APPOINTMENT OF CONSTITUTIONAL JUDGES IN A COMPARATIVE

PERSPECTIV

“ Justice can become ‘fearless and free only if institutional immunity

and autonomy are guaranteed .”

Introduction

In the modern constitutional State, the principle of an independent Judiciary has

its origin in the theory of separation of powers, where by the Executive,
Legislature and Judiciary form three separate branches of government, which,
in particular, constitute a system of mutual checks and balances aimed at
preventing abuses of power to the detriment of a free society. This independence
means that both the Judiciary as an institution and also the individual judges
deciding particular cases must be able to exercise their professional
responsibilities without being influenced by the Executive, Legislature or any
other inappropriate sources. Only an independent Judiciary is able to render
justice impartially on the basis of law, thereby also protecting the human rights
and fundamental freedoms of the individual. For this essential task to be
fulfilled efficiently, the public must have full confidence in the ability of the
Judiciary to carry out its functions in this independent and impartial manner.
Whenever this confidence begins to be eroded, neither the Judiciary as an
institution nor individual judges will be able fully to perform this important
task, or at least will not easily be seen to do so.

The procedure followed for the appointment of constitutional judges is an

essential element of a constitutional justice model and affects significantly the
court’s self-perception. When creating a new constitutional court it is a
fundamental question who and how can become a member of it. Indeed, this
fundamental question is composed of two elements: first, who can become a
judge, i.e. the requirements to be fulfilled
Second, the procedure to be followed to appoint judge. This paper is going to
focus on the second element. When a country decides to set up a constitutional
court, the first step is to determine what role the court is supposed to play in the
legal system.

The Constitution of India is the supreme law of the land. Justice is the very first
objective placed in the preamble of the Constitution. Preamble declares that the
sovereign Socialist Secular Democratic Republic of India has to secure to all
citizens justice. As the essence of a federal Constitution, is distribution of
powers between the central and state governments. Therefore, one of the
essential features of the democratic republic established by the Indian
Constitution is distribution of powers between the three important wings of the
State. 3 2 A Hence, the Constitution lays down the structure and defines, delimits
and demarcates the role and functions of every organ of the State including the
judiciary

One of the most important obligations of the state is administration of justice

through its one organ that is judiciary. In ancient and medieval time justice was
administered in consonance with Dharma truth and natural law. But at present
time the justice is administered according to law alone. This article introduces the
Supreme Court's appointment process. In particular, it discusses which political actors have the
power to appoint the Court's justices, the process by which selections are made, as well as
current debates on whether the process should be reformed.

Judicial System in other Countries

For the proper appreciation of the judicial system in Indian Constitution,

it is necessary to examine the provisions made in other written Constitutions of
32A
Ibid.
the world. A Constitutional problem can be solved with the help of comparative
study.

There is a wide variety of Constitutional models in the countries of the

world. It may be that a particular model may not be suitable for a country like
India. Any new model must be such as to be suitable to the needs and demands
of consumers of justice of a developing country like India where the sizeable
segment of consumers of justice comes from illiterate or semi-literate class of
the society. It must, however, be remembered that every country may have
devised its own model either a new or by historical development to suit its
requirements. Therefore, when making the choice, other factors will have to be
kept in view, such as level of development of the society, percentage of literacy
in the society.
The method of appointment of judges plays a very vital role in the independence
of judiciary. To whom the task of selecting and appointing judges is to be given
in one of the Fundamental Questions. Different legal systems of the world have
dealt with this question in distinct ways. There are two known methods
employed. The world over in the selection of judges namely, nomination and
election. Some countries have adopted both methods such as in United States of
America. 6 9 G There both the systems are operating at different levels. On the
other hand in United Kingdom nomination is the only known method of selecting
judges. 6 9 H In Russia and some Eastern block countries who have adopted a
Soviet model, the elective principle is applied for selection of judges at all
levels, 6 9 I where principle of nomination is adopted power is distributed like that
of India, in different bodies to nominate judges

Judicial System in United States of America

69G
See, Kumar Prem and Bhatia Raj, Independence of Judiciary and the Appointment of
Judges, Indian Judicial System Need and Directions of Reforms edited by Verma S.P., (2004) at
p.113.
69H
Ibid.
69I
Ibid.
 Like the Indian Constitution, the American Constitution is written and is
federal in Character. 1 The Constitution of America is Supreme law of the land 2
and the federal judiciary derives its powers and authority direct from the
Constitution. The Court is the creation of the Constitution of America. 3 The
Supreme Court stands at the apex of the American judicial pyramid. As in the
United States a dual judicial system operates. The State Courts are established
by the State government under their own Constitutions and legislative acts in
every country, city and local areas. They are in no way subordinate to the
federal courts. This provision is somewhat different in India, In India, the
Constitution provides for single hierarchal judicial system. The Supreme Court
is the final judicial authority in the country. In America State – courts are not
subordinate to the Federal courts.

Appointment of Judges Election v. Selection

In the US there is a mixture of elected and appointed judges. There are federal
or constitutional court judges who as per Article III, Section 1 and 2 of the US
Constitution are appointed by the President for life-tenure. Every state has its
own way of selecting judges. In general, American states use different
methods for different courts or different
Jurisdiction. The election of judges is made through non-partisan and partisan
ballot or a variation of both. This combination involves another body which
serves as the initial stage of selection before candidate judges go to the
election process.

