Mode of appointment of judges

INDEPENDENCE OF JUDICIARY

Justice is considered to be one of the divine attributes and a judge is described as a blindfolded person who holds the scales of justice which he administers even handed. It means judges should be impartial.

The need for independence of the judiciary has acquired an added dimension under modern conditions of the welfare state. The more modern government interferes, administers and regulates the more urgent is the need to preserve a check on the way. These activities affect individuals and groups. The factors which ensure independence of judiciary and enable judges to fearlessly discharge their duties are the following. Dr.Garner says, If the judges lack wisdom, probity and freedom of decision, the high purpose for which the judiciary is established cannot be realised'. If the judiciary is independent only when the system of the appointment of the judges is good, if they have the security of service and interference and control.

Conditions or factors which make the judiciary independent, are the following:

Mode of appointment of judges

In advanced countries of the world generally three modes are adopted for the appointment of the judges. They are

(a)              Election by the people. Eg., Many states of America.

(b)             Election by legislature. Eg., Switzerland

(c)      Appointment by the executive. Eg., India, U.K, U.S.A.

Election by the people

The system of popular election of judges was first introduced in France in conformity to the theories of popular sovereignty and the separation of powers. It now prevails in some of the cantons of Switzerland, and in a few states of the United States of America. According to Laski 'that of election by people at large is without exception the worst. Popularly elected judges can never be impartial, honest, independent and dignified'.

Prof. Garner also says, 'Election of the judges lowers the character of the judiciary, tends to make a politician, of the judge and subjects the judicial mind to a strain which it is not always able to resist'.

Election by the legislature

The election of the judges by the legislature is seen in Switzerland. Election by the legislature is not a common and accredited method of appointing judges, because this system is a violation of the principle of the separation of powers. But more important is it makes the judiciary subservient to the legislature. Moreover election by the legislature means elections of party candidates when party affinities intervene in the selection of judges merit is discounted and independence of the judiciary disappears.

Appointment by the Executive

The third mode of appointement of judges is appointment by the head of the state (the King or the President). This system of appointment of judges is adopted in India, England, the United States, Canada, Australia, Japan and South Africa.

The appointment of judges by the executive is the most common and the best available method of choice and it is in practice in nearly all countries of the world. Judges chosen by the executive are likely to be independent of popular influence and political or sectional considerations. In India too, recruitment to the subordinate courts is through a competitive examination, whereas in the case of courts above, it is according to the method as presented in the constitution, but the appointing authority is the executive.