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(1) Mode of appointment of judges:
In advanced courtiers of the world, generally three modes are adopted for the appointment of the Judges.
These are:
(a) Election by the people;
(b) Election by the Legislature;
(c) Appointment by the Executive.
The system of the appointment of judges by the people is in vogue in many states of America. In the Soviet Union, the judges of the People’s Courts are elected by the people. In Switzerland, the lowest court is called the Court of first instance and the judges of this court are elected by the people.
In Assam, Bihar and Maharashtra, the Presidents of the Judicial Panchayats are also elected by the people. There are some historic examples of the defeat of able and distinguished judges because of unpopularity of judicial decisions. This has happened in America. In this way, the judge fails to do justice.
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Therefore, Laski has said, “Of all the methods of appointment that of election by the people at large is without exception the worst”. Prof. Gamer 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.”
The election of the judges by the Parliament or the legislature is seen in Switzerland. The Judges of the Federal Tribunal are elected there by the National Assembly for six years. In the past, in certain states of America, this system was adopted, but later only four states Rhode Island, Vermount, South Carolina and Virginia-retained it. In former Soviet Union to the judges of the Supreme Court were elected by the Supreme Soviet.
The election of the judges by the Parliament is not considered good because there are political parties in the Parliament. In the Parliament, a judge can be elected only by majority if he enjoys the confidence of the majority party. When a judge is elected by the support of the majority party, he will have to appease that party.
In order to be re-elected in the next elections, he will have to give such decisions as to please the majority party. His tenure of office will depend upon the pleasure of the members of the Parliament. He will have to ignore his daily duties in order to canvass votes for himself at the time of the elections. It is also possible that the judge may indulge in corrupt practices fearing his defeat in the election.
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This system is also against the theory of Separation of Powers. Kent, a famous jurist, has said, “It presents too many occasions and too many temptations for intrigue, party prejudice and local interest to secure a judiciary best calculated to promote the ends of justice.”
The third mode of appointment of the judges is appointment by the Head of the State (the King or the President). This system of appointment of the judges is adopted in India, England, the United States, Canada, Australia, Japan and South Africa.
However, the judges are free from all influence after their appointment. This system is also not free from defects because, in practice, the President or the monarch appoints the judges on the recommendations of the Prime Minister and the Lord Chancellor and both these persons are related to majority party.
Therefore, sometimes they recommend the names of such persons as have some leaning towards that party. Commenting on this system in America and France, Dr. Garner writes, “That instances are by no means lacking in the states of American Union where appointments were made as rewards for party services or because of personal favouritism and the requirement that the appointment shall be approved by the State Senate or the Executive Council did not always serve as an effective check in preventing them”.
In order to remove the defects of this system, Laski does not consider simple nomination by the Executive as an adequate system. He suggests that judicial appointments should be made on the recommendations of the Minister of Judges with the consent of a standing committee of the judges which would represent all sides of their work.
The reason for this is that after their appointment the judges are not under the influence of any party and their recommendation is appropriate. That is why, in India, the President while appointing the Chief Justice of the Supreme Court of India, consults the judges of the Supreme Court and the High Courts and at the time of appointment of other judges of the High Court, the President consults the Chief Justice of that High Court.
In India, the judges of the District Courts are appointed by the Governor on the recommendations of the State Public Service Commissions. For this purpose, the State Public Service Commission holds competitive examinations.
In England and other Commonwealth countries, the judges are selected from among the advocates and pleaders working in the courts. In certain countries of Europe, the judges are selected by the Ministry of Justice through competitive examinations. Thus, this is the best system of the appointment of the judges and it is prevalent in many countries of the world.
2. Long Tenure:
For the independence of judiciary, a long tenure of the judges is as essential as a good mode of their appointment is. If the tenure of the judges is short, its consequences will be bad. In case of a short tenure, the judge will remain busy in planning for his re-election.
Sometimes the judges, in order to win the election, become partial while giving decisions. Sometimes, he indulges in corrupt practice when he loses the hope to win the election. If the tenure is short, the judge is unable to comprehend fully the various complications of the law.
Today in many countries of the world the judges remain in office till they attain the age of 65, or 70, provided their conduct is above board. But in some states of America and Switzerland, the tenure of the judges is very short.
In Switzerland, the tenure of the judges of the Federal Tribunal is 6 years. In the American State of Vermont, the tenure of the judges is 2 years, in Pennsylvania it is 21 years, in New Jersey it is 7 years, in Delaware 12 years and in some other states it is 6 years. In Mexico, the tenure of the judges is 6 years.
Though in some States of America the judges are re-elected yet because of the drawbacks mentioned above this system is not good. The system of the tenure during good behaviour has been adopted in America for the Federal Judiciary. India, Canada and Australia have also adopted this system.
In Great Britain, the judges also remain in office during good behaviour. In India, the judges of the Supreme Court remain in office till the age of 65 and the judge of a High Court remains in office till the age of 62.
