Building a case for all-India Judicial Service

RD Sharma
Supreme Court advocate

UNION Law Minister Ravi Shankar Prasad recently advocated the setting up of the all-India Judicial Service (AIJS) with an entrance test to be conducted by the Union Public Service Commission (UPSC) on the lines of other Central Service examinations. He also made a pitch for quota for Scheduled Castes (SC) and Scheduled Tribes (ST) at the entry level of recruitment to make the lower judiciary more representative. At present, the appointment of district and subordinate judges falls within the domain of respective state governments and High Courts. The Central Government has no role in these appointments. Although the government has been able to convince some High Courts about the salient features of the proposed scheme, most of them are still resisting the move.

The setting up of the AIJS on the lines of the Indian Administrative/Police Service has been hanging fire for long. While most of the government departments have all-India service recruits selected by the UPSC through a competitive examination 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 talent.

The idea of having the AIJS is not new. The Law Commission, 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 the AIJS. In its 15th report, the Parliamentary Standing Committee on Law and Justice, too, favoured the same. The first National Judicial Pay Commission had supported the proposal in question. Niti Aayog is also now in favour of it, as per its report on ‘Strategy for New India’. Above all, Article 312 of the Constitution explicitly provides for the creation of a national-level Judicial Service. Despite all this, the proposal could not get through because of opposition by some state governments and High Courts.

In the absence of such a Service, it is becoming increasingly difficult to maintain the required judge strength at all levels of courts. For instance, against the sanctioned strength of 22,644 judges in lower courts, only 17,509 are working and 5,135 posts are lying vacant. The country’s 24 High Courts, with a sanctioned strength of 1,079 judges, are managing with 652. The Supreme Court has 27 judges at present, including the Chief Justice, while four posts are vacant.

If established without delay, the Service will offer several benefits. Primarily, the requirement of judges right from the entry level will be handled by an independent and impartial agency such as 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 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 prove their mettle. As of now, the subordinate judges are recruited from a pool of lawyers who, despite being not so competent, eventually become judges in higher courts 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 the standards for selection will improve the quality of personnel in High Courts, as about one-third of the judges come there on promotion from 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 minimising the scope of partiality, arbitrariness and nepotism in judicial selection. Simultaneously, the quality of dispensation of justice will also improve from the top to the bottom, as it essentially depends upon the quality of judges appointed to man the courts.

Apart from serving the cause of national integration in a limited sense, the objective of introducing an outside element in the High Court Benches can be achieved better because a member of the all-India Judicial Service will have no mental block about inter-state transfers.  It will enrich their experience and make them better judges. At present, judges of the subordinate judiciary remain only in the state where they are appointed to work.

The creation of the AIJS is a low-cost proposition and should not pose any financial problem to the government in introducing this long overdue reform. The amounts collected as court fees, at least, ought to be spent for this purpose instead of being utilised as a source of general revenue for the states. According to a 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.

Although the lower judiciary is an important wing of our judicial system, it is undeniably in a bad state. Whether it is a question of establishing more courts, filling of vacancies or providing infrastructure/basic amenities to judges, the track record of most state governments has been far from satisfactory. Considering all these aspects, the long-felt need for the Judicial Service has increased manifold and its formation should brook no further delay.