How Can the Judiciary’s Ability to Dispense Justice Be Improved?

India has a large pendency of court cases, and this has affected the judiciary’s ability to provide justice. While the creation of an All India Judiciary Services was seen as a solution to this and other problems since its introduction in 1958, the idea has received a mixed response. A batch of orders by the Supreme Court in 2019 alters recruitment rules. The author argues that these changes will help fill vacancies without compromising on the quality of judges. 

In a batch of interim orders in 2019, a two-judge bench of the Supreme Court directed the high courts of Allahabad and Delhi to allow judicial officers of the subordinate judiciary to participate in the exams for the position of district judge. Specifically, one order allowed judicial officers with a minimum of seven years of service (either as a civil judge, junior division or senior division) to participate in the Higher Judicial Services (HJS) exam. It is pertinent to note that such an interim order has the effect of changing the minimum qualification required for participation in the exam. However, the Supreme Court clarified that their appointment would be subject to the final decision of the court. This article explores whether the path paved by the interim orders—reducing the minimum qualifications required for applying for the senior judicial positions through the HJS exam—offers a viable alternative to the All India Judicial Service (AIJS). It argues the path paved by the orders is more pragmatic for clearing the backlog of cases and filling up vacant posts. 

Backlog of Cases and Vacant Posts 

The denial of “timely justice” amounts to the denial of “justice” itself. The two are integral to each other. The timely disposal of cases is essential to maintain the rule of law and to provide access to justice, two guaranteed fundamental rights under the Constitution (Live Law 2016). However, the judicial system is unable to deliver timely justice due to a severe backlog of cases because the current judge strength is grossly inadequate. Reports establish that the huge pendency of cases in India—3.3 crore overall with 2.77 crore cases pending in the subordinate judiciary throughout the country—is largely because of vacancies in the post of judicial officers (Hindustan Times 2013). In addition to the already high number of accumulated cases, the system is unable to keep pace with new cases that are instituted. Therefore, the pre-existing problem of backlogs is getting exacerbated by the day, leading to the erosion of the rule of law and a dilution of the constitutional guarantee of access to timely justice. In fact, the Supreme Court in Imtiyaz Ahmad v State of Uttar Pradesh and Ors (2017) had directed the Law Commission of India to undertake an inquiry and submit a report in relation to suggesting methods, inter alia, to help in elimination of delays and to ensure speedy clearance of arrears. The commission recommended recruiting more judges for the speedy disposal of cases (Law Commission of India 2014).

India’s subordinate courts are functioning with a strength of 16,726 judicial officers instead of the sanctioned strength of 22,474; resulting in a shortage of 5,748 officers (Wire 2018). The high courts have said that the lack of suitable candidates is one reason for this shortage (Hindustan Times 2013). Suitable candidates prefer not to apply for the position of judicial officer because the minimum number of years of experience required to be eligible for the post of district judge is high. Moreover, for a judicial officer, a delay in appointment to the post of district judge makes it difficult for an aspirant to be elevated to the high court as less years of service are left when one becomes eligible for elevation to the high court, after a considerable delay at the district judge level itself (Shah 2016). Thus, people choose the bar over the position of judicial officer, leaving the subordinate judiciary languishing. To address these issues, the Law Commission recommended the creation of an AIJS that was to operate like other central services, such as the Indian Administrative Service, Indian Police Service, and the Indian Revenue Service.

History of AIJS: An Unfinished Endeavour 

The practice of making judicial appointments state-wise has continued since before independence. The idea of AIJS was first mooted by the first Law Commission of India in 1958 in its 14th report. It recommended that an all-India service called the Indian Judicial Service be established to increase the efficiency of the subordinate judiciary (Law Commission of India 1958). Subsequently, there have been years when the idea of establishing an AIJS gained momentum and years when the idea was seen unfavourably.[1] 

When the government sought the views of the Chief Justice of India in August 1969, he opined that the AIJS could not be set up due to existing constitutional provisions (specifically,  chapter VI of part VI of the Constitution).[2] In 1972, the new CJI supported the AIJS and recommended that the government explore the proposal. Thereafter, Article 312 was inserted in the Constitution to provide for the AIJS.[3] In 1982, it was discussed in the conference of State Law Ministers and Union Law Minister and a consensus was reached among the law ministers of various states for the formation of the service (Law Commission of India 1986: 7). The lone objection came from the law minister of Tamil Nadu who opposed the proposal because the business of the subordinate courts was conducted in local languages and candidates recruited on an all-India basis would find it difficult to familiarise themselves with the state language. The minister believed that in this process, the dispensation of justice would suffer.

