Independence of Judiciary in Democracy

DISSERTATION

SUBMITTED TO THE FAIRFIELD INSTITUTE OF MANAGEMENT AND

TECHNOLOGY (AFFILIATED TO GGSIP UNIVERSITY) IN PARTIAL
FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF

BACHELOR OF LAW

(FIVE YEAR INTEGRATED COURSE)

Under The Supervision of: - Submitted By:

ASST. PROFESSOR BA.LL.B. (H) 10th Sem

FAIRFIELD SCHOOL OF LAW Enrol. No.:-05590103817

Five Year Integrated Course

FAIRFIELD INSTITUTE OF MANAGEMENT AND TECHNOLOGY

(AFFILIATED TO GURU GOBIND SINGH INDRAPRASTHA
UNIVERSITY, DELHI) KAPASHERA, NEW DELHI- 110037

BATCH: 2017-2022

i
 DECLARATION

I, JITIN KUMAR pursuing BA.LL.B.(Hons.) at FAIRFIELD INSTITUTE OF

MANAGEMENT AND TECHNOLOGY, DELHI do hereby declare that this is my
original work prepared by me in partial fulfillment of the requirements for any
purpose, academic or otherwise under the supervision of, (Asst.
Professor FIMT - School of Law).

Neither the said work, nor any part thereof, has earlier been submitted to any
University or Institution for the award of any degree and diploma.

Further, wherever any book, article, research work or any other work has been used to
carry out this study, the same has been fully cited and acknowledged.

BA.LL.B. (Hons.)

FAIRFIELD SCHOOL OF LAW

DATED:

ii
 FAIRFIELD SCHOOL OF LAW

(AFFILIATED TO GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY,

NEW DELHI)

KAPASHERA, NEW DELHI - 110037

CERTIFICATE

This is to certify that the Dissertation entitled independence of judiciary in democracy

is a bona fide record of independent research work done by JITIN KUMAR,
student of BA.LL.B. 10th Semester Enrollment No: 05590103817 under my
supervision Asst. Professor Ms. and
submitted to Fairfield School of Law in partial fulfillment for the award of the
Degree of BACHELOR OF LAW of GURU GOBIND SINGH INDRAPRASTHA
UNIVERSITY, NEW DELHI.

Supervisor

Ms.

ASST. PROFESSOR

FAIRFIELD SCHOOL OF LAW

iii
 ACKNOWLEDGEMENT

It is my moral duty to acknowledge the genuine help and support, which I have
received from different people during the completion of this dissertation.

First of all, I am highly thankful to my learned supervisor Ms. (Asst.

Professor) FIMT-School of Law, for supervising me in my dissertation. She with her
guidance, vigilant supervision and cooperation, taught me the right procedure to carry
out my work. She rendered her full co-operation and help, sometimes laying aside her
own work by spending her precious time in guiding me. She on the one hand, allowed
me to work freely, while on the other she critically analyzed my work.

I am grateful to Ms (Asst. Professor) FIMT-School of Law, for

supporting and guiding me in completing my research work.

Above all, I thank almighty for blessing me with the strength and capability to
complete this venture, without which nothing is possible.

BA.LL.B. (Hons.)

FAIRFIELD SCHOOL OF

LAW

DATED: 30.04.2020

iv
LIST OF ABBREVIATIONS

 A. -- Indian Law Reports Allahabad series

 Acton -- Acton‘s Reports, Prize Causes, Privy Council (Eng.)
 AC -- Appeal Cases (Eng.)
 Agra -- North-Western Provinces High Court Reports, Agra
 Agra F.B. -- North-Western Provinces High Court Reports, Agra
 Agra FB -- Agra Full Bench Rulings
 Agra FBR -- Agra Full Bench Rulings
 Agra HCR -- Agra High Court Reports
 AIR -- All India Reporter
 AIR All -- All India Reporter Allahabad
 B. -- Indian Law Reports Bombay Series
 B. & Ald. -- Barnwell & Alderson‘s Reports (Eng.)
 Bald. -- Bal deva Ram Dave‘s Privy Council Cases
 Beng.LR -- Bengal Law Reports
 BHC -- Bombay High Court Reports
 B.L.J -- Bombay Law Journal
 B.L.R -- Bengal Law Reports
 B.L.R -- Bombay Law Reporter
 BLT -- Burma Law Times
 CARA -- Central Adoption Research Authority
 CJM -- Chief Judicial Magistrate
 CMM -- Chief Metropolitan Magistrate
 CRC -- Convention on the Rights of the Child, 1989
 CWC -- Child Welfare Committee
 Cal -- All India Reporter Calcutta
 Cal -- Indian Law Reports Calcutta series
 Cal LJ or CLJ -- Calcutta Law Journal
 DTO -- Detention and Training Order
 ECHR -- European Court for Human Rights
 E.R -- English Reports (Eng.)

v
 El. & Bl. -- Ellis & Blackburn‘s Reports (Eng.)
 Ibid -- Latin, short for ibidem, meaning the ―same place‖
 ILR All -- Indian Law Reports Allahabad series
 ILR Bom -- Indian Law Reports Bombay series
 IPC -- Indian Penal Code
 ICCPR -- International Convention on Civil and Political Rights
 I.R -- Irish Reports (Ireland)
 Ind. Cas. -- Indian Cases
 JJA -- Juvenile Justice Act
 JJB -- Juvenile Justice Board
 KB -- King‘s Bench (Eng.)
 KBD -- King‘s Bench Division (Eng.)
 KLR -- Kathiawar Law Reports
 LJP. -- Law Journal Reports
 LJPro -- Law Journal, Probate Court (Eng.)
 LLJ -- Lahore Law Journal
 LWOP -- Life without Possibility of Parole
 Mad HCR -- Madras High Court Reports
 Mad LJ or MLJ -- Madras Law Journal
 NGO -- Non Governmental Organization
 p. -- Page
 pp. -- Pages
 Pat. LR -- Patna Law Reporter
 UDHR -- Universal Declaration of Human Rights
 UNCRC -- UN Convention on the Rights of the Child, 1989
 v. -- Versus

vi
 TABLE OF CASES

• A.K. Roy vs. UOI 1982 AIR 710 1982 SCR(2) 272

• All India Judges Association vs. Union of India (1992) 1 SCC 119

• Andre Paul Terence Ambard vs. Attorney General of

Trinidad and Tobago AIR 1936 SC 141

• Anil Rai vs. State of Bihar (2001) 7 SCC 318

• Ashwini Kumar Ghose vs. Arbinda Bose AIR 1953 SC 75

• Bhrama Prakash Sharma vs. State of U.P AIR 1954 SC10

• Bihar Legal Support Society vs. Chief Justice of Ind’ia

(1986) SCC (Cri.) 537

• C.K.Daphatary vs. O.P. Gupta1971 SCC (1) 626

• Chandra Mohan vs. State of U.P AIR 1966 SC 1987

• Clinton vs. City of New York, 524 U.S. 417 (1998)

• Eshwar Chand Jain vs. High Court of P. & H (1988) 3 SCC 370

• Harish Uppal (Ex-Capt.) vs. Union of India (2003) 2 SCC

45.
• Hepburn vs. Griswold, 75 U.S 603 (1850)‘

• High Court of Bombay vs. Sri Kumar 1997(b) SCC 33

• I.C. Golak Nath vs. State of Punjab AIR 1967 SC 1643

• Re Ajay Kumar Pandeyl966 (6) SCC 510

• Indira Nehru Gandhi vs. Raj Narain 1975 supp SCC 1

vii
• INS vs. Chadha 462 U.S 919 (1983)

• Iqbal Cliagla & ors vs. Shivshankar and Ors Bombay High Ct, Writ
Petition 527 of 1981. Iln Sup Ct: Transferred Case 22 of 1981.

• Kesavananda Bharati vs. State of Kerala, A.I.R. 1973 S.C. 1461

• Lakhanpal vs. A.N.Ray1975 Del.66

• M.C. Mehta vs. Union of India, AIR 1987 Sc 1086,

• Marbury vs. Madison I crunch 137, 2 LED, 60 (1803)

• Minerva Mills Ltd. vs. Union of India, AIR 1980 SC 1789

• Murray’s Lessee vs. Hoboken Land & Improvement Co. 59 U.S 272 (1856)

• Nadan vs. The King [1926] A.C. 482 (P.C.)

• P.N Duda vs. P. Shiv Shanker 1988 (3) SCC 167

• Punjab and Haryana High Court vs. State of Haryana AIR 1975 SC 613

• R Pushpain vs. State of Madras, (1953) 1 MU 88

• R. M. Gurjar vs. High Court of Gujarat(1992) 4 SCC10

• Ram Jawaya vs. State of Punjab AIR 1955 SC 549

• Ram Jawaya vs. State of Punjab, A.I.R. 1955 S.C. 549

• Ramesh Thapper vs. State of Madras 1950 S.C.R. 594

• Re Presidential Reference AIR 1999 SC I

viii
e Re Rohan Lal Ah uja 1994 SCC (Cri) 75

• Rustom CowasjeC Cooper vs. Union of India 1970 (2) SCC 298

• S.C Advocates on Record Association vs. Union of India

AIR1994 SC 268

• S.P. Gupt.a vs. Union of India AIR 1982 SC 149

• Shamsher Singh vs. State of Punjab AIR 1974 AC 2192

• Shri Kumar Padma Prasad vs. Union of India, 1992 (2) SCC 428
• Sompal Singh vs. Sunil Rathi (2005) 1 SCC 1

• Spencer & Co. vs. Vishwadarshan Distributor s ( 1995) I SCC 259

• State of Assam vs. Ranga Mohammad AIR 1967 SC 903

• State of Gujarat vs. Ramesh Chandra AIR 1977 SC 1619

• State of Kerala vs. A. Lakshmikutty (1986) 4 SCC 632 e State

of Madras vs. V.G. Row AIR 1952 SC 196

• State of Orissa vs. Sudhanshu Shekhar AIR 1968 SC 647

• State of W. B. vs. Nripendra Nath AIR 1966 SC 447

• State of Punjab vs. Mahendra Singh Chawla AIR 1997 SC 1225.

• Subhash Sharma vs. State of Bihar AIR 1991 Sc 420

• Subhash Sharma vs. Union of India 1991(1) Supp. SCC 574

• Tarak Singh and others vs. Jyothi Basu and others2005 (1) SCC 201

ix
• Union of India vs. S ankal chand AI R 1977 SC 2328

• Waman Rao vs. Union of India AfR 1981 SC 27

• Wayman vs. Southard 23 U.S 1 (1825)

x
 TABLE OF CONTENTS

Title Page

Declaration

Certificate

Acknowledgements

Table of Cases
PAGE NO.
Chapter I

Introduction 1-15

1.1 Significance of the Study

1.2 Statement of the Problem

1.3 Objectives of the Study

1.4 Hypothesis

1.5 Methodology

1.6 Sources of Information

1.7 Plan of Study

Chapter II
2.4 Indian
Evolution of Judicial System in India Judicial
system in
2.1 Introduction m edieval
period
2.2 Origin of Judicial System in Ancient India
2.5 Judicial
2.3 The administration of justice in ancient India System
under
2.3.1. Appointment of Judges and Judicial Standards British
2.3.2. The King’s Judges xi rule
16-73
2.3.3. Dele gation of Judicial power by the King
 2.5.1. During the Period of 1 600-1726

2.5.2. Charters of 1 726

2.6 Indian Judicial System in Modern Period

2.6.1. Pre-Independence

2.6.2. Post-Independence:

2.7 Doctrine of Separation of Powers

2.6.1 Meaning of Separation of Power

2.6.2 Montesquieu Theory

2.6.2. Separation of Powers in other Countries

2.6. 3.1. United States of America

2.6.3.1(A) Legislative Power

2.6.3.1(B) Executive Power

2.6.3.1(C) Judicial Power

2.6.3.2. England

2.8. Doetrine of Separation of Powers in India

2.8.1. . British India

2.8.2. After Independence

2.9. Doctrine of Separation of Powers and Independence of

2.9.1. Meaning of Independence of Judiciary

2.9.2. Need for the Independence of the Judiciary

2.9.3. Independence of Judiciary in India

2.9.3.1. Before Independence

2.9.3.2. After Independence

2.9.3.3. Constitutional Basis of Judicial Independence in India

xii
 2.9.4. Vieiv of National Commission to review the working of’ the
Constitution — Procedure of appointment of Judges of the
Supreme Court and the High Court

2.9.5. Constitution of National Judicial Commission

2.9.6. The Concept of National Judicial Commission

2.9.6.1 . Position in United Kingdom

2.9.6.2. Position in Australia

2.9.6.3. Position in Canada

2.10. Conclusions

Chapter III

Appointment of Judges—Constitutional Perspectives

74-148

3.1 Introduction

3.2 Meaning of Judiciary

3.3 Constitutional Provisions relating to the Judiciary

3.3.1(1 ) Method of Appointment of Supreme Court Judges

3.3.1(2) Supreme Court

3.3.1(3) Composition of the Court

3.3.1 (4) Qualificati ons of Judges

3.3.1(5) Appointments of Judges

3.3.1(6) Supremacy of Executive: Judges Transfer Case I 3.3.1(7)

Judicial Supremacy: S.C. Advocate on Record

Association vs. Union of India

3.3.1 (8) Appointment of the Chief Justice of India 3.3.1(9)

Sole opinion of Chief Justice of India without

folio wing consultation Process:
xiii
 Appointment arid T“ransfer of .fudges Case III

3.3.2. Meth od of Ap point m ent of High Co urt Judges

3.3.2(l ). Constitution of High Courts

3.3. 2(2). Appointment of High Court Judges

3.3.2(3). Transfer of a Judge from one High Court to another

3.3.2(4). Appointments of Additi onal and Acting Judges

3.3.3. Appointment to the Subordinate Judiciary

3.3.3(1) Control over Ministerial Officers of Subordinate

Courts

3.3.3(2) High Courts for Union Territories

3.4. Role of the Executive in Judicial

appointments

3.4.1. Appointment of Judges and composition of Supreme

Court

3.4.2. Judicial Independence and transfer of Judges

3.4.3. Seniority to be followed in appointment of Chief Justice of

India

3.4.4. Remo va1

3.4.5. Other provisions

3.5. Appointment of Judges-power and procedure

3.6. Controversy regarding appointment of Judges

3.7. Independence of Judiciar y

3.7. Role of the Executive in Judicial appointments

3.8. Strength of the Court - Role of the Legislature

3.9. Conclusions

xiv
 Chapter — IV

Independence of Judiciary -Nlethod of Appointment of

Judges in other Countries 149-205

4.1. Introduction

4.2. United States of America

4.2.1. Federal Court System and Jurisdictions

4.2.1(l ) Supreme Court

4.2.1(2) Circuit Courts of Appeals

4.2. I (3) District Courts

4.2.2. Methods of appointment

4.2.3. Qua lifieations of Federal Judges

4.2.4. The Process of appointment of Judges

4.2.4(I ) Vacancy

4.2.4(2) Selections and nomination of candidates 4.2.4(3)

Department of Justice

4.2.4(4) The American Bar Association

4.2.4(5) The White House

4.2.4(6) President

4.2.4(7) Confirmation by the Senate 4.2.4(8)

The Committee on the Judiciary

4.2.4(9) Investigation

4.2.4(10) Confirmation Hearing

4.2.4(11) Voting

4.2.4(12) Full Senate

4.2.4(13) Appointment by the President

xv
 4.2.4( 14) Recess Appointment

4.2.5. The Role of the Legislature in th e process of

appointment of Judges

4.2.5(1) Selection of Candidates 4.2.5(2)

District Courts

4.2.5(3) Supreme Court and Circuit Courts

4. 2.5(4) Blue S lips

4.2 5(5) Confirmations of nominations

4.2.6. Selection Standards

4.2.6(1) Judicial Selection Standards

4.2.7. Arguments against and for the current system

4.2.7(1) Argument against the current system

4.2.7(2) Arguments for the current system

4.2.8 Arguments Against and for the current system

4.2.8( 1) Argument against the current system

4.2.8(2) Arguments for the current system

4.3. United Kingdom

4.3.1 Arguments against and for the current system

4.3.2 Arguments for the current system

4.4. France

4.4.1. Terms and Nature of Judicial appointments

4.5. Australia

4.6. Canada

4.6.1. The role of the Legislature in the process of

Appointment of Judges

4.6.2. Arguments against and for the current system

xvi
 4.6.2( 1) Argument against the current system
4.6.2(2) Arguments for the current system