The judges of Federal Courts including the Supreme Court are nominated
and appointed by the President with the advice and consent of the Senate and the
judges of State courts are mostly elected by the popular votes for fixed terms.

1
This Constitution is a Federation of 50 States.
2
The Original Constitution of United State of America is consisted of only Seven Articles.
Article 111 and Section-I of the Constitution of United States of America provides that the
judicial power of the United States of America shall be vested in one Supreme Court and such
inferior courts as the Congress may from time to time establish, see, For detail Corwin S.
Edward, The Constitution, and What it Means Today, (1973) at p.161.
3
See Article III of American Constitution. The procedure for appointing a justice is
Provided by the Constitution, only in a few words. Clause Article III, Section 2, Clause 2 of the
Constitution states that the President shall nominate Judges with the advice and consent of the
Senate. See for detail Edward Dumb auld, the Constitution of United States, (1964), at p.320.
The Constitution of America prescribes no qualifications for the judges. Hence,
the President is free to appoint any one for whom Senatorial confirmation can be
obtained. The rule of Senatorial consent does not limit the choice of the
President. From its very inception, an attempt has been made almost invariably
to select men of high prestige and outstanding ability. 4

Tenure of the Judges

Unlike the Indian Constitution the judges of American court hold office during
good behavior and are removable by impeachment only. A judge may retire, if he
wishes, when he reaches the age of seventy or at any time thereafter the judges
can retire with full salary provided that if they have served on the bench for ten
years and may retire at sixty-five years with fifteen years of service and receive
full pay for life. 5 The age of retirement of the Indian Supreme Court judges is
sixty five years which is determined by the Constitution. Therefore, the Indian
Supreme Court judges consequently enjoyed a comparatively short tenure. The
tenure of the American Supreme Court judges was about three times that of the
Indian Supreme Court judges. 6

It will not be out of place to point out that the Supreme Court of America like
the Supreme Court of India does not perform the advisory function. It has
refused to advise the executive on hypothetical questions. It acts only when a
law has been violated and the matter is raised in the specific suit.

Australian Judicial System

4
Id., at,323-24.
5
See,Ibid.. Also see, Martin Shapiro, American Constitutional Law, (1979), at p.42.
6
See, Paul C. Bartholomew, Leading Cases on the Constitution, (1977), at p.2. Also see,
Bernard Schwartz, Constitutional Law – A Text Book, (1972), at pp.8-9. Also see, Manas
Chakraborty, Indian and American Supreme Court Judges – A Comparative Study, Political
Science Review, (1985), Vol-21 at p.65.
The Australian legal system is based on fundamental belief in the rule of law,
justice and independence of judiciary. Principles such as procedural fairness,
judicial precedent and separation of powers are fundamental of Australia’s legal
system. 7 Under Chapter III of the Constitution of Australia Justices of the High
Court and of the other courts created by Parliament can only be appointed by
Governor-General in Executive Council. The High Court, as the apex of Australia’s
judicial system, enjoys a different status to other federal courts and therefore, a slightly different
appointment process has been adopted for this Court. Similarly, appointments to the positions of
Chief Justice of the Federal Court and Family Court and Chief Federal Magistrate are likely to
come from the serving judiciary and would therefore already be known to government.

7
Chapter-III and Articles 71, 72, 73, 74, 75, 76, 77, 78, 79 and Article 80 deal with the
Judicature of Australia. See,Pylee M.V, Constitutions of the World, (2000) at p.58.
Process of judicial Appointment in Australia
Existing Provisions

In conforming to Section 72 of the Australian Constitution, the Justices of the High Court and
other federal courts are appointed by the Governor General in Council. In practice that means an
appointment by Cabinet, generally on the recommendation of the Attorney General. The
appointment of State judges follows a similar pattern, a Cabinet decision preceding the formal
appointment by the Governor in Council. Section 6 of the High Court of Australia Act 1979
requires the Attorney General for the Commonwealth to consult with State Attorneys General
about the appointment of a High Court Justice. What consultation in this context amounts to we
do not know. It is believed that it may amount to no more than the Commonwealth Attorney
requesting the State Attorneys to nominate a person for appointment. Consultation may vary
from case to case and it would be surprising if the Commonwealth Attorney did not seek the
views of other Attorneys on the qualifications of some candidates.

Duration of Appointments

Under section 72 of The Constitution, the appointment of a Justice of the High

Court is for a term that expires when the Justice turns 70 years of age.
Appointments to other courts created by the Parliament are for a term expiring
upon the maximum age for that court, which can be set by the Parliament.
Presently the terms of appointment of all Justices of the Family and Federal
Courts and Magistrates of the Federal Magistrates Court expire on the day
before their 70th birthday. All Justices and Federal Magistrates may resign at
any time.

The British Judicial System

The procedure for appointing a Justice of the Supreme Court of the United Kingdom is
governed by Sections 25 to 31 and Schedule 8, of the Constitutional Reform Act 2005, as
amended by the Crime and Courts Act 2013. This note sets out a brief resume of the process.

