Plea In SC Seeks Establishment Of Central Selection Mechanism For Appointments In Subordinate Judiciary [Read Petition]

The plea filed by BJP leader Ashwini Kumar Upadhyay states that there is an unease and disquiet about competence and commitment to public service of several judges, particularly in subordinate judiciary. Hence, immediate reforms are necessary to protect public esteem of the judiciary.

He submitted that the idea of constituting Indian Judicial Services, similar to other civil recruitment bodies is not unknown and has been advocated on several occasions.

"Law Commission has thrice - in its 1st, 8th and 116th Report called for IJS. Parliamentary Standing Committee in its 64th Report on Law and Justice recommended to establish IJS. The first National Judicial Pay Commission and National Advisory Council to the Union Government have endorsed IJS. On 25.10.2009, Union Government presented a Resolution in this regard. The Apex Court has also endorsed creation of IJS. [AIJA vs UOI, AIR 1992 SC 165: (1993) 4 SCC 288; (1997) 8 SCC 520; AIR 1999 SC 1555]. Over and above, Article 312 explicitly provides for creation of IJS. However, in spite of all these, Government gives lame excuses and sleeping over the matter," he said.

He stressed that CSM is not only necessary to secure fair trial and speedy justice but is also important to enhance transparency.

"Uniformity and transparency in the selection process will definitely improve the quality of judges. CSM will ensure fair transparent and credible selection process. It will attract the best prospective Advocates to judiciary, who otherwise prefer employment in corporate sector. Comprehensive training in National Judicial Academy would not only ensure uniform service conditions besides providing them wider field to prove their mettle but also secure fair trial and speedy justice in spirit of the Article 21," the plea read.

He said that CSM was crucial to erode the public perception of nepotism in appointment of judges in High Courts.

"It is necessary to end "Uncle Judge Syndrome" by transferring the Judges whose blood relatives are practicing in the very same Court. Judges should not be posted in the same High Court where they have practiced. It will not only enhance the credibility of judiciary but also instill confidence among public at large and particularly among Advocates."

Stating that the Collegium system lacks objectivity and transparency, he suggested that the Chief Justice of respective High Court in 'Full Court Meeting' should recommend the names of prospective Advocates and Hon'ble Chief Justice of India should approve the names in 'Full Court Meeting'.

"Presently Chief Justices of the High Court's with help of two senior-most Judges, recommends the name of prospective Advocates and Hon'ble Chief Justice of India with four senior-most Judges take the final decision. But, there is no system of advertisements eliciting applications for the post of judges. Petitioner suggests that the Chief Justice of respective High Court in 'Full Court Meeting' should recommend the names of prospective Advocates and Hon'ble Chief Justice of India should approve the names in 'Full Court Meeting'. It will instill confidence among lawyers and public at large," he said.

He continued that Advocate-on-Record exam should be conducted at national level and only prospective Advocate-on-Record should be recommended for judgeship by Full Court Meeting of the High Court and approved by Full Court meeting of the Apex Court.

The Petitioner went on to give certain suggestions with regard to the procedure to be followed by CSM as follows:

• CSM should constitute in cadre of District Judge;
• Selection should be done at all India level;
• Qualification should be in conformity of Article 233(2), minimum 7 years practice as an Advocate;
• Service Judges should be allowed to compete;
• 50% of District Judges should be earmarked for CSM;
• Age limit should be between 30-40 years;
• Procedure for selection should be written examination followed by viva;
• Appointment: CSM, after selecting candidates for recruitment to the cadre of District Judges, allocate to the States/UTs, the candidates equal to the vacancies that are surrendered by them. The respective High Court thereupon will recommend those names to Governor for appointment as per Article 233;
• Training: three years training after appointment;
• Seniority: All India Seniority as per ranking in select list;
• Inter-se Seniority in State/UT: The inter-se seniority between direct recruits and promotees must be determined according to the date of allotment and date of promotion;
• Such direct recruits should be annexed to the respective State Judicial Service within three-tier system;
• Court Language: Recording of deposition should be in two languages (a) State language (to be recorded by the Court Officer); and (b) English (by the Presiding Officer).

Apart from the above, the Petitioner stressed on the need for creation of a Judicial Ombudsman; audio / video-recording of proceedings of the Courts; enhancing retirement age of the High Courts and Apex Court Judges; etc.

He pointed out that judges in India were bearing enormous burden, with per capita judges being very low.

"There are only about 11 judges in India per million populations, which is among the lowest ratios in the world. In contrast, the OECD countries have 115 judges per million population on an average," he said.

The petition has been drawn by AOR Ashwani Kumar Dubey and is likely to be taken up on Monday.

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