Swarajya | 16 November 2016
In his piece dated 4 November, Justice A P Shah makes an argument in favour of the creation of All India Judicial Services (AIJS), in an effort to make the judiciary more accountable, professional and equitable. He has based his argument on the following grounds: (i) the quality of judges at present is average and the best talent is not attracted to judiciary; (ii) vacancies arise due to the inability to attract meritorious candidates as the state judiciaries are not rewarding enough, therefore judges in the high courts, who are promoted from subordinate judiciaries are also average; (iii) adjudication is a specialisation; (iv) AIJS would lead to efficiency in judicial processes.
None of these claims are backed by any data or empirical finding. Law Commission reports cited in support of these claims are from 1958 (I and II), 1978 and 1986, and these reports are also based on personal observations, not empirical findings.
He has proposed the creation of AIJS as a solution. But the problem itself is not empirically verified yet. To say that the quality of adjudication in lower courts is average, there needs to be some metric or measurement to determine the quality of adjudication. Even if the observation – adjudication by judges who were promoted is inferior in comparison to that by judges selected or elevated from the bar at a higher judiciary level – is correct it may be worthwhile to consider making lateral entry the norm. Why not just do away with competitive exams and make lateral entry norms more objective and transparent?
Secondly, inability to attract talent may be due to low salaries or weak compensation. But again there is no data or survey to substantiate that the salaries are “low”. Lower court judges in most states get handsome perks and enjoy power and prestige in the society. One way to ascertain the preference for lower judiciary as a career could be the applicant-to-seat ratio for each state judiciary entrance exam. Further, if most candidates appearing for competitive exams are below average, then it is an issue with our legal education system. This is likely to be true if the quality of lawyers is also sub-standard in lower courts. Most law colleges are approved by the Bar Council of India based on some input norms not applied consistently. The accreditation has no link to performance standards. It is not surprising that the certificate given after successful completion may not guarantee competence as a lawyer. In 2011, when the bar exam was introduced, 29 per cent of the law graduates failed despite writing an open book multiple choice question exam. The question is not whether a second tier filter, say a bar exam is a good idea. But the question is of credibility of the accreditation. AIJS will obviously not address this grave issue.
Third, adjudication may be a specialisation stream but this is why there are already judicial academies to train the selected candidates on the finer aspects of judging. It may be also be useful to segregate judicial process based on domain specialisation – family law, criminal law, property law, rent control etc. Domain specialisation brings efficiency and this argument has been used to propose lateral entries in the government. Remember UID (Unique Identification) ? This is also why tribunals were introduced. It is not clear how creation of AIJS can help in more specialisation.
One way to bring both efficiency and quality is specialisation. Judges should just focus on judicial tasks, and clerical tasks such as completion of pleadings should be delegated to non-judicial staff. As per independent studies conducted by Centre for Civil Society and Daksh, clerical tasks constitute almost half of subordinate judges’ time. Even by most conservative estimates, lower courts could double its cost-efficiency ratio if clerical functions are delegated to administrative or court staff. It is also recommended that certain judicial tasks such as evidence or cross-examination also be delegated to the local commissioner, i.e. lawyer to supervise and record the evidence if both parties agree to such an arrangement. For other judicial tasks, law clerks could be appointed to assist lower court judges. Most High Court and Supreme Court judges have law clerks to assist them. Some of the miscellaneous administrative duties relating to court management are also delegated to subordinate judges, and they are often made part of various committees. This should be avoided.
Secondly, many a time, state judicial entrance exams are announced and cancelled or there are anomalies in the exam and it ends up being challenged in the high courts. One way to ensure quality is to approve and allow multiple private agencies to certify adjudication skills along with domain specialisation. After all, the first bar exam was also conducted by a private agency and so is a law entrance exam. It is not imagination; there are already many agencies to certify arbitrators.
Third, let’s decentralise. Let the district judges instead of high court judges, interview and hire certified candidates from this pool as and when required, on a contractual and provisional basis. The uncertainty of tenure may be offset by a competitive salary. Points can be awarded for domain specialisation for which an indication could be number of appearances or number of cases handled. Their performance appraisal will eventually prove the efficacy of certification. Based on performance appraisal, these provisional judges can be made permanent. Expecting efficiency and quality without accountability is at best an illusion. Performance appraisals should be transparent and be available in public domain.
Prashant Narang is an advocate leading iJustice – a public interest law initiative of Centre for Civil Society, New Delhi.
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