Section 25 of the 2005 Act sets out the statutory qualifications for appointment. But Section 25
has been amended by Sections 50-52 of the Tribunals and Enforcement Act 2007 so that the
The framework for the judicial appointments process for the courts and tribunals of England and
Wales, as well as for the UK Supreme Court, was established by the Constitutional Reform Act
2005 (CRA). For England and Wales, the CRA established an independent Judicial
Appointments Commission (JAC) with responsibility for recommending a single candidate for
each vacancy that arises. The 15 commissioners consist of lay people, members of the legal
professions and judges from all levels of the judiciary. For the most senior appointments,
selection is by special panels that include judges who are not members of the JAC. The CRA
removed the traditional power of the Lord Chancellor to make selections substantially in
consultation with the serving judiciary and others, but did not remove the Lord Chancellor's role
completely. In relation to each vacancy, the Lord Chancellor may accept the JAC's selection,
require the JAC to reconsider its selection, or reject it. On only four occasions does it appear that
the Lord Chancellor has done other than accept the JAC's recommendation. All appointments
must be made "solely on merit". The JAC has a duty "to have regard to the need to encourage
diversity in the range of persons available for selection for appointments."[7]

Judicial Appointment Commission

In April 2006, a new method of selecting nominees for judicial appointments in

England and Wales will come into effect. Following consistent complaints that the

appointments process (which relied to a large extent on secret “soundings” of the

senior judiciary and appointment by the Lord Chancellor) lacked transparency and

accountability, a new Judicial Appointments Commission has been established,

responsible for nominating candidates for appointment by (or on recommendation of)

the Lord Chancellor. The introduction of this system is an attempt to make the

appointment system more transparent, by removing the discretion the Secretary of

State (Lord Chancellor) has over appointments, and it also appears to be a direct move
to increase judicial diversity. The JAC has been charged with a statutory duty to have

regard to the need to encourage diversity in the selection of candidates for

appointment 40 . The JAC will have lay as well as judicial and legal members, although

the judicial/legal members will outnumber the lay commissioners by 3 to 2. 41 Part

Four of this Review explores how research and policy development elsewhere may be

utilised in establishing the working practices of the JAC, as well as in providing a

more general framework for monitoring and research into the new appointments

process.
Role of the Lord Chancellor

The Constitutional Reform Act 2005 preserves a role for the Lord Chancellor once a selection
commission has made its decision. The relevant sections are Sections 28-31 of the Act.

Section 28 requires that the commission must submit a report to the Lord Chancellor which must
state: who has been selected; who was consulted; and which contains any other information
required by the Lord Chancellor. The provision also allows for the Lord Chancellor to ask for
any further information not included in the report. The Lord Chancellor is under a statutory duty
to consult the senior judges (as above), any other judge who has been consulted, the First
Minister in Scotland, the First Minister in Wales and the Secretary of State for Northern Ireland.
Sections 29-31 of the Act then set out the Lord Chancellor's options. In closely defined
circumstances he can invite reconsideration or he can reject a candidate. But if he does either of
those he must give reasons.

If, following the consultations above, the Lord Chancellor is content with the recommendation
made by the selection commission, he forwards the person's name to the Prime Minister who, in
turn, sends the recommendation to Her Majesty the Queen who makes the formal appointment.

The Lord Chancellor is under a statutory duty to consult the senior judges (as above), any other
judge who has been consulted, the First Minister in Scotland, the First Minister in Wales and the
Secretary of State for Northern Ireland. Sections 29-31 of the Act then set out the Lord
Chancellor's options. In closely defined circumstances he can invite reconsideration or he can
reject a candidate. But if he does either of those he must give reasons.

If, following the consultations above, the Lord Chancellor is content with the recommendation
made by the selection commission, he forwards the person's name to the Prime Minister who, in
turn, sends the recommendation to Her Majesty the Queen who makes the formal appointment.

Duration of Appointments
Judges of the High Court are known as Puisne judges and are appointed by the
crown on the recommendations of the Lord Chancellor from among barristers of
at least ten years standing. Nine judges are assigned to the chancery division,
forty four to the Queen’s Bench division and seventeen to the family division of
the High Court. The judges are removable only on an address presented to crown
by both houses of Parliament. 8 Judges usually retire at the age of seventy five
years but they can relinquish their office even earlier at the age of seventy
years. 9 The salaries of the judges which are quite handsome are fixed by an Act
of Parliament. 1 0 In addition the salary of all judges is charged on the
consolidated fund and it is not reviewed each year by the House of Commons
with the other estimates of National Expenditure. 9 0 A
The Canadian Judicial System
The Supreme Court of Canada is country’s highest court, and is the final authority for all legal
disputes, settling matters between individuals, organizations, and governments alike. Moreover,
the Court is emerging as a forum for policy debate, due in large part to its powers to interpret
important constitutional documents, such as the Canadian Charter of Rights and Freedoms. This,
in turn, raises important questions regarding the manner in which judges are appointed to this
politically powerful and influential court.