4.7. Germany

4.7.1 The elements of Judicial Independence in Germany

4.7.2. Substantive Independence

4.7.3 Independence from the Legislature

4.7.4 Independence from the Executive

4.7.5. The appointment of Judges in Germany

4.7.6. Conclusi ons

4.8. U.S.S.R

4.9. Conclusion

Chapter v

Recommendations of Law Commission on Judicial Appointments

206-269

5.1. Introduction

5.2. Past Proposals for reforms in the Process of appointment of

Judges in India —1925

5.2.1. Introduction

5.2.2. Recommendations of S apru Committee

5.2.3. Recommendations of the High Powered Committee

appointed by the Constituent Assembly

5.2.4. Suggestion of Shri B.N. Rao

5.2.5. Recommendations of Federal Court

5.2.6. Basis adopted in Arts.124 and 217

5.2.7. Reports of the Law Commission of India

5.2.8. Administrative Reforms Commission

xvi
i
 4.4.9. Recommendations of High Court Arrears Committee

5.2. l 0.Recommendations of Bar Council of India for collegium

5.2.11. Proposals for constitution of a National Judicial

Commission contained in the lapsed Constitution (67th
Amendment) Bill, 1990

5.3. Pre-Independence Law Commissions of India

5.4. Role of Law Com mission in Legal Reform in India
5.5. Post Independence Developments
5.6. First Law Commission Recommendations in its 14 ' h Report
5.7. Eighth Law Com mission Recommendations in its 79 t ' And 80' h
Reports

5.7. l . 79' h Report in 1979

5. 7.2. 80th Report in 1979

5.8. Eleventh Law Commission Recommendations in its 121st

Report

5.9. Eigh teenth Law Commission Recommendations in its 214"

Report

5.9.1. Recommendations

5.10. Eighteenth Law Commission Recommendations in its 230' h

Report

5.11. Conclusion

Chapter — VI

Supreme Court Interpretation on Judicial Appoint‘ments

270-336
6.1. Introduction

6.1.1. Appointment of Chief Justice of India

6.2. Observations of Supreme Court in Samsher Singh’s Case

6.3. Observations of Supreme Court in Sankal Chand Seth Case

6.4. Observations in First Judges Case

xvi
ii
 6.4.1 No Inquiry NeGessar y

6.5. Observations in Second Judges Transfer Case

6.5.1. In the Event of Conflicting opinions among the

Collegiums

6.5.2. Purpose of 67th Amendment Bill served by the Judgment in

Supreme Court Advocate on Record Association Case

6.6. Observations in Third Judges Case

6.6.1. The Significance of “Consultation” Provided by Arts 124 And

217

6.7. Different views of Supreme Court Judges on Judicial

Appointments

6.7.1. Justice Bagwati’s views

6.7.2. V.R. Krishna lyer views

6.7.3. K.G Balakrishnan views on Collegium System

6.7.4. Justice Kuldeep Singh’s views

6.7.5. Justice Verma views

6.7.6. Justice Lakshmanan views

6.8. Critical appraisal on the views of the Supreme Court

6.8.1. Two Alternatives

6.9. Conclusions

Chapter — VII

Conclusi ons and Suggestions 337-351

Bibliography 352 -359

xix
 CHAPTER I

INTRODUCTION

The Judiciary plays a vital part in the development of the society.

Although interpretation is not mainly concerned with making of the laws by
means of this technique, the Judiciary is in a position to give new orientation
to the existing laws and bring about the necessary changes in the society. An
Independent Judiciary is the soul of Parliamentary democratic dispensation of
governance. An independent judiciary shoulders a crucial responsibility in a
parliamentary democracy.

It is trite saying that all power tends to corruption. The unity into
the Sovereign of all the three faculties legislative, executive and judicial,
culminated into despotism. The mediaeval monarchy had accordingly to
confront with the up spring of the popular will. The English and the French
monarchies had not only to witness but to succumb to public revolutions
which succeeded in regarding the sovereignty to the people with the
additional vigil that a separation rather than a unity of the legislative,
executive and judicial functions of the State was thought desirable. The
making, the administration and the dispensation of laws were desired and
devised to dwell into three separate and independent institutions. The will
of the State, the wielding of it and viewing of the true character of the first
and the propriety of the second became the domains of three independent
constituent parts of the same State. The representative government and the
functional distribution of its power are therefore, the dominant features of
the theory leading to the evolution of democracy. The modern concept of
Statecraft therefore, requires the work of the

1
government, in the words of Henry S idgewich 1 to be “distributed under three
main heads as Legislature Executive and Judicial each division being allotted
to a separately constituted organ”.

The judicial power is vested in one integrated system of a

hierarchy of judicial tribunals and this hierarchy is composed of four cadres;
the Supreme Court, the High Courts; the District Courts; and the other
original courts subordinate to the District Court. The separation of the judicial
organ and its independence is secured by clear constitutional provisions and
the position cannot be altered unless by the different process of amendment of
the Constitution. Neither an action of the Executive nor an act of Legislature is
competent to alter the exalted position occupied by this organ. Although the
State Legislature is empowered under Entry 3 of the State List to regulate the
administration of justice, constitution and organization of all courts except the
Supreme Court and the High Court’s; but the power extends only up the
creation of the forum, the setting up of the judicial tribunals and defining of the
jurisdiction pecuniary, territorial or as respects subject-matter. It does not
extend to the appointment, tenure and conditions of service of the judges
presiding over them.

The judiciary alone checks and balances the independence and

functions of any of the organs of the Government. The independence of the
Higher Judiciary is secured that its members are appointed by the Union
Executive, but can only be impeached by the Parliament. The independence
of the Subordinate Judiciary is also secured, as its members are appointed
by the State Executive but their control is vested in the High Court. It is the

Henry Sedgwich (31‘ May 1838 —28 August 1900) was an English Utilitarian
philosopher and Economist
judiciary alone which keeps the respective organs within their legitimate
spheres. Even with the fusion of the legislative and executive organs and the
judicial organ is entirely independent and specifically separate by the very
provisions of the Constitution. Art.50 of the Constitution enjoins upon the
State to take steps to separate the judiciary from the Executive in the
public service of the State. This directive has significance in relation to the
position of the Subordinate Judiciary which in respect of the tenure of its
office falls short of the ideal of absolute independence.

The Indian Constitution though it does not accept the strict doctrine of
separation of powers vouches for an independent judiciary both at the national
level and in the States. It is astonishing that whereas the Constitution took
precautions to protect the respective heads of the Executive and the
Legislature and its members with clear enactment of provisions conferring
immunities and privileges upon them and of safeguarding their dignity and
honor in due proportions it took no similar steps to protect the members of
judiciary and to vouchsafe the status and dignity of their but seemingly
obvious. It is a constitutional paradox to aspire, to secure justice, social,
economic and political, to the citizens without securing the infallibility of
the dispensers of justice.

Independence of the judiciary is a subject which is discussed in almost

all treatises on law and constitution and the judges have developed it as a
doctrine by the method of interpretation which is their forte. H.R.Khanna. J. 2
speaks of independence of judiciary as the necessary corollary of the functions
of the judiciary.

2
Judiciary in India and Judicial Function; 1985

3
According to him, the role of the judiciary has passed from the initial one of
“setting disputes between private citizens” to that “as the arbiter of disputes
between the State and citizens. In his opinion “the liberties of the individuals
face real danger in insidious encroachments” by the men who govern and
that “there is always a danger of abuse of powers of government in the
modern society” which in his view “should be cushioned the safeguards for an
individual’s rights for which therefore, Jurisdiction has consequently to be
vested in some authority to ensure the protection of those rights”; and to see
that “the powers which re possessed by the State are not abused and that
those armed with such powers exercise them in accordance with laws enacted
for the purpose”. In his opinion “such jurisdiction is exercised by courts
according to the scheme of our Constitution” and it follows as a necessary
corollary that: “S ince persons who are to decode such disputes be not
susceptible to pressures of the citizens and of the State independence of the
judges has come to be accepted as an essential trait of the democratic
society”.

It is submitted that in our Constitution there is no provisions of

independence of judges. That the framers of our Constitution were against
the idea is borne by the speech of Dr B.R. Ambedkar in the Constituent
Assembly during debates and he said: “I do not agree how five or six
gentlemen sitting in the federal or Supreme Court examining laws made by
the legislature and by dint of their own individual conscience or their bias or
prejudices by trusted to determine which law is good and which law is bad:3
in ”A.K. Roy v. Union of Indin

' A.F. Roy v. Union ofIndia AIR 1982 SC 710 (1982) 1 SCC 272

AIR 1983 SC 710 (1982) 1 SCC 272

4
 The framers of our Constitution thus in no uncertain terms rejected the
role of the judiciary to “determine the legislative competence” of legislatures
and for that matter “what law is good and which law is bad”. It is also
submitted that it is the people who elect their representatives to the
legislatures and it is from them that the people who govern are selected.
According to Khanna, J., it can be stated that “liberties of citizens face real
danger in insidious encroachments by men of government for the men who
govern are the representatives of the people whereas the judges who form the
judiciary are not”. To say that “there is always the danger of abuse of
powers” by the men who govern is tantamount to voicing no confidence
against the government in a democratic process which makes such
government possible through popular election. Also his concept that without
independence of judiciary “the first casualty would necessarily be the
supremacy of the Constitution”, because the Human Rights and the
fundamental rights “would be reduced to the level of no more than ornamental
show-pieces in the Constitution unless they can be enforced by the courts”
is wholly untenable as it would be seen that in France there is no such power
of the ordinary courts but the rights, human and fundamental, have not
become mere constitutional show-pieces.

1.1 SIGNIFICANCE OF TITE STUDY

Independence of judiciary is a cardinal principle of our Constitution. It

is, therefore, absolutely essential that the judiciary must be free from
executive pressure or influence which has been secured by making elaborate
provisions in the constitution with details, the independence of judiciary is
not limited only to the independence from the executive pressure or

5
influence it is a wider concept which takes within its sweep independence
from any other pressure and prejudices. It has many dimensions, viz.,
fearlessness of other power centers, economic and political and freedom
from prejudices acquired and nourished by the class to which judges belong.
The independence of judiciary and the stream of public justice must remain
pure and unsullied.

The arch of the Constitution of India pregnant from its Preamble,

Chapter III-Fundamental Rights and Chapter IV- Directive Principles is to
establish an egalitarian social, economic and political — to every citizen
through rule of law. Existing social inequalities need to be removed and
equality in fact is accorded to all people irrespective of caste, creed, sex,
religion or region subject to protective discrimination only through rule of
law. The judge cannot retain his earlier passive judicial role when he
administers the law under the constitution to give effect to the
constitutional ideals. The extraordinary complexity of modern litigati on
requires him not merely to declare the rights to citizens but also to model
the relief warranted under given facts and circumstance and often command
the executive and other agencies to enforce and give effect to the order, writ
or direction or prohibit them to do unconstitutional acts. In this ongoing
complex of adjudicatory process the role of the judge is not merely to
interpret the law but also to lay new norms of law and to mould the law to
suit the changing social and economic scenario to make the ideals
enshrined in the constitution meaningful and a reality”. Therefore the Judge
is required to take judicial notice of the social and economic ramifications
consistent with the theory of law. Thereby, the society demands active
judicial roles which formerly were considered exceptional but now a
routine. The judge must act independently if he is to perform the functions
as expected of him

6
and he must feel secure that such action of his will not lead to his own
downfall.

The independence is not assured for the judge but to the judged.
Independence to the judge therefore would be both essential and proper.
Considered judgment of the court would guarantee the constitutional liberation
which would thrive by in an atmosphere of judicial independence. Every
endeavor should be made to preserve independent judiciary as a citadel of
public security to fulfill the constitutional role assigned to the judges.

It is denied that there is any automatic nexus of the so called basic

rights with the independence of the judiciary. At least France is one
country which repudiates such connection. The basic rights abide in this
land of Liberty, Equality and Fraternity of Rousseau but the courts in that
country settle disputes by reference to the statures as they are. All laws
have to conform to the basic rights but the responsibility to see that they do
so conform is not that of the judiciary but that of the Council of the
Constitution, a non-judicial body. The council scrutinizes the laws in their
bill stage and no bill can become law unless cleared by the Council. Laws
in France thus presume constitutionality and courts simply have to apply
the same as they come out of the anvil of the council of the constitution.

The basic freedoms neither become “ornamental show- pieces” in

France nor “mere teasing illusion” of Bhagwati J. The framers of our
constitution also debated whether “the judiciary should be given the
additional power to question the law on the

Minerva Mills Ltd. (. Union oflndia, AIR 1980 SC 1789

7
ground that they violate certain fundamental principles” but they‘ did
not think it prudent as Dr. Ambedkar pointed out that “I do not see how
five or six gentlemen sitting in the Federal or Supreme Court be
trusted to determine which law is good and which law is bad”.7 The role of
judiciary in relation to Fundamental Rights as expressed in State of M
adra5 v. V.G. A»w' it is submitted that we have progressed a long way
from 1952 when such a view accepted as correct and now the
concept of fundamental rights has to conform to the socio-economic
needs of the society so that now the Directive principles are
being gradually absorbed as the reasonable
restrictions of fundamental rights as adumbrated by Bhagwati, J. in
Minerva Mills Ltd v Union of in dia’ and Waman Atas v. f/ni»n of In
dia.” The sentimental duty of the judiciary has become relaxed. Thus, the
claim that . without independence of judiciary Fundamental and
Human Rights will be reduced to ornamental
pieces is denied because there are countries where such rights
plentifully exist without the judiciary having to play the role of umpire.

In India the judiciary is committed under Art.12 read with Art.37 to

effectuate Directive Principles which have now become‘ more or less the
reasonable restrictions of fundamental rights and role of the judiciary has
changed from that of a “sentinel of the qui vive” to that of finding the
genuineness of the nexus between the impugned lawand
the Directive Principles it seeks to
incorporate. The doctrinaire approach emanating from Art.13 (2) as
regards the role of judiciary has thus become mush diluted in view of the
new political approach towards Directive Principles so

6
A.K Roy V. Union oflndia AIR 1982 SC 710
A.K Roy V. Union ofIndia Am 1982 SC 710 at p. 727
AIR 1952 SC 196
AIR .1980 SC 196
'0 AIR 1981 SC 27
necessary for the establishment of the egalitarian society in India. Also the fact
that the court-packing threat was not carried out by President Roosevelt did
not prove the independence of the American judiciary and on the contrary
the President had his way without packing the court because his threat
worked and ever since the judiciary has consistently kept aloof from
economic laws and regulatory measures.

It is submitted that the judiciary has sought to make out a special place
for itself by means of its own interpretation a place which the Constitution has
not given it. The many privileges claimed above under various articles of
the Constitution by and for the judiciary are by no unique to clothe
the judges with special status because they belong to the Comptroller and
Auditor General and the Chief and other Election Commissioner as well. The
right of the Indian Judiciary to judicial review is also not a constitutional right
but a power imported into the Indian Constitution by the Indian Judiciary
thorough the medium of interpretation. Similarly the doctrine of separation of
powers is extraneous to the Indian Constitution but has been introduced into
it by judicial interpretation.

The concept of “Judicial Independence” is a wider concept taking

within its sweep independence from any pressure or prejudice. Independent
judiciary therefore, is most essential to protect the liberty of citizens. In terms
of grave danger it is the constitutional duty of the judiciary to poise the scales
of justice unmoved by the powers actual or perceived, undisturbed by the
clamor of the multitude. The heart of the judicial independence is judicial
individualism. The judiciary is not a disembodied

9
abstraction. It is compared of individual persons who work’
primarily of their own.

The recruitment, appointment and other service conditions of the

judicial officers are regulated under the statutory rules made under
provisio Io Art.309 of the constitution. Their tenure is ensured by Art.311 of
the Constitution subject to the pleasure of the President or the Governor as
the case may be under Art.310 of the Constitution. The judicial officers are
thereby insulated from any pressure of whatsoever nature to adjudicate
disputes between the citizens and the state without any fear or favor,
prejudice or predilection.

