Should judges be elected or appointed?
As per Indian constitution ,legislature, executive and judiciary are three elements of government. The Indian Constitution enshrines Independent Judiciary. India is a democratic Nation where in the legislature is elected by people. Though the constitution well lays down the independent functions, responsibilities and authority of three elements of democracy but there are checks and balances on three elements. On one hand, there is a recognition that justice must be administered impartially. Judges must be selected because of their ability as jurists, not simply because of their political affiliations. A judge in deciding a case must be governed by principles of law and the merits of the litigant's case, not the litigant's political position. On the other hand, under our common law tradition, judges, particularly appellate judges, decide cases which become law. Judges are given immense power in this country power to interpret statutes, review administrative decisions and declare legislative and executive actions unconstitutional. The fact that judges often decide issues of tremendous significance to the general public means that the public must retain some control over the judiciary. HENCE THE QUESTION SHOULD JUDGES BE ELECTED OR APPOINTED?
2. Need for public control on judiciary –ELECTED JUDGES
Proponents of elected judiciary are of view that judges make law and that the public must have a voice in the law making process. . Members of racial and ethnic minority groups have a better opportunity to become judges through the local political processes than through a merit selection process. Elected judiciary would cater for representation from all sections of society.
3MERIT BASED SELECTION-INDEPENDENT JUDICIARY .Proponents of merit selection contends that higher quality judges who have greater independence are placed on the bench through merit selection. The qualifications of judicial candidates are thoroughly reviewed by a panel whose members have the expertise necessary to evaluate those characteristics of a good judge. It is also contended that lawyers with exceptional judicial talents are more likely to seek judicial office through this nominating process than through a political nominating process. Merit based system in true sense makes judiciary independent and reduces political influence. Also majority of voters do not know the candidates in judicial election and general public has no criteria for determining which candidate will make a good judge.
5.Separate law from politics.. Law grows out of politics; it is the end product of the political system, and the two cannot be separated. Nevertheless, even the most ardent advocate for democratic institutions recognizes that a court of law must be governed by a different set of rules than those which govern the legislative or the executive branches of government. A judge must transcend partisan politics and must definitely strive for justice in reaching a decision. A judge must not be governed by what may be the passing whim of the body politic. Judges have traditionally served as a check on the transient impulses of the legislature or the executive. The crucial factor in choosing a judicial selection process is not to eliminate politics, but to control politics. The issue is simply this: What is the proper blend of political influences and who or what group should exercise the political power to select judges?
6.Methods of selection WORLD OVER.
U.S.A selection system
The two basic methods used in the selection of judges in the United States are election and appointment. Elective methods may be either partisan or nonpartisan. In partisan elections the judicial candidate is nominated by a party and runs with a party identification. In nonpartisan elections the judicial candidate is generally nominated in a nonpartisan primary and runs in the general election without a party label. Appointment methods used in other states differ on where the responsibility rests for the important decisions; they are made either by the governor, the legislature or a judicial nominating commission. The method which uses the judicial nominating commission is generally referred to as merit selection. Most states use a combination of elected and appointed systems. .
Indian judiciary system is merit based selection system however legislature does play a role in recommending Appointment and selection of judges. There is no affiliation of judges to any political party. Judiciary is independent in nature and functioning however judicial activism has been a cause of concern wherein judiciary has been overstepping authority of legislature again opening chapter for more control over judiciary.
8.Role of society in judgements
Judiciary is one arm of govt responsible for orderly Conduct of society ensuring natural justice,liberty.equality.. dispute resolution, such as mediation, conciliation, and arbitration.
9.Role of panchayat and social organisation(PEOPLES COURT) is a system of alternative dispute resolution developed in India. It roughly means "People's court". India has had a long history of resolving disputes through the mediation of village elders. .. Lok Adalat is a non-adversarial system, whereby mock courts (called Lok Adalats) are held by the State Authority, District Authority, Supreme Court Legal Services Committee, High Court Legal Services Committee, or Taluk Legal Services Committee. They are held periodically for exercising such jurisdiction as they determine. These are usually presided over by retired judges, social activists, or other members of the legal profession. It does, however, not have jurisdiction on matters related to non-compoundable offenses. There is case for elected judges to reflect concern of society in matters which are non compoundable.
.10.PUBLIC PRESSURE VERSUS LAW OR WHAT IS RIGHT
System of elected judiciary will compromise on what is right as per law .Decision would be more populist which at times shall comprise interest of minority group.
.11 Judges can become out of touch with the people.. Sometimes they will let their own personal biases get in the way of making the right decisions. It is not uncommon for judges who loose sight of what they are supposed to be doing to start actually writing new laws themselves through the decisions they make. This is a violation of the separation of powers clause of the Constitution which delegates the authority to write laws to the legislative branch of the government, but judges keep getting away with it.
12Conclusion. Judges, being just a fallible as the rest of us, are not perfect. So, we do need to have a mechanism by which to reign them in if they get too irresponsible with the authority with which they are vested. On the other hand we do want them to be independent enough to not be swayed by popular opinion when it is clearly the wrong thing to do. Just where that balance should be I am not sure. To be quite honest I don't think that we will ever be able to find a balance between these to factors that will entirely satisfy everyone. So, we will just have to muddle through the best we can.