By Shruti Appalla
The Supreme Court bench of CJI J S Khehar, Justices A K Goel and A M Khanwilkar, expressed their support for an All India Common Test for selection of judges to the lower judiciary this Friday. The bench said,“We are trying to do a service to the nation. The nation needs such mechanism. No progress can be made in the country if the judiciary is not efficient. No foreign investors would invest in the country if the judiciary is not efficient. We must put our best foot forward.”
Organisation of the Indian Judiciary
As per the Indian Constitution, there is no federal distribution of judicial powers. Instead, there is a single, integrated and hierarchical system at the head of which is the Supreme Court of India. Under the Supreme Court are the High Courts of different states. Smaller courts which are referred to as the ‘subordinate courts’ come below the High Courts. The organisation of the subordinate courts varies from state to state. However, the organisation in most states includes district judges, judges of the City Civil Courts, Metropolitan Magistrates, and members of the judicial service of the state.
Civil courts are headed by subordinate judges who possess unlimited pecuniary jurisdiction over civil suits and hear first appeals from the judgments of Munsiff Courts. The district judge, on the other hand, possesses unlimited jurisdiction in both civil and criminal cases. On certain occasions, a subordinate judge is vested with the powers of an assistant sessions judge. Under such circumstances, a subordinate judge has both civil and criminal powers akin to that of a district judge.
Issues with the appointment of judges
Currently, the High Court has to be consulted by the Governor regarding all appointments—postings and promotions of district judges and other personnel of the judicial service of the state. This system has constantly faced charges of nepotism, favouritism, and corruption. Coupled with the tardiness of the state and central government to accept most suggested appointments, these challenges have only led to more pendency of cases in the lower courts.
The total sanctioned strength of judicial officers in the district and subordinate courts is 21,320 as of June 30, 2016. Of these, 16,383 have been filled and 4,937 have been left vacant. The number of cases left pending for over 10 years totals up to 22,63,487. There is an urgent need to appoint judges to fill these vacancies and resume proceedings.
The need for a centralised test
The call for a centralised mechanism to appoint judges is a part of a larger debate surrounding the creation All India Judicial Services (AIJS). In the case, All India Judges Asson. V. The Union of India, AIR 1992 S.C.165, the Supreme Court issued a direction to the Union and the states to constitute AIJS and to bring uniformity in the appointment of officers, both in criminal and civil courts. Concrete steps in this direction are yet to be taken by the government.
Although the idea of creating AIJS was suggested in 1960, detractors in state governments and high courts have stalled it on allegations of violation of the Indian Judiciary’s federal structure. To allay such concerns, under the AIJS, the centralised test allows the creation of a merit list from which states can appoint judges according to their norms and reservations. This will simultaneously maintain a sense of transparency in the process.
The test is said to follow the same pattern as NEET (National Eligibility cum Entrance Test). States like Jharkhand have vigorously supported this move, while the Calcutta High Court has repeatedly challenged it. However, if implemented, the All India Common Test would act as an important judicial reform.
Featured Image Source: Flickr