India needs a judicial corps: All-India cadre can tackle dearth of judges – The Financial Express

Clipped from: https://www.financialexpress.com/opinion/india-needs-a-judicial-corps-all-india-cadre-can-tackle-dearth-of-judges/2362154/

Successive Union governments have failed to enact an appropriate Bill that sets the contours of an AIJS, faced with stiff opposition from states and high courts; while states saw this as enfeebling federalism, high courts felt it would shrink their Constitution-derived remit.

Against the Law Commission prescription of at least 50 judges per 10 lakh population, India currently has 19.Against the Law Commission prescription of at least 50 judges per 10 lakh population, India currently has 19.

Three Law Commission reports—14th (1958), 77th (1978) and 116th (1986)—and at least one Supreme Court judgment (All India Judges’ Association, in 1991) have recommended the creation of an All India Judicial Services (AIJS). Indeed, the 42nd Amendment of the Constitution (1976) inserted the foundation for the creation of AIJS in Article 312.

However, successive Union governments have failed to enact an appropriate Bill that sets the contours of an AIJS, faced with stiff opposition from states and high courts; while states saw this as enfeebling federalism, high courts felt it would shrink their Constitution-derived remit. Against this backdrop, the Union law ministry moving to generate consensus once again is praise-worthy.

If the Centre succeeds, it will attract young legal talent because of the prestige that would be associated with the service. Getting a large enough talent pool to populate the lower courts has long been a problem for India, more so given the career progression of members of the lower judiciary. It has been apparent for quite some time that very few judges rise from the lower courts to enter high courts as judges and, thereon, the Supreme Court; just a handful of the 200-odd Supreme Court judges since Independence have had lower courts experience.

Indeed, most lower court judges entering the judiciary through the judicial services examinations conducted by states are a few years from retirement by the time they become district judges and can be considered eligible for appointment to the higher judiciary cadres.

This has discouraged talented legal graduates from joining the judiciary at the lower level, who instead hitch their prospects to career growth in the judiciary through direct appointment from the Bar. This is despite the judicial mandate for 75% of the district judge posts being filled through the regular and accelerated promotion routes vis-a-vis 25% earmarked for direct recruitment from the Bar—of course, because the Bar route ensures faster and surer career progression than the promotion route.

A 2020 ruling of the Supreme Court that debars members of the lower judiciary from seeking appointment as district judges through direct appointment has made this entrenched. Consequently, there is a dearth of talent in the lower judiciary; at present, there are 2,255 vacancies at the civil judge (junior division) level, 1,280 at the civil judge (senior division) level, and 1,612 at the district judge level, against the sanctioned 10,341, 5,972, and 8,177 posts, respectively.

Given Article 312 makes it clear that the AIJS won’t include any post lower in the judicial hierarchy lower than the post of district judge as defined in Article 236, if the Centre manages to convince the states and the high courts, it could take care of the shortage of judges at least this level. While some believe this could be a disincentive for talent when it comes to filling up vacancies in the courts below the district court level, keeping AIJS open for lower-court members, with liberal/no age limits would ensure some talent flows to these levels.

Against the Law Commission prescription of at least 50 judges per 10 lakh population, India currently has 19. This, among other factors, has had a significant bearing on justice delivery in the country; there are 4.02 crore cases pending in the district and taluka courts, with close to 23% of these cases pending for anywhere between three to 30 years.mail logo

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