Independence of the judiciary which is vital for the establishment of

real participatory democracy, maintenance of the rule of law is a dynamic
concept and delivery of social justice to the vulnerable sections of
community. Thus there is a great need to preserve the independence of
judiciary in India.

1.2 STATEMENT OF TRE PROBLEM

Of late, out of the three organs in the State Judiciary is regarded as of

utmost importance. There is enormous criticism regarding the functioning of
Legislature and Executive. There are innumerable reports regarding high
level of corruption that is prevailing in the above mentioned organs. It is only
Judiciary which is regarded as most efficient body. The common man
generally looks to the judiciary for his relief and amelioration of the weaker
sections of the community. In fact the judiciary had played a vital role in
developing the jurisprudence in various

10
fields of law. The public interest litigation is a unique contribution of the
judiciary. Through the technique of PIL, we were able to develop the
environmental, human rights, juvenile justice etG. This would be possible
only when the judiciary is totally independent and separate. The judicial
appointments should be transparent and only the best candidates should be
selected and appointed as judges. In as much as there are a number of
criticisms and controversies in regard to appointment of judicial officers
and corruption in judiciary the subject assumes great importance and the
problem requires in depth analysis and study.

1.3 OBJECTIVES OF THE STUDY

The object of this study is to critically analyze and examine whether the
interference of the legislature and executive in the matter of appointments of
judges affects the independence of judiciary.

1. To examine the historical evoluti on of judicial system and the

Constituti onal provisions relating to independence of judiciary.

2. To make a comparison of various provisions available for the

appointment of judges in other countries.

3. To critically analyze the role of Supreme Court towards the need for the
independence of judiciary with regard to appointment of judges.

11
 4. To suggest any improvements on the basis of findings and observations
of the research scholar.

1.4 £tYPOTI1ESIS

The Indian system of judicial independence is based partly upon the

experience of the foreign legal systems and partly on the exigencies of our

own system. But the concept of independence of judiciary has not been

maintained in its fullest form in our system of justice. As observed from the

constitutional provisions, the statutor y enactments and judicial decisions, the

state action is mostly responsible to maintain the concept of independence of

judiciary. Based on the preliminary examination the initial hypothesis is

formulated as follows:

(i) The concept of Independence of Judiciary has not been maintained in its

fullest spirit and courage of Indian Constitution.

(ii) The excessive intrusion of executive and legislature is impairing and

completely over lapping the basic concept of independence of

judiciary.

12
(iii) The independence of judiciary emerged as the basic’ structure
towards achieving equality and justice, but it failed to achieve its

object in its true spirit.

1.5 METHODOLOGY

In the preparation of the thesis an analytical-cum- historical

approach has been applied. The historical approach is applied to trace out
the institutions in the ancient times. The analytical method is applied to
critically evaluate the organization and functioning of the institutions
existing at the present day. In addition, the research scholar had also
employed comparative-cum-critical method in order to test the hypothesis
by taking into account the provisions prevailing in the analogous
constitutions in other countries.

1.6 SOURCES OF INFORMATION

The information for the thesis can be collected by following any of the
two approaches — doctrinal approach and non-doctrinal approach. Doctrinal
approach is also known as fundamental approach. It is also described as
textual in nature. It consists of 2 kinds of sources — Primary and Secondary.
The primary sources are concerned with legislation and case law. The
secondary sources are concerned with articles published in leading journals,
law reviews, text books etc. The non-doctrinal approach is known as
functional or contextual. It deals with social values, constitutional
interrelations, principles of justice, good conscience etc. In the preparation
of the present thesis mainly the doctrinal approach has been adopted and
the necessary material equity has been drawn from both primary and
secondary sources.

1.8 PLAN OF STUDY

The entire study has been divided into seven chapters.

Chapter I focuses on significance of study and framing of hypothesis.

It also lays down the methodology followed for the study.

The historical evolution of the Indian Judicial System is described

briefly and the concept of emergence of independence of judiciary is explained
in Chapter II.

Chapter III examines the various Constitutional provisions that are

available for the method of appointment of Judges towards establishing an
impartial and independent judiciary.

Chapter IV analyses the status of judicial independence of judiciary in

other countries thorough a comparative description of the procedure relating
to appointment of judges.

14
 The contributions of the Higher Judiciary in highlighting the vital and
paramount importance of independence of judiciary by its decisions are
discussed in V Chapter.

Chapter VI discusses the various recommendations of the Law

Commission of India relating to appointment of Judges.

Chapter VII deals with conclusions and suggestions.

16
CHAPTER II

EVOLUTION OF JUDICIRY SYSTEM IN INDIA

The free doin of the press and independence of the judiciary are
two of the most important indices of democracy in a country. It is
essential to prese rve both. Pliable press and subservient judiciary are
the first step in the process of extinguish me nt of democratic lights.
Justice.i1. R. Khanna

2.1 INTRODUCTON

India is situated in South Asia. It is a democratic republic. The prominent

features of India are of course its large population, its diversity, religion and
culture and its absolute commitment to democracy. Historically India was a
collection of kingdoms and empires constantly at war with each other.
However modern India took shape with the conquest of the nation by the
British. This conquest started in the late 17t' century. The British ruled
India till 1947 when India became independent nation.

Modern nation-state functions through a set of institutions. Parliament, the

judiciary, executive machinery such as bureaucracy and the police and the
formal structures of Union— State relati ons as well as the electoral system
are the set of institutions constituted by the idea of constitutionalism. Their
arrangements dependencies and inter-dependencies are directly shaped-by the
Meta politico-legal document- i.e., Constitution.

In his Article “Freedom of Expression with particular reference to Freedom of the

Media”, (1982) 2 SCC (Jour)

17
 The legal system derives its authority from the Constitution and is
deeply embedded in the political system; the presence of judiciary substantiates
the theory of separation of power wherein the other two organs viz.
legislature and executive stand relatively apart from it.

Parliamentary democracy works on the principle of fusion of

power’ and in the making of law, there is direct participation of the
legislature and the executive it is the judiciary that remains independent and
strong safeguarding the interests of the citizens by not allowing the other
organs to go beyond the Constitution. It acts therefore, as a check on the
arbitrariness and unconstitutionality of the legislature and the executive.
Judiciary is the final arbiter in interpreting constitutional arrangements. It is
in fact the guardian and conscience keeper of the normative values that are
authoritatively allocated by the state.’ The nature of the democracy and
development depends much on how the legal system conducts itself to
sustain the overall socio-economic and political environment.

2.2 ORIGIN OF JUDICIAL SYSTEM IN ANCIENT INDIA

India has the oldest judiciary in the world. No other judicial system
has a more ancient or exalted history. The literary sources which give us
knowledge of judicial system in ancient India are as a matter of fact
“not older than the fourth century
B.C. 2 the descriptions of the ancient j udicial system in India are well
contained in ancient law books called Dharmasutras and Smritis which
together with their commentaries are called Dharma

2
R.S. Sharma “Ancient India” New Delhi, Publication Department , NCERT 1990 p. 1 l

18
 Shastas 3. Many other texts like Artha S hastra of Koutilya, Manu Smriti and
Narada S mriti, Brihaspati Smriti and the epic like Ramayana and Mahabharata
also give us a good account of knowledge of ancient judicial system in India.
The Dharma Sutras which were compiled in 500-200 B C 4 and the Principle S
mritis which were codified in the first 6 centuries of Christian era 5 give the
details of duties laid down for different varnas and the King and the
officials.

The Vedas the Ramayana, the Mahabharata make us believe that in the
ancient India polity, justice and law were regarded as very important
institutions law was considered as the king of king6 and the Rule of Law was
prevailed in the society.

The Puranas and Smritis like Narada Smriti, Yagnavalkya Smriti,

Brihaspati S mrit, etc., which belong to a comparatively latter period than the
Vedas contain information about the Hindu Legal and Judicial System.
Similarly Manu Smriti whose author Manu is still being regarded as the
greatest law giver of India tells us about the functions of judges and
importance of justice in society.

Indian jurisprudence was found on the rule of law; that the King
himself was subject to the law; that arbitrary power was unknown to Indian
political theory and jurisprudence and the kind’s right to govern was subject
to the fulfillment of duties the breach of which resulted in forfeiture of
kingship; that the judges were independent and subject only to the law; that
ancient India
° Ibid p.12
4 Ibid
Ibid
Mukhi H.R “Ancient Indian Political thoughts and Institutions”

19
 had the highest standard of any nation of antiquity as regards the capability,
learning, integrity, lack of prejudice, integrity, and independence of the
judiciary and these standards have not been surpassed till today ; that the Indian
judiciary consisted of a hierarchy of judges with the Court of the Chief
Justice Praadvivaka at the top each higher Court being invested with the power
to review the decision of the Courts below; that disputes were decided
essentially in accordance with the same principles of natural justice which
govern the judicial process in the modern State today: that the rules of
procedure and evidence were similar to those followed today ; that
paranormal modes of proof like the ordeal were discourage; that in criminal
trials the accused could not be punished unless his guilt was proved
according to law ; that in civil cases the trial consisted of four stages like
any modern trial — plaint, reply, hearing and decree ; that such doctrines as
res judicata prang nyaya were familiar to Indian jurisprudence; that all
trials civil or criminal were heard by a bench of several judges and rarely by a
judge sitting singly ; that the decrees of all courts except the King were subject
to appeal or review according to fixed principles ; that the fundamental duty
of the Court was to do justice "without favor or fear . 7

During the Hindu period in ancient India Hindu society, institutions,

and beliefs gradually developed and a definite shape was given to them.
Many important beliefs and doctrines of today are deep-rooted in the
ancient ideology. In order to understand the ancient judicial system in
India it is necessary to have a short account of the administrative divisions
prevailing in the ancient states. Ancient India was divided into various
independent states. And the each state the king was the supreme authority'
. The king

7
http://a11ahabadhighcourt.in/event/TheIndianJudicialSystem
SSDhavan.pdf ' A.L. Basham, The wonder that was India” pp.
102, 106

20
 with the assistancC of the chief priest (Purohita) and military commander
(Senani) administer his kingdom. Each state is divided into provinces and these
into divisions and districts which differed into terminology as well as in area.
For each province or district separate governors according to their status were
appointed with different designations. Mostly they were related to the king and
in certain places their appointments were hereditary. District officers were
entrusted with judicial and administrative functions 9.

2.3 THE ADMINISTRATION OF JUSTICE IN ANCIENT INDIA

In ancient India king was regarded as the fountain-head of justice. ’0 His

foremost duty was to protect his subjects. He was respected as lord of Dharma
and was entrusted with the supreme authority. He was respected as Lord of
Dharma and was entrusted with the supreme authority for the administration of
justice in his kingdom. The king’s court was the highest court of appeal as
well as an original court in cases of vital importance to the state" . In the
king’s court the king was advised by the learned Brahmins, the Chief Justice
and other judges, Ministers and elders and representatives of the trading
community. Next to the Kings was the Chief Justice (Pradvivaka). Apart
from the Chief Justice the court consisted of a board of judges to assist him.
All the judges were from the three upper castes preferably Brahmins.
Sometimes

Epigraphic India, Calcutta and Delhi Chapter XV p 130 ff

" P.V. Kane “History of Dharmasastra”, Vol HI Chapter IX deals “Law and
administration ofjustice” pp 242, 316. See also S.S. Dhavan “Indian
Jurisprudence”, (1963) vol 8 Journal of National Academy of administration p. 19

" Regarding the King’s judicial jurisdiction Kalidas in his “abijnana shakuntalam” has
referred to Dharma mitra’s case . Dharama Mitra was a wealthy merchant, who
died in a shipwreck. The dispute relating his property came before the King which
he transferred it to his Minister. The Minister passed an order that the entire estate
of the merchant be reverted to the king. Reversing this decision the king Dushyanta
ordered an enquiry to be made — whether any of his widows was expecting a child,
and he was informed that one of them was pregnant. The king directed that the
child after birth was entitled to be property of the deceased

21
 these judges constituted separate tribunals having specified territorial
jurisdiction. Bri.haspati ' 2 has stated that there were four kinds of tribunals
namely stationery, movable courts held under Royal signet in the absence of
the King and commissions under the King’s presidency.

In villages the local village councils or Ix/nni, similar to modern

panchayats consisted of board of five or more members to dispense justice
to villagers. 13 It was concerned all matters relating to endowment,
irrigation, cultivable land, punishment of land etc. Village councils dealt
with simple civil and criminal cases. At a higher level in towns and districts
the courts were presided over by the Government officers under the
authority of the king to administer justice. The link between the village
assembly and the official administration was headman of the village. In
each village local headman was holding hereditary office and .was required
to maintain order and administer justice. He was also the member of the
village council. He acted both as the leader of the village and the mediator
with the Government. 14

In order to deal with the disputes amongst members of various

guiders or association of traders or artisans, various corporations, trade
guilds, were authorized to exercise effective jurisdiction over their
members. According to Brihaspati “First come the family arbitrators; the
judges are superior to the families; the Chief Justice (Adyakshya ) is
superior to the judges;

'2 Brihaspati, Ch I pp. 1-3

" S. Varadacharial “The Hindu Judcial System” p. 88.
’4 P.V. Kane “History of Dharmasastra”, Vol H P 66, and K.P. Jayaswal, Hindu Polity Ch
XIII

22
 the king is superior to all of them and his decisions becomes

Criminal cases were ordinarily presented before the Central Courts or

courts held under the Royal authority. The smaller judicial assembly village
level was allowed to here only minor criminal cases.

Even in ancient India the decision of every higher court superseded that
of the court below. Each lower court was showing full respect to the decision
of each higher court. As such the king’s decision was supreme.

One of the cardinal rules of the administration of justice in ancient

India was the justice should not be administered by a single individual. A
bench of two or more judges was always preferred to administer justice.
“No decision was given by a person singly” is a formula found frequently
repeated in the old texts. The judicial procedure in ancient India was very
elaborate.

2.3.1 Appointment of Judges and Judicial

Standards

Caste considerations played an important role in the appointment of the

chief judge and other judges. Almost all the law books dealing with the
ancient judicial system mention that preferably Brahmin must be appointed as
a chief judge or judge.'6 In order to preference next comes to Kshatriya and
Vysyas but in

" Dr. Radha Kumud Muke;ji, “Local Government in Ancient India” pp 29-34, 132-142,
and Dr. P.N.
Sen Hindu Jurisprudence P 368
’6 P.V. Kane “History of Dharmasastra”, Vol III Chapter XI p. 272-275

22
 no case Sudra was appointed as a judge. Regarding qualifications of a judge
it is stated that the persons who are ignorant of the customs of the country,
unbelievers in caste system and God 17 , despisers of sacred books, insane irate
or distressed will not be appointed as judges. Women were not allowed to
hold the office of a judge.

The standards laid down for judges and magistrates were very lJigh.
Judges were required to take oath of impartiality when deciding disputes
between citizens. Integrity was the first qualification. Referring to the
integrity of a judge, Brihaspati states that “A judge should decide cases
without consideration of personal gain or prejudice or any kind of bias and his
decisions should be in accordance with the procedure prescribed by the
texts. A judge who performs his judicial duties in this manner achieves the
same spiritual merit as a person performing a Yagna”.
" Dishonesty in a judge was regarded as the most reprehensible
s 9
crime

2.3.2. The King’s Judges

The judges and counselors guiding the king during the trial of a case
were required to be independent and fearless and prevent him from committing
any error or injustice. Says Katyayana: “If the king wants to inflict upon the
litigants vivadinam an illegal or unrighteous decision, it is the duty of the judge
xamya to warn the king and prevent him.”

'7 Brihaspati 1, p. 33
" S.S. Dhavan “Indian Jurisprudence”, (19d3) Vol 8 Journal of National Academy of
administration
p. 22
:// Ie.co.in/books†idzU5mv7zh C&printsec=frontcover&d =Kumar&redir esc=
boo =Kumar&f=false

23
 "The judge guiding the king must give his opinion which he considers to
be according to law, if the king does not listen; the judge at least has done his
duty. When the judge realizes that the king has deviated from equity and
justice his duty is not to please the king for this is no. occasion for soft
speech vaktavyam tat priyarn natra; if the judge fails in his duty he is guilty."

