Appointment of District Judges

Panel to study prospective judges

We appoint someone as judge because someone suggested “What we require is the study of the man and his commitment to society and all the important features of a man that are important for him to function as a great judge.” –justice Krishna Iyer (September 29, 2010 The Hindu )

Judicial appointments always draw the attention of the public and the legal profession. What constitutes the qualifying norms for a judge is the debating point in the discussion of the judicial appointments.

There is  a plenty of room for argument about what constitutes merit in judicial selection. The process  for appointment to the lower tiers of the judiciary, is primarily at the level  of  subordinate judiciary by written examination and viva-voce , but not  at the level of  High courts . The Constitution lays down simply the qualifications for a Judge.  The method of appointment of judges to the High Court and  supreme court is a matter of practice and convention, not of written law. The judges appointment should be consonant with constitutional principles and the nation's social objectives. Therefore, conceding that merit is the sole consideration in the appointment of Judges and was intended to be so by the Constitution makers and has been so held by the Court, nevertheless a definition of merit is  not provided in the Constitution nor has it been given in any judicial decision. The Constitution lays down simply the qualifications for a Judge and appointment on merits  remains undefined and un discussed.

In examining the appointment of District Judges I would like to record my tentative views.  The current system of appointment threatens to undermine public confidence in the Courts and the administration of justice. An appointment  system based solely on the subjective assessment of  written and  viva –voce is paradoxical with the role of the  Court in interpreting the law, including matters of public policy. The selection  purely on  subjective assessments of potential candidates  and a closed process of decision-making, which is not subject to any public scrutiny are a draw back in the current system. The best way to bring about the elimination of the short comings is to have our citizens informed how the appointment is made.

Practice of Law is purely a professional skill confined to courts which involves skills and abilities like applying  knowledge and experience to make decisions which are in compliance with the law and appropriate to the circumstances of the matter in hand; and consider competing arguments and reason logically to a correct and balanced conclusion. Intellectual and analytical ability, assimilating  facts and arguments, and recall such evidence and information speedily and accurately; applying  legal principles to particular facts and to determine from a large body of information those issues and facts which are relevant and important and those which are not; and weighing  relevant issues and matters of law in order to be able to formulate them for reasoned and coherent presentation.

Decisiveness, having the ability to reach firm conclusions precipitously ,to think, decide and act independently of others, and to rely on their own judgment. Communication skills, being able to communicate effectively with all types of court user including lay people (whether defendants, witnesses, members of a jury, litigants in person or children), giving instructions, explaining complex issues and giving decisions in judgments clearly and concisely, both orally and, where necessary, in writing. command the respect of court users and to maintain fair-minded discipline in the court and chambers without appearing pompous, arrogant or overbearing; and promote the expeditious dispatch of cases preventing unnecessary prolixity, repetition and irrelevance whilst ensuring that all participants (whether represented or not, )  are enabled to present their case or their evidence as fully and fairly as possible. and finally case management skills.

Apart from these skill and abilities the appointees should have  Personal Qualities  viz

a)Integrity: having a history of honesty, discretion and plain dealing with professional colleagues, clients and the courts; possessing independence of mind and moral courage, being prepared to take and maintain unpopular decisions when necessary; and having the trust, confidence and respect of others.

b) Understanding of people and society: Having a knowledge and understanding of, and respect for, people from all social backgrounds being sensitive to the influence of different ethnic and cultural backgrounds on the attitudes and behavior of people whom they encounter in the course of their work.

c)Courtesy and humanity: being courteous and considerate to all court users and court staff; and having and conveying understanding of, and sympathy for, the needs and concerns of court users, as appropriate, and being sensitive and humane.

d)Commitment: A commitment to public service and sensitive to social aspirations , which they pursue conscientiously, with energy and diligence.

Let me stress my point, to my opinion a three hour written examination  and a viva voce on subjective assessment will not determine the selection on merits. This system is anachronistic when compared with the judicial appointment  procedures adopted in advanced countries .

The appointment process should be reformed to provide for the selection of judges based upon  the aforesaid criteria after the preparation of a short list by a judicial appointments commission. It must be transparent, accountable and it must inspire public confidence. The assessment of candidates   should be by a committee  considering each candidate against the established criteria for appointment; giving due consideration to diversity; and consulting widely within the legal and non-legal community about the candidate. The committee should comprise of judges, practicing lawyers, and lay members ‘likely  to have knowledge in the achievements of possible appointees. If the preliminary evaluation of a prospective appointee is positive, the candidate’s name  should be transmitted to the  Intelligence Bureau  for investigation to confirm the accuracy of the candidate’s  background issues  and to the  Bar Association  for evaluation.

I close with a humble submission that no doubt the appointing body consists of the highest Constitutional functionaries and we should have faith in them, but  when those functionaries themselves differ in their perception of merit, there is enough justification for its determination.

 K.SURESH BABU ADVOCATE

M.A.(DEFENCE STUDIES)M.A.(CRIMINOLOGY)M.A.(LABOUR STUDIES) B.L

ADVOCATE TRICHY

14/28,VINCENT COLONY,WILLIAMS ROAD,CANTONMENT,TRICHY-620001