In a recent speech commemorating 50 years of the Delhi High Court, Prime Minister Narendra Modi revisited the possibility of recruiting judges through an All India Judicial Service (AIJS). This is an idea I have been personally interested in for many years. Public debate often gets hijacked by discussions on the number of judges, but it rarely considers the quality of judges themselves. The real question at hand is whether the judiciary is in a position to recruit the best talent required for fulfilling the role that is demanded of a judge.
Here, the judiciary must introspect on some issues. For instance, why are there always 20 per cent vacancies in the courts? Vacancies are never filled in time. Why do these positions remain empty? The answer is simple. Because the judiciary is unable to attract talent. To compound things further, today the subordinate judiciary depends entirely on state recruitment. But the brighter law students do not join the state judicial services because they are not attractive. With no career progression, no one with a respectable Bar practice wants to become an additional district judge, and deal with the hassles of transfers and postings. Consequently, the quality of the subordinate judiciary is by and large average, although there are some bright exceptions. By extension, at least one-third of high court judges elevated from the subordinate judiciary are also mostly average. As a result, the litigants are left to suffer.
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There are many ways to think about attracting good talent. In the French model, students pick the judiciary as a stream early in their legal studies itself. Just as dentistry is a specialisation in medicine, judging is a specialisation in law. I attempted something similar as chief justice of the Delhi High Court, introducing a one-year diploma on “judging” in law schools, with the eventual idea to have a full-fledged course for judges, but it did not take off. In truth, the answer to a great many problems in our judiciary lies in an All India Judicial Service (AIJS). This reform is urgently due. We have talked about it for years, but not done anything of consequence.
When our Constitution was drafted, the AIJS discussion got sidelined. The end result was Article 235, under which the entire judicial machinery at the subordinate level was under the control of the high courts. The Constitution drafting committees also discussed Article 312, conferring power on the Parliament to create All India Services. At that time, it was doubtful whether the judicial services could be organised on a national scale under Article 312. After the Swaran Singh Committee’s recommendations in 1976, Article 312 was modified to include the judicial services, but it excluded anyone below the rank of district judge. Therefore, the trial courts are completely eliminated.
Meanwhile, the First Law Commission of India (LCI) came out with its comprehensive, and now legendary, 14th Report on Reforms on the Judicial Administration, which recommended an AIJS in the interests of efficiency of the judiciary. However, the proposal was opposed as being impractical, and was shelved. In reality, the opposition came out of inertia, not from an assessment of whether it was feasible or not; and it came mainly from the judiciary. In its 77th Report, dealing with “Delay and arrears in trial courts”, the LCI once again said the AIJS needed serious consideration.
The idea of an AIJS was approved in the chief ministers’ conference in 1982, and most states were in agreement. But a few points were raised in opposition consistently: First, that lack of knowledge of regional languages would affect judicial efficiency; second, that avenues for promotion would be curtailed for those who had already entered through the state services; and third, that this would lead to an erosion of the control of the high courts over the subordinate judiciary, which would, in turn, affect the judiciary’s independence. Each of these grounds, which are still echoed by many, was dealt with by the LCI’s 116th Report on the “Formation of an All India Judicial Service”.
If we were to implement the scheme of the 116th report, direct recruitment of judges from the entry level onwards would be handled by an independent and impartial agency. The process of recruitment would be through open competition, and if designed with the right incentives of pay, promotion and career progression, it could potentially become an attractive employment avenue for bright and capable young law graduates. The judiciary needs such youngsters to take over the system.
The idea of an AIJS has not merely been academic, and the Law Commission has not been its solitary votary. The Supreme Court has itself said that an AIJS should be set up, and has directed the Union of India to take appropriate steps in this regard. This has happened at least twice. It is clear that the judicial side of the court machinery is entirely in favour of an AIJS. It is the administrative side that has been opposing this idea. It is extremely disappointing that the opposition is coming from within the judiciary itself, with certain high courts opposing the idea without understanding the issues properly. Without a push from the judiciary, the AIJS will never come to fruition.
In a longer-term perspective, uniformity in selection processes and standards, as offered by an AIJS, has many advantages. It will improve the quality of judicial officers in high courts, and one-third of the judges would enter the high courts through the route of promotion from subordinate courts. By extension, judges of the Supreme Court are drawn from the high courts. In this process, the persons eventually selected into the judiciary would be of proven competence. Simultaneously, the quality of adjudication and the dispensation of justice would undergo transformative changes across the judicial system, from the lowest to the highest levels.
A career judicial service will make the judiciary more accountable, more professional, and arguably, also more equitable. This can have far-reaching impact on the quality of justice, and on people’s access to justice as well. For decades, the judiciary has been asked to do something about judicial recruitments, but always stops short of taking an initiative in the formation of an AIJS. The prime minister and the chief justice of India have raised red flags about the problems that plague the courts. There is no time better than now to start doing something about these problems.