[op-ed snap] We don’t need career judges

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Mains Paper 2: Indian Polity| Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.

From UPSC perspective, the following things are important:

Prelims level: Basic aspects of polity

Mains level: The newscard discusses issues and  challenges, related to the Indian Judiciary, in a brief manner.


Context

  • The vision document titled ‘Strategy for New India @ 75’, released by the NITI Aayog, amongst other things, proposes a spate of judicial reforms.
  • The think-tank has come out batting for the creation of an All India Judicial Service, akin to the other central services like the IAS and the IPS.

Background

  • The proposal for an All-India Judicial Service (AIJS) in lines of All-India Services was proposed as early as 1950.
  • The idea was first mooted by the Law Commission in the 1950sto have an All-India Judicial Services.
  • The Constitution of India was amended in 1977to provide for an All-India Judicial Services under Article 312.
  • The Chief Justices conferences in 1961, 1963, and 1965 favouredcreation of All-India Judicial Services and even the Law Commissions (1st, 8th and 11th, 116th) had suggested the creation of the service. However, each time it was faced with opposition.
  • The proposal was again floated by the ruling UPAgovernment in 2012 but the draft bill was done away with after opposition from High Court Chief Justices who labelled this an infringement of their rights.

Issues:

Despite the constitutional permit, the road to setting up an AIJS is ridden with numerous concerns, which remain unaddressed in the NITI Aayog’s trite proposal.

  1. The AIJS is being proposed as a panacea to cure the chronic vacancy crisis plaguing the Indian subordinate judiciary.
  • Given the limited extent to which the Constitution only permits the appointments of district judges to such a prospective AIJS, it will not magically remedy this crisis.
  • At best, what an all India service potentially offers is a more streamlined and regularised recruitment process for the limited number of vacancies for district judges in the country.
  1. The second concern is the much wider composition of the AIJS proposed by NITI Aayog, than what is permissible under Article 312.
  • The top government think-tank has rather ambitiously pitched an omnibus service to covering entry level civil judges, prosecutors and legal advisers to comprise the service.
  • Such a sweeping mandate would require considerable amendments to the Constitution, especially with respect to the appointments process for the lower subordinate judiciary.
  • These amendments, establishing a centralised appointments mechanism, may arguably be constitutionally untenable and vulnerable to being struck down as flagrant violations of the basic structure doctrine and judicial federalism.
  1. The final contention against the NITI Aayog’s proposal for an AIJS is the oversimplification of a complex legal and political issue into a punchline reform.
  • The idea of an AIJS has been significantly contentious within the legal fraternity and other concerned stakeholders.
  • Last year, on a reported internal note prepared by the Department of Justice on the feasibility of an AIJS, there was vehement disagreement by almost half the high courts in the country.
  1. Other issues includes the need to familiarise oneself with the local languages, customs, and laws of the state where a potential judicial officer will be posted, or the need to ensure reservation for locally domiciled citizens, these central selection mechanisms have thrown up grave concerns impugning their utility and legality as judicial reforms.

Way Forward

  1. The proposal of NITI Aayog leaves much to be desired, both in terms of research rigour, as well as the presentation and articulation of a complex policy challenge.
  2. While policy-vision statements are typically broad and hyperbolic, being the government’s chief policy think-tank, the onus rests on the NITI Aayog to accurately project the scope and limitations of its solutions, in order to facilitate a responsible deliberative process to address these concerns.
Judiciary Institutional Issues
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