Supreme Court of Canada

The Supreme Court of Canada is at the apex of the Canadian system of courts. It
was constituted in 1875 by an Act of Parliament and is now governed by the
Supreme Court Act. 11 It is comprised of a Chief Justice and eight puisne judges.
The judges of the Supreme Court of Canada are appointed by the Governor
General on the advice of the national cabinet. 9 5 A

8
See, Jackson, R.M., The Machinery of Justice in England, (1967) at p.180.
9
Ibid.. See also, Yardley D.C.M., op.cit. at, p.59.
10
See, Pad Field Colin F., op.cit, at, pp.214-215..
90A
Ibid.
11
Supreme Court Act 1962 .See, Id., at, p.38.
95A
See, www.nationalencyclopedia.com/canada/judicialsystem.
The Supreme Court is a general court of appeal from all other Canadian courts
of law. It therefore, has jurisdiction over disputes in all areas of law including
Constitutional Law, Administrative Law, Criminal Law and Private Law. 9 5 B

THE APPOINTMENT PROCESS IN CANADA

The power to appoint Supreme Court justices is held exclusively by the

executive branch of the federal government, in particular, the Governor General
and the Prime Minister. The power to appoint justices to the Supreme Court is held by the
Governor General of Canada, the Monarch's federal representative. The Governor General makes
such appointments based on the advice of the Queen's Privy Council for Canada. In practice,
however, only the current federal Cabinet, which is a subcommittee of the Privy Council,
actually advises the Governor General on Supreme Court appointments. This is usually
accomplished through consultation between the Governor General and the sitting Prime Minister.
The independence of the judiciary in Canada is guaranteed both explicitly and
implicitly by different parts of the Constitution of Canada. This independence is
understood to consist in security of tenure, security of financial remuneration
and institutional administrative independence. 1 2

Duration of Appointments

All judges in Canada are subject to mandatory retirement. In the case of some of the judges
appointed by the federal government, the age of retirement is fixed by the Constitution Act, 1867,
at 75. In the case of all other judges, both federally and provincially appointed, the age is fixed
by statute, at either 75 or 70, depending on the court.

Judicial Appointments Advisory Committee

95B
Ibid.
12
Ibid.
Judges of the Supreme Court and the Chief Justice of the Federal Court are selected by the Prime
Minister in consultation with the Minister of Justice. Judicial Advisory Committees have been a
part of the selection process for judges of the Federal Court since 1988 .Parliament, except for
the Prime Minister, has no part to play in the appointment of judges of the Federal Court and no
power to review these appointments .In Canada Judicial Committee Play a much larger role in
the appointment of judges to the lower provincial courts, those filled by the provincial
governments and not the federal government.

Judicial System in France

In France, there are two types of lower judicial courts. These are the civil courts
and the criminal courts. It is the duty of the civil courts to judge conflicts
between two persons. On the other hand, the criminal courts have to give their
judgment on minor infractions and also on grave offences that break the law. 9 7 A
There is other one more court Assize Courts give their judgment in cases of
serious crimes for which life imprisonment may be given as punishment. These
cases are presided by judges from the appeal Courts. There are also special
commercial courts, tradesmen and manufacturers elect the judges of these courts
among themselves. Commercial courts decide commercial cases. 9 7 B In France
there are also conciliation boards. These boards are made up of employees and
employers. There are professional courts that possess disciplinary powers within
the professions. For handling disputes between individuals and government
agencies there are special administrative courts. Council of State is the highest
special administrative courts. 1 3 Council of state is the highest administrative
court of France. In France, it is known as Council d’ Etat. The function of this
organ of the French national government is to assist the executive with legal
advice. High level jurists are members of this court. 9 8 A

97A
See, www.ambafrance.an.org/france_australia/spip.php?article 459 French Ministry of
Justice website.
97B
Ibid.
13
In France Administrative Court is known as Tribunaux administralifs. See, Pylee M.V.,
op.cit, at p.429.
98A
Ibid.
 There are appeal courts which hear appeals from lower civil and criminal
courts alike. The High Court of Justice is made up of judges and members of
Parliament, 1 4 is convened to pass judgment on the President and Cabinet
members if a formal accusation of treason or criminal behavior has been voted
by an absolute majority of both the National Assembly and the Senate. The death
penalty was abolished in 1981. 9 9 A
All the judges in France whether of the lowest court or of the highest court are
the members of the judicial civil service. The President of the Republic who is
charged by the Constitution to be the guarantor of the independence of judicial
authority appoints the judges whose names are submitted to him by a body
known as the superior council of the judiciary. The council of judiciary is
consisting of 11 members with the President of the Republic as its ex-officio
Chairman. It has Minister of justice as its Vice-Chairman. It has also among its
members, two judges and advocate General of the Supreme Court, three judges
from other courts, a member of the Council of States and two members of the
general public. The Council also exercises certain disciplinary powers over
judicial officers. 9 9 B
The Constitution guarantees them independence by stating that judges are
irremovable. This has been interpreted to mean that they can not even be
transferred without their consent to a higher position than they are holding.
They may, however, be transferred temporarily by the President of the Court of
appeal to a different court in case of urgent need such transfers may be for two
months only but it may be extended to four months with the consent of Minister
of justice. Therefore, the France judiciary is fully independent from the
executive and legislative branches. The judiciary is subject to European Union
mandates, which guide national law. 9 9 C

14
The High Court of France is known as Haute Cour de Justice.See,Ibid
99A
Ibid.
99B
Ibid.
99C
Ibid.
Legal System of Switzerland

