Judges’ choice: India & the world
Jul 11, 2016, The Asian Age
http://www.asianage.com/columnists/judges-choice-india-world-734
The ‘collegium’ of five sitting Supreme Court judges became a visible and dominant partner in their ‘sharing role’ to appoint ‘bench colleagues’. Right or wrong, this marked the beginning of an open turf war between the judiciary and the executive-legislature…
In the United States, federal judges, including those on the Supreme Court, are chosen by the President and need the approval of the Senate and, notwithstanding any restriction on age of retirement, hold office during “good behaviour”. They can, however, on turning 70 and having served 10 uninterrupted years as a judge, request their release from office. Nevertheless, the “retired” judges still draw their “full salary” and there is a possibility of “recall”, to be deployed to lower federal courts.
In England, all high court judges are appointed by the Crown, on the Lord Chancellor’s advice, who usually consults the Prime Minister. Interestingly, till 1960, there was no retirement age for UK judges. It is only from 1993 that this was fixed at 70 years, extendable to 75 years.
A question cropped up on whether the British judiciary should be “representative” or not. There followed a counter-question seeking clarification: what does “representative judiciary” mean? It transpired the term implied “representative of the community” owing to the UK’s emergence as a multicultural and multi-community nation. It didn’t take long, however, for the home affairs committee and the Lord Chancellor’s office to repudiate this, and declare: “It is not the function of the judiciary to reflect a particular section of the community, as that is for the democratically elected legislature. The judge’s role is to administer justice in accordance with English and Welsh law. This requires, above all, professional legal knowledge and competence. Social or other considerations are not relevant: the Lord Chancellor accordingly seeks to appoint or recommend for appointment those best qualified who are available and willing to serve at the time.”
These Western countries are often referred to by Indians as worth emulating, being pioneers with long democratic traditions guided by the “rule of law”. A clear separation of powers between the executive, legislature and judiciary — each with clear non-encroachment on the others’ jurisdiction — constituted the “rule of law”. That clearly and unequivocally shows that appointments to the higher judiciary is the sole prerogative of the executive and the legislature.
In Australia, high court judges are appointed by the governor-general in council. It’s almost identical in Canada, where superior court judges are appointed by the governor-general and hold office during “good behaviour” and subject to compulsory retirement at 75.
Switzerland follows a slightly different system as judges of the Federal Tribunal are “elected by the Federal Legislature” for six years. In practice, however, they can be “re-elected” as long as they are alive and don’t wish to discontinue. In reality, most judges resign on turning 70.
In Germany, judges of the Federal Court of Justice (the highest court) are picked by the Judges Election Committee, that comprises the secretaries of justice from each of the 16 states and 16 members appointed by the Federal Parliament.
In the Holy See (Vatican), the Supreme Court or Supreme Tribunal of Apostolic Signatura comprises the Cardinal Prefect, who is ex-officio president of the court, and two other cardinals. Judicial duties were established by the “Motu Proprio” papal directive of Pope Pius XII on May 1, 1946. The Cardinal Prefect is appointed by the Pope.
In South Africa, the President, after consulting the Judicial Services Commission, a 23-member body, that amongst others consists of judicial executives, MPs, lawyers, a law teacher and several other members designated by the President, appoint the chief justice and other judges, who hold office until discharged from active service by an Act of Parliament.
Nearer home, in Afghanistan, the Supreme Court (“Stera Mahkama”) chief justice is appointed by the President with the approval of the Wolesi Jirga. Bangladesh’s President too is the appointing authority of the chief justice and other top judges, and they retire at 67.
In faraway Argentina, all Supreme Court judges are picked by the President and approved by the Senate. In Brazil too, the chief justice and other judges are appointed by the President and approved by the Federal Senate. The mandatory retirement age for judges is 75.
In Europe, Austria’s Supreme Court judges are nominated by the executive branch and appointed by the President. The Belgian monarch appoints constitutional court judges from a list of candidates submitted by Parliament. Though appointed for life, all judges are mandatorily retired at 70.
Even in Algeria, in North Africa, which has a 99 per cent Sunni Muslim population, the judicial system does not include sharia courts. Instead, Supreme Court judges are appointed by the High Council of Magistracy, a body that is presided over by Algeria’s President and includes the vice-president and several other members.
In this global scenario, where does India stand? How “globalised” are we in the matter of appointment of judges of our higher courts? The Indian judiciary, like the Indian executive and legislature, began superbly with successive landmark rulings by a plethora of legendary judges. But the tampering with the judiciary in 1973 by the executive and legislature of that era came to a head as three eminent Supreme Court judges were brazenly superseded in a show of power and arrogance.
Then came the next crack in the 1990s. A sitting Supreme Court judge, despite being accused by his brother judges for “misdemeanour”, was saved from impeachment by Parliament in a brute show of the “supremacy” of the legislature-executive over the judiciary. Understandably, therefore, there followed the “collegium” system (the Chief Justice of India and four senior judges) of 1995, which drastically curbed the centrality of, and monopoly, of the legislature-executive duo over the appointment of Supreme Court and high court judges.
The “collegium” of five sitting Supreme Court judges now became a visible and dominant partner in their “sharing role” to appoint “bench colleagues”. Right or wrong, this marked the beginning of an open turf war between the judiciary and the executive-legislature, thereby giving an extremely negative signal to the Indian people. Morally and ethically, and also in most other nations of the world, no judge usually is, or can be, a part of the process of the appointment of fellow judges.
These examples from various countries are being cited to draw the attention of those concerned, and those who matter. One only hopes that good sense prevails and the oft-quoted cliché is implemented in letter and spirit: that “justice must not only be done, but must be seen to have been done”. Can one be a judge of one’s own judge? Can the Indian system pioneer a change in the “world justice order”? Can the Indian system be seen as a specimen imported from Mars?
The writer is a Supreme Court advocate
