SC judge to head oversight panel

The process, he added, will ensure there is no dilution of power of state governments and high courts.

The government’s proposed All India Judicial Services (AIJS), aimed at inducting the best talent from National Law School as judges for the subordinate judiciary, will include an oversight committee, headed by a sitting Supreme Court judge, for the overall supervision of recruitment and posting of selected candidates, law ministry officials said.

The law ministry, in June, wrote to all states seeking their view on AIJS, setting the ball rolling for a central exam for the lower judiciary.(HT File)

The thinking within the ministry is that this should address concerns raised by states and high courts (HC) that have opposed AIJS on the ground that it dilutes their constitutional authority to hire for state judiciary, the officials added.

The law ministry, in June, wrote to all states seeking their view on AIJS, setting the ball rolling for a central exam for the lower judiciary. The government proposes to create the Indian Administrative Service (IAS)-like judicial service and wants to engage the Union Public Services Commission (UPSC) as the agency to conduct the exam.

However, the oversight committee, which is likely to also comprise central government representatives, will finalise the syllabus, set the paper and fix the weightage of the test and interview.

“The recruitment process will be transparent and merit based. The examining body will recommend names of the selected candidates to the respective high courts that will make the final selection once the interview is conducted and then forward the list of successful candidates for their notification to the state government,” one law ministry official said on condition of anonymity.

The process, he added, will ensure there is no dilution of power of state governments and high courts. Currently, states, along with their respective HCs, hold entrance tests for trial court judges. There is no uniform system followed for such recruitment. Each state has its own procedure.

“The judges will not be under any dual authority, as was apprehended by the states and high courts. The centre will have no supervision over the recruitment process but will have a role only if an officer is being sent on deputation or disciplinary action is contemplated against him or her,” said the officer.

AIJS was mooted by the Law Commission of India in 1958 after which it was added to Article 312 of the Constitution by the forty-second amendment in 1976.

AIJS received a green signal from a committee of secretaries, chaired by the cabinet secretary, in November 2012, but 13 states and 18 high courts either opposed AIJS or suggested changes in the proposal.

A bench headed by then Chief Justice of India JS Khehar, in May 2017, set-up a special bench to hear the matter on filling up over 5,000 vacancies in subordinate courts through a central exam. The court mooted the idea of having a common entrance test for the selection of judges. However, the hearing could not be concluded as CJI Khehar retired.

Union minister for law and justice Ravi Shankar Prasad spoke on the contentious subject in Parliament during the Winter Session. He said AIJS was on the pattern of central civil services such as IAS and IPS (Indian Police Service) to “rope in talent in the judiciary”. “As India has IAS, IPS, Indian Revenue Service [IRS] it is high time we must have a proper All India Judicial Service conducted at the national level,” Prasad said in the Upper House during the Question Hour.

The ministry official said another roadblock for the project was the fear that judges would face difficulty in presiding over courts because proceedings are conducted in local language. “Under the proposal , intensive training shall be given to the selected candidates in the local language of the state where the high court is situated,” he said. AIJS will also introduce reservation in judiciary for disadvantaged sections of society.

Experts, however, have reservations over AIJS. Vidhi Centre for Legal Policy, an independent think-tank doing legal research, recently released a primer on AIJS, highlighting the challenges the system is expected to face. It said introduction of a centralised examination will adversely affect the federal structure of judicial administration of recruitment. “States are best suited to select judges qualified to adjudicate matters that arise in unique socio-economic context of every state,” it said.

The primer also flags the challenge judges could face if they do not belong to the state where they get appointed. “The nature of the judicial office however, especially at the level of the District and Subordinate Judiciary is very different since judges are often required to directly deal with litigants, prisoners, lawyers and witnesses in their local languages. The proficiency of judges in the local language, both oral and written, has to be much higher than of a gazetted officer in the IAS or IPS because the cost of a judicial error due to the judge misunderstanding the local language could result in a litigant being deprived of their liberty or property. Thus, the costs of misunderstanding or mistranslation by a judge who lacks native proficiency of the local languages are simply too high,” it added.