Must for lower judiciary

The other day Union Law Minister Ravi Shankar Prasad advocated the establishment of an All-India Judicial Service (AIJS), with a competitive entrance test to be conducted by the Union Public Service Commission (UPSC) on a ranking basis like other central service examinations. He also push-
ed the idea of a quota in lower judiciary for Scheduled Castes (SC) and Scheduled Tribes (ST) at the entry level of recruitment to make its character more representative than what it is today.

At present, the appointment of district and subordinate judges falls within the domain of respective state governments and high courts. The central government has no role in these appointments. Although the government has been able to convince some high courts about the salient features of the proposed scheme, a majority of them are still resisting the move.

The setting up of an AIJS on the lines of the Indian Administrative Service or Indian Police Service has been hanging fire for a long time. While most of the government departments have all-India service recruits selected by the UPSC through competitive examination 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. Currently, the appointment of judges in district and subordinate courts is being taken care of by the state governments and high courts of the respective states.

The idea of having an AIJS is not new. The Law Commission in its first, eighth and 116th reports called for such a service. The Supreme Court, first in 1991 and the second time in the all-India judges case (1992), had endorsed the creation of an AIJS. In its 15th report, the Parliamentary Standing Committee on Law and Justice, too, favoured the same. The first National Judicial Pay Commission had also supported the proposal. The Niti Aayog is also now in favour of it as per its report “Strategy for New India”. Over and above all this, Article 312 of the Constitution explicitly provides for creation of a national judicial service. Despite all this, the proposal could not get through because of mere opposition by some state governments and high courts to the crucial reform.

In the absence of such a service, it is becoming increasingly difficult to maintain the required judge strength at all levels of courts. For instance, against the overall strength of 22,644 judges in lower courts, only 17,509 are working and 5,135 positions of judges are still lying vacant; the country’s 24 high courts with a sanctioned strength of 1,079 judges are managing with only 652, and thus have 427 vacant positions. Similarly, out of 31 sanctioned strength, the Supreme Court has only 27 judges, including the chief justice, and four vacancies are yet to be filled.

If established without delay, the scheme will have its own distinct merits. Primarily, the requirement 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 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 of things, the measure of uniformity in standards for selection will improve the quality of personnel in different high courts, as about one-third of the 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 nepotism 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.

Apart from serving the cause of national integration in a limited sense, the objective of introducing an outside element in high court benches can be achieved better 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 the 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 reform. The amounts 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.

Although the lower judiciary is an important wing of our judicial system, it is undeniably in a bad state. Whether it is a question of establishing more courts, filling of vacancies or providing infrastructure or basic amenities to judges, the track record of most state governments has been far from satisfactory. Considering all this, the long-felt need for judicial service has increased several fold and its formation should not brook any further delay.

(The writer is an advocate, Supreme Court)