Jun 23 2014 : The Times of India (Delhi)
LEGALLY SPEAKING - What makes a lawyer suitable to become a judge
Dhananjay Mahapatra
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TNN
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In 2007, the SC had quoted an ex-chief justice of the US Supreme Court, John Marshal. He had said the judiciary's power lies not in deciding cases nor in imposing sentences nor in punishing for contempt, but in the trust, confidence & faith of the common man
What is that `X-factor' in a lawyer which tilts the scale for his appointment as a judge in the Supreme Court and high courts?
Under the Constitution, a person can be considered for being made a judge of the Supreme Court if he has been a high court judge for five years or practised as an advocate in the higher judiciary for 10 years, or in the opinion of the President is a “distinguished jurist“.Appointments by both, earlier by the executive and from 1998 by the collegium headed by the Chief Justice of India, have been criticized in the past. Seldom has it sparked a public debate, except when it proposed to elevate Justice P D Dinakaran to the SC in 2010.
In India, eminence and success of lawyers go hand in hand. Eminent lawyers refuse to become judges, for that would entail huge loss of income. Whenever an eminent lawyer agrees to become a judge, the collegium feels it has netted a golden fish that would add sparkle to the judiciary .
Eminence of a lawyer and his suitability for judgeship are very different aspects. But when there is a dearth of eminent lawyers willing to take up judgeship, the line between eminence and suitability gets blurred.
In most countries, it is the government that appoints judges. In the UK, a person must have served as a judge of the HC for two years or had practised as an advocate for 15 years to be eligible for the Supreme Court judge's post. After a candidate is shortlisted, an elaborate consultation process with primacy to the judiciary follows. In Canada, judges to the Supreme Court are chosen by the federal government after wide consultation with the judiciary , the legal community and the public at large. Though these consultations happen in private, in 2006, the parliamentary committee for the first time convened a public meeting to question an appointee to the Supreme Court.
The American Constitution meticulously outlines qualifications for the House of Representatives, the Senate and the presidency . But it does not give any advice for judicial appointments except stressing “good behaviour“. Canada's Supreme Court had said judges were the pillars of the justice system and that the public had a right to demand “virtually irreproachable conduct from anyone performing a judicial function“.
There is a reason why world over, the stress is on the person's good behaviour and impeccability of con duct, whenever he enters the zone of consideration for appointment as a judge.
In India, the Supreme Court in the Second Judges case [Supreme Court Advocates on Record Association vs Union of India; 1993 Sup (2) SCR 659] had said the executive was an important constituent of the consultation process for appointment of judges to the SC and HCs.
It had said the suitability of a lawyer for the judge's post was generally known to the CJI and CJs of HCs. However, it had also conceded that there might be occasions when not all antecedents of an advocate are known to those part of the judge selection process.
“It is for this reason that the executive is also one of the consultees in the process of appointment. The object of selecting the best men to constitute the superior judiciary is achieved by requiring consultation with not only the judiciary but also the executive to ensure that every relevant particular about the candidate is known and duly weighed as a result of effective consultation between all the consul tees, before the appointment is made,“ it had said.
While expanding the collegium system for judges' appointment in its 1998 opinion given on a presidential reference, the apex court had said, “There may be a certain area relating to suitability of the candidate such as his antecedents and personal character, which, at times, consultees, other than the Chief Justice of India, may be in a better position to know. In that area, the opinion of the other consultees is entitled to due weight, and permits non-appointment of the candidate recommended by the Chief Justice of India.“
All this elaborate discussion was meant only to block pliable persons, either politically or otherwise, from becoming judges and exercising enormous power, including deciding life and death of individuals.
How else would the top court have ensured that litigants, in other words the public, retained their trust and faith in the fairness of its decisions? That is why “trustworthiness“ of both character and capability of a person has been assigned cardinal importance in selection of judges.
