A Comparison of Appointment of Supreme Court Judges in India Vis--Vis Appointment of Federal Court Judges in USA

Supreme Court of India

Supreme Court of USA.

1. 2. 3.

Relevant Articles / Sections. Appointment Process An Inverted Pyramid. Comparisons.

3.1 3.2 3.3 3.4 3.5 Appointment. Removal. Age Limit. Qualifications. Procedure followed.

4.

Conclusion.

1 - Relevant Articles / Sections: Constitution of India:

Excerpt from Article 124(2): Judges shall be appointed by President in consultation with such of the Judges of Supreme and High Court as the President may deem necessary
(Please Note:
Nominating Authority = Not Defined Selecting Authority = Executive + Judiciary) (Please Note: Nominating Authority = Executive; Selecting Authority = Executive + Legislature)

Constitution of USA:
Article II Section 2: The President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Judges of the Supreme Court.

Excerpt from Article 124(2): Judges shall hold office until the age of 65 years.

Article III Section 3: Judges shall hold their Offices during good behaviour.
(Please Note: No statutory retirement age, Judges can continue to hold office for a lifetime.)

Article 124(3) (a)&(b): Prescribes certain criteria to qualify for appointment as a Judge. Article 124 (4): Judges shall be removed by the President after a vote in both the houses of Parliament, as per the procedure laid down under the Article.

Article .. NO QUALIFYING CRITERIA LAID DOWN. Article II - Section 4: The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

2. Appointment Process An Inverted Pyramid:

Before we get into comparisons, I would like to bring it to the notice of readers that any appointment process to a Government employment (or for that matter any employment) is an inverted pyramid > wherein there are 3 distinct steps > these 3 steps have a definite chronological order > and each step limits the outcome of the next chronological step, as depicted below:
Figure: Appointment Process An Inverted Pyramid

Nominate
most imp

Select
less imp

Appoint
least imp

Step 1. Nomination (most important): A Wide step, open to all the eligible citizen candidates, from which a short-list of nominees is to be drawn. Step 2. Selection (less important): Choice before a selection authority is limited to the short-listed nominees offered from Step 1. Step 3. Finally, Appointment (least important): Choice almost absolutely limited to the selection made in Step 2.
(For the sake of understanding an appointment process, consider the following simple example: Have you ever observed the popular Film Fare Award Process that is televised every year? First there are 4 to 5 nominations announced > Next the selection of a winner has to be from the nominees just announced > And finally the selected awardee is presented with the award trophy! There may be tens of movies made in a particular year, but the selection of an awardee can never happen from outside the list of nominees!)

INDIA
3.1 3.2 3.3 3.4 3.5 Appointment. Removal. Age Limit. Qualifications. Procedure followed.

3. Comparisons

USA

3.1 Appointment of Judges:

3.1.1. Nomination.

No Designated Authority for proposing Judicial Nominees.

Executive is the clear Designated Authority responsible for proposing Judicial Nominees.

N.B: Some important facts about the Judicial Nomination Procedure in India: For nominations to any Public Office under the State: As per Article 16(1), the nominations should be invited by giving equality of opportunity to all the eligible citizens, which as per numerous judgments of the Supreme Court of India, mean that nominations should be invited by giving open advertisements in news papers. Please Note - Art.16 (1) is presently not being followed while making Judicial Appointments.

Its a big secret as to who suggests/submits the list of Judicial Nominees before the selection authority, and as such, I would like to believe, that implicitly, it may be the Judiciary which nominates the prospective judicial candidates for itself.

3.1.2. Selection:

Executive Judiciary.

to

consult

with

the

Executive to seek consent of the Senate (Senate = Legislature).

Appointment of Judges = Executive + Legislature. Judiciary is out of loop, while making a judicial appointment.

Appointment of Judges = Judiciary + Executive. Legislature is out of loop while making a judicial appointment.

(Dicto - same provision in both the countries):

3.1.3. Appointment

Executive appoints the candidate as a Judge.

Executive appoints the candidate as a Judge.

INDIA

3.2 Removal of Judges:

USA

Judges shall be removed on proved Judges shall be removed from the misbehaviour or incapacity by a office on impeachment. It is a two majority of total membership + 2/3rd step procedure passing through both of those present in each of the houses the houses of Legislature. i.e. both the houses of Legislature. (Difficulty Level of Removal = (Difficulty Level of Removal = Extremely High)
INDIA

Extremely High)

3.3 Age Limit:

USA

The age limit for a Judge to continue in office is limited to 65 years.