The Swiss Federal Supreme Court consists of 30 judges and 15 substitute judges
who are elected by the Swiss Federal Assembly. 1 5 The Federal Supreme Court is
the final instance of appeal for civil as well as criminal cases. Furthermore, it
deals with public and administrative law cases and arbitrates in disputes
between the confederation and the Cantons and in disputes between two
Cantons. The Court has no discretion to refuse to hear case. Every year it
decides several thousand cases

The Federal Insurance Court is special department of the federal Supreme Court
with nine judges and nine substitute judges. 1 6 It hears only disputes concerning
public law insurance claims. The Swiss Federal Supreme Court’s jurisdiction is
limited by the federal Constitution in a special way. The Constitution provides
that statutes passed by the Federal Assembly are not subject to any
Constitutional review by the Supreme Court. 1 7 The rationale behind this rule is
that all statutes are either adopted by a popular vote or remain unchallenged.
Either way, each statute is enacted only after the people voted on it or decided
not to vote on it. By giving the direct democratic right of people priority over
any form of judicial review, the Federal Constitution limits by intent the
jurisdiction of the Federal Supreme Court. But just recently the Supreme Court
decided in a major ruling that it has the power to review federal statutes in cases
where otherwise basic human rights violations would occur. 1 0 2 A It is important
to note that the Supreme Court has jurisdiction to review the Constitutionality of
cantonal laws. 1 0 2 B

15
The Federal Legislature of Switzerland is called Federal Assembly. It is bicameral
legislature consisting of two Houses. The National Council and Council of State. See,
Bhagwan Vishnoo, op.cit, at, p.15.
16
See, www.nationencyclopedia.com.
17
Ibid.
102A
See, Bhagwan Vishnoo, op.cit, at p.16.
102B
Ibid.
 Hence, the federal courts are generally the guardian of the Constitution.
The Swiss Tribunal, on the other hand possesses limited judicial review. It is
empowered to declare cantonal law unconstitutional if it conflicts with the
federal constitution or even cantonal constitution it does however, uphold the
federal constitution and statutes against cantonal constitutions and laws.

Among Countries in the world with a federal structure, Switzerland is

most likely the smallest one. Each of its 26 cantons 1 8 has its own Constitution
its over executive, its own Parliament, its own courts and its own laws

Method of Appointment of Judges in Various Countries

Sr. Name of Country Authority Consent

No
1 United Kingdom The Appointments No need to take
are made consent by the
exclusively by the Judiciary and
Executive Legislature
2 United States of Appointments are With the consent of
America made by the Senate
Executive
3 Malaysia Appointments are On the
made by the recommendation of
Executive Constitutional
recommendatory
body
4 India Appointments are Judiciary has
made by the primacy
Executive
5 New Zealand Appointments are Judiciary has
made by the primacy
Executive
6 Australia Appointments are No need to take
made exclusively by consent from other
the Executive authority
7 Canada Appointments are No need to take
made by the consent from other
Executive authority
8 Israel Appointments are Judiciary has

18
Id.,at.29. There are Twenty Six States in Switzerland.
 made by the primacy
Executive

Thus, a mere look at different models shows that the procedure varies from
executive dominance to the primacy of the judiciary to the existence of a
separate judicial recommendatory body. In India, the higher judiciary is
appointed by the President after “consultation” with the Supreme Court and this
has led the judiciary to be largely self-appointing in practice. Systems of
judicial self-appointment also include those in which judicial councils are
composed entirely of judges. The Iraqi Higher Judicial Council is such a body.
Another example of a largely self-appointing judiciary is that of Japan. Although
the Supreme Court is appointed through a political process, the Supreme Court
Secretariat has total control over lower-level judicial appointments, training,
promotion and discipline. Some have criticized this combination as allowing
political control over the whole judiciary through the Supreme Court. Systems
of judicial self-appointment are on the decline. Clearly they provide maximum
independence for the judiciary as a whole. But, as reflected in the criticism of
the Japanese judiciary noted above, individual judges may be less independent.
Furthermore the system is seen as providing very little accountability. Many of
these judiciaries have become extensively involved in politics in ways that can
undermine their own legitimacy. However, throughout the world, there is a
demand for a change in the system of selection and appointment of judges
calling for a wider, transparent and accountable consultative process. 1 0 3 A India
is also facing this problem, there is need to appoint a constitutional body to
come out from this problem. This is with a view to ensuring that the persons
selected to occupy the posts of the judges should not only be highly qualified
and experts in various laws of the land, but more importantly they should be
men of high integrity and impartial in their judgment. Aristotle called “justice
the virtue of virtues” 1 0 3 B as judges are expected to do justice without fear and
favor.

