These reforms if implemented would go a long way in ensuring that the judicial system in the country, both at the level of district judiciary and higher judiciary, serves the nation to its fullest
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Recently the Union law minister Kiren Rijiju highlighted the need for reintroduction of a law, similar to the NJAC Act, for the appointment and transfer of judges of constitutional courts in the country. Further, in a reply to the Parliament, the law minister also highlighted the need for a properly framed All India Judicial Service (AIJS). This follows the recent chain of remarks aimed at broader structural reforms in the judicial system of the country.
Given that a new NJAC Act will cover the higher judiciary and AIJS covers the district judiciary, these two reforms are aimed at most fundamental issues pertaining to Indian judiciary.
Position of judiciary in a modern political entity and its utility
Judiciary forms a part of three branches of modern system of State in nearly all political systems. As an institution of justice provider and dispute adjudicator, judiciary is an institution of frequent public interaction and often at times it is the people’s last resort to justice. It is pertinent to point out here that the judiciary should not be reduced to mere public justice and principles in general. It also plays an active role in nation formation and its active role in economy of the country affecting timely resolution of commercial and other disputes vital for timely economic transactions. Indian government has been increasingly growing conscious of this role as the judiciary impacts the ranking of India in Ease of Doing Business Index.
The district judiciary is the first point of interaction for the public with judiciary. A large chunk of Indian population has ordinary civil or criminal cases which are to be decided by them. Unfortunately, these cases are often kept pending and left undecided by the courts, and even a simple task of service of summons and notice is an ordeal for most of the parties.
Nick Robinson, constitutional law scholar on India focusing on empirical research, has pointed at the decline in quality of justice dispensed by the district judiciary in India. In his seminal article on growing role of Indian judiciary, Robinson points out that this poor quality has led to the high courts and the Supreme Court expanding their jurisdiction and increase in their distrust for the district judiciary. Various law ministers and Supreme Court judges have highlighted the need for attracting national law universities (NLUs) undergraduate law student to the district judiciary, who often choose to be a corporate lawyer or litigation as a career.
Present structure of judicial recruitment and elevation
As per the present system, the appointment of judges to the Supreme Court (SC) and the High Courts (HC) and transfer of High Court judges takes places as per the four judges’ case. These cases led to formation and reaffirmation of the collegium system – CJI and two senior-most judges of the SC for appointment and transfer of High Court judges and a collegium of the CJI and four senior-most for the appointment of judges to the SC.
For the district judiciary, there are two class of judges: Civil Judges and Judicial Magistrates (‘CJ/JM’), and District Judges. CJ/JM are recruited by the exams conducted by the State Public Service Commissions (State PSCs) in consultation with the jurisdictional HC while the District Judges are recruited and promoted vide exam conducted solely by the HCs. Given that exam to the District Judge requires prior qualification as a judge or an advocate, CJ/JM exam is point of direct entry to judiciary.
Issues related to appointment and elevation
In recent times, the collegium system for transferring and appointing judges has come under criticism. The most notable recent examples being the transfer of Justice Sanjib Banerjee from the Chief Justice of Madras High Court to Chief Justice of the Meghalaya High Court; non-elevation of Justice Akil Kureshi to the Supreme Court of India despite having the due capacity and seniority. There is a general perception that at times the appointments are motivated by familial and social ties more than anything else.
While the reasons for the decisions of the Collegium may be credible, the fact that there is little or no transparency in how the entire process is being carried out casts suspicion on the process. This is more so when the judiciary is entrusted with the role of upholding justice which must not only be done but also seem to be done.
On the other hand, district judiciary suffers from lack of number of judges and quality of judges. There have been studies conducted by the Law Commission, several think-tanks and other institutions to highlight the low number of judges for case dispensation. While this issue remains, the debate on quality has gained attention more so after the establishment of NLUs where some top institutions have raised the quality of legal education in the country for a select few. The students from top NLUs, however, are not too attracted by the prospects of being an entry-level judge, i.e., CJ/JM, given the promotion prospects which remains bleak through this mode of recruitment and therefore, often they go for litigation which in future offers them a better chance at the bench. This is revealing from the fact that hardly an entry-level judge makes it to be a senior judge at the HC or the SC and there has never been a CJI from the district judiciary!
AIJS, a new NJAC Act and the way forward
A properly framed NJAC Act in consultation with the judiciary will ensure that any public trust deficit in the higher judiciary is addressed and appointments are made after affording due reasons. At the same time, it would prevent unwanted friction that keeps on taking place between judiciary and executive over judicial appointments.
AIJS would ensure that top and bright talents are attracted to the judiciary by streamlining the promotion process and opening a chance of elevation to the high courts and possibly SC through an open competitive public exam which in turn would increase the quality and efficiency of justice dispensation in the country.
These two reforms if implemented would go a long way in ensuring that the judicial system in the country, both at the level of district judiciary and higher judiciary, serves the nation to its fullest and in a far more efficient manner without making the process of a court case itself a punishment!
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