2.3.3. Delegation of Judicial power by the Kin g

As civilization advanced, the king’s functions became more numerous

and he had less and less time to hear suits in person, and was compelled to
delegate more and more of his judicial function to professional judges.
Katyayana says: "If due to pressure of work, the king cannot hear suits in
person he should appoint as a judge a Brahmin learned in the Vedas."

The qualifications prescribed for a judge were very high. According to

Katyayana; "A judge should be austere and restrained impartial in
temperament, steadfast, God-fearing, assiduous in his duties, free from
anger, leading a righteous life and of good family.

In course of time a judicial hierarchy was created which relieved the

king of much of the j udicial work but leaving untouched his powers as the
highest court of appeal. Under the Maurya Empire a regular judicial service
existed as described above.

24
 The foremost duty of a judge was integrity which included impartiality
and a total absence of bias or attachment. The concept of integrity was
given a very wide meaning and the judicial code of integrity was very
strict. Says Brihaspati: "A judge should decide cases without any
consideration of personal gain or any kind of personal bias; and his decision
should be in accordance with the procedure prescribed by the texts. A judge
who performs his judicial duties in this manner achieves the same spiritual
merit as a person performing a Yajna."

The strictest precautions were taken to ensure the impartiality of

judges. A trial had to be in open court and judges were forbidden to talk to
the parties privately while the suit was pending because it was recognized that
a private hearing may lead to partiality. Shukra-nitisara says: "Five causes
destroy impartiality and lead to judges taking sides in disputes. There are
attachment, greed, fear, enmity, and hearing a party in private."

Another safeguard of judicial integrity was that suits could not be

heard by a single judge even if he was the king. Our ancients realized that
when two minds confer there is less chance of corruption or error and they
provided that the King must sit with his counselors when deciding cases and
judges must sit in benches of uneven numbers. Shukra-nitisara enjoined
that "Persons entrusted with judicial duties should be learned in the Vedas,
wise in worldly experience and should function in groups of three, five or
seven." Kautilya also enjoined that suits should be heard by three judges. Our
present judicial system created by the British does not follow this excellent
safeguard. Today every suit is heard by a single Munsif or civil Judge or
District Judge for

25
reasons of economy. But the state in ancient India was more
interested in the quality of justice than economy.

The most noteworthy feature of the judicial system was the institution of
sabhasada or councilors who acted as assessors or adviser of the King. They
were the equivalent of the modern jury. Yajanvalk ya enjoins: "The .Sovereign
should appoint as assessors of his court persons who are well versed in the
literature of the law, truthful and by temperament capable of complete
impartiality between friend and foe."

These assessors or jurors were required to express their opinion

without fear even to the point of disagreeing with the Sovereign and warning
him that his own opinion was contrary to law and equity. Katyayana says:
‘The assessors should not look on when they perceive the Sovereign inclined to
decide a dispute in violation of the law; if they keep silent they will go to hell
accompanied by the King." The same injunction is repeated in an identical
verse in Shukr-nitisara. The Sovereign-or the presiding judge in his absence-
was not expected to overrule the verdict of the jurors; on the contrary he
was to pass a decree Jaya-patra in accordance with their advice. Shukr-nitisara
says: "The King after observing that the assessors have given their verdict
should award the successful party a decree." Their status may be compared
to the Judicial Committee of the Privy Council which "humbly advises" their
Sovereign but their advice is binding. It may also be compared to the
people’s assessors under the Soviet judicial system that sit with the
professional judge in the Peoples’ Court but are equal in status to him and
can overrule him.

26
 But there was one exception. If in a difficult case the jurors were
unable to come to a conclusion the Sovereign could decide the matter
himself. Shukra-nitisara says "If they the assessors are unable to decide a
dispute because it raises difficult or doubtful issues in such a case the
Sovereign may decide in the exercise of his Sovereign privilege.

From the accounts of judicial administration of India provided by the

Vedas, S mritis and other texts of the ancient period it is confirmed that the
judicial administration was one of the most important aspects of
administration during that period. It was the responsibility of the state to
give justice to the people in accordance with Dharma which was place
above everything, including the King who himself was bound by its
provisions. The Judges were expected to be well-versed in the Dharma
Shastras. The King acted as the final court of appeal and was assisted by a
Chief Justice. It was the duty of the King-in-Council 0 to see the Dharma in
actual operation 2'

Justice was administered on certain basic principles. One such

principle was that the law was Supreme and even the King was also required
to accept the Supremacy of Law. According Manu, the great law giver, the
King was liable to pay fines and in fact a thousand times more than an
ordinary citizen is required to pay for committing similar offence. 22

Another basic principle of the ancient judicial administration was

that the judiciary and the executive were

20
Spellman Quoted in Mukhi H.R “Ancient Indian Political thoughts and Institutions”
°' Ibid -1, P 59
°2 Quoted in Mukhi H.R “Ancient Indian Political thoughts and Institutions”

27
 separate from each other. It was secured by the jury system as well as by
the system of trial in public. The administration of justice under Hindu
Monarchy always remained separate from the executive and generally
independent in sprit.°°

However according to the historians the Indian legal and judicial system
in the true sense during the 5th century B.C which
R.S Sharma termed as the “age of Buddha.” Formerly people were governed by
the tribal laws which did not recognize any class distinction. But by now tribal
communities have been divided clearly into four distinct classless.

From the fourth century B.C. onwards and till about 6 t h century A.D
India saw the raise of some imperial dynasties like the Mauryas, the
Guptas, the Kushanas and the Vardhanas. Under the rule of these dynasties
judicial administration really occupied a significant position.

2.4. INDIAN JUDICIAL SYSTEM IN MEDIEVAL

PERIOD

After the disintegration of the Harsha Empire a veil of obscurity

descends on the history of India which does not lift till the Muslim invasion.
The Muslim invasions of India began around the 11' h century AD; gradually
vast portions of India came under the Muslim rule. During the Moghuls rule
religious codes and moral injunctions were held at high esteem °4. The
country was divided once more into small kingdoms. But this did not result in
any great change in the judicial system which had taken roots

Ibid
24
K.L. Mishra “Indian Legal History” p - 1

28
 during the preceding thousands of years. ’die standards and ideals of justice
were maintained in each kingdom in sp ite of political divisions the unity of
civilization was preserved and the fundamental principles of law and
procedure were applied throughout the country. This is indicated by the fact
that the great commentaries on law like Mitakshara and Shukarneeti Sar were
written during this period and enjoyed an all-India authority. But the
establishment of the Muslim rule in India opened a new chapter in our
judicial history. The Muslim conquerors brought with them a new religion, a
new civilizati on, and a new social system. This could not but have a profound
effect on the judicial system.

The ideal of justice under Islam was one of the highest in the
middle ages. The Prophet himself set the standards. He said in the Quran,
"Justice is the balance of God upon earth in which things when weighed are
not by a particle less or more and he appointed the balance that he should
not transgress in respect to the balance; therefore observe a just weight and
diminish not the balance". He is further reported to have said that to God a
moment spent in the indulgence of justice is better than the devotion of the
man who keeps fast every day and says prayer every night for 60 years. 25
Thus the administration of justice was regarded by the Muslim kings as a
religious duty.

This high tradition reached its zenith under the first four Caliphs. The
first Qadi was appointed by the Caliph Umar who enunciated the principle that
the law was supreme and that the judge must never be subservient to the
ruler. It is reported to him that he had once a personal law suit against a
Jewish subject and

25 Fakhr-ud-din Mubarak Shah, Edited by D.Ross, p.12

29
 both of them appeared be fore the Qad› who on seeing the Caliph, rose in his
seat out of deference. "Um ar considered this to be such an unpardonable
weakness on his part that he dimissed him from office. 26 The Muslim kings in
India bought with them these high ideals. Individual Sultans had very high
ideals of justice. According to Barani, Balban regarded justice as the keystone
of sovereignty "wherein lay the strength of the sovereign to wipe out the
oppression .27

As a modern writer says "The medieval State in India as elsewhere

throughout its existence had all the disadvantages of an autocracy-
everything was temporary, personal and had no basic strength. The personal
factor in the administration had become so pronounced that a slight
deviation of the head from the path of duty produced concomitant
variations in the whole trunk’. If the King was drunk ‘his Magistrates were
seen drunk in public’. 2'

Under the Moghal Empire the country had an efficient system of

government with the result that the system of justice took shape. The unit
of judicial administration was Qazi-an office which was borrowed from the
Caliphate. According to the greatest historian of the Mughal Empire "the
main defect of the Department of Law and Justice was that there was no
system no organization of the law courts in a regular gradation from the
highest to the neither lowest nor any proper d‘istribution of courts in
proportion to the area to be served by them. The bulk of the litigation in the
country (excluding those decided by caste, elders

26 Abdul Rahim : The Principles of the Muhammedan

Jurisprudence, page 21 27 Brani : Tarikh Firuz Shahi, p. 77
28 The administration of Justice in Medieval India, by M.B. Amhad, p. 272, quoting
Briggs,. Rise of the Muhammendan Power in India, Volume I, p.272

30
 or v i11age Pancliayats m ostly f‹ir th e I-rind us) naturally came up before the
courts of Qaz is or .S adar s. 2’

After the death of Aurangzeb, the Mughal Empire collapsed within two
generations. The provincial Governors and Fauj dars arrogated to themselves
the status of sovereigns and awarded punishment for criminal offences in their
own names. A relic of this usurpation of the Emperors’. power is the name
Faujdari given to criminal trials even today. After the conquest of Bengal
by the British the process of replacement of the Mughal system of justice by
the British began. But it took a long time. In fact, The Sadre D iwani Adalat
continued to function till it was replaced by the High Courts.

The Mughal judicial system has left its imprint on the present
system and a good part of our legal terminology is borrowed from it. Our
civil courts of first instance and called Munsi fs, the plaintiff and the
defendant are termed Muddai and Muddaliya and scores of other legal terms
remind us of the great days of the Mughal Empire.

2.5. JUDICIAL SYSTEM UNDER BRITISH RULE

India has one of the oldest legal systems in the world. Its law and
jurisprudence stretches back centuries, forming a living tradition which has
grown and evolved with the lives of its diverse people. The British came to
India as traders in the 17' h century AD and gradually conquered the entire sub-
continent. They

29 Mughal Administration, by Sir Jadunath Sarkar, page 108

31
established theii- own set o1“ courts and judges. The law
administered by them was the English law as extended to India.

2.5.1. D u ring the period of 1600- 1726

The Charter of 1600 established. the English East India Company in

India. As per the Charter of 1661 the English and the Indians residing under the
Company came under its jurisdiction. From the period ranging from 1661 till
1726 laws of equity and justice in conformity with the laws in England were
followed. There was no codified law. In Calcutta, the judicial system was
based on the Company’s authority as a zamindar. This continued till the
Charter of 1726 was passed. Before Madras attained the position of a
Presidency in 1665 it had two courts namely, the Choultry Court and the Court
of the Agent and Council. By the charter of 1668 the Company was conferred
powers to make laws for the island of Bombay.

From this period till the passing of the Charter of 1726, there were
civil and criminal courts in these presidencies. In Madras, there was the
choultry court, the Mayor’s court and the Admiralty court as well. On the other
hand, in Bombay till 1726 judicial systems were not stable and kept changing.
Earlier there were courts like the Court of Judicature which dealt with civil and
criminal cases and matters of probates and testaments and a Court of
Conscience to decide petty cases.

There was a system of appeals as well. In Madras the appeals from

the Mayor’s Court were filed to the Governor and Council. On the other hand,
Bombay had Deputy-Governor and Council as its appellate Court. In Bombay
this system elapsed due

32
to lack of independence of the judi ci ary. In the foll owing judicial system
of Bombay an admiralty court was established with a Judge-Advocate as its
head. This court apart from its existing powers enjoyed civil and criminal
jurisdiction. Later a court of Judicature was established under this
system after which the Admiralty Court lost its ground. The
Admiralty court in Madras also became irregular by this time. Another
system came about in 1718 in Bombay and this gave representation to the
Indians as well by appointing four Indian Judges, known as Black Justices
in the Court.

In order to bring about better management of the affairs of the

East India Company, the East India Company Regulating Act of 1773
was promulgated by the King. This Act subj ected the East India Company
to the control of the British Government and made a provision for His
Majesty by Charters or Letters Patent to establish the Supreme Court of
Judicature at Fort William at Calcutta, superseding the then prevalent
judicial system. The Supreme Court of Judicature at Fort William was
established by a letter patent issued on March 26, 1774 This Court as
a court of record had full power and authority to hear and determine all
complaints against any of His Majesty’s subjects for any crimes and also
to entertain hear and determine any suits or actions against any of His
Majesty’s subjects in Bengal Bihar and Orissa. Two more Supreme
Courts, conceived along the same lines as that of the Supreme Court of
Calcutta, were established at Madras and Bombay by King George III
through Charters issued on 26 th December, 1800 and on 8th December,
1823 respectively.

The role of the Privy Council has been a great unifying force and
the instrument and embodiment of the rule of law in

33
' , .>-

liidia the Judicial C? ommi ttee c›f th c• i'ri • y Council was made a Stat•atory
Permanent Corn in ittee of I egal experts to hear appeals from the British Coloni
es in the year 1833 by an Act passed by the British Par I iament. Thus, tllG ACt Of
1 833 transformed the Pri vy Council into a great imperi a1 court of unimpeachable
authority.

Provincial autonomy was established in India with the establishment of

the Government of India Act 1935 which introduced responsibility at the
provincial level and sought the Union of British Indian Provinces with the
rulers of Estate in a federation. As a federal system depends largely upon a just
and competent administration of the law between governments themselves, the
1935 Act provided for the establishment of the Federal Court, forerunner of
the Supreme Court of India. The Federal Court was the second highest Court
in the judicial hierarchy in India.

The Federal Court was the first Constitutional Court and also the
first all-India Court of extensive jurisdiction and it had Original Jurisdiction
in matters where there was dispute between the provinces or federal States.
It was also the Appellate Court for the judgments, decrees or final orders of
the High Courts. Thus, the Federal Court of India had original, appellate
and advisory jurisdiction. The doctrine of precedent in India also had its
roots in Federal Court as the law declared by the Federal Court and Privy
Council has been given binding affect on all the courts in British India.

2.5.2. Charters of 1726

34
 i be history of the present judicial system may be traced back to the
year 1726 v'h en a Charter was issued by King C7eorge I for bringing about
important changes in the judicial administration o* the Presidency Towns
of Bombay Calcutta and Madras. The system of appeals from India to the
Privy Council in England was introduced by this Charter in 1726. This
Charter granted special powers to the Company as was requested by it.
Under this Charter the Mayor’s Court was established.

This superseded all the other courts of Bombay, Madras and

Calcutta. This was a court of record. The Laws under this Charter were also
applied in conformity with the laws in England on the principles of equity
and justice. Appeals from this court could be filed in the court of Governor
and Council and further in the court of King-in-Council in England. The
judiciary did not possess expert staff for administering justice and the
executive did not have respect for the judiciary.

This system remained suspended while the French had occupied

Madras which they later surrendered in 1749. Then the Charter of 1753 was
passed in order to remove the difficulties of the preceding Charter.3'

The Governor—General Lord Cornwa1lis3' introduced changes in the

judicial system in 1787, 1790, and 1793. He had thoroughly reorganized the
civil and criminal judicial system in India in Bengal, Bihar and Orissa. He
for the first time introduced the principle of administration according to law.
In 1787 he merged the revenue collection and power to try the revenue
disputes in the

3
' “The Mayors’s Courts (1726)-Pledge of Judicial Independence”, Kailash Rat, M.P.L.T.,
1974, p.6
3
' (1786-1793)

35
 same hands of the nia g istrate who fori.red the Mal Adalat. Appeals from
the Mai Adalat had lo go to the Governor General. ’2 He introduced
professional lawyers of vakeel s in the courts to appear on behalf of the
parties to contest their case in order to increase efficiency.’3

2.10. CONCLUSIONS

The societies in the beginning were rudimentary and so were the laws
of the societies. Laws have grown with the growth of society. This establishes
a relationship between law and society, where law is an instrument of social
change, and as Pound would put it law must be stable but it must not stand
still. To comprehend, understand and appreciate the present legal system
adequately, it is necessary to acquire a back-ground knowledge of the course
of growth and development of the legal history.