103A
See, Kumar Prem and Bhatia Raj, op.cit, at p.114.
103B
Ibid.
 INDIA USA
Appointment of Judges Appointment of Judges:
No designated authority. Implicitly, Judiciary Executive nominates the prospective candidate.
nominates the prospective candidate.
Executive to seek advice and consent of the
Judiciary to consult with the Executive. Senate.
Executive shall appoint the candidate as a Executive shall appoint the candidate as a Judge.
Judge.
Appointment of Judges = Executive +
Appointment of Judges = Judiciary + Legislature.
Executive.
Judiciary is out of the loop, while making a
Legislature is out of the loop while making a judicial appointment.
judicial appointment.
Age Limit:
Age Limit:
No age limit; a Judge may continue in office
The age limit for a Judge to continue in office lifetime.
is limited to 65 years.
Qualifications required for being a Federal
Qualifications required for being a Supreme Court Judge:
Court Judge:
Article 124 (3) No statutory qualifications.
(a) A citizen and either a High Court Judge for
5 years;
(b) or an advocate of a High Court for 10 years;
(c) or If in the Executive’s opinion a
distinguished jurist.(Implicitly means, if
Executive opines no Statutory Qualifications
required)
A comparative analysis having carefully examined the different appointment procedure models,
it can be noted that even though it depends to a great extent on the political and constitutional
framework of the country. Every country elaborated its rules on the basis of different
considerations. It is a fact that the appointment of constitutional judges is very much exposed to
political games in the parliamentary
Conclusion
All mechanisms for judicial appointment may have some advantages and disadvantages and
therefore, no particular system can be treated as the best system. Despite this, in order to
maintain public confidence in the appointment system and to ensure judicial independence the
commission system is perhaps a very effective mechanism for judicial appointment. However, to
ensure the effectiveness of this mechanism the commission should be representative in nature
comprising members of the executive, legislature, judiciary, legal profession and lay persons. In
addition, it should be ensured that the commission uses a system which is transparent and open
to public scrutiny. In this regard the composition and working system of the South African
Judicial Service Commission may be an acceptable model. Such a mechanism may be very
effective to ensure the appointment of the best-qualified people to judicial office.

A NATIONAL JUDICIAL COMMISSION FOR INDIA

The Supreme Court of India and the High Courts set
the standard for judicial conduct and
competence in the country. We must see that only ca
ndidates of the highest integrity and ability
are appointed to these courts and that, once judges
, they perform their duties with honesty,
dedication and skill. This requires a degree of scr
utiny in judicial appointments and oversight
impossible under the current system. It is vital th
at we create a National Judicial Commission,
combining input from the elected branches of govern
ment and the judiciary, to appoint and
oversee the judges of the Supreme Court and High Co
urt.
The experience of diverse jurisdictions described a
bove supports the inclusion of the Prime
Minister and legislators in the appointment process
. This is essential to ensure that the judiciary,
while remaining independent of other branches of go
vernment in fulfilling its duties, is not
completely insulated from the input and vigilance o
f the peoples’ representatives. We cannot
expect the judiciary to appoint itself and then ove
rsee itself. Both these elements are inappropriate
in a democracy. The best solution is a National Jud
icial Commission (NJC) drawn from the
executive, legislature and judiciary. The most pra
ctical and acceptable composition would be a
seven-member NJC with the following members:
•
The Vice-President as Chair of the Commission
•
The Prime Minister or the Prime Minister’s nominee
•
The Speaker of the Lok Sabha
•
The Law Minister
•
The Leader of the Opposition in the Lok Sabha
•
The Leader of the Opposition in the Rajya Sabha
•
The Chief Justice of India

A powerful legislation is certainly the need of the hour as the public is losing faith in the quality
of justice in our country. Despite the measures taken from time to time, to ensure an independent
judiciary, there still is an inadequacy of law to tackle the menace, as much are the shortcomings
in the already existing laws. We should try to incorporate within the mechanism the provisions of
other countries like US to ensure judicial accountability. Equally important is the issue of
striking a balance between the competing principles of judicial independence, on the one hand,
and accountability and transparency, on the other.
The Supreme Court in a short period of three years has brought down the number of pending
cases from more than one lakh to just around 20,000 cases through systematic judicial measures
based on the report Modernization of Civil Justice System: Implementation Plan of the National
Judicial Academy. The current rate of disposal and fresh filing of cases, promises a zero
pendency future for the Supreme Court.

The recent instances which have brought forth the need for judicial accountability and

transparency has led to intense public scrutiny. The judiciary needs to be held in respect by the
general public and indeed by the Legislature and the Executive if it is to function adequately.
And that respect cannot be demanded, it has to be earned. By bringing

transparency in judiciary will not make the judiciary less independent. In fact, this is

indispensable for judicial accountability and restoring the faith of the public in the system of

justice in our country.

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Selection of judges:
As far as selection of judges is concerned, according to the text of the Constitution, President has
the power to appoint judges, he has discretion to choose and he can consult the Chief Justice of
India as well as senior most judges of Supreme Court in matter of appointment. But the SC in SP
Gupta and others V. Union Of India [9]held that consultation by CJI means his consent. If
consultation means consent then the power spectrum shifted from the President to CJI, and it is
entirely wrong interpretation of the Constitution.[10]

The judges are selected according to the political loyalties acceptable to the ruling party. Genetic
engineering from the political angle is made secretly operational in the case of judges, and then
at the performance level agrarian laws are struck down, welfare measures are whittled down and
progressive projects meet thier judicial water loo.[11]

There no system for disciplining corrupt judges. Impeachment is next to impossible. One cannot
even register an FIR against a judge taking bribes openly without the prior permission of the
Chief Justice of India.

Added to all these immunity to judiciary is the power of contempt of Court, which can be used
by the judiciary to stifle public criticism, or even an honest evaluation of the judiciary. This
threat of contempt has prevented a frank discussion or a healthy debate on the functioning of
judiciary. The judiciary recommended that the Chief Justice should be the final word in deciding
whether any information about the Court should be given out or not. Most High Courts have not
even appointed a public information officer under the RTI Act. The Delhi High Court has framed
rules which prohibit the release of non judicial information about the court, such as purchases
and appointments. All this has ensured that the judiciary becomes a law unto itself, totally non
transparent, and accountable to none.

