AN IJS IS AN IDEA WHOSE TIME HAS COME

THE CONTEXT: A fire broke out at the official residence of a Delhi High Court Judge, leading the fire brigade to reportedly discover half-burnt currency notes. An internal inquiry was ordered by the Chief Justice of India. The judge in question was repatriated to his parent High Court, but no criminal investigation or FIR seems to have followed—raising concerns regarding differential treatment.

BACKGROUND AND RECENT CONTROVERSIES

The Discovery of Half-Burnt Currency

• • Incident: A fire broke out at the official residence of a Delhi High Court Judge, leading the fire brigade to reportedly discover half-burnt currency notes.
  • Response: An internal inquiry was ordered by the Chief Justice of India. The judge in question was repatriated to his parent High Court, but no criminal investigation or FIR seems to have followed—raising concerns regarding differential treatment.

Question of Judicial Accountability

• • Past Precedents: The case of a former Chief Justice of India who initially included himself on the committee probing a sexual harassment complaint shows the pitfalls when the judiciary solely investigates its own.
  • Potential Impact: These controversies reinforce perceptions that, at times, judicial officers may face less scrutiny than other public servants, thereby challenging the principle of “equality before the law.”

Lokpal vs. Judiciary

• • Issue: The Supreme Court took suo motu notice of the Lokpal’s attempt to take cognisance of a corruption complaint against a High Court Judge. The Court observed that the Lokpal Act does not extend to judges, and the matter is sub judice.
  • Implication: This reaffirms the ongoing debate about whether external bodies like the Lokpal should have jurisdiction over judges, in line with judicial independence on the one hand and accountability on the other.

Controversial Judicial Orders

• • Case: A High Court Judge’s ruling that acts such as “grabbing body parts” and “breaking strings of a minor’s pyjama” did not amount to rape or attempt to rape.
  • Reversal: The Supreme Court stayed this order, citing a “total lack of sensitivity,” showcasing the higher judiciary’s role in course-correction but also underscoring possible lapses in judicial reasoning at certain levels.

EXISTING JUDICIAL APPOINTMENTS MECHANISM: COLLEGIUM SYSTEM

Structure of the Collegium

• • Composition: Comprises the Chief Justice of India and a select number of senior Supreme Court judges.
  • Criticism:
    • Opacity: Decisions are taken behind closed doors, with limited transparency.
    • Judicial Dynasties: Concerns about nepotism or favoritism, with certain legal families dominating.
    • Merit vs. Connections: Allegations that some appointments may not be purely merit-based.

The National Judicial Appointments Commission (NJAC) Debate

• • Background: Parliament enacted the NJAC Act, ratified by multiple State Assemblies, to replace the Collegium with a broader commission.
  • Judicial Review: The Supreme Court struck it down, holding it as unconstitutional. Critics argue that the Court might have overly restricted Parliament’s will rather than trying to harmonize the legislation with constitutional provisions.
  • Current Status: With no alternative system in place, the Collegium persists despite widespread calls for reform.

THE RATIONALE FOR AN INDIAN JUDICIAL SERVICE (IJS)

Transparent and Merit-Based Selection

• • UPSC Model: Patterned after the Indian Administrative Service (IAS), the Indian Foreign Service (IFS), and other Central Services. A central, competitive, and open exam for judicial aspirants would help ensure a broader and more competent pool of candidates.
  • Public Confidence: A transparent recruitment process is likely to enhance the credibility of the higher judiciary.

Greater Inclusivity and Diversity

• • Current Scenario: The higher judiciary has been criticized for being non-representative, with limited inclusion of marginalized communities and women.
  • Possible Outcome: A pan-India exam would allow aspirants from diverse regions, social backgrounds, and educational institutions to compete on equal footing, thereby enriching the judiciary’s perspectives.

Training and Oversight Mechanisms

• • Systematic Training: Like other All India Services, recruits could undergo rigorous legal training under a standardized curriculum before assuming higher judicial responsibilities.
  • Integrity Checks: A transparent background verification and periodic performance appraisals could be built in. An external or neutral oversight body—subject to judicial guidance—could help ensure that issues of misconduct or corruption are addressed.

Reducing Overreach and Executive Interference

• • Autonomy: If placed under the UPSC framework with clearly set rules (in consultation with the Supreme Court), the executive’s role in appointments could be minimized. This fortifies the principle of judicial independence while ensuring accountability.

POTENTIAL CHALLENGES AND CRITICISMS OF THE IJS PROPOSAL

1. Federal Concerns: Some states might view the centralization of judicial appointments as an encroachment on their powers, similar to the debate around other All India Services.

2. Transition Issues: Existing High Court judges are currently sourced largely from the Bar or State Judicial Services. Integrating a new cadre may create transitional friction.