" see attacks on Judges, CIJL, year book 1996-97 pages 30-31 and an article by Michal
Kirby in the book “Judicial Independence, contemporary debatae, 1986, edited by
Shimon Shetreet

36
 There is no doubt that a fearless and impartial judicial system is a
must for any civilized nation. It is also the essential condition for a
federal .type of government as in India. If the judges of the higher courts are
fearless, impartial and independent, only then it can be expected that they can
protect the fundamental rights of the citizens. On the other hand, if the judges
themselves are weak and fearful they cannot upload the rights of the citizens.

A peculiar feature of the legal development in India was that for long
the government endeavored to create a system of courts without ever
attempting to devclop a body of law. Conscious efforts to remove these
defects were made by developing a coherent body of law. But the coherent
system of law was developed only after the process of codification. Law then
became more territorial and resulted in the abridgment of the differences of
law between the resulted in the application of uniform law throughout the
country.

The independence of the judiciary is fairly well assured by the

constitution itself and adequate precautions have been taken to help the
judiciary to discharge their functions effectively. Law in the country is now
mostly codified and is uniform throughout the country and the objective is now
to update reform and bring the law in conformity with the new social
conditions prevailing in the country .In conclusion we may say that the Indian
legal system provides all the machinery for the expansion and preservation
of the law.

The independence of the judiciary as is clear from the above discussion

hold a prominent position as far as the institution of judiciary is concerned. It is
clear from the historical overview that

37
judicial independence has faced many obstacles in the past especially in
relation to the appointment and the transfer of judges. Courts have a1ways
tried to uphold the independence of judiciary and have always said that the
independence of the judiciary is a basic feature of the Constitution. Courts
have said so because the independence of judiciary is the pre-requisite for the
smooth functioning of the Constitution and for a realization of a democratic
society based on the rule of law. The interpretation in the Judges Case
giving primacy to the executive, as we have discussed has led to the
appointment of at least some Judges against the opinion of the Chief Justice
of India. The decision of the Judges Case was could never have been
intended by the framers of the Constitution as they always set the task of
keeping judiciary free from executive and making it self-competent. The
decision of the Second Judges Case and the Third Judges Case is a
praiseworthy step by the Court in this regard.

74
 CHAPTER III
APPOINTMENT OF JUDGES—CONSTITUTIONAL PERSPECTIVE

If the Iegislature will positiveIy enact a thing to be done, the judges are not at lib ert y
to re ject it, for that was to set the judicial power above that of th e legislature,
which wo uld be subversive of all go vernm ent.”

This chapter aims to focus on the constitutional frame work for the
appointment of judges in Supreme Court and High Court.

3.1 INTRODUCTION

The framers of the Indian’s written constitution wisely built into it

checks and balances in order to bring about a harmonious balance in the
powers and responsibi litres of the three branches — the executive, the
legislature and judiciary, they knew that in a democratic set up the absence of
such balance and the distortion and even perversity resulting , there from
would render effective governance an impossibility.

Judiciary is the one of the three wings of the State 2 has succeeded to
inherit a privileged pos it ion from the woi ds of the Constitution and spirit of
the people that is beyond the reach of the other two wings namely the
executive and the leg islature. 3 Though under the Constitution the po lity is
dual, the judiciary is integrated which can interpret and adjudicate upon both
the
' Wiliam Blackstone
2
Judiciary still the most trusted wing”, the Hindu, May 09, 2000
' M.C. Setalvad Memorial Lecture delivered by Hon’b1e Shri R.C. Lahoti, Chief
Justice of India at The Gulmohar Hall, India Habitat Centre, Lodhi Road New
Delhi On Tuesday, 22nd February, 2005

75
Central and State Laws. The structure of the judiciary in the country is
pyramidi cal i n nature. 4

Constitution has made a deliberate and conscious departure from other

constitutions of the world — indeed, even from the Government of India Act
1935. The appointment, transfer, discipline and all other service conditions
of the subordinate judiciary was placed entirely in the hands of the judiciary;
the executive was expected to make or issue formal orders only. So far as
superior judiciary is concerned, the power of app ointment was vested on the
President but it was conditioned by the requirement of consultation with
judiciary. A convention was developed according to which the
recommendation always and invariably emanated from the Chief Justice of
the High Court 5
and from the Chief Justice of India 6.

3.2 MEANING OF JUDICIARY

Judiciary, in quite simple terms may be defined as the third organ of

government concerned with the job of doing jus tice. As its name indicates,
it consists of the magistrates and j udges charged with the function of
administration of justice. A pertinent question arises as to what is justice.
According to earliest notion, it meant punishment to the wrong doer by one
who was the aggrieved. The matter related to the private offences as there was

4
Commentary on the Constitution of India” by P.K. Majumdar, R.P.
Kataria. P.1633 In the case appointment to High Court
6
In the case of the Supreme Court of India

76
no executive mach inel y to affect the redress ed of o ffen ce that invo lved
disorder or vi olen ce was an attack upon that peace to which the king could
not be indifferent. Gradually the notion of Kings’ peace was extended to
embrace offenc es such as theft, perjury and enforcement of contracts. It
“marked the beginning of the idea that crime was an offence not only against
the indi v i dual victim but also against the state and that it belonged to the
state to see that it was properly punished. 7

In early times, the function of the administration of justice was done

by some social associati on like church, guild and pan chayat, or by
influential landlords and nobles etc. over whose authority the State had hardly
any over-ri ding jurisdiction. With the advent of sovereignty, the royal;
authority could deprive all such associations and feudal barons of exercising
the power of administration of justice. Thus, in modern times, the
transformation became complete and the administration of justice became an
exclusive function of the state. Not only this, administration of justice at the
hands of the state assumed a sacrosanct character. It began to be felt as
impossible to imagine any satisfactory substitute of the Courts of justice. An
American jurist Ramale comments:

“It is indispensable that there should be a judicial department to

ascertain and decide rights, to punish crimes, to administer justice and to
protect the innocent from inj ury to usurpation”

7
J.W. Gamar: Political Science and Governirient,
1952 p 750 Ibid-7

77
 The nature of I any and politi cal process finds its basi cal ly different
forms in 1 ibera I- dCmocratic und totalitarian systems. In a liberal-democratic
system, the legal system is said to be characterized by such concepts as
impartiality, consistency, openness, predictability and stability. 9 Rule of law
signifies equality of al l citizens in the eye of law and that a person is
deemed as innocent unless he is convicted by a competent Court. It is also
required that the trial should be open and fair. It is based on this celebrated
princip le of jurisprudence: let a thousand culprits be acquitted, but not even
a single innocent person should be punished. It is a different thing that lhe
powers of the Courts are drastically cut during the days of emergency caused
by the factors of external aggression of internal disturbances. It is also
possible that severe restrictions are imposed during normal times in the
name of interest of the state’ that may be wide enough to give the extra
power to the police and confer increased jurisdicti on on administrative
tribunals. Despite this all, the j udicial system and legal process of a
liberal-democratic state remain basically different from that of a totalitarian
state on account of the fact that there is no deliberate attempt on the part
of the state to abrogate normal procedure of justice. '0

Opposed to this is the case of a totalitarian state where we find a

basically different form of law and political process. Though some
semblance of administration of justice may be given to civil cases in such
countries, the elements of bias are very much present. The judicial process
operates in a way that political opponents are punished by the Courts without
following the process of a free and open trial. Courts thus serve the purpose
of the executive. The Communists, in particular have no reservations

9
A.R. Ball: Modern Politics and Government,
1985, p. 200 '0 Ibid-4 p. 1620-1621

77
in hol ding that they “see the legal system o f liberal-democracies and non-
Marxist totalitarian or autocratic states as instruments of class rule and believe
that the main functions of the Courts in these systems are to legitimize and
buttress the domination of the capitalist c1 ass.” "

3.3. CONSTITUTIONAL PROVISIONS RELATING

TO
JUDICIARY

Though under the Constitution the polity is dual the judiciary is

integrated which can interpret and adjudicate upon both the Central and
State laws. The structure of the judiciary in the country is pyramid cal in
nature. At the apex is the Supreme Court. Most of the States have a High
Court of their own. Some States have a common High Court.

The appointment of Judges of the Supreme Court and their removal are
governed by Art.124 of the Constitution of India. Arts.125 to 129
provide for certain incidental matters. The appointment and removal of the
Judges of the High Courts are governed by Art.217. Arts.218 to 221 and 223
to 224A provide for certain matters inci dental thereto. Art.222 provides for
transfer of Judges from one High Court to another.

So far as the subordinate judiciary is concerned, the constitutional

provisions relating thereto are contained in Arts.233 to 237. These
provisions are, of course, supplemented by the rules made by the respective
Governors of the States under the proviso to Art.309 of the Constitution.

" Ibid-9 p 200

78
 Having regard to the importance and significance attached to the
function performed by the ju diciary, the Constituti on has consciously
provided for separation of judiciary from the executive. Not only this, the
Constitution discloses a distinct bias in favor of the independence of the
judiciary. It is in furtherance of this objective that several provisions
relating to the appointment and removal of judges, at whatever level they
may be, have been enacted.

3.3.1(1). Meth od of Appointment of Supreme Court Judges

The Judiciary was to be an arm of the social revolution upholding the

equality that Indians had longed for 12
. Art.5 0 of the Constitution provides
that "the State shall take steps to separate the judiciary from the executive
in the public services of the State". This is one of the Directive Principles of
State Policy which is "fundamental in the governance of the country".

The appointment of judges is the prime and foremost link in the chain
of judicial reform. As Justice Bhagwati woul d say, a right appointment
“would go a long way towards securing the right kind of judges who would
invest the judicial process with significance and meaning for the deprived
and exploited sections of humanity”.

Arts.124 to 147 deals with the appointments and functions of the

Supreme Court.

'° J.N. Pandey “Constituional Law of India” p 492

79
3.3.1(2). Su p re me Co urt

Supreme Court is the Guardian of the Constitution. The essence of a

federal Constitution is the division of powers between the Central and
State Governments. The division is made by a written Constitution which is
the Supreme Law of the Land. Since language of the Constitution is not free
from amb iguities and its meaning is likely to be interpreted differently by
different authorities at different times; it is but natural that disputes might
arise between the Centre and its constituent units regarding their respective
powers. Therefore, in order to maintain the supremacy of the Constitution,
there must be an independent and impartial authority to decide disputes
between the Centre and the States or the States inter se. This function can
only be entrusted to a judicial body. The Supreme Court under our
Constitution is such arbitration. It is the final interpreter and guardian of the
Constitution. In addition, to the above function of maintaining the
supremacy of the Constitution, the Supreme Court is also the guardian of the
Fundamental Rights of the people. Truly, the Supreme Court has been called
upon to safeguard civil and minority rights and plays the role of
"guardian of the social revo luti on 13. It is the great tribunal which has to
draw the line between indi vidual liberty and social control ’4 . It is also the,
highest and final interpreter of the general law of the country. It is the
highest court of appeal in civil and criminal matters.

3.3.1(3). Composition of the Court

The Supreme Court of India consists of a Chief Justice and

" G.Austin — The Indian Constitution cornerstone of

nation p. 169 ' 4 Sri Alladi Krishnaswamy Ayyer,
member of Drafting Committee

80
 until Parliament in ay by I any prescribes a large number, not more than seven
other Judges. Thus Parliament may increase this number, by law.
Originally, the total number of Judges was seven but in 1977 this was
increased to 1 7 excluding the Chief Justice. In 1986 I 5
this number has been
increased to 24 excluding the Chief Justice in 200 9.16 The Constitution does
not provide for the minimum number of Judges who will constitute a Bench for
hearing cases.

3.3.1(4). Qualification of Ju dges

A person to be qualified for appointment as a Judge of the Supreme

Court must be a citizen of India: and (I) have been Judge of a High Court at
least for five years. (2) Has been for at least ten years an advocate of a High
Court, (3) is in the opinion of the President a distinguished jurist '7 . Thus a non-
practicing or an academic lawyer may also be appointed as Judge of the
Supreme Court if he is, in the opinion o( the President a distinguished
jurist. There are precedents in America where non-practicing lawyers had
been appointed as Judges of the American Supreme Court. '8 The appointment
of Mr. Felix Frank Further to the Supreme Court of America may be cited as
an example. Mr. Frank Furter was a Pro fessor of Law at Harvard University
before his appointment to the Supreme Court. In India so far, no non-
practicing lawyer has been appointed as Judge of the Supreme Court.

Every person who is appointed as a Judge of the Supreme Court before

entering upon his office has to make and subscribe

" The Supreme Court (Number of Judges) (Amendment) Act, 1986

” The Supreme Court (Number ofJudges) (Amendment) Act, 2009
'7 Art.124 (6
" Law Commission of India report on Reform of Judicial administration vol. 1 pp
36-37 - sec CAD volume iii p 254, view of Anantasaranan Ayyengar who had
supported the provision.

81
 an oath or a ffirmation before the Pres i dent or some other person appointe d
in that o eha lf by hi in . 1

3.3.1(5). Appointment of Ju dges

The Judges of the Supreme Court are appointed by the Presi dent.
The Chief Justice of the Supreme Court is appointed by the President with' the
consultation of such of Judges of the Supreme Court and the High Courts as
he deems necessary for the purpose. But in appointing other Judges, the
Pres ident shall always consult the Chief Justice of India. He may consult
such other Judges of the Supreme Court and High Courts as he may deem
necess ary20. Art.124 (2) talks about two type of consultation. One being
discretionary on the part of the President and the other being mandatory under
the proviso" it should however, is noted that the power of the President to
app oint Judges is purely formal because in this matter he acts on the advice of
the Council of Ministers. There was an apprehension that Executive may bring
politics in the appointment of Judges. The Indian Constitution, therefore, does
not leave the appointment of Judges on the discretion of the Executive. The
Executive under this Article is required to consult persons who are ex-
hypothesis well qualified to give proper advi ce in matters of appointment of
Judges°2.

' 9 Axt.124(6)
2o . i24(2)
2
’ Discretionary in‘the sense that when the President makes the appointment of a judge of
the Supreme Court (including CH) he has a wide range ofjudges of Supreme Court and
high courts to whom he may consult in this regard. He may consult one or ten or none
judges for this purpose. But the proviso makes it mandatory that in the matter of
appointment of a judge other than CII, the CJI shall always be consulted )
22
cv Vol. 8. p. 285

82
 Under Art. 124 (2) 23
the President, in appointing other Judges of
the Supreme Court is bound to consult the Chief Justice of India 24
. But in
appointing the Chief Justice of India he is not bound to consult anyone. The
word 'may' used in Art.1 24 makes it clear that it is not mandatory on him to
consult anyone.

“Judicial inconi pete nce takes the for m of ignora nce of le

gis lat ive /i is to ry, i gnoran ce of th e provisions of th e Co n st itut ton,
ignorance of we ll settled pr inc iples of in ter pF e t ati on; ignora nce of the
inean in g of ordi nary Engl ish iv oi ds” ”

It is clear that these provisions could be interpreted as conferring a

very wide discretionary power on the President in the matter of selecting
judges. And in fact and in law, the Pres ident here means the government of
the day. The words "after consultation with" would technically and in the
absence of healthy principles of convention, mean that the Chief Justice of
India must be consulted, but his opinion need not be respected.

It is obvious that such an interpretation would set at naught any

principle of separation. of the executive and the judiciary and consequently,
judicial independence, which was in minds of the members of the Constituent
Assembly. As a matter of fact, the Constituent Assembly had ruled out a speci
fic amendment providing for a complete separation of the Judiciary from the
' 3 Art.124(2) Every Judge of the Supreme Court shall be appointed by the President
by warrant under his hand and seal after consultation with such of the Judges of the

Supreme Court and of the High Courts in the States as the President may deem
necessary for the purpose and shall hold office until he attains the age of sixty five
years: Provided that in the case of appointment of a Judge other than the chief
Justice, the chief Justice of India shall always be consulted.
24
D.D.Basu, Shorter Constitution ofIndia at 531

“ H.M. Seervai, Constitutional Law of India , vol.3, edn.4, p 2939, 4° edn, Universal
Law Publishing Co Pvt Ltd

83
executive in the chapt er deal ing w ith ju dicial appointm ents as it
was already covered by Art.50 of the Directive Principles.

