The Judges of the Highest Court are being appointed by the Chief Executive Officer in consultation with the Chief Justice and in some countries ratified by the Parliament depending upon the constitutional procedure of the country. The present system of appointing Judges is working satisfactorily in many countries.
It is better to divide the Judiciary into 2 branches the Judiciary which administers Municipal Laws should be separated. The highest forum of Judiciary which interprets Constitutional Law, which protects the basic human rights, should be separated.
The Highest Court invested with the powers to interpret the Constitution and which will be the guardian for protecting the basic human rights may be called a National Court.
The National Court should have only Constitutional functions and it should be the final authority on the interpretation of the Constitution. It should be invested with all the writ powers of the present Highest Courts of India, America and England.
The National Court may consist of seven Judges as Minimum and eleven Judges as maximum. The Judges should be appointed by the Chief Executive in consultation with the Chief Justice of the National Court.
Chief Executive Authority should propose the name of the Judge to be appointed, in consultation with the Chief Justice and such proposal should be ratified by the Parliament by a simple majority.
There should not be an age of retirement for National Judges. Judicial wisdom comes only with experience. Mental faculties of the Judges will be at peak only in 60’s and 70’s.
There should not be any age of retirement for Judges. If the health does not permit any Judge to discharge his duties to the best of his abilities he may be advised by the Chief Justice to take voluntary retirement.
Such an advice by Chief Justice should be binding on the Judge concerned. The Highest Court’s Judges should be the people of rare qualifications. Only outstanding advocates and Judges should be appointed to the posts.
It should be restricted only to the few. The average tenure of the Judge of the Highest Court should be 20 to 25 years; the present average tenure of 10 to 12 years of the Highest Court is undesirable.
The Judicial standards cannot be diluted for the sake of convenience or expediency. Appointment to the Highest Court should not be treated as distribution of patronage.
If any vacancy in the Highest Court is to be filled in, the Chief Justice of the Court in consultation with all the sitting Judges should submit a panel of names of persons to be appointed as Judge of the Court.
For one vacancy 3 names may be submitted the panel should be sent to the President. The President in turn with his own observation should send the name of the Judge to the Parliament Committee.
Parliament Committee may accept the name proposed by the President and that name should be ratified by the Parliament by simple majority, only then that person can be appointed as Judge of the Highest Court.
The functions of the National Court should be limited only to the extent of constitutional functions. Ordinary Civil and Criminal Jurisdiction should not be hinged on the Highest Court.
The National Court may be called upon to decide disputes among States, if is a federal State. It may also be called upon to decide the constitutional validity of any Act or any treaty.
The National Court may be invested with the powers to deal with admiralty jurisdiction or international Law and validity of treaties entered by the State with other States. It should be the protector of basic human rights of all the citizens.