Nowhere in the world does the judiciary appoint its own, except in India. Save for the higher judiciary, every public officer in India undergoes a screening test. The collegium system has come in for a lot of criticism on the grounds that it lacks objectivity and impartiality.
As a solution, the executive sought to bring in the National Judicial Appointments Commission (NJAC), which the Supreme Court has struck down.However, the cure doesn’t lie in restoring the balance in favour of the executive, but in putting in place a system that is objective and transparent. Thus, the argument for an all-India judicial service (AIJS) assumes significance. This old demand has always been shelved on account of vested interests masquerading as judicial independence.
We can adopt the French model, where the judiciary is manned by a career judicial service. France’s experience is quite satisfactory compared to the UK, where judges are chosen from the legal profession, or the US, where judges needn’t necessarily come from a legal background. The process of selecting a good judge can’t be left to the wisdom of a few, however sagacious — be it a collegium or an NJAC.
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This is all the more relevant in a complex and diverse country like India.
A body like the UPSC needs to be established to conduct an examination for the recruitment of members to the AIJS. AIJS officers could start their careers as additional district judges and eventually rise up to become high court and SC judges. The AIJS would be able to attract the best talent. As against nebulous accountability and lack of transparency in the functioning of the judiciary, the AIJS can be governed by a well-laid system of discipline and service accountability like the existing all-India services. While the political executive and bureaucracy are subjected to various checks, the higher judiciary seems free from it. Theoretically, the judiciary’s acts can also be investigated, but it rarely happens. Disciplinary and service matters of the AIJS could be managed by a separate body. The executive should have no control over such matters.
For the ostensible reason of independence, the judiciary has justified the collegium system of appointments, while in reality, it was perhaps the desire to not let go of privilege and discretion. Times have changed. People are more aware now and demand more transparency. All organs of state, except the judiciary, have responded to that demand. Only an AIJS will make the judiciary more accountable and professional.
Most HCs and state governments have raised objections to an AIJS. Why would they agree when they would no longer be in a position to push in their candidates? Prior to the collegium, politicians could quietly sneak in their candidates. After the collegium system was introduced, the higher judiciary became party to that. An important objection to the AIJS by the states and the judiciary is local language requirements. This is a feeble argument. When IAS and IPS officers can be allotted state cadres and adjust to local requirements, why can’t AIJS officers?
The judiciary has always closed its doors to public scrutiny. It has created a veil of secrecy. Every organ of state in a democracy needs to be accountable to the public. People need to know how judges are appointed, what criteria they have been evaluated on. Many judges appointed by the collegium or by political intervention may have been brilliant, yet their recruitment process is questionable. Such judges would have no moral right to question the transparency and integrity of the executive or even the private sector. The list of HC and SC judges of the last couple of decades indicates that a minuscule number of women, minorities and the downtrodden have been appointed to the higher judiciary. Does this reflect a bias? People have a right to know.
The higher judiciary should reflect social reality and the country’s diversity. It can only happen if a fair and impartial system of recruitment is put in place. Neither the judiciary nor the executive needs to have a say. An AIJS is not only a sine qua non for good governance in the judiciary but also an essential prerequisite for India to become a mature democracy.
The writer is a former IAS officer