The Honorable Supreme Court in 19191 expressed its doubts about the
correctness of the term consultation as interpreted by the honorable Supreme
Court in S.P. Gupta v. tin ion of In dia and suggested that the question
regarding the supremacy of the Chief Justice of India in appointment of
judges to higher judi ci ary may be referred to a larger bench of nine judges.
26
It is also to be noted that while hearing this case the setting up of
National Commission was under contemp lation and it was hel d that it is not
necessary to examine the positi on of Chief Justice of India as determined in
S.P. Gupta’s case27

Clause (2) of Art. 124 speaks of consultation’, whether it is with the

Chief Justice of India, Judges of the Supreme Court or with the Judges of
the High Court. The expression is not “concurrence”. The Constituent
Assembly Debates show that when it was suggested by some of the
members that the expression should be concurrence’ and not
consultati on’, it was not agreed

The meaning conveyed by words in common parlance and standard

meaning of words could be different depending on the context of usage.
Some words, not only 1egal terms, are used in common parlance to indicate
things which have got no resemblanc e to its actual meaning. Therefore,
their meaning when used as a legal term could also be different from
what is meant by

26
Subhash Sharma v. Union of India 1991(1) Supp. SCC 574
27d id -23
2
' Constitutional Assembly Debates Vol.8 P.258

84
it in common parlance. Ho wev• r, stan dard in eaning of a word is what that
word indicates in that part i c ular I anguage. No court shall al ter its in ean ing
through a ju dginent 29 .The judiciary has, by equating the word consultation’
with concurrence’ through its pronouncements, intruded into the arena of
semantics and attempted to alter the meaning of a word that is annexed to a
foreign language though English is one of the official languages of India, the
authorities in English semantic remains fore ign, like the Oxford dictionary.

As per standard dlCtionariGs, there is hardly any difference between

“consultation” and “seeking opinion 3' . In fact, they are synonyms. But the
Court has decided’ that they shall mean different things in law and made
“consultati on” equaling to “concurrence”. In itially, the Court held that "the
word 'consult' implies a conference of two or more persons or, an impact, of
two or more minds in respect of a topic in order to enable them to evolve a
correct or at- least a sat is factory solution 3'. It does not, however imply or
expressly mean that consultation has a binding effect. Justice Krishna lyer said
"Consultati on is different from consentaneity. They may discuss but may
disagree; they may confer but may not concur.3 2
The Court upheld this
view in S P Gupta ’s case saying that it must be borne in mind that it is only
consultation which is provided by way of fetter upon the power of appointment
vested in the executive and consultation cannot be equated with concurrence.

°’ Ibid-22, p.2949,2950
’0 According to Black’s Law Dictionary consultation means the act of asking the
advice or opinion of someone where as concurrence means agreement or assent,
Brayan A.Garner, West Group, 7° edu.p. 311, 286
' 1 R Pushpam v. State of Madras, (1933) 1 MU 88
3
' Union of Itidia v. Sankalchand Hiniafhlal Sheth & Anr AIR 1977 SC 2328

85
 But the legal pos iti on as o f now is that has been I aid do wn by the
Honorable Supreme C ourt in SC Advo cates on Record Asso ciatioii
case, Art. 1 24 (2) and 21 7(1) of the Const ituti on of India impose a
mandate on the highest functionaries di a w n front tire Executive and the
Judi ciary to per form the constitutional ob ligati on - of making
appointments of Judges to the Supreme Court and the High Court's co11ectiv
e1 y in consultation with each other. In the event of disagreement in the
process of consultation, the viewpoint of Judiciary being primal has to be
preferred.

The Process of consultation under Art.124 (2) means consultati on

with the Chief Justice of as head of the Judiciary. The opinion of the Chief
Justice is not his individual but formed collective ly by a body of men at
the apex level of the Judiciary. Such collecti v ism shall cons ist of the
Chief Justi ce of, two sent or- most Judges of the Supreme Court and the
senior Supreme Court Judge who comes from the S tate.

No appointment can be made by the President under Arts.124

(2) and 217(1) of the Constitution unless it is in conformity with
the opinion of the Chief Justice of. 33

Consultati on is not a unique characteristic of the Indian system.

Many of the leading world countries have provisions for consultation for
the purpose of appointment of Judges. English legal system, which could
be rightly said to be the starting point and catalyst of Indian legal system,
also has a system of consultation. In fact, it is a c lassi c example of how
consultation shall be practiced in a democracy. Under the English system,

°' S.C Advocates on Record Assn v. Union ofAIR1994 SC 268

86
vi ews and op ini ons ab out the qua I i ties and work of an appl ie ant are co l I
ected from a cvi de range of .Judges and senior practiti onei s in the I egal
profess i on. On the basis of the recommendation by the Prime Minister and the
Lord Chancellor, the Queen appoints qualifi ed persons as judges on the High
Court Bench and above. In the, the method of appointment of Judges on the
High Court Bench and above is a matter of practice and convention, not of
written law. Lords of Appeal in Ordinary in the House of Lords, Heads of
Divisions and Lords Justices of Appeal in the Court of Appeal are appointed by
the Queen on the recommendation of the Prime Minister, but the Lord
Chancell or's opinion is generally sought. Justices of the High Court are
appointed by the Queen on the recommendation of the Lord Chancellor. 34

There has a broader and more elaborate system for the appointment of
judges. Consultation is again an integral part of the American system. S
ection 2, Article II, the United States Constitution states: " [The President]
shall nominate and by and with the Advice and Consent of the Senate, shall
appoint... Judges of the Supreme Court and all other Officers of the ...” All
Federal Judges are appointed by the President with the advice and consent of
the S enate. The Department of Justice with the White House staff
recommends judicial nominations to the President. If the President approves,
the nomination is s igned and sent to the Senate. Judicial nominations are
referred to the Senate Judiciary Committee by the Senate. Nominees will be
investigated, testified and the nomination voted in the Committee. As the maj
ority party
’ The Process of Appointment of Judges in some Foreign Countries: , Prepared by
3

MR. Cheung War- Lam, Research and Library Services Division, Legislative
Council Secretariat , Hong Kong, Constitutional Reform: A new way of

Appointing Judges, A Department for Constitutional Affairs Consultation

Paper,http://www.dca.gov.uk/consult/jacommission/, Consultation Papers on The
Appointment of the Judges, A Supreme Court for the United Kingdom, The Future of
Queens Counsel, Response of Clifford Chance LLP, Department of Constitutional
Affairs

87
in the Senate eontro1s a maj ority of the com iTl it tee seats, the vot ing
results on thC COmrn.ittee are generally representative of the voting preference
in the full S enate. Federal and state judges, pi o secutors, defenders, as
we1 I as other attorneys and support staff are consu Ited by the department of
justice of the white house. lnvestigati on is done by the FBI. Bulk of the
investigation is done by the staff of the chairman and the leader of the
minority party in the committee. Bar association interviews the candidate’s
community. If the ABA report and FB I report are positive and the evaluation of
the department of justice is favorable overall, the attorney general form all y
recommends the nomination to the president. 3 5

Till 1973 the practice was to appoint the senior most Judge of the
Supreme Court as the Chief Justice of India. This practice had virtually been
transformed into a convention and was foll owed by the Executive without any
exception. In 1956 the Law Commission headed by the then Attorney-
General M.C. S etalvad had criticized this practice and recommended that
in appointing the Chief Justice of India the experience of a person as a
Judge, his administrative competence and merit should be j udged and
seniority should not only be the main consideration. The reports of the Law
Commission were published as far back as in 1956. Since then 17 years had
passed but no attempt was made by the Government to implement it. Instead,
the Government continued to follow the principle of seniority as a matter of
rule in appointing the Chief Justice of India. On April 25, 1973, however,
this 22 years old practice was suddenly broken by the Government within
few hours of the delivery of the judgment in the Fundamental
° The Process of Appointment of Judges in some Foreign Countries: The United States
of America, Prepared by MR Cheung Wai- Lam, Research and Library Services
Division, Legislative Council Secretariat , Hong Kong

88
Right case. Mr. A.N. Ray was appointed as Chief Justice of India superseding
three of the senior colleagues, Justices Shel at, Hegde and Gro ver and eight
hours after the swearing in ceremony of Mr.
A.N. Ray, as the Chief Justi ce of India, the three Judges resigned from the
Supreme Court. The appointment of a judge as the Chief Justice of India
superseding senior Judges has been criticized as being against the judicial
independence 3‘ . The action of the Government raised a great controversy.
The Supreme Court Bar Association condemned the action of the
Government in superseding the three eminent Judges of the Supreme Court.
According to the resolution, the Government's action was a blatant and
outrageous attempt and undermining the independence and impartiality of the
judiciary and lowering the prestige and dignity' of the Supreme Court. The
Government, however, justified its action on the following grounds:

The first reason given by the Government was that under Art.124 of
the Constitution the President has absolute discretion to appoint anyone
whom he finds suitable for the post of the Chief Justice of India. We all
agree that there is such a power vested in the President. But during the
period of over 22 years the President had never exercised his discretion.
Instead, he chose to follow the practice of appointing the senior most
Judges as the Chief Justice of India. This practice had virtually been
converted into a convention.

Secondly, it was argued that the Government followed the

recommendations of the Law Commission in appointing the Chief Justice and
superseding the three senior judges. There also the

' 6 See kuldeep Nayyar, suppression of Judges; Palkhiwala, Our Constitution

Defaced and Defiled; Kummaramangalam Judicial appointments.

89
Go •ernrnent's case failed. First, the Reports of the Law Commission were
published in 1 956 but it was not implemented for ab out 17 years. S econdly,
the report of Law Commission itself destroyed the Government’s case. Had the
Government foil owed the recommendation of the Commission the three
senior Judges woul d not have been superseded. The report of the
Commission itsel f lays down the quali ficati on of the Chief Justice of Supreme
Court. It says "For the performance of duties of Chief Justice of India, there is
needed, not only a judge of ability and experience but also a Competent
Administrator capable of handling complex matters that may arise from time to
time, shrewd j udge of men and personalities and above all, a person of sturdy
independence and towering personality who could on the occasion arising be a
watchdog of the independence of the judiciary.

Thus when the Law Commission recommended for appointing the

Chief Justice of the Supreme Court on merit and not on seniority it did not
mean that merit from the view point of the Executive. The three senior and
eminent judges were superseded not because they did not possess the
qualifications recommended by the Law Commission but because they had
decided cases against the Government. The Law Commission also recommended
for establishing a healthy convention before any such appointment was made.
In the present case, the appointment was made without establishing a new
convention:

Thirdly, it was argued that Executive was entitled to take into

consideration the mental outlo ok or the social philosophy of Judges. The
Government in a democracy runs on the party basis. This means that a Judge
should subscribe to the social philosophy of the ruling party. It is true that in
deciding cases the soci a1 philosophy of Judge play an important part. But the
question

90
arises as to what kind of social philosophy a Judge is to subscribe to. The
Preamble in the Constitution embodies the social philosophy. Thus it is clear
that the Supreme Court Judges are bound to adhere to the social
philosophy of the Constitution and not to the phi1oso.phy of the ruling party.
The Constitution is the Supreme Law of the land. It is meant for generations.
A party which forms the Government remains in power only for five years.
Then, again in various States different parties may be in power. A party in
power may not believe in the philosophy of the Constitution37. In the
circumstances, it is the duty of the Judge to uphold the philosophy of the
Constitution and not the philosophy of the ruling party". Surely, a judge is to
upho ld the philosophy of the Constitution to which he owes his allegiance.

The independence and impartiality of the Judiciary is one of the hall-

marks of the democratic set up of Government. To give to the Executive an
unfettered discretion to decide the philosophy of the j udges is to make the
judiciary subservient to the Executive. Every judge who desires to be elevated
to the highest post of the Chief Justice of India will try his best to become a
'forward looking judges' in the eye of the Government.

It is, therefore, essential to evolve and establish a healthy convention so

as to exclude the arbitrary interference of Executive in the matter of
appointment of the Chief Justice of the Supreme Court and High Courts. It is,
therefore, suggested that a Judicial Committee, consisting of the Attorney-
General, Law Minister, the Pres ident of the B ar Council of India, the
President of the
3
’. This happened in West Bengal when Communist government was in power
" K. Subba Rao The suppression of Judges. The price of executive interference
souvenir published by Bar Council ofU.P. p. 43

91
Supreme Court B ar Association and the Retiring Chief Justi ce of India, may
be constituted and authorized to suggest a penal of names for the
appointment of Judges of the Supreme Court and the High Courts. The above
view of the author has now been approved by Bhagwati, J in the Judges
Transfer case,39 where his Lordship has suggested for the appointment of a
judicial committee for the judicial appointments. The existing constitutional
prov isi ons, he feels, are not adequate. He said, "It is unwise to entrust
power in any significant or sensitive area to a s ingle individual however
high or important may be the o ffice, which he is occupying." At present it is
left to the Central Government to select anyone or more of the Judges of the
Supreme Court and the High Courts for the purpose of consultation. This
safeguard is not adequate. This change is essential for maintaining the
independence of Judiciary.

In 1977 general elections the Congress party was defeated and the
Janata Party won with huge majority and formed the Government at the
Centre. The Janata Party was opposed to the policy of the supersessi on of the
Judges of the Supreme Court. Consequently, they again revived the old
practice of appointing the Chief Justice of the Supreme Court on the basis
of seniority. It is submitted that the rule of seniority, tough a mechanical rule,
is beyond controversy and will ensure independence of Judiciary.

3.3.1(6). Supremacy of Executive: Ju dges Transfer Case I

Though according to the language used in Art 124 0 the President is

required to "consult" legal experts but prior to the

3
’ AIR 1982 SC 149
40
Art.124: Establishment and constitution of Supreme Court

92
decis ion of the Supreme Court on S. C. Advocate on-Rec ord Association it has
always been interpreted that the President was not bound to act in
accordance with such consultation. The meaning of the word consultation'
came for the consideration of the Supreme Court in the S ankal chand Sheth's
case, 41 which was related to the scope of Art. 222 of the Constitution. 4°

It was held that the word 'consultation' meant full and effective
consultati on: For a full and effective consultation it is necessary that the three
constitutional funeti onaries "must have for its consideration full and identical
facts" on the basis of which they would be able to take a decision. The
President, however, has a right to differ from them and take a contrary view.
Consultation does not mean concurrence and the President is not bound by it.

In S.P. Gupta v. Union »f In dia,43 popul ar ly known as the Judges

Transfer case, the Supreme Court unanimously agreed with the meaning of
the term 'consultation' as explained by the maj ority in Sankalcltand Slietli’s
case. The meaning of the word 'consultation' in Art.124 (2) is the s ame as
the meaning of the
{1) There shall be a Supreme Court of India constituting of a Chief Justice of India
and, until Parliament by law prescribes a larger number, of not more than seven other
Judges
Every Judge of the Supreme Court shall be appointed by the President by warrant
under his hand and seal after consultation with such of the Judges of the Supreme
Court and of the High Courts in the States as the President may deem necessary for the
purpose and shall hold office until he attains the age of sixty five years: Provided that
in the case of appointment of a Judge other than the chief Justice, the chief Justice of
India shall always be consulted:
(a} a Judge may, by writing under his hand addressed to the President, resign his office;
{}›) A Judge may be removed rom his office in the manner provided in clause (4)
4
' AIR 1977 SC 2328
° Art 222. Transfer of a Judge from one High Court to another
{1} The President may, after consultation with the Chief Justice of India, transfer a
Judge from one High Court to any other High Court
{2} When a Judge has been or is so transferred, he shall, during the period he
serves, after the commencement of the Constitution (Fifteenth Amendment) Act,
1963, as a Judge of the other High Court, be entitled to receive in addition to his salary
such compensatory allowance as may be determined by Parliament by law and, until
so determined, such compensatory allowance as the President may by order fix
43
AIR 1982 SC 149

93
 word 'consultation' in Ai t. 212 and Art. 2 22 of the Constitution.

The only ground on whi ch the decis ion of the Government can be
challenged is that it is based . on mala fide and irrelevant considerations, that
is, when constitutional functionaries expressed an op ini on against the
appointment.

