it is necessary to attract bright law talents to the bench, says RD Sharma
The proposal of introducing an All India Judicial Service (AIJS) on the lines of the Indian Administrative Service (IAS) and Indian Police Service (IPS) is under active consideration of the government. This measure was long overdue and has been hanging fire for over five decades now. As of now, while most government departments have all India service recruits, selected after a competitive examination by the Union Public Service Commission (UPSC) every year, the judiciary is the only set up that does not have a national-leval selection process of its own to attract the best possible talent.
The idea of having an AIJS is not new. The Law Commission has thrice - in its 1st, 8th and 116th reports - called for such a service. The Supreme Court first in 1991 and then 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 recommended for its establishment and directed the Union Law Ministry to take immediate steps. The first National Judicial Pay Commission and the National Advisory Council to the Centre have also supported the proposal. Over and above, Article 312 of the Constitution explicitly provides for the creation of a national level judicial service. But in spite of all this, the proposal could not get far in and 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 a body like AIJS, it is becoming increasingly difficult to maintain the required judge strength at all levels of courts. For example, against a requirement of 75,000 judicial officers, the sanctioned strength of judges in subordinate courts, where we have the maximum backlog of cases, remains just 17,151. Out of this, 3,170 posts are still vacant and only 13,981 incumbents are working across the country. The country's 21 high courts with sanctioned strength of 895 are managing with 604 judges and thus account for 291 vacant positions. Similarly, the Supreme Court in October last year had only 24 judges, including the chief justice and seven vacancies were to be filled to maintain the full strength of 31. This means that 15-20 per cent of the courts, where the aggrieved go for justice, are headless. Consequently, the available judges are unable to clear the huge backlog of over 30 million cases, leave alone handle new ones.
If implemented in letter and spirit, the scheme will have its own distinct advantages. 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 prefer immediate remunerative employment in the government and the private sector. For the subordinate judicial officers it would ensure equitable service conditions besides providing them with a wider field to probe their mettle. As of now, the subordinate judges are recruited from a pool of less successful lawyers 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 judges come there on promotion from the 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 minimizing the scope of partiality, arbitrariness and aberrations in judicial selection. Simultaneously, the quality of dispensation of justice will also improve considerably right from the top to the bottom, as it essentially depends upon the quality of judges recruited.
The reform should help considerably in toning up the judicial administration by throwing open appointments to talented persons across the country. In addition, the objective of introducing an outside element in high court benches 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.
However, critics of this feature may say that a district judge coming from a different linguistic region will face a problem of language in assessing and tackling the critical legal and other issues.
The writer is an advocate, Delhi High Court and Supreme Court