3. Judicial Independence: Skeptics worry about the “civil services model” possibly diluting judicial independence—especially if administrative procedures overshadow fundamental judicial values.

4. Entrenched Interests: The Collegium system has strong defenders within the judiciary who may resist radical reforms that could reduce discretionary powers.

THE WAY FORWARD:

TRANSPARENT COLLEGIUM 2.0: INSTITUTIONALIZING OPENNESS AND CRITERIA

• • Public Disclosure of Collegium Criteria: Amend the current practice by requiring the Supreme Court and High Courts to publish clear eligibility benchmarks (e.g., judicial experience, integrity checks, disposal rates, domain expertise) for selection to higher judiciary.
  • Enhanced Credibility: A well-documented selection rubric can limit allegations of nepotism (“judicial dynasties”).
  • United Kingdom’s Judicial Appointments Commission publishes annual selection parameters, allowing for public scrutiny. Canada uses open calls and objective criteria to appoint judges, thereby boosting citizen confidence.

ALL-INDIA JUDICIAL SERVICE (IJS): MERIT-BASED RECRUITMENT AT SENIOR LEVELS

• • Centralized Examination & Selection: A rigorous, UPSC-conducted exam and interview process for higher judiciary positions (akin to the IAS/IPS model), followed by structured training.

• • The concept of an All-India Judicial Service has been floated as far back as the Law Commission in its various reports, and more recently in debates following the NJAC judgment (2015).
  • Efficiency & Uniform Standards: Common training modules can ensure consistent judicial ethics, legal interpretation, and administrative capacity across states.
  • Expert Views: Former Chief Justice M.N. Venkatachaliah has advocated an IJS to ensure pan-Indian standards in delivering justice.

INDEPENDENT JUDICIAL OVERSIGHT & ACCOUNTABILITY COMMISSION

• • Hybrid Commission: A statutory body comprising retired judges, eminent jurists, and laypersons (similar to the concept of “Lay Magistrates” in some jurisdictions) to investigate complaints against judges at High Court and Supreme Court levels.

• • The Judicial Standards and Accountability Bill (2012)—though lapsed—had suggested mechanisms for oversight. This remains an untapped legislative blueprint.
  • Veeraswami Case (1991) highlighted the need for an independent process to deal with allegations against judges. Current procedures are largely in-house and can appear self-serving.
  • Lokpal vs. Judiciary Debate: The Supreme Court’s ongoing stance that Lokpal does not have jurisdiction over judges could be reconciled by creating a specialized, judicially supervised accountability commission.

ROBUST TRAINING AND ORIENTATION IN JUDICIAL ETHICS & SENSITIVITY

Key Proposal

• • Mandatory Judicial Education: Introduce periodic, structured training at judicial academies (e.g., National Judicial Academy) focusing on:
    • Gender Sensitization
    • Child Rights & POCSO Act Interpretation
    • Social Justice & Constitutional Morality
    • The Justice J.S. Verma Committee (2013) recommended frequent refresher programs for judicial officers to handle sexual crimes sensitively.

• • In the United States, many states mandate continuing legal education (CLE) credits, including specialized “cultural competency” and “victim sensitivity” modules for judges.

STREAMLINED, INDEPENDENT INVESTIGATIONS INTO JUDICIAL CORRUPTION

• • Dedicated Investigative Cell: A specialized wing—independent of police or CBI—empowered to probe allegations of corruption against High Court and Supreme Court judges (with safeguards to prevent frivolous complaints).
  • Past incidents (e.g., the P. D. Dinakaran case) show that credible probes can be stymied by procedural loopholes.

• • Uniform Standards of Accountability: Judges, like other public servants, are not above the law; swift investigation sends a clear deterrent signal.
  • Reducing Misuse & Bias: A separate prosecutorial arm—overseen by the proposed Judicial Oversight Commission—ensures neutrality and timely resolution.

THE CONCLUSION:

Balancing Independence and Accountability in the Indian judiciary requires a multi-pronged strategy. From evolving the Collegium into a more transparent Collegium 2.0, to establishing an Indian Judicial Service, and setting up robust oversight mechanisms, each reform is interlinked. Continuous training, specialized corruption probes, and harnessing civil society and technology collectively aim to restore and elevate the credibility of the higher judiciary in the world’s largest democracy.

UPSC PAST YEAR QUESTION:

Q. Constitutionally guaranteed judicial independence is a prerequisite of democracy. Comment. 2023

MAINS PRACTICE QUESTION:

Q. “The judiciary’s independence is crucial for the rule of law, yet recent controversies and allegations have raised concerns about the effectiveness and transparency of the current judicial appointments system in India. Analyze the Collegium system and evaluate the proposal for creating an Indian Judicial Service (IJS).

SOURCE:

https://www.thehindu.com/opinion/op-ed/an-ijs-is-an-idea-whose-time-has-come/article69394131.ece

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