Moving Beyond the Circuitous and Flawed All-India Judicial Service Debate | The Wire

Op-Eds by Judicial Reforms · February 5, 2019
Author(s): Diksha Sanyal

The Niti Aayog’s proposal to institute an all-India exam to select judges in the lower judiciary and the Narendra Modi government’s resurrection of the All-India Judicial Service (AIJS) debate has once again created a buzz in legal and policy circles. Over the past two weeks, many have criticised the simplistic assumptions on which AIJS is based – that it would reduce vacancy and attract meritorious candidates.

While the debate around the AIJS repeats itself circuitously, what remains clear is that it is unlikely to be instituted any time soon. The proposal for an AIJS has faced significant roadblocks for nearly four decades. In the absence of any consensus on this reform, a far more worthwhile exercise would be to think of how high courts and State Public Service Commissions – the recruiting authorities for the lower judiciary examinations – can institute internal reforms to improve the recruitment process.

Not reforming these internal processes is precisely why public discourse hopelessly and unimaginatively veers back to the AIJS debate. Given that at least nine high courts have explicitly rejected the idea of an AIJS, it would be a good idea for them to step up and institute reforms internally. This would demonstrate commitment towards ensuring efficient recruitment.

A recent study conducted by the Vidhi Centre for Legal Policy, titled ‘Discretion and Delay: Challenges in Becoming a District and Civil Judge‘ analyses all state judicial service rules and qualitatively evaluates them on the grounds of efficiency, accountability and transparency.

These rules, which govern recruitment in the lower judiciary, are framed under Articles 233 and 234 of the constitution, read with article 309, which vests all powers of recruitment and appointment with the State Public Service Commission and high courts.

The AIJS debate resurrects itself every now and then precisely because little attention is paid to how judicial service rules can be amended or improved. In this regard, there are several issues that need to be tackled.

Lack of clearly designated authorities

The high court is responsible for conducting the examination for the direct entry of district judges whereas for civil judge (junior division) posts, the responsibility of hiring suitable candidates is jointly held by the high court and the State Public Service Commission.

A study of the various state judicial service rules revealed that apart from identifying a recruiting authority, most rules do not mention who within these bodies are responsible for conducting the examination along with their specific roles and responsibilities. This results in a lack of accountability in the entire examination process.

While most high courts may have a full-time designated committee conducting recruitment, the composition, tenure and functions of such committee members are never clearly specified in the rules.

Instead, these decisions are left to the discretion of the Chief Justice. Moreover, these duties are held only temporarily by individuals and is subject to frequent rotation. There is no binding requirement of having a full-time, dedicated staff responsible for conducting the examination.

Ad-hoc procedures

While interviewing candidates for our report, we noted that the uncertainty associated with such examinations is another challenge. Many states do not conduct recruitment drives yearly. Further, only five states mentioned the frequency with which examinations should be held for the civil judge (junior division) cadre. Often, candidates are left waiting for the announcement of the judicial service examinations and cannot plan adequately in advance. The system thus is currently quite ad-hoc.

Recruiting authorities also do not release an ‘annual calendar’ in the beginning of the year detailing the timeline for the examination, which would help candidates plan ahead. The Union Public Service Commission, which conducts examinations for the civil services, publishes such a calendar every year.

This calendar informs candidates of the dates of the various examinations at the very beginning of the year. This brings in a degree of certainty and streamlining of the examination procedure since candidates know how to devote their time to preparation.

No provision for grievance redressal

One major failing of the judicial service examinations is the fact that it does not have an in-built mechanism for grievance redressal. As a result, many avoidable issues such as problems with question papers and eligibility criteria get frequently challenged in high courts.

None of the state judicial service rules have any provision on re-evaluation of answer-scripts. Thus candidates, who want their papers re-evaluated, have to file Right to Information applications. If their requests are rejected for some reason, they have to litigate the matter in the high court.

Arguably, candidates should not have to approach the high court for demanding their answer-scripts for the purposes of re-evaluation as this only leads to unnecessary litigation. This has the potential of delaying of the entire examination schedule. The lack of both re-evaluation provisions and an associated application procedure for obtaining the necessary answer scripts, has a negative implication on the transparency of such a process.

Establishing a grievance redressal body under these rules, along with a set-established procedure and timeline for responding to such requests, could easily take care of such concerns and reduce the discretion exercised by the recruiting authorities in this regard.

The need of the hour therefore, is to shift focus away from the AIJS and instead debate how the judiciary and State Public Service Commissions can reform their recruitment process to tackle these issues. The lack of clearly designated authorities and grievance redressal mechanisms along with ad-hoc procedures results in the creation of a system of appointment where unregulated discretion operates

Diksha Sanyal is a Research Fellow at the Vidhi Centre for Legal Policy where she works on Judicial Reforms in India.

Originally Published – https://thewire.in/law/all-india-judicial-service-debate


About Diksha Sanyal:

Diksha is a Research Fellow at Vidhi and is engaged with the Justice, Access, and Lowering Delays in India (JALDI) Project. She graduated from NUJS in 2016 and thereafter worked as a litigator and researcher at the Centre for Law and Policy Research, Bangalore. At Bangalore she was involved in constitutional litigation and lawyering in the public interest on issues pertaining to disability rights, the right to education and health, among others. She is interested in feminist and queer jurisprudence, adjudication of socio-economic rights and constitutional theory.