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FUNCTIONS OF THE JUDICIARY - Odt
FUNCTIONS OF THE JUDICIARY - Odt
There are certain methods by which judge are selected in various States. One
method of selecting judges is through an election by the people. Such a system
now prevails in certain Cantons of Switzerland. Although this method may sound
highly democratic, such a method of selection of the judge is unsound. Ordinary
voters are not qualified to consider the suitability of judges. Moreover, a
popularly elected judge is likely to favor the party, which sponsored his election.
A second method of appointing judges is through elections by legislature. This
method is in vogue in Switzerland and some other States. Such a mode of
appointment violates the theory of the separation of powers.
Moreover, if judges are appointed in this manner, the judiciary cannot function
as the guardian of the constitution. Judges elected by the legislature are
notlikely to declare acts of the same legislature unconstitutional. Thus, the
independence and impartiality of the judges would be lost.
A third method of appointing judges is by executive nomination. In India, the
President of India nominates the judges of the Supreme Court and the High
Courts. This is a satisfactory mode appointing the judges. Such appointments
are generally made from and among the senior practicing lawyers.
A fourth method of selecting Judges is through a competitive examination. In
France, judges are selected on the basis of a competitive examination
conducted try the Ministry of Justice. In India, too, judges of the lower courts
such as Munsifs are selected on the basis of competitive examinations.
Of all these methods, the most popular is the last mentioned mode of choosing
judges, for it ensures the independence of the judiciary. Garner is of the opinion
that judges should be appointed by the executive. But once appointed, the
judges should be independent of the influence of the executive would hold office
for life.