 bill no 309 of  2016 the constitution (amendment) bill, 2016 by shri bhartruhari mahtab, mp a billfurther to amend the constitution of indiabe  it enacted by parliament in the sixty-seventh year of the republic of india as follows:—amendment of article 1242 in article 124 of the constitution,(a) in clause (2),—5(i) for the words "on the recommendation of the national judicial appointments commission referred to in article 124a", the words "after consultation with the chief justice of india and four senior most judges of the supreme court" shall be substituted; and(ii) after the proviso, the following explanation shall be added at the end, namely:—10"explanation—in this clause, 'consultation' means taking opinion or views in a merely advisory manner without any compulsion to act in accordance with the advice tendered during the course of such consultation";(b) the existing clause (2a) shall be renumbered as clause (2b) and before clause (2b) as so renumbered, the following clause shall be inserted, namely:—15"(2a) the appointment of the chief justice of india shall be made on the basis of seniority"3 article 124a, 124b and 124c shall be omittedomission of articles 124a, 124b and 124c4 in article 217 of the constitution, in clause (1),—amendment of article 21720(a) for the words "every judge of a high court shall be appointed by the president by warrant under his hand and seal on the recommendation of the national judicial appointments commission referred to in article 124a", the words "every judge of a high court, including the chief justice, shall be appointed by the president by warrant under his hand and seal after consultation with the chief justice of india, two senior most judges of the supreme court, the governor of the state, and, in the case of appointment of a judge other than the chief justice, the chief justice of the high court" shall be substituted; and25(b) after the proviso, the following explanation shall be added at the end, namely:—"explanation—in this clause, 'consultation' means taking opinion or views in a merely advisory manner without any compulsion to act in accordance with the advice tendered during the course of such consultation"30 statement  of  objects  and  reasonsthe indian constitution aims to establish an independent judiciary; for the judiciary entrusted with the power of judicial review cannot perform its functions without any fear or favour unless it is kept outside realm of control of the executive and the legislature towards this end, the constitution, as originally enacted, provided that the appointment of judges to the supreme court and the high courts shall be made by the president through a consultative process in which, inter alia, the chief justice of india and, in case of appointment of a judge to a high court, the chief justice of that high court shall be consulted what the constitution envisaged, therefore, was essentially a participatory consultative process for selecting the best and most suitable persons for appointment to the higher judiciary it was so held by the supreme court in sp gupta vs union of india (1982)however, the constitutional provisions regarding appointment to the higher judiciary were almost rewritten by the supreme court in supreme court advocates-on-record vsunion of india (1993), where the court held that in case of any conflict, the opinion of the chief justice of india, formed after consulting two senior most judges of the supreme court,  shall have primacy over the others and no appointment can be made unless it is in conformity with the opinion of the chief justice of india as 'consultation' under articles 124 and 217 means 'concurrence'the scope of consultation with the chief justice of india was further widened by the supreme court in its opinion in presidential reference under article 143 in 1998 the court held that the chief justice was required to consult, in case of appointment to the supreme court, a collegium of four senior most judges of the supreme court, and in case of appointment to the high courts, two senior most judges of the supreme court and among others, the chief justice of the concerned high court and other judges of the supreme court and the high courtthe balance between the authority of the executive and the judiciary was sought to be restored by the constitution (ninety-ninth amendment) act, 2014, which ushered in the mechanism of national judicial appointments commission to make appointments to the higher judiciary the amendment was, however, struck down by the supreme court in supreme court advocates-on-record vs union of india (2015) thus, the collegium system has been restored, though the court held that "the present collegium system lacks transparency, accountability and objectivity"amid a situation where the balance of power has been tilted in favour of the judiciary vis-a-vis judicial appointments, it would be wise to recollect what dr br ambedkar had said during debates in the constituent assembly on 24th may, 1949:—"it would be dangerous to leave the appointments to be made by the president, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day and i think, to allow the chief justice practically a veto upon the appointment of judges is really to transfer the authority to the chief justice which we are not prepared to vest in the president or the government of the day i, therefore, think that is also a dangerous proposition " it would, therefore, be prudent to accept a middle path where both the institutions, namely the executive and judiciary, are able to remove the imperfections in the decision making of the other in the matters of appointment to higher judiciarywith the above objectives in view, the bill seeks to amend the constitution with a view to provide that while the president has to consult the chief justice of india and other judges of the supreme court and the chief justice of the high court in case of appointment of  the judge of the supreme court or the high court, as the case may be, the president shall not be under compulsion to act according to the advice tendered after such consultationhence this billnew delhi;bhartruhari  mahtabnovember 4, 2016 annexure extract from the constitution of india      124 (1) there shall be a supreme court of india consisting of a chief justice of india and, until parliament by law prescribes a larger number, of no more than seven other judgesestablishment and constitution of supreme court(2) every judge of the supreme court shall be appointed by the president by warrant under his hand and seal on the recommendation of the national judicial appointments commission referred to in article 124a and shall hold office until he attains the age of sixtyfive years:provided that—(a) a judge may, by writing under his hand addressed to the president, resign his office; (b) a judge may be removed from his office in the manner provided in clause (4)(2a) the age of a judge of the supreme court shall be determined by such authority and in such manner as parliament may be law provide     124a (1) there shall be a commission to be known at the national judicial appointments commission consisting of the following, namely:—national judicial appointments commission(a)  the chief justice of india, chairperson, ex-officio; (b) two other senior judges of the supreme court next to the chief justice of india—members, ex-officio;(c) the union minister in charge of law and justice - member, ex officio; (d)  two eminent persons to be nominated by the committee consisting of the prime minister, the chief justice of india and the leader of opposition in the house of the people or where there is no such leader of  opposition, then, the leader of single largest opposition party in the house of the people—members:provided that one of the eminent person shall be nominated from amongst the persons belonging to the scheduled caste, the scheduled tribes, other backward classes, minorities or women: provided further that an eminent persons shall be nominated for a period of three years and shall not be eligible for renomination (2) no act or proceedings of the national judicial appointments commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the commission124b it shall be the duty of the national judicial appointments commission to—functions of commission(a) recommend persons for appointment as chief justice of india, judges of the supreme court, chief justices of  high courts and other judges of high courts;(b) recommend transfer of chief justice and other judges of high courts from one high court to any other high court; and(c) ensure that the person recommended is of ability and integritypower of parliament to make law124c parliament may, by law, regulate the procedure for the appointment of chief justice of india and other judges of the supreme court and chief justices and other judges of high courts and empower the commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered by it      appointment and conditions of the office of a judge of a high court217 (1) every judge of a high court shall be appointed by the president by warrant under his hand and seal on the recommendation of the national judicial appointments commission referred to in article 124a, and shall hold office, in the case of an additional or acting judge, as provided in article 224, and in any other case, until he attains the age of sixty two years:provided that - (a) a judge may, by writing under his hand addressed to the president, resign his office;(b) a judge may be removed from his office by the president in the manner provided in clause (4) of article 124 for the removal of a judge of the supreme court;(c) the office of a judge shall be vacated by his being appointed by the president to be a judge of the supreme court or by his being transferred by the president to any other high court within the territory of india     ———— a billfurther to amend the constitution of india————(shri bhartruhari mahtab, mp)gmgipmrnd—3276ls(s3)—30-11-2016