UPSC MAINS 2019: A solution in search of a problem

A solution in search of a problem

 

Topic: A solution in search of a problem

 

Topic in Syllabus: GS Paper 2 : Indian Governance

A solution in search of a problem

Context:

Recently in its report, ‘Strategy for New India@75’, the NITI Aayog mooted the creation of an All India Judicial Service (AIJS) for making appointments to the lower judiciary through an all India judicial services examination conducted by the Union Public Service Commission (UPSC) in order to maintain “high standards” in the judiciary.

 

More about on news:

  • Similar proposals were made by the Union Law Minister Ravi Shankar Prasad on three different occasions this year as a solution to the problems of vacancies in the lower judiciary and a lack of representation in the judiciary from marginalized communities.
  • This last argument appears to have caught the attention of Dalit leaders such as Ram Vilas Paswan, a Minister in the Central government, who voiced support for the AIJS following the Supreme Court’s controversial judgment, earlier this year that diluted the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
  • In our opinion, the AIJS is not a solution to these problems and the government would be well advised to reconsider its stance. So, how serious is the problem of vacancies, and is centralisation the solution?
  • The argument that the creation of the AIJS and a centralised recruitment process will help the lower judicial services is based on the assumption that the current federal structure, that vests the recruitment and appointment for the lower judiciary in the hands of State Governors, High Courts and State Public Service Commissions, is broken and inefficient.
  • Going by the latest figures published by the Supreme Court in its publication Court News (December 2017 and the last available figures), many States are doing a very efficient job when it comes to recruiting lower court judges.
  • In Maharashtra, of the 2,280 sanctioned posts, only 64 were vacant. In West Bengal, of the 1,013 sanctioned posts, only 80 were vacant. Those are perfectly acceptable numbers.

 

Background:

  • The Law Commission has thrice – in its 1st, 8th and 116th reports – called for such a service.
  • The Supreme Court first in 1991 and then in the all-India judges case (1992) had endorsed the creation of an AIJS.
  • In its 15th report, the Parliamentary Standing Committee on law and justice too recommended for its establishment and directed the Union Law Ministry to take immediate steps.
  • The first National Judicial Pay Commission and the National Advisory Council to the Centre have also supported the proposal.
  • Over and above, Article 312 of the Constitution explicitly provides for the creation of a national level judicial service.

 

Constitutional provisions forAll India Judicial Service:

  • Articles 233 and 234 of the Constitution vested all powers of recruitment and appointment (judicial services of the state) with the State Public Service Commission and High Courts.
  • Article 312 of the Constitution allows the Rajya Sabha to pass a resolution, by two-thirds majority, in order to kick-start the process of creating an all India judicial service for the posts of district judge.
  • Once the resolution is passed, Parliament can amend Articles 233 and 234 through a simple law (passed by a simple majority), which will strip States of their appointment powers.
  • This is unlike a constitutional amendment under Article 368 that would have required ratification by State legislatures.
  • In other words, if Parliament decides to go ahead with the creation of the AIJS, State legislatures can do nothing to stop the process.
  • The recruitment is to be made through an all India judicial services examination conducted by the UPSC in order to maintain “high standards” in the lower judiciary.

 

Backlog problem in judiciary:

  • For 1.7 billion people in India, there are 31 judges in the SC and 1,079 in high courts.
  • There are never more than 600 judges appointed at any point.
  • As of April 2017, there were 430 posts of judges and additional judges lying vacant in high courts, and 5,000 posts vacant at the district level and lower.
  • For 2017-18, the Union budget allocated a meagre Rs 1,744 crore to the judiciary — about 0.4 per cent of the total budget.

 

The following ‘capacity building and sustainable solutions’ were suggested by the Niti Ayog to resolve the backlog problem:

  • Shift certain sections of the workload out of the regular court system to commercial courts, the commercial division and the commercial appellate division of High Courts for commercial disputes and the Criminal Judicial Magistrate for criminal cases at least in in metropolitan areas to decongest courts.
  • A mechanism may be considered whereby litigants in a commercial dispute must first be made to exhaust the remedy of pre-institution mediation and settlement. However, it should be ensured that such cases do not create one more stratum in litigation….
  • The Arbitration and Conciliation Act, 1996, should be amended to make India a robust centre for institutional arbitration, both domestic and international. A new autonomous body, viz., the Arbitration Council of India, should be set up to grade arbitral institutions and accredit arbitrators to make the arbitration process cost-effective and speedy, and to pre-empt the need for court intervention.
  • Merge and rationalize tribunals to enhance efficiency. Appointments to tribunals must be streamlined either through a specialized agency or under the Department of Personnel and Training (DoPT).

Case Pile

 

It also gave some other suggestions for judicial reforms:

  • Judicial decisions need to take account of their economic and social impact, especially in cases pertaining to contract, labour, tax, corporate and constitutional issues as observed by the Supreme Court in a recent judicial decision.
  • An all-India judicial services examination on a ranking basis can be considered to maintain high standards in the judiciary. The selection process may be entrusted to the Union Public Service Commission (UPSC) for a cadre of lower judiciary judges (first induction level), Indian Legal Service (both centre and 181 states), prosecutors, legal advisors, and legal draftsmen. This will attract young and bright law graduates and help build a new cadre that can enhance accountability in the governance system.
  • Continuing training may be introduced to ensure the development of skills, ethics, knowledge and awareness of international best practices.
  • Multi-faceted training faculty for judicial academies, including reputed lawyers, successful NGOs and others, for holistic exposure may be considered.
  • Training modules should be live streamed on an e-platform to make information easily accessible, and widely disseminated.
  • Introduce an administrative cadre in the judicial system to streamline processes. To maintain judicial independence, the cadre should report to the Chief Justice in each High Court.
  • Prioritize court process automation and ICT enablement for electronic court and case management, including electronic management of court schedules and migration of all courts to the unified national court application software.
  • Facilitate the availability and usage of video-conferencing facilities to assist in speedy access to justice and to minimize logistical issues. At present, even the available video conferencing facilities are not utilized optimally.

