The setting up of an All India Judicial Service (AIJS) on the lines of the Indian Administrative Service (IAS) and Indian Police Service (IPS), a long overdue judicial reform, has been hanging fire for a long time. While most government departments have all-India service recruits selected after they pass an 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 Law Commission has thrice – in its 1st, 8th 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 recommended for its establishment 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 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 the process of concretization 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 actual required judge strength at all levels of courts. For example, against the overall sanctioned strength of 19,726 judges in the country&’s courts only 15,438 are working. There are about 4,000 vacancies in subordinate courts, though the sanctioned strength has gone up to 19,000. It goes without saying that the country&’s 24 high courts with sanctioned strength of 1017 judges are simply managing with 617 and thus account for 400 vacant positions. Similarly, the Supreme Court has only 26 judges instead of 31 including the chief justice, following the retirement of five 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 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 after 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 willing lawyers, 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 appointed to man the law courts.
Apart from serving the 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 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 of facts which will affect the quality of justice. Language, it is true, may be a problem but that should not be an excuse for opposing the required crucial reform. As a corollary to the linguistic reorganization of states, it has been one of the policies of the government to use and encourage local languages in various administrative fields including the judiciary. Young recruits from outside can learn the local language without any problem and adapt themselves to local conditions in comparison to older people.
The creation of an AIJS is a low cost proposition and should not pose any financial problem to the government. The amounts collected as court fees, at least, ought to be spent for this purpose instead of being utilized 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. There are many other steps required to make our justice system work for the people. But, improving the quality of judges, enhancing the prestige and dignity of judicial service is a relatively comprehensive measure on which there is broad consensus now between the government and the judiciary.
An all-India judicial service for recruitment of judges to lower judiciary is expected to bring in much needed uniformity in the selection and service conditions of judges who have been getting raw deal in the lower courts which, though an important wing of our judicial system, are undeniably in an alarmingly bad state. Whether it is the question of establishing more courts to cope up with the spurt in litigation, filling of vacancies of judges/magistrates or providing the basic amenities necessary for them to render justice within a reasonable time-frame, 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 now.
(The writer is Advocate, Supreme Court of India and Delhi High Court)