Will worsen situation

BL SARAF

Former Principal District and Sessions Judge

THE TRIBUNE DEBATE:  ALL INDIA JUDICIAL SERVICE

THE proposed all-India judicial service (AIJS), highlighted by the President recently, seeks to centralise the recruitment of judges at the levels of the additional district judge and the district judge. Article 233 of the Constitution says that the recruitment of the district judges is to be made by the Governor in consultation with the state High Court. “A person not already in the service of the Union or of the state shall be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment,” says the Article.

Under Article 234, the appointment of sub-judges is to be made by the Governor, based on the recommendations of the State Public Service Commission.

It is argued that the AIJS will ensure an efficient subordinate judiciary, address structural issues such as varying pay and remuneration across states, will fill vacancies faster and spur standard training of judicial officers across the country. It is claimed that the AIJS will facilitate speedy dispute resolution, improve the judge-population ratio, attract talent and ensure higher representation of women and marginalised sections of society.

In 2019, the Vidhi Centre for Legal Policy released a report titled ‘A Primer on the AIJS — A Solution in Search of a Problem?’ which concluded that most of the reasons for creating the AIJS had been addressed through changes made in rules, regulations and practices. “It is time we recognise that the AIJS cannot be the answer to these systemic problems, especially when it is an unproven solution to unproven problems,” the report had said.

It had rightly observed that at a time when judicial vacancies were being constantly monitored by the Supreme Court, it may be more prudent to fix processes related to recruitments in various High Courts.

Credit goes to the Supreme Court for ensuring pan-India uniformity in pay structure and remuneration among members of the district judiciary. The facilities provided are also relatively equal. They are governed centrally in accordance with the guidelines fixed by the Supreme Court in the All-India Judges’ Association case of 1993. The National Judicial Academy, which is run by the apex court, conducts training and refresher programmes for the district judiciary in various states on a regular basis. Moreover, every state has a judicial academy run by the High Courts concerned. The National Legal Services Authorities Act and the State Legal Services Authorities Act ensure that there is cost-effective and speedy dispute resolution. Even without the establishment of the AIJS, the institution of the Lok Adalat has survived and thrived with a decent rate of success in dispute resolution.

A centralised recruitment process will go against the spirit of federalism and will be regarded as trespass on the states’ powers, which are duly granted by the Constitution. Every state has unique linguistic and cultural characteristics that cannot be addressed by an overarching AIJS.

To understand the differences in the functioning of the Indian Administrative Service (IAS), Indian Police Service (IPS) and the proposed AIJS, one needs to understand the specific nature of the roles performed by a judge and an administrative officer. Everything that comes before a judge should be discernible to him/her. True, lawyers are there to assist the judge in conducting proceedings, but the judge is not absolved of the duties and responsibilities imposed on him/her by the procedural code and protocol. The judge has the duty to thoroughly examine a person brought as a witness by any party if it is deemed necessary to arrive at a just decision in the case being heard. A judge needs to develop, as stated by renowned jurist Fali Nariman, a ‘third eye’ to see what is invisible to an ordinary person and a ‘third ear’ to hear what is not audible to the layman.

Since local court proceedings are conducted in a local language, the judge must be conversant with the language, dialects, idioms and the legal jargon specific to the region so that he can do justice to a case.

It is wrong to assume that lack of familiarity with the local language, which can be taken care of through training in the case of IAS and IPS officers, can be resolved with ease in the case of an AIJS officer. For IAS and IPS officers, knowledge of a local language may be desirable, but not a precondition for the service. Many a time, such officers are posted at a place where day-to-day interaction with the local population is limited. These officers can always take the help of their staff to understand an issue; a judicial officer doesn’t enjoy such leeway.

Once the AIJS is set up, there is a possibility that High Courts may lose control over the district judiciary; no wonder state governments find it tough to rein in erring IAS officers whose allegiance is to their bosses in New Delhi. The argument that the recruitment process of the district judges would be expedited once a centralised framework is in place is also unconvincing. Irrespective of the political party in power at the Centre, the government has usually taken years to fill vacancies in recent decades. Consequently, the all-India case backlog in courts has crossed the 5-crore mark.

Former CJI NV Ramana’s proposal for establishing a National Judicial Infrastructure Corporation to uniformly improve judicial facilities makes sense. If it sees the light of day, the issues raised in favour of the AIJS would be resolved. All said and done, the creation of the AIJS could prove to be problematic. The priority should be to delve deep into the reasons for the inordinate delay in filling large-scale vacancies and reform the legal system accordingly.

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