This means that the ultimate power to appoint judges is vested in the
Executive from whose dominance and subordination it was sought to be
protected. The Supreme Court had abdicated its power by ruling that
constitution functionaries had merely a consultative role and that power of
appointment of Judges is "solely and ex cl usively" vested in the Central
Government.

It is submitted that the maj ority judgment of Supreme Court in the

judge’s trans fer was bound to have an adverse affect on the independence and
imparti ality of the judiciary which is the only hope for the citizens in
democracy. Bhagwati, J., has therefore, in his judgment suggested for the
appointment of a Judicial Committee for recommending names of persons
for appointment as judges of the higher courts. He said, "It is unwise to
entrust power in any significant or sensitive area to a single individual
however high or important may be the office, which he is occupying."

3.9 CONCLUSIONS

It can be summarized that in recent times there is a controversy that

the judiciary is exceeding its limits. In particular, the judiciary is taking up
the public interest litigations and dealing with a number of matters which are
generally regarded would belong to the domain of the Parliament. Even in the
recent times, there is controversy regarding the distribution of food i.e., getting
rotten in the go down and the Supreme Court issued the directions that they
should be distributed at subsidized prices or they are even be distributed free
of cost for all the people who are below poverty line. The Parliament however
found that the Supreme Court is exceeding limits and crossing the ‘P o licy

94
Rekha’. In fact the Hon’ble Prime Minister of India Dr. Manmohan Singh
categorically pointed out that the court should refrain from going beyond the
‘P olicy Rekha’. Thus the activist role of Judiciary is coming under criticism
in certain matters. It is therefore necessary that the Supreme Court should
exercise the necessary restraint and shoul d observe self-imposed discipline.

95
 The law provides judicial indepen hence to the j udi c› ary. This .
insulates the ju dg• s from improper contro l or in fl uen ce Judicial
independence can be categorized as (1) "decisional independence," the
independence of a judge in deciding cases, and
(2) "institutional independence" the independence of the court or judicial
branch, or the judiciary as an organization.

149
CHAPTER -IV
INDEPENDENCE OF JUDICIAY - METHOD OF APPOINTMENT OF
JUDGES IN OTHER COUNTRIES

4.1 INTRODUCTION

For many generations the independence of judiciary has

been viewed as a significant principle of the rule of law in a
democratic- libertarian society.

A search for a new model must inev it ably imply a b ird’s

eye view of the models in vogue in various countries of the
world. The mind must be free from bias, prejudice or
predictions while looking around for various models. At any
rate, no model should be totally ignored. It may be that a
particular model may not be suitable for a country like India.

' Lord Acton — An English Catholic historian, politician and writer

150
.Any new model inu st be such as to be suitable to the needs and demands of
consumers of just ice of a develop ing country like India where a s i zeable
segment of consumers of justice comes from illiterate or semi- i1literate
class of the society. When one is informing one’s mind about the avai1abl
e model s there shoul d be no inhibition against any particular model in any part
of the country. It must, however be remembered that every country may
have devised its own model either a new or by historical developments 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, its per capita requirement of institution for
dispensing jus tice, the capacity of the marginal class to spend for the
service of rendering justice and other allied factors. This will be the
general background within which a search for a model may be made.

The method of selecti on and appointment of judges may vary from

country to country and there cannot be any strait jacket formula which
can be prescribed and which can be universally applied. Whatever metho d
is employed by U.S.A. which suits to its genius may not be efficacious for
India or for that matter to other countries. Though there are different
methods prevailing in the world yet there should be uni formity on the
thing all judicial appointments should be made transparent and brought
within public gaze. People should know beforehand what type of persons
shortlisted for judicial appointments and woul d not be wrong if the names
are made

151
public and comm ents sought. Thei’e should be compl ete
transparency in selecti on of ju dges. 2

4“here are two known methods employed the world over in the
selection of j udges namely nomination and election. Some countries have
adopted both such as in U.S.A. both the systems are operating at different
leve!s. In United Kingdom nomination is the only known method of
selection judges. In U.S.S.R. and some Eastern block countries who have
adopted a Soviet model, the elective principle is applied for selection of
Judges at all levels as also People’s Assessors, who for all practical
purposes are judges.

Where principle of nomination is adopted, power is distributed in

different bodies to nominate judges. A co11 ateral question is whether judges
should be members of a career service as in France or chosen from a
special group of lawyers as in England or selected through nomination from
the legal profession generally as in United States of America. 3

4.2. UNITED STATES OF AMERICA

The j udicial system in the United States is known as dual court

system which means both state and federal governments have their own set
of courts. Thus, there are 5 1 separate sets of courts in the United States one
for each state and one for the federal government.

° Raj Kumar’s “Essays on Legal System in India” p.200

' H.J. Abraham , The Judicial Process, 22, (5 Edn, 1986)

152
4.2.1. Fe d era 1 Co u rt Sys ten* a n d Ju ris d icti o ns

4.2.1.1. Su p re me Co urt

There are three I evel s of federal courts: the Supreme

Court, the Circuit Court of Appeals and the District Court. The
Supreme Court is the highest corirt in the federal judiciary. The
judges of Supreme Court comprise the Chief Justice and eight
Associate Justices. 5 Each year the Supreme Court hears a limited
number of appeal cases whi ch begin in the federal or state
courts. 6

4.2.1.2. Circuit Co urts of Ap pea1s

There are one federal circuit and 12 regional circuits;

each circuit has one circuit court of appeal forming 13 Circuit
Courts of Appe als in total. The total number of authorized
judgeships in the circuit courts is 179.’ The Circuit Courts of
Appeals hear appeal s from the district courts located within its
circuit.8

4.2.1.3. District Courts

Under the 12 regional circuits there are 94 judicial districts. The

total number of authorized judgeship in the

4
ww.legco.gov.hk/yr00-0lfEng1isMibrary/erp0l.pdf
5
U.S Code, Title 28, Chapter 1, Section 1. Copy of the United Sates Code is available from the
website: http://www4.law.corne11.edu/uscode/.
6
Understanding the Federal Courts, Administrative Office of the U.S. Courts 1999, p.7-10
7
US Code, Title 28, Chapter 1, Section 41 & 44
Ibid 6

153
District Courts is 646 . Y*ithin 1 imits set by Congress and Constitution, thG
District Courts hear nearly all categories of federal cases, including both
civil and criminal cases’0.

4.2.2. Meth ods of Ap point ment

Section 2 Article II, the United States Constitution states: "[The

President] shall nominate and by and with the Advice and Consent of the
Senate shall appoint Judges of the Supreme Court and all other Officers of
the United States"

Justices of the Supreme Court, judges of the Circuit Courts of

Appeals and the District Courts (i.e. included under "all other officers of
the U.S." referred to in the Constitution) all are appointed by the
President of the United States with the advice and consent of the S enate.
These justices and judges are appointed for life and they can only be
removed through impeachment by the Congress. 11

4.2.3. Qualifications of Federal Judges

There is no statutory qualification for judicial appointment to the

Supreme Court or the lower federal courts.'2

9
U.S Code, Title 28, Chapter 1, section 133
' Ibid-6
'' Section 1, Article III, The U.S Constitution
" The U. S Constitution imposes no minimum age or other requirements on federal judges. As a
matter of tradition, nominees usually need to have been admitted to the practice of law for at least
ten years. Information provided by the US Department of Justice, 4 October 2000

154
4.2.4. The Pro cess of App oint in ent of Ju dges

4.2.4.1. Va can cy

The process of appointment of a federal judge starts from the occurrence

of a judi cial vacancy. The vacancy of a judgeship may arise from death,
resignati on and retirement of a judge. Also vacancies can arise from
legislation creating new judicial pos iti on and impeachment by the
Congress.'3

4.2.4.2. Selections a nd Nomination of Ca n didates

The President nominates candidates for justices and judges to the S

enate after he receives recommendations from the Department of Justice
and his own White House staff.

4.2.4.3. Department of Justice

The Department of Justice, which is supervised and directed by the

Attorney General is responsible for making recommendations to the
President concerning appointments to federal judicial positions. Within the
Department the Office of Policy Development (OPD) I has primary
responsibility for the judicial selection process of all Article III '5 judicial
vacancies.

'3 Ibid 11
' 4 The head of the Office of Policy Development is Assistant Attorney General, information
provided by the US Department of Justice, 4 October 2000
" Under the Article III of the United States Constitution, Justices of the Supreme Court, judges of
the courts of appeals and the district courts and judges of the Court of International Trade, are

155
 The staff of the OPD interv i ews a prospective nominee in person. They
ask federal and state judges, prosecutors and defenders as well as other
attorneys and support staff about the candidate’s reputation and merit for
the federal bench. They al so examine any articles written by or about the
candidate and review all of the cases, news, writings and web s ites
mentioning the candidate as well as financial disclosure statements and a
physician’s evaluation of the candidate’s health. A questionnaire is sent
to the potential candidate to collect his or her personal data.

The OPD does not solicit the candidate’s personal views on

constitutional interpretation or political issues. Instead the candidate is
asked whether he or she has any views that would prevent the candidate
from following the precedents of the higher courts or from being fair and
impartial in all cases that might come before the court.'6

If the preliminary evaluation of a prospective nominee is positive,

the candidate’s name will be transmitted to the Federal Bureau of
Investigation for investigation and to the American Bar Association
(ABA), an independent non-governmental organization for evaluation.

The Federal Bureau of Investigati on's (FB I) investigation of

potential judicial nominees is focused on general background

appointed for life and can only be removed through the impeachment process, so they are also
called "Article III judges". "Understanding the Federal Courts," Administrative Office of the
U.S. Courts 1999
16
Information provided by the US Department of Justice, 4 October 2000

156
issues. F‘BI agents usually begin their investigation by interviewing the ju
dicta! ce ndi date to confirm the accuracy of the candidate’s security
questionnaire which requires information to vert fy education, jobs and
residences, as well as any background issues s ince the candidate’s
eighteenth birthday. FB I agents also interview federal and state judges and
other government officials, as well as attorneys, bus iness and civic leaders,
religious and civil rights leaders, neighbors and doctors. They also
check for arrests and convictions, civil lawsuits and credit history. Additi
on ally, a check on the candidate’s tax record is included in the file. The
OPD has stated that the FB I investigation is a critical component of
OPD ’s evaluation of the candidate’ s suitability for the federal
bench. ' 7

4.2.4.4. The American Bar Association

The American Bar Association interviews judges and lawyers in

the candidate’s community about the candidate’s qualifications, including
temperament and also interviews the candidate. At the end of the ABA
process, the ABA sends an informal piece of advice to the Department of
Justice on its rating of the candidate as “well qualified,” “qualified,” or
“not qualifi ed” if thc P resi der.t were to nominate the candi date." If the
ABA rating is positive, the FBI report is satisfactory and the Department of
Justice’s evaluation is favor able overall the Attorney General formally
recommends the nomination to the President.
” Ibid 16

" Ibid 16

157
4.2.4.5. The White Ilo use

The White House Counsel’s Office works closely with the

Department of Justice in the selection of potential federal judges. Also
the Office works as closely as poss ible with S enators and also
considers recommendations by Members of the House of Representatives,
State Governors, State judicial selection panels, B ar associations,
Government o fficial s and citizens.

4.2.4.6. President

The papers sent by the Department of Justice to the Pres ident

include:'9

1. A letter from the Attorney Gen'eral to the President

formally recommending the nomination;

2. A memorandum from the Deputy Attorney General to a

"designated" White House Assistant "touching on matters
not in the Attorney General's formal letter";

3. The candidate's resume or biographical sketch;

4. A summary of the FBI Report along with the comp lete

report itself; and

5. All other file material on the candidate including the

response to the personal data questionnaire.

'9 Picking Federal Judges, Sheldon Goldman, Yale University Press, 1997, p.11. Information
abstracted from "Memorandum to My Successor," November 26, 1968, EX FG 50 The Judicial
Branch [1969-70], WHCF, Nixon Materials Projects, p.10

158
 If the President approves the nomination, he s igns it and sends it to
the Senate. Following the nomination, the Department of Justice submits
the FBI Questionnaire the results of the FBI background investigation and
the entire S enate Questionnaire to the S enate. 2'

4.2.4.7. Confirmation by the Senate

The S enate acts in a unicameral capacity when it confirms

federal judici a1 nominations. As the Constitution provides, only
the Senate's "Advice and Consent" are necessary for the
appointments of Judges of the Supreme Court and all other
Officers of the United States. The House of Representatives is
not involved in the process of appointment of federal judges.
Within the S enate, the consideration of appointments to judici a1
positions is the responsibility of the Committee on the
Judiciary. °l

20
The Senate Judiciary Committee sets the Senate Questionnaire. The Department of Justice
(DOJ) has a copy of it and sends it to the nominee. The nominee sends it back to DOJ and DOJ
sends it to the Committee. The Nominations Clerk of the Senate Judiciary Committee replied
that the Committee did not receive any completed questionnaires of nominees that had not been
officially nominated by the President. The Public has access to a nominee's Senate
Questionnaire (except Part IV questions which are confidential). Please refer to Appendix I "D.
Involvement in Legal Proceedings/Tax Audits/Other Confidential" for the details of the
question. Information provided by the Nominations Clerk of the Senate Judiciary Committee
on 10, 16 and 19 October 2000.
2
' Section (1), Senate Rule XXV stated "Committee on the Judiciary, to which committee shall
be referred all proposed legislation, messages, petitions, memorial and other matters relating to
the following subjects:...(5) Federal courts and judges. "

159
4.2.4.8. The Committee o n the Ju di cia ry

The S enate Committee on the Judiciary or the Judiciary Committee

consists of 18 members. Following the rule that maj ority party in the S
enate controls a majority of committee seats, voting results on the
Committee are generally representative of the voting preference in the full S
enate.

4.2.4.9. 9. Investigation

The S enate Judiciary Committee has its own staffers to

examine the background of a judicial nominee. The bulk of the
investigation is conducted by the staff of the Chairman and the
minority party leader on the Committee. The investigation
involves reviewing the FB I Q uestionnaire, the results of the FBI
background investigation and the entire Senate Questionnaire.
The Committee staffers ask the home state S enators of the
nominee for their opinion and conduct phone interview with the
nominee to- cle ar up any ambiguity encountered in the file. Any
information discovered by the staffers will be reported to the
Committee members. 22

4.2.4.10. Con firmatio n flea rin g '°

22
Information from the Nominations Clerk of the Senate Judiciary Committee, 16 October 2000.

23
Congressional committee hearings may be broadly classified into four types: legislative,
oversight, investigate and confirmation. Each Senate Committee has the authority to hold
confirmation hearings on presidential nominations to executive and judicial positions within its
jurisdiction. Richard C. Sachs, "Types of Committee Hearing,” CRS Report for Congress,
The Library of Congress, February 17,1999

160
 When the nomination is referred by th e S enate, the
Judiciary Committee is authorized to hold confirmation
hearing, °4 and to take testimony by requiring by subpoena the
attendance of witnesses and the production of correspondence,
books, paper and documents. 2’ The confirmation hearings
conducted by the Committee are open to the public and may be
broadcast by radi o or telev ision.26

The confirmation hearing of a Supreme Court Justice nominee starts

by the S enate Judiciary Committee Chairman’s opening statement which is
followed by endorsement of the nominee by prominent supporters,
normally home state S enators. The nominee is invited to give an opening
statement. Then, the hearing will proceed to the questioning time of the
nominee by the S enators. After the nominee has given his testimony,
other witnesses may follow and lend their support for or opposition to the
nomination .°7

°4 Senate Rule XXXI "Executive Session - Proceeding on Nomination," which sets procedures
on presidential nominees, is silent on hearings. While the Senate Rule XXVI(1) "Committee
Procedure" states: "Each standing committee, including any subcommittee of any such
committee, is authorized to hold such hearings, to sit and act at such times and places during
the sessions, recesses and adjourned periods of the Senate, to require by subpoena or otherwise
the attendance of such witnesses and the production of such correspondence, books, papers and
documents, to take such testimony and to make such expenditures out of the contingent fund of
the Senate as may be authorized by resolutions of the Senate."
2
’ Normally, a nominee is very willing to fully disclose all information relevant to his/her
confirmation. It is very rare that the Senate Judiciary Committee would need to subpoena
materials from a nominee because the Committee has the power to reject his/her nomination.
Information from the Nominations Clerk of the Senate Judiciary Committee, 16 October 2000.
30 Senate Rule XXVI (l) and XXVI (5) (c), Standing Rules of the Senate
26
Please refer to the following reports for the details of the procedure of Senate Committee
Hearings: “Senate Committee Hearings: Scheduling and Notification,” “Senate Committee
Hearings: Arranging Witness,” and “Senate Committee Hearings: Witness Testimony,” by
Carol Hardy Vincent; “Hearings in the U.S. Senate: A Guide for Preparation and Procedure,”
by Richard
C. Sachs, Congressional Research Service, the Library of Congress. All these reports are
available at the library of the Legislative Council.
' 7 Senate Rule XXVI 7(a) (1) and 7(a) (3), Standing Rules of the Senate

161
4.2.4.11. Voting

After the confirmation hearing, Committee members will

vote on the nomination. The quorum of the Judiciary Committee
is ten; while vote by proxy is allowed, proxies are not counted
for making a quorum. 2' If a nomination gets a majority vote it
will go to the Full Senate.