What we need is the reformative method of selection of judges. Advocates should not be allowed
to become judges nor should be the practise any criteria for the selection of judges.

When one has to analyze the law, analyze the constitutionality of law, because every judicial
process is constitutional specific.

There are numerous instances of cases where SC wrongly interpret the provision of Constitution
like Joshi V. Madhya Bharat where it was held that place of birth is relevant or in Balaji V. State
of Mysore case[12] where caste was given prominence. Here, court indirectly held that caste and
religion is important which is wholly unconstitutional. By upholding pro government attitude,
courts are cheating the citizens who belong to socially advantageous sections of society but are
economically backward enough not to get an opportunity of education. Reservation in the matter
practised today cannot lead to the fulfilment of Article 45. We should make the quest to achieve
all this on the bedrock of Article 14. Judges have to act strictly in accordance with law, on the
matter of Judicial process, the duty of the court is to ascertain the law and apply it and judge the
fact in the light of that law, here court has no power to legislate. There is nothing like judges
made law.

3.2 failure of Supreme Court to interpret the Constitution through erroneous decisions
The constitution has conferred a very wide jurisdiction on SC of India. It shows that the
Constitution makers placed great confidence in the sagacity and the wisdom of those who were
to exercise such enormous power. When any court is vested and is invested with wide
jurisdiction, it necessary follows that the court must exercise that jurisdiction with utmost care
and caution. When power is conferred on constitutional machinery, it is always to be understood
by the functionary as a duty; others may view it as power. When the functionary is a judicial
restraint, he must be extra careful, lest he may appear to be carried away by emotion or bias. Self
imposed discipline and judicial restraint should be his armament; otherwise there is the fear that
he may not be viewed as impartial. It is difficult to draw the line but one can say, without fear of
contradiction that the power must be exercised with restraint and should not appear to be an
immature impulse. In a democratic set up, when the Constitution confers wide powers and
jurisdiction on any institution, the constitutional functionaries exercising those powers are in
effect called upon to perform certain duties and functions and, therefore, they must carry out
those obligations with great care and caution. The constraint and restraint of judicial office
demand a self imposed discipline in the exercise of the power and jurisdiction conferred by the
Constitution. There can, therefore, be no doubt that the jurisdiction must be exercised
responsibly, and with restraint and circumspection.

Use of an Independent Commission

The use of an independent commission in appointing judges is the most acceptable
mechanism among the commentators in the contemporary world.
30
The
Beijing
Statement of Principles of the Independence of the Judiciary in the LAWASIA
Region
[
Beijing Statement
] 1995 states:
In some societies, the appointment of
judges, by, with the consent of, or
after consultation with a Judicial Service Commission has been seen as a
means of ensuring that those chosen
as judges are appropriate for the
purpose. Where a Judicial Service
Commission is adopted, it should
include representatives of the higher
judiciary and the independent legal
profession as a means of ensuring that judicial competence, integrity and
independence are maintained.
31
The commission system is operating well in different countries including Canada,
South Africa and in many jurisdictions of the United States.
32
There are also
judicial appointment committees in Ireland, Israel, New Zealand and the
29
Re Presidential Reference
, AIR (1999) SC 1, 16.
30 Baar, above n 4, p 153.
31
Beijing Statement
1995, Art 15.
The 6th Conference of Chief
Justices of Asia and the
Pacific unanimously adopted the
Beijing Statement
on 19 August 1995.
32 American Judicature Society (AJS) reported in April 2002 that Judicial Nominating
Commission is used for all terms of appointment to all courts of Alaska, Colorado,
Connecticut, Delware, District of Columb
ia, Hawaii, Iowa, Mary
land, Massachusetts,
Nebraska, New Hampshire, New Mexico, Rh
ode Island, Utah, Vermont and Wyoming.
It is also used for midterm vacancies on
some or all levels of court in Alabama,
Georgia, Idaho, Kentucky, Minnesota,
Montana, Nevada, North Dakota and
Wisconsin. For details of the Report, see
Judicial Selection Methods in the States
<http://www.ajs.org/select11.html> 8 June
2002(Copy on file with author).
(2004) 16.2 Bond Law Review
208
Netherlands.
33
Such commissions and committees are entrusted with the task of
either making the actual selection of the candidates, or making ‘recommendations
only’, or providing ‘a shortlist outside of which’ appointments should not be made
by the executive without justifying the reasons for doing so.
34
The effectiveness of the commission sy
stem depends on the composition
of the commission and the system used by it. The commission may be
constituted by senior judges, senio
r lawyers and distinguished legal
academics. Community representatives and parliamentary
representatives may also be included.
35
The commission system can provide
a stronger form of scrutiny of
prospective candidates
for judicial office.
36
It can ensure the selection
of the best-qualified candidates for
judicial office, if the commission
uses a fair and non-discriminatory
selection process. In addition, if
the system used by the commission is transparent and open to public
scrutiny, it can reduce the exclusiv
e executive control over judicial
appointments and maintain public
confidence in the appointment
system. Thus, it is likely to in
crease transparency and accountability
and to remove improper politica
l control or other irrelevant
considerations from the appointment system.
37
In respect of the composition of th
e commission and the system that
may be used by it, the South African Model of a Judicial Service
Commission is an important exampl
e. The South African Commission
established under the Constitution of 1996 consists of the following
members:
(a)
the Chief Justice, who presides at the meetings of the Commission;
(b)
the President of the Supreme Court of Appeal;
(c)
one Judge President designated by the Judges President;
(d)
the Cabinet member responsible for the administration of justice, or
an alternate designated by that cabinet member;

43

Suggestions for the Improvement of Collegium Consultation

The appointment of judges shall be subject to rigorous merit based selection process and
openness
and transparent selection process shall be observed from beginning till end.

