quality of judges in India is far too indifferent for our
comfort. Highly competent and successful lawyers are rarely
willing to give up their lucrative practice and become judges.
More often than not, the subordinate judges are recruited
from a pool of unsuccessful lawyers. They and other not-too-competent
lawyers eventually become judges in higher courts.
quality of justice administered depends on the quality of
those who administer it. Quality of judges is clearly of
paramount importance. Unlike the executive branch of government,
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.
is very dissimilar to the administrative services in the
executive branch. Take for instance the IAS and IPS. There
is fierce competition for entry into these elite services.
Annually, some 200,000 bright youngsters compete in a gruelling
examination. There is central recruitment to meet all the
States' requirements. The selection procedure is objective
and highly meritocratic, giving due allowance to affirmative
action policies. Unquestionably, highly competent, intelligent
and well-qualified youngsters join the civil services. And
they are put through a two-year rigorous training, including
an year at the field level. That is how, despite all the
deficiencies and adversities, the civilian administration
is keeping the system intact.
the flaw in civil services is, while recruitment is of high
standard, there are no incentives to maintain high standards
of excellence and integrity, nor is there punishment for
corrupt and incompetent behaviour. As a result, over time,
the civil servants, as a class, have been under-performing.
But there are still outstanding officials whose contribution
to public good is significant. This is clearly a failure
in instituting a system of rewards and risks to sustain
high standard of performance and conduct.
it possible to adopt the practices of all-India services
in recruitment, training and encadrement in the judiciary?
If we ensure that there is a meritocratic recruitment through
a nation-wide competitive examination, and 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. The current procedures
to enforce accountability in higher judiciary are unsatisfactory,
but that problem needs to be dealt with separately. At the
very least, formation of an all-India service for judiciary
would ensure a high level of competence and skills in our
312 of the Constitution provides for the creation of an
all-India Judicial Service common to the Union and the States.
Such a service can be created and regulated by the Parliament
by law, provided the Council of States has declared by resolution
supported by not less than two-thirds of the members present
and voting that it is necessary or expedient in the national
interest to do so.
first Law Commission, headed by MC. Setalwad, with the benefit
of the opinion of Chief Justices KN Wanchoo and MC Chagla,
and jurist Nani Palkhivala among others, had made a strong
recommendation for the constitution of an All-India Judicial
Service (AIJS), like the IAS and IPS. The felt need for
such a service increased several fold in the 47 years since
that recommendation. Article 312 has subsequently been amended
to specifically provide for creation of such a service.
Three Chief Justices' conferences in 1961, 63 and 65 favoured
this recommendation. In 1972, the Chief Justice of India
suggested the creation of AIJS. Later, the 8th Law Commission,
in its 77th Report, recommended creation of such a service.
In 1986, Law Commission, in its 116th report, 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
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.
Judges can be recruited at a young age, very much similar
to officials in IAS and IPS. Provisions can be made for
adequate experience in trial courts below district level
as part of training, or by repealing article 312(3), and
providing for posting of AIJS officials below district level
for some years.
of AIJS 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.
It is time to create AIJS, 47 years after the first recommendation
by the Law Commission, and nearly 30 years after the constitutional
amendment facilitating its formation