A peripheral view of a central problem
After a prolonged tussle between the judiciary and the executive on appointing judges to high courts and the Supreme Court, the manner of appointing judges to district courts is now in the limelight.
The Supreme Court in May took up a PIL (public interest litigation) petition, based on a letter from the secretary (justice) to the Union law ministry to put in place a Central Selection Mechanism (CSM) to accelerate the appointment of district judges across the country. Under normal circumstances, the Supreme Court would have used its administrative powers to persuade the high courts/state governments on this. Resorting to use of judicial powers under Article 142 shows that most probably, the Supreme Court has faced resistance or lack of response. Root cause Any kind of centralisation is primarily a structural solution to tackle administrative deficiencies. If the reasons for the delay or failure in filling up vacancies were mainly administrative incompetence, a CSM would still appeal as an idea. Many in the legal fraternity say that the opportunities of career growth are limited in the judicial service (only about 30 per cent of the judges in the high courts come from the subordinate judiciary, according to the data released by the department of justice). Thus, though the number of candidates appearing for judicial service examinations is usually high, the number of suitable candidates is usually not satisfactory. There have been occasions where the number of candidates who have cleared the written examination is lower than the posts advertised for. A CSM does not address these constraints.
The CSM seeks to solve this demand problem by allowing candidates from outside a state to opt for its judicial service. Some of the states have allowed non-domiciled persons to take up judicial service, e.g. Delhi, while many do not. This seems to be a decision that the states have taken, keeping in mind local factors. If the current petition would facilitate a negotiation among states, it would have been welcome. But it appears that the petition has been precipitated by a lack of response from the states. What could not be achieved due to lack of consensus among policymakers in different states is sought to be achieved by a binding judicial order. Language hindrances The major problem in this system is the barriers of local language and laws. The bulk of the proceedings in district courts is done in local languages. The current proposal seems to be to get the candidates trained in local languages after appointment.
Article 312 contains a specific mention of an All India Judicial Service (AIJS). However, it requires a resolution from the Council of States, supported by not less than two-thirds of the members present and voting on the grounds that it is necessary or expedient in the national interests to do so. It will be technically correct to argue that the CSM does not seek to create an AIJS as the judges would continue to serve under the respective high courts and function as employees of the respective state governments. While an AIJS would authorise Parliament to regulate both the recruitment and conditions of services of the judges, the CSM apparently seeks to compromise the autonomy of the states only in relation to recruitment. It may achieve one half of the objectives of the AIJS while ignoring the constitutional requirements under Article 312. Redeeming reforms This is not to say the method of selecting district judges does not need improvement. Judicial examinations in many states are just a memory test and do not usually have a single application-based question. The temperament of the shortlisted candidates can be assessed in a more nuanced manner through psychometric tests. The process can be made more transparent by uploading model answers to questions. The idea of a full-time body to oversee judicial appointments is an excellent one. Instead of conducting examinations, it should be setting standards and ensuring that these are adhered to. The focus of the reform should be on norms of qualitative standardisation rather than concentrating administrative powers in a body.
The subordinate judiciary is the first point of contact for most of the population with the formal judicial system. This is where constitutional principles about the Rule of Law can be seen in action. This petition provides an opportunity, if the right course of action is chosen, to ensure that we have the best judges. Else, it would end up creating another overcentralised mechanism, out of touch with ground realities.