Monday , 8 March 2021

Mechanism for Selection and Appointment of Judges

Ancient India had a fairly well-developed system of administration of justice. The king was considered as the fountain of justice. In the discharge of his function, he was assisted by the Brahmins. Who were proficient in dharmshatras. For appointment of judges, Caste consideration was a dominant factor. Brahmins were preferred for judicial appointment.
As regards qualification, it was clearly laid down that the person should be proficient in the text; should be master of vedas and smritis and follow the path of Dharma. Women were not allowed to hold judicial office. Judge’s tenure depended entirely on the pleasure of the king. In fact, the judges seemed to be more accountable to the king than to the people because their fate and future depended entirely on the pleasure of the king.
During 12th century, there was end of the Hindu period, Turkish race ruled Delhi for about 300 years and during this period judicial system was organized on the basis of administrative divisions of the kingdom and different courts were established at the central, provincial, district and pargana level (village level). All the courts functioned under the authority of the king with defined jurisdiction in civil, criminal and revenue matters. The entire judicial administration was headed by the sultan himself and all judicial appointments were made by him. But the process of removal was not as complicated as the impeachment procedure of today. Person of doubtful integrity were removed immediately from the office. Even a Chief Justice could be dismissed for want of honesty and on the ground of incompetency.
During 16th century, Mughal Rule was established and during this Period the Emperor was regarded as the fountain of justice. The Emperor established a seperate department of justice known as Mahakme-Adalat. Emperor’s court was established in Delhi which was the highest judicial court exercising original and appellate jurisdiction. The Chief Justice and other puisne judges were appointed by the Emperor. Sometimes, the appointment were made from amongst the professional lawyers. Jadunath Sarkar has stated that “Men of high scholarship and reputed sanctity of character were appointed as judges. Judges of Subordinate court were preferably appointed from practicing lawyers. However, corrupt judges were not tolerated.”
Emperor Aurangzeb’s order for appointing a person to occupy judicial office contained the following instruction: “Be honest, be impartial. Hold the trials in the presence of the parties and at the court house and the seat of the government. Do not accept present from the people of the place where you serve, nor attend the entertainment given by anybody and everybody…known poverty (faqr) to be your glory (fakhr).”
Thus, during the Mughal Period, the quality of justice was very high. Only person possessing the required qualification could be considered for judicial appointment.
During British Period4, there existed two sets of courts—the English people were governed by their own laws and courts whereas for the native population there were different courts. In other words, Presidency town of Madras, Bombay and Calcutta inhabited by the English and the muffusil areas dominated by rural population had different courts. During the period 1793- 1861, some of the Governor-Generals showed a keen interest in improving the existing Adalat system by introducing many reforms.
The judges of the Supreme Court were appointed by the British Crown under his seal and held office during his pleasure. On the other hand, the judges of the Company’s court were appointed by the Governor General and held office during his pleasure. Thus, the concept of “tenure and pleasure” made the judges subservient to the government, which means that the judges were accountable to the government while performing their judicial functions.
The Chartered Act of 1935 enacted by the British Parliament which centralized the whole legislative machinery and provided for appointment of law commission was a great step towards the unification of laws and courts. The enactment of Civil Procedure Code, Indian Penal Code and Criminal Procedure Code in the years 1859, 1860 1861 respectively paved the way for the amalgamation of the dual system of courts and finally the object was achieved by Indian High Court Act, 1861.
In August 1861 by enactment of Indian High Court Act, Her Majesty was empowered to abolish the Supreme Court and sadar adalats and in their place constitute a High Court of judicature for each of the three Presidencies. The court was to consist of a Chief Justice and such other number of judges to be appointed by Her Majesty from time to time. The act prescribed professional qualification of judges and the judges were appointed by Her Majesty and held office during Her Majesty, pleasure.
The enactment of the Government of India Act, 1935 gave a new dimension to the judicial system of the country. The act for the first time guaranteed a security of tenure to the judges who could be removed by His Majesty only on the ground of proved misbehavior or infirmity of mind or body. It was a drastic change as judges from 1862 to 1935 used to hold office during Her Majesty pleasure. Whereas from 1935 they held office during good behavior and also special provisions were made for salary and pension of judges.
The other significant provision of the Government of India Act 1935 related to the creation of Federal Court in India. On 1st October 1937, the Federal Court consisting of Chief Justice and two puisne Judges was established at Delhi. The judges of the Federal Court were to be appointed by the British crown and they were to hold office until they attained the age of 65 years. However, a judge could resign or be removed earlier on the ground of misbehavior or of a mental or physical infirmity if the privy council on the reference by the Crown so recommended.
The Federal Court continued to function even after India attained Independence in 1947 till its jurisdiction was taken over by present Supreme Court under the Constitution of 1950.
When the Constituent Assembly started its work, the most difficult and daunting task was to make provision for an independent and impartial judiciary in the country. This was sought to be ensured through the procedure for appointment of judges and a fixed term for them. It is unanimously agreed that every effort should be made to keep politics out of judicial corridors. Neither the executive nor the Chief Justice of India have a final say in making judicial appointments. By an large the framers of the Constitution were contended by conferring wide appellate, original as well as writ jurisdiction on the High Court and the Supreme Court so that they could effectively deliver justice to the people of this great country.

(Excerpts from Judicial Accountability written by Shri Kalraj Mishra in 2013)
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