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Tuesday, 18 October 2016
R D Sharma Oct 17, 2016
The recruitment of judges right from the entry level will be handled by an impartial agency, thereby ensuring fair selection.
It is indeed good that the Narendra Modi government is contemplating to revive the proposal of constituting an All-India Judicial Service (AIJS) for the recruitment of district and subordinate judges in lower judiciary. In fact, the setting up of such a service on the lines of the Indian Administrative Service (IAS) and Indian Police Service (IPS) has been hanging fire for a long time.
While most of the government departments have all-India service recruits selected after they have passed the all-India competitive examination conducted by the Union Public Service Commission (UPSC) every year, the judiciary is the only set-up that does not have a national level selection process of its own to attract the best possible talent.
The idea of having an AIJS is not new. The chief justices’ conference in 1961, 1963 and 1965 had favoured its creation. The Law Commission, too, has thrice – in its 1st, 8th and 116th reports – called for such a body.
The Supreme Court, first time in its 1991 judgment and second in the all-India judges case (1992), had endorsed the proposal. In its 15th report, the Parliamentary Standing Committee on Law and Justice recommended for its establishment as well and directed the Union Law Ministry to take immediate steps in this direction. The first National Judicial Pay Commission and the National Advisory Council to the Centre have also supported the idea.
Over and above, Article 312 of the Constitution explicitly provides for the creation of a national level judicial service. But despite all this, mere opposition by some state governments and high courts to the reform gave a lame excuse to successive governments at the Centre to sleep over the matter. In the absence of such a mechanism, it is becoming increasingly difficult to maintain the required judge strength at all levels of courts. For example, against the overall sanctioned strength of 21,612 judges in the country’s courts, only 16,698 are working. There are about 4,432 vacancies in subordinate courts, though the sanctioned strength has gone up to 20,502. It is needless to say that the country’s 24 high courts with a sanctioned strength of 1,079 judges are simply managing with 601, and thus account for 478 vacant positions.
Similarly, the Supreme Court has only 27 judges instead of 31 including the chief justice, following the retirement of four judges. And whether resultant vacancies in the higher/subordinate judiciary will be filled soon to maintain the full strength is anybody’s guess. Consequently, the overburdened available judges are unable to clear the huge backlog of cases, leave alone handle new ones.
If established without delay, the scheme will have its own distinct merits. Primarily, the recruitment of judges right from the entry level will be handled by an independent and impartial agency like the UPSC through an open competition, thereby ensuring fair selection of incumbents. It would naturally help attract bright and capable young law graduates to the judiciary, who otherwise after law graduation prefer immediate remunerative employment in the government or the private sector.
For the subordinate judicial officers, it would ensure equitable service conditions besides providing them a wider field to probe their mettle. As of now, the subordinate judges are recruited from a pool of lawyers who, despite being not so competent, eventually become judges in higher courts, as established lawyers are rarely willing to give up their lucrative practice to join the bench.
In this scheme, the measure of uniformity in standards for selection will improve the quality of personnel in different high courts, as about one-third of judges come there on promotion from subordinate courts. Similarly, judges of the Supreme Court are drawn from the respective high courts.
In this process, only persons of proven competence will preside over the benches of superior courts, thereby minimising the scope of partiality, arbitrariness and aberrations in judicial selection. Simultaneously, the quality of dispensation of justice will also improve right from the top to the bottom, as it essentially depends upon the quality of judges appointed to man the law courts.
Low-cost propositionApart from serving the noble cause of national integration in a limited sense, the reform should help considerably in toning up the judicial administration by throwing open the appointments to talented persons from across the country.
In addition, the objective of introducing an outside element in high court ben-ches can be achieved better and more smoothly because a member of an all-India judicial service will have no mental block about interstate transfers. It will enrich their experience and make them better judges. At present, judges of subordinate judiciary remain only in one state where they are appointed to work.
The creation of an AIJS is a low-cost proposition and should not pose any financial problem to the government in introducing this long overdue laudable reform. The amount collected as court fees, at least, ought to be spent for this purpose instead of being utilised as a source of general revenue for the states.
According to an agency report, figures from the Ministry of Law and Justice show that the income generated from court fees is more than the expenditure incurred on the administration of justice by the government.
The AIJS is expected to bring in much-needed uniformity in the selection and service conditions of judges who have been getting the raw deal in subordinate judiciary which, though an important wing of our judicial system, is undeniably in an alarmingly bad state.
Whether it is a question of establishing more courts, filling of vacancies or providing basic amenities to judges, the track record of most state governments has been far from satisfactory. Considering all this, the long-felt need for such a service has increased several fold and its formation should not brook any further delay.
(The writer is Advocate, Supreme Court)