INDIA

No age limit; a Judge may continue in office lifetime.

USA

3.4 Qualifications:

Basic necessary requirements laid down under Article 124(3) (a) & (b), to qualify for appointment as a Judge. Although, Article 124(3) (c) gives the President of India discretion to overrule the criteria laid down in 124(3) (a) & (b). No statutory qualifications.

INDIA

3.5 Procedure Followed:

(Now here lies a very big difference)

USA

At the present moment The Procedure followed is very elaborate: the procedure followed In the event of a Judicial Vacancy: for Nomination & Executive forwards the requirement to the Department of Justice. Department of Justice follows a detailed procedure candidate, Having nominated a candidate, his name is forwarded to: Federal Bureau of Investigation (FBI) for Investigation, American Bar Association (An and nominates a prospective

Selection aspect of the Appointment process of Judges is a big

SECRET.
Sorry, I lack knowledge about what to elaborate except that there is some collegium which takes these decisions.

independent NGO) for Evaluation, If the FBI and ABA ratings are positive the name is put before the Executive for approval. If Executive approves the nomination, he signs it and sends it to the Legislature for approval. In Legislature, the nomination is first put before the Senate Judiciary Committee which consists of 18 members (Senate is a legislative body, quite similar to our Upper House of Parliament). Staff of the Senate Judiciary Committee follows a due procedure some like reviewing FBI check,

investigation,

background

interview nominee on telephone to clear up any ambiguity in the file etc.

 The Senate Judiciary Committee then holds a hearing with the Judicial Nominee, and the entire hearing proceeding is TELEVISED, After the hearing, the Senate Judiciary

Committee members vote, and if the nominee gets the majority vote, the proposal goes before the Full Senate (Full House), If the Full Senate approves by a majority vote the nomination is then forwarded again to the Executive. Finally the Executive (President) appoints the nominee as a Federal Judge. Hmmm .. does that sound transparent & elaborate ?????

4. Conclusion:
4.1 Who Appoints Judges ?

INDIA Executive + Judiciary

USA
Executive + Legislature

In India, the same pillar of democracy is involved in its Appointment. In USA, the other two pillars of democracy are involved in the Appointment of the judicial pillar of democracy.

Thus, the Judiciary sits in its own appointment in India whereas Judiciary does not sit in its own appointment in USA.

4.2 Who Nominates Judges ? INDIA

Secret Closed Door Affair

USA
Transparent & Elaborate

4.3 Procedure followed for selection of Judges:

INDIA
Secret Closed Door Affair

USA
Final Confirmation Hearing with Senate (Legislature) Judiciary Committee - Televised

In India, apart from the Secretive Nominations, it is even more closely guarded a secret, as to how a selection is made from amongst the secret Judicial Nominees, Whereas in USA not only a transparent & a very elaborate selection procedure is followed, but also the final confirmation hearing held by the Senate Judiciary Committee with the prospective judicial candidate is televised nation wide.

4.4 Ease v/s. Difficulty in Appointment as well as Ease v/s. Difficulty in Removal of Judges:

INDIA Entry - Easy

Short & Secret Prodecure

USA
Entry - Difficult
Elaborate & Transparent Procedure

Exit - Difficult
Requires concurrence of Both the Houses of Legislature

Exit - Difficult
Requires concurrence of Both the Houses of Legislature

Entry - Thus, selection (Entry) of Judges is easy in India

the utmost secrecy maintained in Appointment of Judges),

(one only needs to

know someone in the right place; at least that is what I would like believe given

Whereas, selection (Entry) of Judges is difficult in USA, as the entire nomination & selection procedure is transparent & elaborate; Exit As far as, removal (Exit) is concerned, once appointed to the post, it is difficult in both the countries (Exit needs to pass through both the houses of Legislature).
Difficult Entry = Increases the probability of a Qualitative Appointment. Difficult Exit = Necessary for the Independence of Judiciary.

4.5 Last but not the least (India Specific): Article 16(1) of the Constitution of India, lays down as follows: There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. This provision is emphatically applicable to the Nomination Aspect of the Appointment process of Judges in India, and hence while filling up any Judicial Vacancy, nominations should be invited by open advertisements. Sunil Ahya 098200 71606 sunilahya@gmail.com Post Script: Next Article - How Article 16(1) is applicable to the process of Appointment of Judges in India?