Report No. 114

5.15. Selection of lay Judges.-

Selection of lay Judges presented a formidable problem. Extreme views were expressed in this behalf. There were votaries of wholly elective element. There were advocates of selection by non-governmental social service organisations. There were others who espoused the view that once elective principle is substituted by selection/nomination principle, it would strike at the very root of participatory justice and the power to select is likely to be abused and misused. Those in whom the power is vested, it was said, would so exercise the power that political influence cannot be excluded. Once political influence intrudes into the selection method, it would strike at the very fundamental assumption of judicial system namely, Judges are free from political influence or political bias. It must be confessed that no solution is likely to be foolproof or would satisfy all different points of view.

The votaries of election method asserted that if participatory justice is to generate confidence, the forum must have people's chosen representatives. They are votaries of the Magna Carta principle of trial by one's own peers. They asserted that remove the election and the concept of participatory justice becomes a shadow without substance. Elective principle has been supported by Zinabhai Darji Report as well as Balwantrai Mehta Committee. Ashok Mehta Committee Report was not in favour of elective principle. Rajagopaul Committee has advocated elective principle. Democratic decentralisation would in here the concept of elected judges. It is not possible to completely disabuse one's mind of politicised village atmosphere. Panchayat Elections are fought on party lines. Elections do divided electorate.

It generates heat, passion and attachments. It leads to violence. Further the factious village atmosphere is sub-divided on caste, communal and religious considerations. Once election is brought in, it would be difficult to keep its abuses out of it. Undoubtedly, the nation elects its political managers by direct election. That should be the goal but when it comes to electing Judges, slightly different considerations enter the verdict. By and large, the view expressed was that political alignment, must be avoided in selecting/electing Judges. Once elective method is adopted, it is difficult to keep this consideration out of the field.

Undoubtedly, the votaries of elective method included such highly placed persons as Chief Minister of Rajasthan, Director of Banwasi Sewa Ashram and several others. The contrary view is equally firmly expressed. But on the whole the balance tilted in favour of selection and against election. Once elective element is excluded the question is how to select/nominate panel members. Two questions were raised in this behalf; (1) in whom the power should be vested for selecting/nominating panel of lay Judges, and (2) who should finalise the panel?