of seniority. Such a mechanism makes people relaxed.
  2. Define SC collegium comprising of CJI + 4 other SC judges as appointed on recommendation of NAC in the constitution.
  3. Define HC collegium comprising of CJ + HC judges(number – as decided by President after consultation with SC Collegium) appointed by President on recommendation of SC collegium.
  4. Define a higher salary for member judges of SC/HC collegium than normal judges but less than the Chief Justice. This will keep judges motivated who will work harder for making it to the Collegium.
  5. All decisions in SC/HC collegium shall be taken by majority votes of people present and voting. This will make the appointment, transfer and promotion a democratic process.
  6. SC Collegium shall recommend the names of judges (for appointment, transfer and posting) of HC, CJ of HC and member judges of HC Collegium. Any recommendation for the appointment, posting or transfer of HC judges shall be complied within 90 days, provided that the president may ask the SC Collegium for reconsideration (stating the reasons), the SC Collegium shall reconsider a second time after which the SC Collegium decision will be final and binding. If the recommendation is not accepted within 90 days it shall be deemed to be accepted.
  7. Same will apply for HC. HC Collegium will recommend names of judges for appointment, transfer and posting lower judiciary. Any recommendation for the appointment, posting or transfer of District judges/magistrates shall be complied within 90 days, provided that the Governor may ask the HC Collegium for reconsideration (stating the reasons), the SC Collegium shall reconsider a second time after which the HC Collegium decision will be final and binding. If the recommendation is not accepted within 90 days it shall be deemed to be accepted.
  8. All civil and judicial authorities shall provide all required assistance when requested by SC/HC Collegium for taking any decision on transfer, appointment or posting.
  9. President by rules upon concurrence with SC collegium shall determine the procedure of appointment, transfer and posting to be done by SC collegium.
  10. Governor by rules upon concurrence with HC collegium shall determine the procedure of appointment, transfer and posting to be done by HC collegium.

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).

Eventually bring the appointment of tribunal members under the Ambit of SC or HC collegium. For e.g. NCLT judicial members shall be appointed by HC collegium, and appeal from NCLT should lie to HC. This will make Executive and Judiciary separate completely which is visualized in our DPSP. Ideally all the appeals on the judgements passed by tribunal should go to the HC or court lower to it.

What will happen if such a system is in place:

  1. Appointment of key constitutional posts will become completely independent.
  2. There can be no more political appointments. If there are, there will be a broader consensus.
  3. NAC will be an autonomous body who cannot be pressurized and the NAC members will represent the will of people.
  4. Since NAC in a way will control SC, SC will control HC and HC will control lower judiciary, the Judiciary will become accountable to will of people. And since NAC members will be elected with 2/3rd majority of parliament, they will stand above party ideologies.
  5. Giving power to NAC to appoint CJI and SC Collegium members will result to judges work harder and create a competitive environment. Same is the case for HC.
  6. SC wont strike this down just as NJAC.
  7. 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.
  8. Currently, the President appoints the election commissioners. It is quite possible that some evil minded PM may put his/her own person as EC who will allow the elections to be rigged and after forming govt. can subvert the laws/constitution etc. This is a flaw/hole in our constitution. It has never been exploited by any PM, but it is important that the hole is plugged.
  9. Will separate the roles of executive and judiciary. Executive cannot meddle in affairs of judiciary.
  10. Governors will go above party ideologies and remain neutral and uphold constitutional values.

If we have such a system, I strongly feel judiciary and to great extent the executive will be cleaned up.

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