Creating a National Judicial Services cadre, as prime minister Narendra Modi suggested at the golden jubilee celebrations of the Delhi High Court, is something that has been recommended by others as well. The Law Commission pitched for this in its 116th report and even the Constitution (Fourty-second Amendment) Act 1976 inserted an “all-India judicial services” provision into Article 312 that lays down the legal ground for creation of All-India Services. An all-India judicial service will create a cadre of judges who can be appointed at the districts courts level across the country.
Given the strength of the judiciary in subordinate courts is over a fifth short of the total number of the sanctioned posts, such a move is likely to help ease pendency. And, as they get promoted to higher courts, it will also help address the uncle-judge problem since appointments from a national cadre will lessen the nepotism that is characteristic of the current selection-based elevation. Of course, given the stand-off between the SC and the government, the chances of an early decision on the National Judicial Services issue seem slim.
That apart, the prime minister’s suggestion that the National Judicial Services could also be a way to bring Dalits into the judiciary was decidedly odd. Given elections in Uttar Pradesh are due next year, and given its sizeable Dalit population, the statement appears as if it is aimed at addressing a vote-bank. This is unfortunate not only because a decision of such import shouldn’t be taken on a vote-bank consideration, but also because instead of moving away from reservations, we seem to be embracing them all the more closely with the political class seeking to bypass even the 49% ceiling.
To be sure, there are reserved category positions at the subordinate judiciary level under the state-specific judicial services exam. But the vacancies in the courts cut indiscriminately across categories—for instance, in Delhi, the notification for the 2015 Delhi Judicial Services Exam advertised 100 posts, with 68 vacancies listed under the General category (41 of which were backlog vacancies), 12 listed under the SC category (7 backlog vacancies) and 20 listed under the ST category (17 backlog vacancies).
Perhaps the strongest argument against creating any further route for reservation in the judiciary comes, ironically, from a report of the National Commission for Scheduled Castes on reservation in the judiciary—it argues for reservation in the judiciary saying reserved seats in premier legal education institutions like the National Law Schools creates a pool of competent legal professionals who can enter the judiciary. It seems completely oblivious to the contradiction that such an eligible pool of professionals wouldn’t need reservation in the first place.