If the Committee rej ects a nomination with a maj ority vote, the
nomination will be returned to the President. 2’ In effect the nomination
dies. 3’ However, after rejecting a nominee, the Committee may, if it
chooses, vote to report the nomination to the floor - but it will be with an
unfavorable recommendation."

When the Committee adjourns at the end of a session, all of the

nominations still pending in Committee stage will be returned to the
President.32

2
' To the question if a nomination is returned to the President by the Senate or the Senate
Judiciary Committee, the Nominations Clerk of the Senate Judiciary Committee replied when a
nomination being voted down by the Committee, it is returned to the President via the Senate
technically, but in practice, the Senate Judiciary Committee returns the nomination to the
President directly. Telephone interview with the Nominations Clerk of the Senate Judiciary
Committee on 23 October 2000
° During the 106th Congress (January 1999 to December 2000), there were 116 federal judicial
nominations (record ilpdated to 13 October 2000). No nominee was rejected by the Senate
Judiciary Committee. It was recorded three nominees were withdrawn and 40 nominees were
still pending in the Committee stage. "106th Congress Nominations Statistics", the Senate
Judiciary Committee Homepage.
" Information from the Nominations Clerk of the Senate Judiciary Committee, 10 October 2000.
' Ibid-30
3

' 2 The nominations include a variety of materials, i.e. reports and recommendations, provided from
the Senate Judiciary Committee to the Full Senate. Telephone interview with the Nominations
Clerk of the Senate Judiciary Committee on 23 October 2000

162
4.2.4.12. Full Senate

All judicial nominations 3° reported from the S enate Ju diciary Committee

are considered by the Senate in executive sessions.34 If a nominee is non-
controversia1, quite often the nomination wil1 be passed by unanimous
consent and no floor debate is necessary.’ Confirmation of a nomination
requires a maj ority vote of the S enate.’6 If a nominee is controversial there
may be floor debate on the nomination. This is only by S enators and the
nominee is not present in executive sessions. Historically, nominees who
rece ived an unfavorable recommendation by the S enate Judiciary
Committee have never been voted favorably by the Full S enate.

The President is‘ from time to time furnished with an

authenticated transcript of the public executive records of the
S enate with a list of all judici al appointments, confirmations
an.d rej ecti ons37.

'° To distinguish appointment confirmation from legislative business, the Senate maintains a
separate Executive Calendar upon which treaties and nominations are placed when they have
been reported from committees. Business on the Executive Calendar is considered in executive
sessions. The common practice of the Senate is to convene in legislative session each day,
either by motion or unanimous consent, then the Senate will resolve into executive session to
deal with executive business. Walter J. Oleszek, Senate Executive Business and the Executive
Calendar, CRS Report for Congress, The Library of Congress, the United States, March 25,
1999.
"4 Information from the Nominations Clerk of the Senate Judiciary Committee, 10 October 2000
” During the 106th Congress (record updated to 13 October 2000), the Senate rejected only one
nominee with the voting result of 45 to S4. The nominee was confirmed by the Senate Judiciary
Committee with the voting result of 8 to 6. "l06th Congress Nominations Statistics", the Senate
Judiciary Committee Homepage
°6 Telephone interview with the Nominations Clerk of the Senate Judiciary Committee on 23
October 2000
" Senate Rule XXXII, Standing Rules of the Senate

163
4.2.4.13. Ap pointment by the P res i dent

When the Senate gives its advice and consent, the President signs
the judicial commission which officially appoints the individual.
Historically six judicial nominees declined the appointments despite the
Senate's confirmation and the President's appointment and the last
declination happened in 1 8 8 2.3 8

4. 2.4.14. Recess App ointment

Under the US Constitution, Article II Section 2, Clause 3 “the

President shall have Power to fill up all Vacancies that may happen during
the Recess of the Senate, by granting Commissions which shall expire
at the End of their next S essi on.” When the S enate is not in session
and therefore unable to receive nominations, the President may make recess
appointments. The S enate will then consider the nomination when it
returns to session3 9 . A recess appointee exercises the same authority
as an appointee who has been confirmed by the Senate although he or she
may not command the same deference 40. The last appointment of a
judge. under this recess authority occurred in 1981. 1

" Among the six nominations, five were nominated by the President and confirmed by the
Senate within two days. Elder Witt, Supreme Court A to Z, Congressional Quarterly Inc.
1994 and George Watson and John A. Stookey, “Shaping America: The Politics of Supreme
Court Appointments,” Arizona State University, 1995, p.242.
° The Constitution of the United States of America, Office of the Secretary of the Senate,
p.20. 4° Rogelio Garcia, “Recess Appointments Made by President Clinton,” CRS Report for
Congress, Congressional Research Service, The Library of Congress, the United States,
January 5, 2000.
4
’ Ibid-16

164
4.2.5. The Ro ie of the Legislature in the P ro cess of
A p point m ent of Ju dges

In the U.S. the U.S. Congress is heavily involved throughout the

process of appointment of federal judges. This includes both selection of
candidates and confirmation of nominations.

4.2.5.1. Selecti on of Candidates

The Congress's influence in the selection of potential candidates lies

in its capacity to make recommendation on potential nominees. According
to the information obtained from the Senate Judiciary Committee 42 , it
states: “The names of potential nominees for Supreme Court justices, court
of appeals judges district court judges, often are recommended by S enators
or sometimes members of the House of Representatives who are of the
President’s political party”

4.2.5.2. District Courts

Traditionally Senators are asked to recommend one to three

potential nominees for a district court vacancy in the state
which the Senators represent. 34 It is reported that the process
of selecting judicial nominees has become more time-consuming

42
From the website of the Senate Judiciary Committee, http://cv.senate.gov/ judiciary
4
' President Clinton’s administration sought only one single recommendation for each vacancy.
“Report of the Commission on the Selection of Federal Judges 1996,” Miller Center
Commission

No. 7, May
1996 164
and pro longed in distri ct courts leve1 as S enators are s I o w in mak ing
recommendations for district court vacancies“.

4.2.5.3. Su p re me Court a nd C ircu it Co urts

The inv olvement of S enators in the process of selecting candidates

for the Supreme Court and circuit courts judicial vacancies is slightly
lighter. The Supreme Court and circuit courts have jurisdictions that span
the whole nation and several states. The President therefore has greater
discretion and defers less to individual S enators when selecting nominees
for the Supreme Court and circuit courts. When a vacancy appears on the
Supreme Court or a circuit court, some Senators may seek to influence the
selection of the new nominee. In such cases, the President may need to take
their recommendations into account for political reasons.

4.2.5.4. Blue Slips

Before 1979 the counsel of the Senate Judiciary Committee sent

out “blue slips” to the two S enators from the nominee’s state and if it was
returned marked “objection” by either Senator regardless of party, the
custom was that no confirmation hearing would be scheduled. This custom
was changed after Senator Edward Kennedy became the head of the
Committee. He made it clear that S enators who withhel d the “blue slips”
of persons nominated for judgeships from their states could no longer
rely on the chairman to kill those
“ "Report of the Commission on the Selection of Federal Judges 1996," Miller Center Commission

No. 7, May
1996 165
nominations. 4 At present, though negal ive blue slips cann ot kill a
nomination customarily, it remains a common way to co llect opinions of the S
enators from the nominee's state.

4.2.5.5. Confi rmations of No minati o ns

For years when there is a divided government with the

President and the majority members in the S enate coming from
two different parties, intenti ona1 delays may result in S enators
refusing to bring contro vers ia1 nominations to a vote and instead
using stall tactics to exhaust nominees and force their
withdrawal. In 1999 and 2000, there were respectively 50 and 60
federal judiciary vacancies 46. According to a study,47 the S enate
took an average of 201 days to confirm President C linton's
judicial nominees, as opposed to 144 days during President
Bush's administration and 138 days during the Reagan
administration.

4.2.6. Selection Standards

4.2.6.1. Judicial Selection Standards

Judicial appointments always draw the attention of the public and

the legal profession. What constitutes the qualifying norms for a judge is
an essential topic in the discussion of the

4
’ Picking Federal Judges, Sheldon Goldman, Yale University Press, 1997, p.12 and
262 ’6 Senate Judiciary Committee, http://www.senate.gov/-judiciary/l06stats.htm
4
’ Study by the Citizen for Independent Courts, a non-partisan organization of scholars and legal
practitioners, who seek to protect an independent judiciary. Homepage:
http://www.constitutionproject.org/.

166
judicial appointments. Un like the nomination process, which is defined in
terms of relati vely concrete procedures what quali fi es one to be a j udge
or what are standards for judicial selection, are debatable. In July 200 0,
the American B ar Association adopted a report on "State Judicial
Selection Standards" which was prepared by its Commission on State Judi
cial S election Standards. 48 The Standards apply to state trial and appellate
judges in courts of general j urisdictions. The Standar ds aim to explore
minimum standards for the qualifications of judicial nominees.

4.2.7. Arguments a gainst and fo r the Current System

In 1996 the seventh Mi her Center Commission ("Miller

Commission") released the "Report of the Commission on the S
election of Federal Judges . 4’ In 1997 the American Bar Association
(ABA) released the "Report of the ABA Commission on Separation of
Powers and Judicial Independence . ’0 The two reports contained
criticisms and

" In 1999, the American Bar Association (ABA) Standing Committee on Judicial
Independence established a Commission on State Judicial Selection Standards. The
Commission was charged with drafting model standards for the selection of state court
judges. Members of the Commission include representatives of various judicial
professional bodies in the U.S. The Commission reviewed hundreds of documents and
articles and heard testimony from senators and legal experts. Draft Standards were widely
circulated among ABA entities, bar associations, courts and other interested organizations.
The ABA adopted the "Standards on State Judicial Selection" in July 2000. Please refer to
the following homepage for details of the Standards:
http://mvw.abanet.org/judind/home.htrul/
4
’ The Miller Center is a non-partisan research center at the University of Virginia that studies
the national and international policies of the United States, with a special focus on American
presidents and the presidency. Periodically, the Miller Center forms National Commissions to
research and make recommendations concerning specific executive branch issues or complex
problems of the presidency. The commissions are independent, bipartisan committees made
up of leaders in government, journalism and the law. The seventh Miller Center Commission
addressed problems concerning the process of appointing federal judges. The seventh
Miller Center Commission was established in October 1994 and conducted interviews
with all the participants involved in the process of appointing federal judges. Please refer
to the following website for the details of this report,
http://www.miIlercenter.virginia.edu.
’0 The ABA Commission on Separation of Powers and Judicial Independence was established in

167
arguments in support o f the current system of federal judi cial appointments.

4.2.7.1. Argu ment aga inst the Current System

Maj or criticisms are the chronic delays in the nomination and

confirmation process and the heightened focus on ideology which leaves
the impression with the public that judges are not independent and impartial
but i deological and partisan.

Although the Commission agreed that the Senate shoul d play an

important role in the process of appointment of federal judges, it is of the
view that the process has become increasingly complex and prolonged:
"Highly qualified persons may be reluctant to seek or accept nomination
because of the burdensome and redundant screening and vetting process.
They may also be concerned about personal privacy and low judicial
salaries. Moreover, waiting in limbo for many months while nomination or
confirmation is pending can be particularly hard on practicing lawyers.
Ultimately, these prob lems inherent in the process of appointing federal
judges affect the quality of those serving on the federal bench. 51

Professor Daniel Meador, a member of the Miller Commission,

pointed out that the judicial selecti on process can

August 1996. The Commission was created to study judicial independence and
accountability, to evaluate a number of events perceived by some as threatening judicial
independence and to make recommendations. The Commission received written and oral
testimony from 28 witnesses in three hearings conducted in Washington, D.C. and San
Francisco, California. Please refer to the following website for the details of this report,
http://www.abanet.org/govaffairs/judiciary/report.html.
" "Report of the Commission on the Selection of Federal Judges 1996," Miller Center
Commission No. 7, May 1996

168
and perhaps does, impinge on the independence of the judiciary at two di fferent
points. First the Pres ident may seek assurances from the candidate that he or sli•
wi11 decide certain issues certain ways, as a prerequisite to nomination. S econd,
the Senate may seek to extract comparable assurances from nominees as a
prerequisite to confirmation.

****************************************

169
 BIBLIOGRAPHY

BOOKS

 K.D. Gaur, Indian Penal Code (Universal Law Publishing Co Ltd, 2013)

 Wrobleski. M .Henry( 2000), An introduction to law enforcement and

criminal justice (Thomson Learning, USA)

 Gospel Principles, (2011), 212-17

 Dr. S.S. Singh, Offences Against Children and Juvenile Offence ( Central Law
Publications)

170
 STATUTES

 The Constitution of India, 1950

 The Indian Penal Code, 1860 ( Act 45 of 1860)

 The Code of Criminal Procedure, 1973 (Act No. 2 of 1974)

 The Juvenile Justice (Care and Protection of Children) Act, 2015 (Act No.2
of 2016)

 The Children Act, 1960 ( Act 60 of 1960)

 The Juvenile Justice ( Care and Protection of Children) Act, 2000

 The Juvenile Justice (Care and Protection of Children) Rule, 2007

171
 REPORTS

 ―Juvenile Offenders and Victims (2006)‖, NATIONAL REPORT

 Law Commission of India Report (Aug., 1997)

 Congressional Record- Volume 131

 Global Initiative to End All Corporal Punishment of Children, Saudi

Arabia Country Report, August 2012
http://www.endcorporalpunishment.org/pages/pdfs/states- reports/Saudi
%20Arabia.pdf

 Inter-American Commission on Human Rights, Juvenile Justice and

Human Rights in the Americas, July13, 2011

172
 ARTICLES AND JOURNALS

 “Juvenile Justice System and its delinquency in India‖, LEGAL SERVICES

INDIA, http://www.legalservicesindia.com/article/article/juvenile-justice-system-
&-its-delinquency- in- india-1031-.1.html.

 http://www.aic.gov.au/media_library/publications/proceedings/09/oconnor.pdf

 https://blog.ipleaders.in/juvenile-justice-system- india/

 https://www.cliffsnotes.com/study- guides/criminal-justice/the-juvenile-
justice- system/should-juveniles-be-tried-as-adults

 http://www.legalservicesindia.com/article/1972/Juvenile-Justice-Care-and-
Protection-of-Children-Act,-2015.html

 Dr. R. Tripathi, Juvenile Delinquency: Overview, Prevention and Laws in India,

the International Journal of Social Sciences and Humanities Invention 1899-
1903, 1901 (2016)

 https://www.impactlaw.com/criminal- law/juvenile/prevention

 https://en.wikipedia.org/wiki/Presumption_of_innocence

 https://en.wikipedia.org/wiki/Public_participation

 https://www.conservapedia.com/Equality_principle

173
INTERNATIONAL DOCUMENTS

 UN Convention on the Rights of Child, 1989

 The Beijing Rule 4(1)

 Gospel Principles, (2011), 212-17

 The Universal Declaration of Human Rights, 1948

 The European Convention on Human Rights, 1953

 The Rights of the Child in the Administration of Justice, 2008: 339

 https://repository.gchumanrights.org>...PDF International Instruments on

Juvenile Delinquency, Reactions to Juvenile…

174