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Judges\u2019 choice: India & the world<\/strong><\/p>\n Jul 11, 2016, The Asian Age<\/p>\n http:\/\/www.asianage.com\/columnists\/judges-choice-india-world-734<\/p>\n Abhijit Bhattacharya<\/a><\/p>\n The \u2018collegium\u2019 of five sitting Supreme Court judges became a visible and dominant partner in their \u2018sharing role\u2019 to appoint \u2018bench colleagues\u2019. Right or wrong, this marked the beginning of an open turf war between the judiciary and the executive-legislature…<\/strong><\/p>\n 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 \u201cgood behaviour\u201d. They can, however, on turning 70 and having served 10 uninterrupted years as a judge, request their release from office. Nevertheless, the \u201cretired\u201d judges still draw their \u201cfull salary\u201d and there is a possibility of \u201crecall\u201d, to be deployed to lower federal courts.<\/p>\n In England, all high court judges are appointed by the Crown, on the Lord Chancellor\u2019s 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.<\/p>\n A question cropped up on whether the British judiciary should be \u201crepresentative\u201d or not. There followed a counter-question seeking clarification: what does \u201crepresentative judiciary\u201d mean? It transpired the term implied \u201crepresentative of the community\u201d owing to the UK\u2019s emergence as a multicultural and multi-community nation. It didn\u2019t take long, however, for the home affairs committee and the Lord Chancellor\u2019s office to repudiate this, and declare: \u201cIt 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\u2019s 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.\u201d<\/p>\n These Western countries are often referred to by Indians as worth emulating, being pioneers with long democratic traditions guided by the \u201crule of law\u201d. A clear separation of powers between the executive, legislature and judiciary \u2014 each with clear non-encroachment on the others\u2019 jurisdiction \u2014 constituted the \u201crule of law\u201d. That clearly and unequivocally shows that appointments to the higher judiciary is the sole prerogative of the executive and the legislature.<\/p>\n In Australia, high court judges are appointed by the governor-general in council. It\u2019s almost identical in Canada, where superior court judges are appointed by the governor-general and hold office during \u201cgood behaviour\u201d and subject to compulsory retirement at 75.<\/p>\n Switzerland follows a slightly different system as judges of the Federal Tribunal are \u201celected by the Federal Legislature\u201d for six years. In practice, however, they can be \u201cre-elected\u201d as long as they are alive and don\u2019t wish to discontinue. In reality, most judges resign on turning 70.<\/p>\n 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.<\/p>\n 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 \u201cMotu Proprio\u201d papal directive of Pope Pius XII on May 1, 1946. The Cardinal Prefect is appointed by the Pope.<\/p>\n 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.<\/p>\n Nearer home, in Afghanistan, the Supreme Court (\u201cStera Mahkama\u201d) chief justice is appointed by the President with the approval of the Wolesi Jirga. Bangladesh\u2019s President too is the appointing authority of the chief justice and other top judges, and they retire at 67.<\/p>\n 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.<\/p>\n In Europe, Austria\u2019s 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.<\/p>\n 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\u2019s President and includes the vice-president and several other members.<\/p>\n In this global scenario, where does India stand? How \u201cglobalised\u201d 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.<\/p>\n Then came the next crack in the 1990s. A sitting Supreme Court judge, despite being accused by his brother judges for \u201cmisdemeanour\u201d, was saved from impeachment by Parliament in a brute show of the \u201csupremacy\u201d of the legislature-executive over the judiciary. Understandably, therefore, there followed the \u201ccollegium\u201d 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.<\/p>\n The \u201ccollegium\u201d of five sitting Supreme Court judges now became a visible and dominant partner in their \u201csharing role\u201d to appoint \u201cbench colleagues\u201d. 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.<\/p>\n 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 clich\u00e9 is implemented in letter and spirit: that \u201cjustice must not only be done, but must be seen to have been done\u201d. Can one be a judge of one\u2019s own judge? Can the Indian system pioneer a change in the \u201cworld justice order\u201d? Can the Indian system be seen as a specimen imported from Mars?<\/p>\n The writer is a Supreme Court advocate<\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" Judges\u2019 choice: India & the world Jul 11, 2016, The Asian Age http:\/\/www.asianage.com\/columnists\/judges-choice-india-world-734… more