 

On legal reforms, the suggestions are as follows:

  • Create a repository of all existing central and state laws, rules and regulations. Repeal redundant laws and introduce a new initiative to remove restrictive clauses in existing laws.
  • Bring in changes in criminal justice and procedural laws by changing from the present litigant-driven outlook to one led by an effective judiciary in line with global practice.
  • Create a law-abiding society by inculcating respect for the rule of law among citizen.
  • A time line for implementation of necessary amendments should be stipulated.
  • Continuing legal education in selected areas should be made mandatory for lawyers and judges and rules of professional conduct and ethics need to be drawn up and implemented.
  • Greater sensitivity on the part of government officials to citizens’ needs can help reduce the number of litigations/disputes.
  • New laws should be drafted in simple, plain language.

 

How AIJS will resolve the problem of judicial vacancies:

  • The idea of an AIJS is opposed mainly because it seems to lack basic understanding of the above problems with judiciary.
  • A national exam is said to be disadvantageous to the less privileged candidates from being able to enter the judicial services.
  • Taking into account local laws, practices and customs which vary widely across States and even training judges in this line would be a problem.
  • The decentralised approach of the High Court and a centralised one of the AIS seem to have same low efficacy in filling up the vacancy.
  • In Maharashtra, of the 2,280 sanctioned posts, only 64 were vacant and in West Bengal, only 80 were vacant of the 1,013 sanctioned posts.
  • Only in certain States such as Uttar Pradesh, the vacancies stand at 42%.
  • These numbers show that the problem of vacancies is not uniform across different States.
  • Thus the solution is to pressure poorly performing States into performing more efficiently.
  • Further, the argument that the centralization of recruitment processes through the UPSC automatically leads to a more efficient recruitment process is flawed and not a guarantee of a solution.
  • For example, the Indian Administrative Service reportedly has a vacancy rate of 22%, while the Indian Army’s officer cadre, also under a centralised recruitment mechanism, is short of nearly 7,298 officers.

 

Pros of the AIJS:

  • Best legal talent across the country would be selected on the basis of merit. It will provide an all India Cadre based talent pool.
  • Efficiency and efficacy of judiciary would be increased.
  • Transparent and efficient method of recruitment would be followed.
  • As the appointment process is streamlined then the pendency and issue of delay of cases would also be solved to great extent.
  • The evils of corruption and nepotism in judiciary can be checked through a transparent and objective recruitment process.

 

Cons of the AIJS:

  • There will be an issue of local laws differences.
  • Local languages and dialects would be a problem.
  • Nine High courts are against this proposal and hence disapproving this proposal.
  • The conflict between Centre and State would start.
  • The status of legal education in India is very much mismanaged. Except for a few national law schools, others do not prioritize the legal education too much. Law is taken as the last report who do not get into medicine, IITs etc.
  • Unremunerative pay is a big issue. Despite an effort by the Supreme Court to ensure uniformity in pay scales across States in the All India Judges’ Association case, it is still very low.
  • Also, the judiciary has fewer avenues for growth, promotion and limited avenues for career advancement.
  • There is low district judge representation in the High Courts, as less than a third of seats in the High Courts are filled by judges from the district cadre. The rest are appointed directly from the Bar.
  • It will be difficult for the less privileged background to enter the profession.
  • Again coaching institutes etc would flourish and education would be commercialized.
  • Currently, the judges of subordinate courts are appointed by the governor in consultation with the High Court which will not be so if AIJS is implemented. Hence it will be against the Independence of Judiciary as some other body will have a control in appointment and integration because in the judiciary, higher level controls and evaluates lower level.
  • 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.

 

Way forward:

  • AIJS is facing hurdles from the administrative block and also from High Courts, even though Supreme Court has asked for AIJS twice.
  • Therefore, AIJS should be designed in a manner to remove its shortcomings and it can be an effective solution to the vacancy in Judiciary.
  • Despite the limitations, the establishment of AIJS makes a strong case because, if Civil servants can learn the local language of the state they are posted in, even a judicial service officer can. Thus, the language shouldn’t be a barrier.
  • Pay scale, issue of transfers, career growth etc should be looked after.
  • Moreover, after the selection, a judicial service officer can be provided sufficient training to handle the job. A meritocratic judiciary is the need of the hour which is possible with a competitive recruitment process.
  • It is in the interest of all concerned that cases should be disposed of as quickly as possible. Thi, in turn, is possible only if there are adequate judges. Adequate judges can be made available only if they are recruited in large strength through AIJS just like we see in case of IAS, IPS, IFS and other civil services. Hence there should be no more delay.

 

Sample Question:

Present your views for and against the creation of an All India Judicial Service.