Collegium Secretariat
A Collegium Secretariat should be a professional secretariat, composed of a senior most Judge of
the
Supreme Court as its convener, two more judges of the Supreme Court, representative of
Bar
Council of India, Ministry of Law and Justice, a senior representative from the police forces, two
eminent academicians from the law and related fields. The Secretariat should have essential
qualified
staff to undertake entire administrative process for the selection of judges. There shall
be two
directorates one for the Supreme Court and another for the High Courts. They shall
handle all
applications, booking panels for selection days and running the secretariat for the selection days.
They also handle outreach with candidates and programming the exercises. There shall be a
small
communications team which shall handle communications, including answering media queries.

Selection Process:
Vacancy of judges should be advertised and interested candidates must complete a
comprehensive
Personal History Form (PHF), which shall be submitted to the Secretariat. In its assessment of
each
candidate, the Secretariat shall review the PHF. If a candidate is a member of any statutory/non-
statutory board / committees / institutions, a reference from these institutions must be
made
available to the Collegium. Following its shortlisting, the Secretariat shall categorize candidates
as
"Recommended" or "Unable to Recommend" for professional test.

Eligibility criteria
Interested candidates shall create online profiles and apply electronically. Candidates shall be
invited
to take a professional test. There may be a second stage to the shortlisting if it is anticipated the
selection exercise will attract a large number of candidates, which could take the form of a
written
assessment or interview by the Collegium. The Collegium shall give mark for the qualifying test
as
well as personal interview. The Collegium shall undertake necessary consultation including
academic
institutions and professional associations or institutions of which the candidate has been a
member 44

in any capacity. Each criteria – experience, professional test, interview, character check,
shall be
given weighted average in the proportion of 40:20:20:20 and the merit list shall be prepared. Tie-
breakers shall be used for increasing diversity within the judiciary.
If a person is not short-listed for a professional test by the Secretariat from the initial
applications,
the Collegium can review the candidature directly and place in writing why the candidate
not
successful in qualifying test is invited for interview.

The tests are designed to assess candidates’ ability to perform a High Court Judge role. This can
be
prepared by three senior most judges from the relevant High Court, Advocate-General
and a
designated Supreme Court Judge.

References shall be obtained after test and interview. The same shall informed to the
candidate
during the interview.

The interview panel shall consist of judges as voting members and a representative of Bar
Council of
India/State, a representative of Ministry of Law and Justice and an eminent academician
as
observers.

Process:
1. Invitation for submission of application: Upon receipt of notification of vacancy getting due,
the secretariat shall invite application from potential candidates at least 6 months in advance.
2. Eligibility:
a. High Court Judge: Minimum number of experience as a lawyer / legal academician
b. Skills: Critical thinking, reasoning, decision-making, communication
c. Others: Legal aid record, Lok Adalats record, Number of cases handled, Number of
judgments delivered, Number of judgments overturned or affirmed by the division bench or
superior court, Assessment of professional excellence, overall legal and judicial awareness of
the state and personal characteristics, review of legal publications, result of participation in
various training programs, etc.
3. Technical shortlisting: Those candidates who meet eligibility criteria shall be short-listed for
a professional competency test. 4. Tests: A professional competency test shall be held to assess
the candidate’s knowledge and
competence.
5. Interview: The Collegium shall conduct a short interview to learn more about candidate’s
knowledge, competence, ability, temperament and other personal traits as desirable from a
judge.
6. References: A candidate must supply details of four referees. No referee shall belong to a
candidate’s family relations.
7. Collegium Report: The Collegium shall prepare a report on the basis of above and undertake
necessary statutory consultation including good character check.
8. Selection: The Collegium under the Chief Justice shall inform about its selection to
the
President.
9. Quality assurance: Before forwarding names of selected candidates to the President, a quality
assurance shall be effected by the Chief Secretary of the Secretariat to ensure meeting of all
requirements in full and complete manner.

Overall monitoring:
The Chief Secretary of the Collegium Secretariat shall have an overall monitoring role. He/she
shall
 audit the processes and procedures for making appointments
 handle complaints resulting from the appointment procedure
 consider comments on the judicial appointments processes
 investigate any matter in the appointments process as directed by the Chief Justice
 recommend improvements and changes to the Chief Justice.
The Secretariat shall submit its detailed report annually to the Parliament.

Transparency: Interviews of potential candidates can be made in public, and transcripts of

interviews can be posted on the Internet. However, openness must be balanced against the
individual candidate's right to confidentiality.

Here is a table of method of appointment of judges to the highest courts in

different countries: