Selecting Judges For A Democratic India [Text of Justice Chelameswar's Speech at Wisconsin]

[This is the full text of speech delivered by Justice Chelameswar at University of Wisconsin]It is an honour to be present here and interact with the scholars and students of this great university. I was told that I could choose a topic that interests me most; it was, though, with a suggestion that the topic could be “Selecting Judges for a Democratic India” - a topic now widely debated in the academic circles of not only India but also other countries. It is, perhaps, because of the events that took place in the last two years in India. I readily agreed with the suggestion for three reasons: (i) it is a topic of great relevance for any civilized society; (ii) it is a topic now debated very vigorously in India; and (iii) that it makes my assignment a little easier for I was a member of the Bench of the Indian Supreme Court, which recently examined the validity of the Constitution 99th Amendment. Therefore, I had an occasion to examine the matter in some depth.THE DEMOCRACY AND THE JUDGES:No two democracies are identical. The only common feature across the board is that lawmakers and law’s executors (the political executive) are chosen periodically by a process of election. Adjudication of the disputes - whether they are among subjects or between the subjects and the Sovereign - has always been an aspect of governance in every form of Government, be it democratic or otherwise. Democracies generally prefer to appoint rather than elect Judges. They are chosen though making that choice varies from country to country. One of the primary reasons for not choosing the process of electing judges is that adjudication is a complex function. A certain degree of knowledge of law and skill in its application is essential for the person who is entrusted with the responsibility of the adjudicatory process. The existence of such knowledge and skill is a matter of assessment to be made by applying some objective tests. The general belief is that such assessment cannot be made dependent upon the views of transient majorities, for they consist largely of minds with no interaction with the discipline of law - either as law makers or enforcers.SELECTING JUDGES:Different democracies choose different modes for making such assessment as electing judges. In a legal system, which recognizes the judiciary’s authority to adjudicate the correctness of the administrative action, the adjudicator must obviously be insulated from the possible interference from the executive to ensure an impartial adjudicatory process. Legal systems of countries like US and India, which authorize judicial review – to be more explicit, the judicial invalidation of legislation - a higher degree of insulation is required. These various layers of insulation are provided by certain constitutional norms express or implied. The system of selecting judges, which is not wholly controlled either by the legislative or the executive wing of the State is one of the devices designed to ensure the judiciary’s independence and political neutrality.BEFORE INDEPENDENCE:The judicial system as it exists today in India is inherited from British. For the record, I may say, the British Parliament in 1861 enacted the Indian High Courts Act authorizing the Crown “by letters patent under the great seal of the United Kingdom” to set up the High Courts of Calcutta, Madras and Bombay. Other High Courts were established in different parts of the country from time to time. They were courts of appeal with jurisdictions over civil and criminal matters to determine the rights and obligations created by various statutes or personal laws etc. Some of the High Courts also had original jurisdiction limited either by territory or subject matter. It is only to be noted that the jurisdiction of the High Courts in the area of public law was very limited. Though an appeal to the Privy Council against the judgments of the High Court was possible in theory, the stringency with which the Privy Council permitted the invocation of its appellate jurisdiction, coupled with the enormous expenditure involved in approaching the Privy Council, made the High Courts effectively the final courts. A Federal Court came to be established under the Government of India Act 1935. It was essentially an appellate court for deciding the correctness of the High Courts’ judgments. It was an institution with a very short life span, for soon it was replaced by the Supreme Court in 1950.AFTER INDEPENDENCE:After the attainment of independence and the formation of the Republic of India under a new Constitution, most of the old High Courts continued with some modifications in their respective territorial jurisdiction. Some new High Courts came to be established from time to time. The Constitution of India contains a Chapter incorporating certain fundamental rights. Some are rights guaranteed to individuals; some to citizens; and others to groups of citizens. Article 13(2) of the Constitution declares that the State shall not make...

Selecting Judges For A Democratic India [Text of Justice Chelameswar's Speech at Wisconsin]

Justice J Chelameswar

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