(Article) CSM - December 2012: Necessity of All India Judicial Services
The essence of democratic governance is Rule of law. Delayed justice, poor appreciation of evidence, and incapacity to apply constitutional and legal principles to real life situations play havoc with people’s lives. Failure of justice extracts a heavy toll from the society and economy. If we examine the pendency of cases in courts, we come across two factors. First, certain judges handle a much larger case load and yet dispose of cases swiftly and fairly. Others take interminably tang, and yet fail to render justice. The quality of justice administered depends on the quality of those who administer it. The judiciary is completely independent and invulnerable to the vagaries of politics and partisan pulls. The High Court has complete control over the conduct and functioning of subordinate courts. And there are established procedures for elevation to High Court and Supreme Court. Therefore, once recruitment practices are sound, there are incentives for better performance and effective monitoring at least until a judge is elevated to the High Court.
THE CENTRE is contemplating creation of an all India judicial service (AIJS) on the pattern of the All India Civil Services. In its 15th report, the Parliamentary Standing Committee on Law and Justice has recommended its creation and directed the Law Ministry to take immediate steps for setting up such a service. As of now, while most government departments have all India service recruits, selected after an all India competitive examination conducted by the Union Public Service Commission every year, the judiciary is the only set-up that does not have an all India selection process. Incidentally, the proposal for having an AIJS is not new anddraws its support from the reports of the first, eighth and 11th law commissions. Even the Supreme Court is not averse to the idea. For, in two of its judgments in 1991 and 1993, it had recommended setting up of an all India judicial service. Article 312 of the Constitution also provides for a national level judicial service. In spite of all this, the proposal did not get far in the process of concretization and has been hanging fire for over four decades now.
The current procedures to enforce accountability in higher judiciary are not so effective, but that problem needs to be dealt with separately. If judicial officers are accorded the prestige and respect that All India Services enjoy, then the best talent can be tapped for the judiciary. Then the control exercised by the High Court, and the prospects of elevation to High Court ensure high quality performance in district and other subordinate courts. At the very least, formation of an All India Service for judiciary would ensure a high level of competence and skills in our justice administration.
Article 312 of the Indian Constitution provides for the creation of an all-India Judicial Service common to the Union and the States. The first Law Commission headed by M C Setalwad, had made a strong recommendation for the Constitution of an All India Judicial Service (AJJS), like the IAS and IPS. Three Chief Justices’ conferences in 1961, 63 and 65 favored this recommendation. In 1972, the Chief Justice of India suggested the creation of AJJS. Later, the 8th Law Commission, in its 77th Report, recommended creation of such a service. In 1986, Law Commission again examined the issue in detail, and recommended formation of an All India Judicial Service. The Supreme Court considered this issue in the All India Judges case in 1992, and endorsed the creation of AIJS.
Undoubtedly our judge-population ratio is too low, and we need many more trial courts. But as many jurists have pointed out, mere increase in the number of judges, without improvement in their quality, is of no avail. The quality of justice administered critically depends on the quality of the judges recruited. Clearly, there is a compelling case to create a highly competent, meritocratic All India Judicial Service. Creation of AJJS is a low-cost, high-impact reform long overdue. 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, and promoting competition for recruitment is a relatively simple measure around which there is impressive consensus. The creation of AUS will surely benefit the judiciary system and it is the need of hour.
If implemented, the scheme will have its own advantages. Primarily, the direct recruitment of judges from the entry level will be handled by an independent and impartial agency through an open competition thereby ensuring fair selection of incumbents. It would naturally help attract bright and capable young law graduates to the judiciary to take over as judges. For subordinate judicial officers it would ensure equitable service conditions besides providing them a wider field to prove their mettle. In this scheme of things, the measure of uniformity in the standards for selection will improve the quality of personnel in different High Courts, as one- third of the judges come there on promotion from the subordinate courts. Similarly, judges of the Supreme Court are drawn from the High Courts. In this process only persons of proven competence will preside
over the benches of superior courts. Simultaneously, the quality of dispensation of justice will also improve considerably right from the bottom to the top.
In addition, the objective of inducting an outside element in High Court benches can be achieved better and without any problem because a member of an all India judicial service will have no mental block about interstate transfers.
However, critics of this feature may say that a district judge coming from a different linguistic region will face the problem of language in assessing and tackling the critical legal and other issues of facts, which will affect the quality of justice. True, language may be a problem but that should not be an argument for straightaway rejecting the idea. Young recruits from outside can easily learn the local language and adapt themselves to local conditions unlike older people.
Nor should the finances involved in the formation of such a judicial service pose any problem. In fact, the amounts collected as court fees, at least, should be spent for this purpose instead of being utilised as a source of general revenue of 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.