Opinion To catch a thief
An absconder who got away playing judge makes the case for reforming the lower judiciary...
In recent times,the controversy about the applicability of the Right to Information Act to the office of the Chief Justice of India has turned the spotlight towards concerns about accountability in the higher judiciary. However,the sustained focus on the top of the system also ensures that not enough scrutiny is directed towards the flaws in the administration of our lower judiciary. Last weeks report of a trial judge in Indore whose involvement in a criminal case caught up with him after 16 years of service,( IE,May 21) highlights the shortcomings in the existing mechanism for oversight over judicial officers.
Contrary to popular perceptions,the Supreme Court does not have a direct say in the administration and supervision of lower courts. As per Article 235 of the Constitution,it is the high court in each state which exercises administrative control over the lower courts falling under its territorial jurisdiction. In this sense,the description of the position of the Chief Justice of India as a serpent without fangs cannot be easily rebutted since the CJIs administrative authority is largely confined to the Supreme Court. For instance,the decision of Supreme Court judges to voluntarily declare their assets has not been followed by several high courts.
When it comes to matters such as the removal,suspension or disciplining of erring judicial officers in the lower courts,it is the chief justices of the respective high courts who have the final say. The usual practice is that the relatively senior judges of each high court are assigned administrative responsibilities for overseeing the performance of lower court judges in each district. Reports of misconduct are then inquired into by disciplinary committees consisting of high court judges. Even in the matter of recruitment of judicial officers,the high courts have a substantial say in the state judicial services examinations which are conducted by the respective State Public Service Commissions.
The over-reliance on the personal initiative of the designated administrative judge often creates a situation where the fate of all the judicial officers in a district depends on the whims of the former. While the ideal scenario is that of a vigilant high court judge who thoroughly examines the background and performance of all trial judges,the reality is far more complex. Just as a supervisor with an authoritarian bent of mind can strike fear in the minds of workers,an apathetic boss can create a climate of laxity and corruption. Reports of the prevalence of these two sums up the sorry state of judicial administration in most states. In many districts,judicial officers are burdened with the additional task of pleasing their respective administrative judges,which often sparks allegations about favouritism in appointments and protection from disciplinary proceedings. In the same vein,an easy-going administrative judge could overlook serious instances of misconduct on part of lower court judges.
There are two structural problems in the subordinate judiciary. The first is that the number of judges in our country is far too less to handle the increasing case-load. As of data available on September 31,2009,there were 16,746 posts in the subordinate judiciary,out of which 13,946 were occupied. 2,800 vacancies in an already under-staffed and under-funded judicial system is certainly a cause for immediate action. The second problem is weak mechanisms for oversight and accountability. While the Judicial Standards and Accountability Bill has been designed with the higher judiciary in mind,the law ministry should examine proposals for accountability in the subordinate judiciary as well.
One suggestion is to amend the Constitution so that the supervision of the subordinate judiciary becomes a subject in the Concurrent List in the Constitution,thereby enabling the Central government to have some say in the matter. It is a well known fact that many state governments have been reluctant to release funds for the maintenance and upgradation of courts as well as the recruitment of more judicial officers. A certain degree of centralisation is necessary to give effect to the ongoing efforts,especially since the 13th Finance Commission has allocated more than Rs 5,000 crore for improving the judicial system.
The proposal for creating an All India Judicial Service also needs a meaningful push. At present,the judicial services examinations conducted in most states are merely a test of rote memory and do not attract the finest legal minds. Add to this,allegations of nepotism and favouritism in the interview component of the examinations. A centralised examination which tests analytical skills as well as legal knowledge could go a long way in ensuring uniformity in the quality of personnel recruited to the lower judiciary. Concerns about linguistic differences can be addressed by components in vernacular languages. In its present form,the proposal for an All India Judicial Service entails that 25 per cent of the officers of the rank of an additional district / sessions judge in each state will be drawn from all India cadre.
Apart from streamlining recruitment and pay of lower court judges,it is also important to give them opportunities for career advancement. At present,the composition of high courts is dominated by those who began as practitioners in the respective state capitals and only a small proportion of trial court judges are elevated to the high courts. This is also a factor which contributes to the unequal relationship between those from a practicing background and those from a services background. While changes to the higher judiciary are welcome,the real fortune in terms of reform benefits lies at the bottom of the pyramid.
The writer was law clerk to the Chief Justice of India from July 2008-May 2010
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