NATIONAL LAW SCHOOL OF INDIA UNIVERSITY

Designing an Enduring Constitution: Moments

from India, Pakistan and Nepal
Evaluation Essay






Pushan Dwivedi
BA.LLB (Hons.)
1833
First Year


Submitted on: 1
st
April, 2011.


Suggestions as to the appointment and removal of judges as requested by the
Chairman of the Constituent Assembly.

The basic premise of the Constitution was a separation of powers and a system of checks and
balances because man was perceived as a fallen creature and would always yearn for more
power
1
.

The unique composition of the constitution assembly in the present instance makes it
imperative that the members obtain trust and legitimacy with respect to their ideologies to the
best extent possible. Hence, in the first few sessions of the constituent assembly, the members
should attempt to set a basic structure or a set of values in place which will be reflected in the
final draft of the constitution. This will also ensure that the various stakeholders do not feel
left out from the constitution framework in the end, which might even instigate them to leave
the constitution making process, and disrupt the peace gained after 15 years.
Hence, The constituent assembly should ensure that constitutional values such as secularism,
individual rights, nature of state, affirmative action etc., are discussed and a general
consensus as to the degree and extent of these values to be imbibed in the constitution is
attained to ensure that the assembly does not end up losing the holistic vision in the maze of
politics which is bound to be played in such a congress.
The inclusion of 140 Left members (which is 46.66% of the assembly) means there will be a
greater propensity towards public management of the resources, the undermining of
individual rights against group needs, affirmative action and concentration of powers to
narrower range of individuals or institutions. In such a scenario, it is reasonable to assume
that the final consensus would be for a presidential form of government. The writer would
herein assume that such a consensus takes place and a presidential from of government is
agreed upon.
The presidential form of government has the susceptibility to allow a single institution to
control the executive and the legislature at the same time. Such concentration of power,
though suitable for times requiring expediency and efficiency in decision making, grants
unduly concentrated power centre. In order to counteract this concentration, the judiciary and
the legislature, to the extent possible, should work in tandem to keep a check on executive.
Further, in view of the poor financial condition of the country coupled with the fact that it has
just recovered from fifteen years of violence with still sustaining ethnic and religious
tensions, it is the authors opinion that the assembly devise a constitutional morality, not

1
Quote from Roy Moore (Source: unknown).
necessarily at the beginning, based on these set of constitutional values. The constitutional
morality is necessary since the majority of the citizens cannot be made conscious of the
nature, extent and values of the social contract (in the form of the constitution) they are
consenting to, especially in the conditions enumerated above. This constitutional morality
would have to be imposed on the citizens in order to inculcate the constitutional values
among the citizens. The fact that that the presidential form has greater propensity for giving
way to charismatic politics, means that the constituent members have to envisage a situation
where the judiciary alone stands guard for any possible abuse or transgression of power by a
charismatic leader wherein the executive influences the legislature to meet its own ends. The
mandate of preservation of constitutional morality is to rest with the judiciary alone.
Consequently, executive or the legislature cannot amend the constitution. In order to
legitimatise such a mandate, the judiciary must have a representative character. Only then it
may overrule the legislature. Also, it must be ensured that there is no interaction between the
judiciary and the executive.

THE APPOINTMENT
There should be a single judicial system consisting of three levels, as is the case with the
Indian judicial system i.e. at the district level, the High Court at the state/provincial level and
an apex court at the helm to monitor the workings of all the sub-ordinate courts. The entry of
judges in the judiciary would be at two levels through a three-pronged approach.

First level: District
One-third of the total number of judges sanctioned for the district level would be government
prosecutors elected by the citizens. As stated, there is a greater probability of executive
influencing the legislature in the presidential form. This may even translate to the executive
trying to amend the constitution. In such a scenario it is imperative that the judiciary, with the
mandate of restraining such attempts, is representative in nature so as to grant legitimacy to
its actions.
One-half of the sanctioned number of judges would be appointed through a state/provincial
public examination, the State Judicial Service, to ensure an element of meritocracy. This will
also result in a more inclusive judiciary wherein members from the minority communities
would also have the opportunity to participate in the judiciary, in spite of the apparent lack of
mandate for such individuals from the majority.
The remaining number of judges would be recruits of a National Judicial Service.

Second level: Higher Judiciary
One-third of the total number of judges sanctioned in each High Court would be nominated
from the advocates practising in the specific province. The appointment of the nominated
advocates would be subject to the approval of the state legislature.
Another one-third would be nominated from the elected judges at the district level. This
ensures that the semi-representative nature of the judiciary remains intact. The appointment
of nominated persons would be decided by a collegium of High Court and Supreme Court
judges.
The remaining judges would be appointed from the State and the National judicial services
according to hierarchy and performance, subject to the approval of the collegium consisting
of High Court and Supreme Court judges.

The appointment of the Supreme Court judges would be through a collegium consisting of
the Chief Justices of the country and four Supreme Court judges in the order of seniority.
Only High Court Judges may be appointed to the Supreme Court, subject to qualifications.
The appointment of Supreme Court judges has been completely left to the judiciary for two
reasons:
1. The judges nominated for Supreme Court have already come through a system of
checks and balances by the judiciary and the legislature alternately as in evident in the
appointment of judges in state High Courts.
2. It has been stated before that the executive will have no interaction with the judiciary.












THE REMOVAL

First level: District
The judges may be removed by a collegium of High Court Judges on the grounds of
incompetence, charges of corruption, misbehaviour etc.,.

Second level: Higher Judiciary
The removal of a Supreme Court or a High Court judge should be more strenuous and
through an impeachment motion as is followed in India. This is so because the appointment
the higher judiciary takes place through a rigorous mechanism of checks at various levels, i.e.
competence, financial integrity etc., Hence, the scope of a deviant person being appointed as
a judge is minimal. Further, many frivolous complaints may be lodged by litigants who have
been awarded unfavourable judgments by the respective judges. Hence, on account of the
strenuous method of appointment it is only legitimate that the method of removal be equally
strenuous.