Comparative Law-Constitutional System in India and USA-A few Clarifications

Constitutional System in India and USA-A few Clarifications  

Judgmental Statements of distinguished foreign experts are based on ignorance of legal information on India. An hour-long discussion with an American professor discloses certain facts and exposes certain myth.  Often the US experts are critical as to the length and content for the  Indian Constitution and the process of appointment of judges. Three central arguments are as under-- 

1. The Constitution of India is very very long. It is not constitution but the whole law. It should be limited to 4 pages. Only basic things should be written. 
2. The judges appoint themselves as if it is their own society. USA system is better. Indian system of collegium is very very bad.
3. The judges should only interpret law and not promulgate law. The judges are not elected and therefore they do not have mandate for a reform in law.

 While I agree on certain jurisprudential aspects on judicial legislation, appointment procedure, as the discussion proceeded, I came to know that the  conclusion of the learned Professor is based on certain myth about Indian legal system.

1. Constitution is Long..
   
   I informed them that in India the States do not have their own constitution. We have only one federal constitution with an exception of Jammu and Kashmir. Therefore, India has 29 States and 2 constitutions (one for J/K and one for India). In USA, there are 50 States and 51 constitutions. Each constitution in State has addressed the regional concern. In our constitution, the concern of regions and diversity is addressed in one document. For an example, special provision for scheduled areas, River dispute, etc. The Professor told he did not know India has only one Constitution and States do not have their own constitution. 
   
   
   
2. Appointment of Judges
   
   The Professor told that judges cannot be reformist and cannot promulgate law, because they are not elected. In addition, they don't have democratic legitimacy, because in USA both executive and Senate (Upper house of the Parliament) appoints them. 
   I asked what is so pious in election as such and how is a selection through Executive as well as Parliament a better method to ensure independence and merit. The USA way of appointment of judges have their own strength and weaknesses. Indian collegiums system has its own. Indeed the USA system of appointment was discussed in the Constituent Assembly in India and was not approved because when democratic process is involved, majoritarianism ideology is decisive. Other negative factors come in. A judge, even if he is outstanding, cannot be a US judge, if he is liberal in Trump regime. A judge who is very conservative and thinks local rather than think global, will be appointed as Judge. So, decisive concern is ideology and ruling party line rather than merit or independence of judge. Can such judge, who was appointed because of his party line of the government, decide against the party line. Probably yes, and probably no also. You scratch my back I do your. The chances of bias in USA judges are more than that in India. 
   The American Professor agreed but insisted that the collegium, acts as a private company and then a judge is appointed among friends. Moreover, a US Supreme Court judge rules for may be 10 years or 15 years or may be for 20 years in the Supreme Court. In USA judges may serve even for 27 years. At least they are democratically selected. 
   I informed that in India the Supreme Court judges serve only upto 65 years. 
   He was surprised. Only 65 years. You mean a law is there or a convention. I replied that not just a law, the Constitution provides for 65 years. He did not believe. The Constitution retires them at 65 years. In USA, the convention is 70 years, which is voluntary. But the Supreme Court judges work may be up to 80 years. 
   I also informed that by convention the minimum age of a SC judge is 55 years, subject to a couple of exceptions. He wanted to confirm... “means a judge in the SC can work for a maximum period of 10 years, generally.” 
   I replied-Yes sir, and the average period a judge spends here is very low. The tenure of CJIs (Chief Justice of India) was as low as 1.5 years on an average.

The learned professor, who was adamant on his views was little silent and went in thinking mode.   

One of the essential elements of a research work in law and in comparative law is to be aware of all facts and law before making inferences and conclusions. When it comes to comparative study, it has to be comprehensive and not isolated. When it is done in isolation, we raise eyebrows and offer surprises.