Hamilton says, “The standard of good behaviour for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of Government. In a monarchy, it is an excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government to secure a steady upright and impartial administration of the laws”.
3. Security of Service:
For the independence of judiciary it is essential that there should be security of service for the judges and the executive should not remove them at will. If the judges are under constant fear of being removed from office, if they give decisions against the executive (government), they will not give decisions against the government.
Thus there will be no protection of the constitution and fundamental rights of the people. Therefore, in most of the advanced countries of the world, the Parliament removes corrupt and incapable judges by a majority vote, but the honest and able judges are granted the security of service, even if they give decisions against the executive.
In Great Britain, the judges have been guaranteed the security of service and they can be removed only when both the Houses pass a resolution jointly, leveling allegations against the judges, and send it to the monarch for his/ her assent. In the United States, the judges of the Supreme Court are removed by a process of impeachment.
For this purpose, the Lower House (House of Representatives) levels allegations and the Senate investigate these allegations. In some states of U.S.A. there is a provision for the recall of the judges by popular election. It hinders the freedom of judiciary. Therefore, certain learned jurists have criticised this practice.
In India, the Supreme Court and High Courts have been made free from the control of the executive. In India, the procedure adopted for the removal of the judges of High Court and the Supreme Court is quite cumbersome. It provides security of service to the judges and they are free from the control of the executive.
This procedure is mentioned in Article 124, Clause 4 of the Constitution of India. It says that, “A judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members present and voting, has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity”.
4. Adequate salary to the Judges:
In order to make the judges independent, it is necessary that they should be paid adequately so that they are able to maintain a good standard of living and they do not amass wealth by adopting corrupt practices. If the judges are adequately paid, able persons will be attracted towards this profession and they will enjoy an honourable place in the society.
If they are not paid adequately, able persons shall not be attracted towards this profession and they will have no place of prestige in society. According to Bryce, the honesty and independence of a judge also depends upon the inducements or prospects that his office carries. A low-paid judge may be attracted by opportunities for accepting illegal gratification.
An honest and capable man will shun holding an office carrying a meagre remuneration. Therefore, there should be a fairly high salary for the office of a judge so that his social position and his mode of living inspire confidence and attract really capable and deserving men from the bar.”
Whereas it is necessary that a judge should be paid adequately, it is also necessary that during his tenure of office, his allowances and emoluments are not reduced by the executive. Otherwise, the judge will not be able to decide cases impartially.
It was judiciously remarked by Hamilton that, “in general course of human nature a power over a man’s subsistence amounts to a power over his will,” Therefore, the judges are paid their salaries and allowances from the Consolidated Fund in India, England and certain other countries and there is no need for the approval of the Parliament for these payments every year. In India under the amendment a High Court judge draws a monthly salary of Rs. 8000 and a judge of the Supreme Court draws Rs. 9000 and the Parliament cannot reduce this amount [Article 124 (clause 3) and Article 217, (clause 2)].
Besides this after retirement a judge should receive pension so that during his tenure he should not indulge in corrupt practices and he should lead a peaceful retired life. Thus in India a judge receives pension after his retirement from service.
5. High Qualification:
For the independence of judiciary it is also important that the judges should be able persons since only an able judge can give correct decisions and express his views freely. Incapable judges are swayed by the arguments of the pleaders and they give wrong decisions. Therefore, in India high qualifications for the judges of High Court and Supreme Court have been prescribed in the Constitution.
6. Separation of Judiciary from the Control of Executive:
For the independence of judiciary Montesquieu emphasised that it should be free of the control of the executive. In ancient and middle ages the Judiciary was under the control of the executive. Hence, there was violation of justice and the kings decided the cases arbitrarily. It destroyed the freedom of the people.
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Therefore, today efforts are made to free the judiciary from the control of the executive, so that the judges may give decisions fearlessly. In India, during the British rule, the Deputy Commissioner or the Collector had both executive as well judicial powers.
Consequently, he had sometimes to give wrong decision under the influence of high officials and ministers. In the new Constitution of India under the Directive Principles of State Policy, clear directions have been given to the government that it should make efforts to separate judiciary from executive.
Now in most of the states of India, the judiciary has been made free from the control of the executive, at the district level, and judicial powers have been taken away from the hands of the Deputy Commissioner. These judicial powers have been given to the Additional District Magistrate. There is no control of executive over the High Court and the Supreme Court. Therefore, the judiciary enjoys complete independence in India.
7. No practice after retirement:
The judge should not be allowed to do legal practice after retirement, because his previous colleagues would favour him in the cases in which he appears as a lawyer. In Article 220 of the Indian Constitution it is mentioned that no person who after the commencement of this Constitution has held office as a permanent Judge of a High Court shall plead or act in any court or before any authority in India except the Supreme Court and the High Courts.