Comprehensive guidelines for the creation of the AIJS were laid down by the Law Commission in its 116th report. It recommended that members of the AIJS would have to undergo a training period of seven years before being appointed as district judges. During the training period, they would be appointed as civil judge (junior division) and other equivalent posts for two years, civil judge (senior judge) and other equivalent posts for another two years, and chief judicial magistrate and other equivalent posts for the final three years. Thereafter, they would be appointed as district judges. Hence, as per the scheme proposed by the commission, the post of district judge required seven years of service. However, this report was not implemented because of concerns over promotions of existing judicial officers and quota for those directly recruited on an all-India level. Moreover, the high courts have concerns that a central-level exam would erode their control over the subordinate judiciary. These issues were adequately addressed by the Law Commission of India in its 116th Report titled, “Formation of an All Indian Judicial Service.” Despite this report, the proposed AIJS continues to be opposed. 

Existing Rules for Appointment 

To be eligible for the limited competitive recruitment exam for the post of district judge at least five years of service as civil judge (senior division) is required as per the rules of various high courts. Similarly, to become eligible for a promotion to civil judge (senior division), applicants require a minimum of five years of service as civil judge (junior division). Thus, at least 10 years of service is required to be eligible for the post of district judge. Another path towards appointment to the post of district judge is promotion from amongst the civil judges (senior division) on the basis of the principle of merit-cum-seniority. However, this process of appointment takes more time than the method detailed previously. It is because of these requirements that the subordinate judiciary is not an attractive option for the young pool of talented practitioners.

Breaking Down the Interim Order

As per Supreme Court’s interim order, all judicial officers, whether civil judge (junior division) or civil judge (senior division) will be allowed to participate in the district judge recruitment exam provided they have completed seven years of service as a judicial officer, irrespective of the post they held during their service (Nitin Raj v High Court of Delhi 2018). If one were to assume that the interim relief given by the Supreme Court is its final order, a service similar to the AIJS would be created indirectly and a new norm for limited competitive examination would be established.

The interim relief allows judicial officers to become district judges provided they successfully clear the HJS exam. The only difference is that there would be one more level of exam in the HJS and the posts of judicial officers in these seven years may vary for a person becoming district judge through the HJS. This interim order in a sense makes the service more attractive as applicants are assured that if they can clear the exam, they would be appointed as district judges and their future promotions would be assured given the seniority that they will have (given that seniority would be the basis for judicial appointments). 

The new HJS, as per the interim order of the Supreme Court, addresses several objections raised against the AIJS. Critics of the AIJS argue that it would erode the high courts’ control of the subordinate judiciary by involving a central body for recruitment. The new HJS would leave the control of recruitment with high courts and alter only the eligibility criteria. The challenge of ensuring proficiency in regional languages would also be addressed because judges who have served in their states and are well-versed in local languages can be recruited. 

This scheme would also address the problem of high courts not getting suitable candidates as the altered requirements will help attract bright legal minds of the country for the judicial services, given the improved chances of promotion. Moreover, the vacancies would be filled without compromising on the quality of judges and help reduce the mounting pendency of cases. The new HJS does not involve any amendment to the Constitution since it alters only HJS rules (which can take place through a judicial pronouncement). Also, this method does not require the cumbersome process of introducing and passing the amendment though the Rajya Sabha and Lok Sabha. In addition, the quota regarding distribution of service suggested by the Law Commission does not need to be established since such quotas already exist. 

Jurisdiction of the Supreme Court

Another question that needs to be addressed is whether the Supreme Court can change the eligibility for the position of district judge. It is pertinent to note at this point that administrative control on the subordinate judiciary rests with the respective high courts exercising jurisdiction as per the scheme laid down by the Constitution. In the given situation, the interim order of the Supreme Court does not affect the administration of the subordinate judiciary under Article 227 (1) or conditions of service of the subordinate judiciary under Article 229(2). It only alters the appointment rules to the HJS.[4]

Rules framed under Article 233(1) of the Constitution pertain to the appointment of district judges. Prior to All India Judges’ Association v Union of India (2002), there were two sources for recruitment to the HJS: by promotion from amongst the members of the subordinate judiciary or by direct recruitment. The Supreme Court created another method: by promotion strictly on the basis of merit through a “limited competitive examination” for which the applicant must have a minimum of five years of service as a civil judge (senior division). The Court then went on to direct the high courts to frame rules accordingly. Thus, All India Judges’ Association v Union of India (2002) is a precedent to show that the Supreme Court has jurisdiction to create new mode of appointment and to direct the high courts to frame rules as per its interim orders. 

Given the Indian judicial system’s dire situation, the orders should be urgently considered. In January 2019, the two-judge Supreme Court bench of Justices Kurian Joseph and M M Shantanagoudar had observed that the possibility of direct recruitment to district judges requires immediate consideration. Similar views were reiterated by the benches of Justices U U Lalit and Deepak Gupta, and Justices Kurian Joseph and S K Kaul in June and July respectively (Jain 2018; Mandhani 2018). The interim orders are an appropriate alternative to the AIJS and should be made a final order. This would address the concerns of the judiciary and will be a commendable step to help dispense justice in a timely manner and realise India’s constitutional goals.

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