CATCH THEM YOUNG !                                            

Newspapers have reported that there are almost 280 vacancies of judges in the High Courts' because suitable persons are not available who could be recommended. With huge pendency of cases this is truly alarming. 

What is the real reason for this alarming state of affairs?

The real reason is the faulty policy of the Supreme Court in insisting on a minimum age of about 45 years for appointment as a High Court Judge .This rules out the really outstanding persons from becoming judges except in some cases when even outstanding person also accept judgeships even at that age. 

This was not the position during British time. In Allahabad High Court Sir Shah Mohammed Sulaiman was appointed as a judge of the High Court at the age of 34 years. Justice Mahmood a legendary judge was appointed to the High Court at the age of only 32 years.

 Let us understand that the disposal of cases by a truly outstanding judge is 3 to 5 times that of an average judge and could be even 10 times of that of a really slow judge. The reasons for this are many. An outstanding judge already knows a lot of law and is also quite familiar with the principles of law including constitutional law. Before ordinary judges arguments have to take a long time before judge would understand the applicable law.Further the outstanding judge is much sharper and more intelligent than other judges and therefore appreciates evidence also more quickly.

In fact the policy should be to search the best brains to man the higher judiciary irrespective of age or seniority in the judicial service. A lawyer with ten years practice at the bar is eligible under the constitution for appointment as a High Court Judge. 

Normally a person gets enrolled in the Bar at the age of about 23 years. So at the age of 33 years he is eligible. Those who are really outstanding should be taken at that age or shortly thereafter. They would be judges for almost 30 years. The tenure of many judges particularly from the judicial service is about 5 years and so a replacement for such judges has to be found after 5 years. In the case of a young appointee a replacement would be needed after 30 years. So the number of appointments to be made would come down to one sixth. All selections must be made on merit disregarding age in the case of members of the Bar and in the case of members of judicial service disregarding their seniority. This set of much fewer but truly outstanding judges would quickly clear the accumulating arrears and usher in the era of speedy justice. As the judgments of such judges would also be correct by and large, fewer appeals would be needed.

 

Let us accept that God Almighty not being bound by the shackles of Art 14 has been quite partial and has endowed different persons with vastly different talents, ability, intelligence, sharpness and capacity for hard work.

Every High Court today is running on the shoulders of a few of its outstanding judges. If all judges were outstanding though young, their disposal would increase many times and the quality of justice would also be of a much superior order.

SHANTI BHUSHAN

FORMER UNION LAW MINISTER & SENIOR ADVOCATE

SUPREME COURT OF INDIA.