Will the quality of justice improve by the creation of National Judicial Service?

National Judicial Service has been one of the most political-legal contentious issues in the judicial history of India. The debate has continued for years. On one hand the law ministry and the legislature intends to introduce the National Judicial Service in the country where as on the other hand the judiciary intends to postpone the same.

Why do judges oppose the commission of All India Judicial Service?

There are four basic ways of judicial appointments:-

1. By political institutions (Partially practiced in Italy and South Korea)

2. By judges themselves (Japan, Iraq and India)

3. By non-judge members (Brazil and Most American States)

4. Through Election (Some American States like Washington)

Presently in India, the appointment of district judges is done by the governor on consultation with High Court Judges by the purview Article 233(1) of the Indian Constitution. The Chief Justice of a High Court is consulted by the President before the appointment of any High Court Judge. These appointments are highly politicized and partial in many respects. The lower judiciary is under the dominance and control of the High Court. The district judges have to please the Chief Justice for their promotion as a High Court Judge. The commencement of Indian Judicial Service would surely decrease the power of High Court judges with reference to appointment and recruitment of judges.

When did it start?

The clause related to All India Judicial Service was incorporated in Article 312 (which deals with ALL INDIA SERVICES) by the 42nd Amendment, 1976. The clause specifically provides that Parliament in national interest may create judicial service for one or more states on request of the council of states. The provision clearly states that any post subordinate to district judge would not be included in the All India Judicial Service.

The creation of National Judicial Service is objected on three grounds:-

1.  Impairment of Independence of Judiciary

2.  Lack of regional language proficiency would affect the delivery of justice.

3.  It would be deterrent to the interest of those who have already entered the service.

All the three contentions do not hold water. Appointments and recruitment would not affect the independence of judiciary rather it would ensure the autonomy of lower judiciary. Secondly, it is suggested that the issue of inadequate language knowledge can be easily addressed with proper allotment of states or study of multiple languages can be included as a part of judge-training. Lastly, since it is suggested that only 25% of judges in each state would be drawn from the All-India cadre; the same would not be detrimental to those already in service.

National Judicial System vis-a-vis Civil Services

The judiciary is not considered a lucrative career by most of the lawyers. The profession fails to attract a large number of competent lawyers. This adversely affects the quality of justice in the courts, which further results in delay of justice. In 2009 there were about 53,000 cases pending in SC, 40 lakh with High Courts and about 2.7 Crore in lower courts. The two main reasons for this high pendency of cases are High vacancy in courts and low judges-to-population ratio.  In India the current judge-population ratio is 12.5 per million people where as in U.S. it is 114 per million. Presently 23% of sanctioned strength of the Supreme Court, 26% High Courts and 18% of Lower Courts is vacant.

Each year about 200,000 youngsters compete through an examination to enter services like I.A.S or I.P.S. The candidates are selected on merits and competency for a rigorous training of two years. If a similar system is also incorporated in the judicial services, well-qualified and competent lawyers could be attracted to the posts of judges. It would not only increase the judge-population ratio but would also improve the quality of justice.

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Are We in The Wrong Hands? Credibility of Indian Judiciary on Sale

In India we have Separation of Powers in a check and balance form. The three organs of the government i.e. the executive, the judiciary and the legislature have the responsibility to keep a check on the functions of the other.

Independence of Judiciary is an important feature to maintain rule of law and constitutionalism in the country. It is necessary that the judiciary is free from every political obligations. The independence of judiciary is granted by the constitution to protect the rights of the citizens, but unfortunately nowadays it is protecting the rights of the judges.

There are various instances in which the judges have taken bribery, misappropriated cases or favoured the executive in order to secure high posts in commissions after their retirement. Judges like Late Justice Sinha who had the courage to treat Mrs Indira Gandhi as a normal accused are rare to find these days. He sacrificed all his political prospects for proper justice.

But today the hard reality is that not all but most of the judges are either corrupt or disinterested in the judicial process. One of the practicing Supreme Court Lawyers told me that either the judges sleep or the inquire. He was right in all sense. India has had many landmark judgments, some of them have made us proud some haven’t. Some have ensured that the principles of equity are upheld no matter how dangerous it proves to the executive, and some of them have favoured the government in every circumstance.

The judicial trial enjoys special privilege, so criticism with caution is required. But why? In a democratic country like India we should be allowed to criticize any decision of the  judiciary as we can criticize the act of the legislature.  Why is there a need to grant them a special privilege. Moreover if there is a constant fear of criticism the judges would be more accountable to the public. If a person is not satisfied with the process, he must not be forced to remain silent in order to maintain the dignity of the court.

The Indian Judiciary has been given powers to protect the rights of the individuals. These powers are not given to them to exercise it in their own interests. I agree the Indian Judiciary had eminent judges like Baghwati CJ, Hidyatullah CJ and Sinha J who have made the nation proud time and again. But it is also a reality that Judges like Dinakaran have also served the Indian Judiciary.

When the Chief Justice of Karnataka High Court Mr Dinakaran charged of allegations like acts of corruption and acquisition of disproportionate wealth and helping the mining mafia of the Reddy brothers to continue with rampant illegal mining. He came out with the excuse that because he is a Dalit Christian he is being targeted. But I’m sure if asked few questions his answer might be different. Like Why aren’t other dalit judges being the targeted? or Have these people deliberately enhanced the assets owned by you? and If such injustice was being done to you being a judge why didn’t you raise your voice earlier?

It is absurd that a judge of the stature is talking the defence of the social milieu to get rid of his loathsome acts. The charges against him are very serious and if proven true he should not only be impeached but should also be punished.

The motion, prepared by advocate Vaigai of Forum for Judicial Accountability, under Article 217 of the Constitution read with Article 124 (4) of the Constitution says: “This House resolves that an address be presented to the President for the removal of Mr. Justice Paul Daniel Dinakaran, also known as Mr. Justice Paul Daniel Dinakaran Premkumar, from the office of Chief Justice of the Karnataka High Court for his following acts of misbehaviour, viz., possessing wealth disproportionate to known sources of income; unlawfully securing five Housing Board plots, in favour of his wife and two daughters; entering into Benami transactions prohibited and punishable under the Benami Transactions (Prohibition) Act, 1988; acquiring and possessing agricultural holdings beyond ceiling limit under the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961; illegal encroachment on Government and public property to deprive Dalits and the poor of their right to livelihood; violation of the human rights of Dalits and the poor; destruction of evidence during official enquiry; obstructing public servant on duty.”

It is shameful for the judiciary that Karnataka’s Chief  Justice might be impeached on the grounds mentioned above. Even if the charges are false, how can we expect a normal person to have trust in judiciary when the  Campaign for Judicial Accountability and Reform (CJAR) and Forum for Judicial Accountability (FJA) themselves are doubtful about the conduct of judges. This instance has shaken the faith of people in judiciary. And it is unfortunate that even if the charges are proved, and it is somehow established that Mr Dinakaran took bribery in some cases, the victims would still be remedy less.

Thus those who know that injustice was done to them would now know that it was not done by mistake of interpretation but by a deliberative motive. Their position would remain the same even if the reality is known to everyone. The good thing is that the prospective judgments would yield injustice only because of mistakes of judgement and not premeditated acts of injustice.

It is ironical that the world justice is attached to Chief Justice of any High Court and Supreme Court of the country, it is not that linguistics were short of vocabulary but it was because they wanted to associate notions of justice with the judge who had the highest accountability and responsibility in delivering a judgment.

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