No case for an all India judicial service: 

No case for an all India judicial service: 

Context

• The proposal to create an All-India Judicial Service (AIJS) along the lines of the All India Services (AIS) is one that has been endlessly debated since the idea was first mooted by the Law Commission in the 1950s.

Why is it so debated?

• The same arguments both for and against AIJS have been made over and over again.
• There are no clear lines which can be drawn between those who favour and oppose it as there have been disagreements within the judiciary, the government and the Bar over its necessity and desirability.
• The debate has once again come up-front with a fresh move to implement it and nine High Courts expressing their disapproval.
• An AIJS is a dreadful idea in so far as judicial reforms in India are concerned and does not solve even a single problem being faced by the Indian judiciary.

How does AJIS function?

• District judges will get recruited centrally through an all-India examination and allocated to each State along the lines of the AIS.
• It is well argued that it will ensure a transparent and efficient method of recruitment to attract the best talent in India’s legal profession.
• A slighter version of this, with judges recruited by High Courts on the basis of a common examination is currently being debated in the Supreme Court.

The proposal comes with serious drawbacks

• The first objection to this idea is that it does not adequately diagnose the problem.
• The answer lies in the fact that the Bar Council of India has mismanaged legal education.
• Almost no effort has gone into improving the standard of legal education across the country.
• The best law schools in India are the few set up and funded by the State governments, barring a few exceptions.
• Within this incredibly small talent pool, the judiciary competes by offering very un-remunerative pay and limited avenues for career advancement.
• While a lot of effort has been undertaken by the Supreme Court to ensure uniformity in pay scales across States through its orders in the All India Judges’ Association case, it is still abysmally low when compared to that in the private sector, notably law firms, litigation and the corporate sector.
• While trial court judges face much the same problem in the case of transfers and such issues as civil services officers, they have fewer avenues for growth and promotion.
• A study published in the Economic and Political Weekly in 2016 showed that less than a third of seats in the High Courts are filled by judges from the district cadre.
• They are also appointed later in their careers and tend to have shorter tenures than judges appointed directly from the Bar.
• Even if a lawyer is eager to serve as a judge, he/she would rather wait to be eligible for direct elevation to the High Court than have to go through the grind in the district judiciary.

Issues with AJIS

• An AIJS addresses neither the problem of disproportionately low pay nor the lack of career advancement.
• While the former is in the hands of the State governments concerned, the latter is in the hands of the judiciary itself, but no changes have been made to ensure better district judge representation in the High Courts.

Causes

• A “national exam” risks shutting out those from less privileged backgrounds from being able to enter the judicial services.
• It may also end up not taking into account local laws, practices and customs which vary widely across States, vastly increasing the costs of training for judges selected through the mechanism.

To what end an AIJS?

• If the answer is to fill up vacancies faster, compare the vacancy position in the AIS and the subordinate judiciary.
• The total number of positions in the subordinate judiciary as of October 2016 was 21,374 while the total number of sanctioned posts for the three AIS was 14,355.
• Of these, 22.67% of posts were vacant in the subordinate judiciary while it was 20.47% of posts in the AIS.
• Data from December 2011 show that 24.91% of AIS vacancies were unfilled, while the figure for the subordinate judiciary was 20.45%.
• Therefore, both the decentralized approach of each High Court conducting its own appointment and a centralized one seem to have roughly the same efficacy in filling up the vacancy.

The problems of Indian judiciary

• Public is losing confidence in the judiciary despite the latter’s assertions.
• Data show that they are acting on this belief by filing fewer cases year on year.
• It is likely to be a combination of delays, cost, uncertainty, inefficiency and corruption.
• Not one of these problems is solved to any degree by centralizing the manner of recruitment of judges.
• On the contrary, this endless, stagnant debate on the AIJS only takes up time and energy instead of focusing attention on implementing more direct solutions to address the problems of the Indian judiciary.