In a 2007 judgment (Rajesh Kumar Singh vs HC of Madhya Pradesh), the court had quoted a 19th century chief justice of the US Supreme Court, John Marshal, to sum it up. Marshal had warned that the power of the judiciary lies not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in the trust, confidence and faith of the common man.
We hope all appointments in future to the SC and HCs pass the Marshal test.
Under the Constitution, a person can be considered for being made a judge of the Supreme Court if he has been a high court judge for five years or practised as an advocate in the higher judiciary for 10 years, or in the opinion of the President is a “distinguished jurist“.Appointments by both, earlier by the executive and from 1998 by the collegium headed by the Chief Justice of India, have been criticized in the past. Seldom has it sparked a public debate, except when it proposed to elevate Justice P D Dinakaran to the SC in 2010.
In India, eminence and success of lawyers go hand in hand. Eminent lawyers refuse to become judges, for that would entail huge loss of income. Whenever an eminent lawyer agrees to become a judge, the collegium feels it has netted a golden fish that would add sparkle to the judiciary .
Eminence of a lawyer and his suitability for judgeship are very different aspects. But when there is a dearth of eminent lawyers willing to take up judgeship, the line between eminence and suitability gets blurred.
In most countries, it is the government that appoints judges. In the UK, a person must have served as a judge of the HC for two years or had practised as an advocate for 15 years to be eligible for the Supreme Court judge's post. After a candidate is shortlisted, an elaborate consultation process with primacy to the judiciary follows. In Canada, judges to the Supreme Court are chosen by the federal government after wide consultation with the judiciary , the legal community and the public at large. Though these consultations happen in private, in 2006, the parliamentary committee for the first time convened a public meeting to question an appointee to the Supreme Court.
The American Constitution meticulously outlines qualifications for the House of Representatives, the Senate and the presidency . But it does not give any advice for judicial appointments except stressing “good behaviour“. Canada's Supreme Court had said judges were the pillars of the justice system and that the public had a right to demand “virtually irreproachable conduct from anyone performing a judicial function“.
There is a reason why world over, the stress is on the person's good behaviour and impeccability of con duct, whenever he enters the zone of consideration for appointment as a judge.
In India, the Supreme Court in the Second Judges case [Supreme Court Advocates on Record Association vs Union of India; 1993 Sup (2) SCR 659] had said the executive was an important constituent of the consultation process for appointment of judges to the SC and HCs.
It had said the suitability of a lawyer for the judge's post was generally known to the CJI and CJs of HCs. However, it had also conceded that there might be occasions when not all antecedents of an advocate are known to those part of the judge selection process.
“It is for this reason that the executive is also one of the consultees in the process of appointment. The object of selecting the best men to constitute the superior judiciary is achieved by requiring consultation with not only the judiciary but also the executive to ensure that every relevant particular about the candidate is known and duly weighed as a result of effective consultation between all the consul tees, before the appointment is made,“ it had said.
While expanding the collegium system for judges' appointment in its 1998 opinion given on a presidential reference, the apex court had said, “There may be a certain area relating to suitability of the candidate such as his antecedents and personal character, which, at times, consultees, other than the Chief Justice of India, may be in a better position to know. In that area, the opinion of the other consultees is entitled to due weight, and permits non-appointment of the candidate recommended by the Chief Justice of India.“
All this elaborate discussion was meant only to block pliable persons, either politically or otherwise, from becoming judges and exercising enormous power, including deciding life and death of individuals.
How else would the top court have ensured that litigants, in other words the public, retained their trust and faith in the fairness of its decisions? That is why “trustworthiness“ of both character and capability of a person has been assigned cardinal importance in selection of judges.
In a 2007 judgment (Rajesh Kumar Singh vs HC of Madhya Pradesh), the court had quoted a 19th century chief justice of the US Supreme Court, John Marshal, to sum it up. Marshal had warned that the power of the judiciary lies not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in the trust, confidence and faith of the common man.
We hope all appointments in future to the SC and HCs pass the Marshal test.
