Surprising to many Indian Judicial Service (IJS) is quite an
old concept, Article 312 of the Indian Constitution specifically mentions its formation.
Multitude of judicial commissions, reports etc. recommends its institution, yet
we find the idea of IJS is on an eternal backburner.
A variety of reasons can
be ascribed for this.
- First Article 312 itself specifies that no one who is being recruited through IJS can be appointed below ranks equivalent to a district judge. This stipulation makes it imperative that the applicants have some experience, usually in state judicial exams for entry at this level the usual experience period is seven years. This effectively makes it impossible for fresh graduate to compete for the jobs. Most of the other all India services (like Indian Administrative Service, Indian Forest Service etc.) allow fresh graduates to take part in the exam.
- Second Indian states feel that it is a state prerogative to recruit judges for lower judiciary and IJS would take this privilege away.
- Third IJS cadre officer would always be at a disadvantage vis-à-vis judges elevated from bar to bench because they would have to work for at least 10 years before they would become eligible for promotion to High Court (HC), this means a law student who practices for 7 years to become eligible to sit for IJS have to then work for 10 more years to be eligible to be elevated – this comes to a total of 17 years. While under article 217(2)(b) a person who has been practicing at a high court becomes eligible for elevation in 10 years.
- Fourth at present system of elevation from bar to bench, from lower judiciary to HC, from HC to Supreme Court (SC) is at best murky and at worst nepotistic, it is not in the interest of the incumbent to innovate to bring in fresh talent in the lower judiciary which would potentially upturn the century old practice of SC judges being solely from those who have been elevated from bar to bench at HCs.
- Fifth some states would claim that judges who would come from different culture would not be able to understand the nuances of local customs which is fundamental in delivering effective justice.
However there are ways in which the above reservations some
legitimate (others imaginary) can be set to rest by some tweaking and some
radical thinking. At present the debate on increasing the number of lower judiciary
judges to combat the astronomical pending litigation gives the incumbent
government a huge leeway in implementing lasting innovative and efficient
solution.
- First IJS has to be seen in a completely new light as an entry to a professional judicial cadre which would one day encompass all the judges in India. This would mean first posting of IJS cadre should be as a judicial magistrate second class and not equivalent to district judge. And there should be hope for this young hopeful cadre to reach the pinnacle at SC. This is possible by having a time and point based system for promotion. At present the hierarchy of Indian judges is as follows – judicial magistrate second class, judicial magistrate first class, assistant district judge, associate district judge/district judge, high court judges/chief justice of high court, supreme court judge/chief justice of India. So there are 6 steps, in a time and point based system let us assume that an IJS cadre would be eligible for promotion into the next level after a period of 5 years, the points would be allocated on the basis of number of cases disposed by orders, judgments, number of lok adalat cases, reference to ADR mechanisms, plea bargaining and affirmation or rejection of order/judgments by higher courts. So whenever a vacancy arises in the upper post, promotion would be given to those who are at the top of the point list among all those who are eligible. Promotion till high court should be completely point based with no interference of any other subjective consideration. However for elevation from HC to SC some amount of executive consultation is necessary, best way would be to have a committee comprising of CJI, senior most judge (who would not become CJI), Prime Minister, Minister of Law and Justice and Leader of Opposition.
- Second article 217 should be suitably amended so that to be elevated from bar to bench one has to have minimum of 20 years of experience in courts out of which 15 years should be in a high court; also the pool should be widened to include jurists etc. Also once the IJS officers become eligible to be elevated to HC (which under the proposed system as above would be 20 years from the date of implementation) the proportion of promote to appointee in HC should be 9:1. This would ensure that there is a hybrid of civil law and common law culture and increase vibrancy and outside the system thinking. If indeed this formula is taken, it would be a slow process but would help in ushering the change at a pace where it does not conflict with the present system. Effectively for the next two-three decades there would be a dual cadre judicial officers, the IJS and the judges who came in through the state judicial exams. Almost all the states have to change their laws relating to lower judiciary to ensure that there is no or little conflict in promotion, remuneration etc. between the two cadres. As a transition measure for a decade or so there can be 25% quotas in the posts of associate district judges for state cadre judges.
- Third the retirement age of the HC judges should be increased to 65, at present there is some amount of lobbying to get into SC thereby increase the employment by 3 years (underarticle 224(3) HC judges retire at 62). This has been proposed in the 114thConstitutional amendment bill but like many of the unwanted bills it is waiting with one of the parliamentary committee (the graveyard of bills) when the present parliament dissolves (sometime in 2014) the amendment bill would also lapse. Such an increase in retirement age would decrease the unhealthy competition etc. which goes on at present.
- Fourth with proper training and some basic understanding of local language it would be possible for the IJS officers to dispense justice even at the basic level. A cursory glance at the district court judgments on JUDIS would show that 99.9% of the judgments are in English, so indeed is the language of pleading and conveyancing. Under CPC even the oral witness testimony is recorded, thus with a dual translator cum court stenographer (most of the courts already have people who type the oral testimony from local language to English) this problem can be superseded. Also the state judicial academies can have accelerated language courses which would help the IJS officers to get working knowledge of the languages of the state. The national judicial academy would prepare the associate district judge cadre for elevation to HC.
- Fifth there has been a growing sense that the National law universities have not delivered any change in the litigation framework of the country. With IJS many of these bright young graduates would be attracted to judiciary.
IJS should be conducted by UPSC, there should be two
preliminary papers first a two hour MCQ based test of static GK, current
affairs, logical reasoning and numeracy skills second an hour test on English language
skills through composition, legal writing skills and legal comprehension. The
main paper should be a two hour MCQ test on legal knowledge with an extremely
wide syllabus. Finally there should be an oral test/interview. Such an
intensive process would allow for the very best to aspire for and become
judicial officers who would be fit to work at the highest echelons of Indian judiciary.
