‘There are several advantages in having an Indian Judicial Service’
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Over the past few days, social media has been awash with several memes. Of these, there is one that appears to be the best — “For the first time, a fire brigade has ignited more fire than what it extinguished.” The fact is the fire is still raging.
Disturbing incidents
There are no marks for guessing what the incident being referred to is — the recent and shocking discovery by the Delhi fire brigade of half-burnt currency notes while putting out a fire that broke out in the official residence of a Delhi High Court Judge. One hopes that the internal inquiry that has been ordered by the Chief Justice of India will be completed early and its findings made public. The judge in the eye of the storm has been repatriated to his parent High Court. Any other public servant would have faced a first information report followed by an investigation. Many may recall the case of a former CJI who included himself as a member of the inquiry committee that had been constituted to probe a complaint of sexual harassment that had been lodged by a court staff against the CJI. This led to such public outrage that the CJI had to opt out.
Whatever be the resulting convulsions and discomfort in the judicial system, this disturbing episode has drawn attention to an issue which everybody knew but maintained a discreet silence about for various reasons.
That this incident has happened just after two recent developments has not helped matters. In the first instance, the Supreme Court of India took objection to an order passed by the Lokpal taking cognisance of a complaint of corruption against a High Court Judge and referred it to the CJI. The Court has taken suo motu notice of this ‘disturbing’ order, as in its view, the Lokpal has no jurisdiction to act upon complaints against judges. The matter is before the Court.
Irrespective of the final verdict, it has once again sharpened the focus on judicial accountability, raising questions about the effectiveness and the transparency of its internal inquiry mechanism.
The second instance happens to be a repulsive order passed by a High Court Judge wherein the Lordship was of the view that grabbing body parts of a minor girl and ‘breaking the strings of her pyjama’ were not enough to charge an accused with the offence of rape or attempt to rape. Mercifully, this obnoxious order has been stayed by the Supreme Court, due to its “total lack of sensitivity”.
What is the common factor in these three cases that involve High Court Judges? The answer is that all the judges have passed through the existing system of selection by the Collegium of Judges. This is a selection process that has drawn criticism on and off for many years, because of its opaque nature and the stranglehold of a few families over this system. Judicial dynasties sometimes result in the selection of incompetent and mediocre persons.
Have an Indian Judicial Service
All this has also led to the revival of the debate on the National Judicial Appointments Commission (NJAC) Act. This Act was passed by Parliament with the ratification of 16 State Assemblies and had the assent of the President of India in December 2014. But the Supreme Court chose to strike it down, although many were of the view that the Court could have gone in for a judicial review only to decide whether the legislation passed by the Parliament was in conformity with constitutional provisions.
While this debate may go on, a much simpler and immediate solution could be to have an exclusive all India service for senior positions in the judiciary on the pattern of the Union Public Service Commission’s highly competitive, transparent and merit-based selection process for the civil services such as the Indian Administrative Service, the Indian Foreign Service, the Indian Police Service and Indian Revenue Service.
Constituting an ‘Indian Judicial Service’ has been discussed in the past. This may be the right time to discuss its pros and cons and implement a transparent and merit-based system for the selection of judges. When State-level Judicial Service Officers are selected through a competitive examination, why not have the same process at the national level?
Will ensure course correction
There are several advantages in having an Indian Judicial Service. First, it would result in the higher judiciary becoming more inclusive and representative in character. At present, the higher judiciary is an elite club dominated by a few families. Women and the marginalised sections of society are very poorly represented. There is an urgent need to open the doors of the judiciary to meritorious candidates from all parts of India and all walks of life to compete for senior judicial positions.
Second, recruitment may be entrusted to the UPSC by the Supreme Court, stipulating the criteria and the method of selection for the senior judicial positions, in consultation with High Courts and legal luminaries. This process would also insulate the judiciary from any interference of the executive.
Third, a transparent selection process, with details in the public domain, is obviously much better than the closed-door meetings of the Collegium. Post-selection, a comprehensive training programme would ensure that those selected are well versed in the multiple branches of law. The Supreme Court may also evolve a system of oversight to ensure integrity and to initiate disciplinary action against those who lack integrity.
In this writer’s view, this will greatly help in restoring the faith of the people as well as the image of the higher judiciary in the largest parliamentary democracy of the world.
Archana Ramasundaram is a retired Indian Police Service (IPS) officer and a former Member of the Lokpal of India. The views expressed are personal
Published – March 31, 2025 12:08 am IST