Subordinate judiciary to take driver's seat

The recent revelations made by Justice Katju once again have brought the issue of appointments concerning the higher judiciary  of the country. It is time that the which issue directions and orders to others in a bid to promote accountability and transparency apply the medicine to itself. Every time a controversy relating to the higher judiciary comes up, a debate on the effectiveness of the present collegium system and whether it should be replaced by the judicial appointment commission, is sparked off. Retd justices of various high courts, supreme courts, senior advocates and distinguished jurists of the country would have a debate and within days the matter dies down, as we all know public memory is short lived. Also, we should have realised way back that the collegiums system has outlived its time. We would also make a departure from the ages old of the British practise that the higher judiciary must only be from the bar.

The need of the hour is to make a change in order to save the reputation of the judiciary in the eyes of people. to find a solution which not only upholds the independence of judiciary but also solves the problem of transparency . But how can this be done? With present collegium system posing a question of transparency and the alternative provided ,that is a Judicial appointment commission, may undermine the independence of judiciary. Setting up an Indian judicial services structure seems to be a long way. The solution to this quagmire is to take a middle path. In a high court 1/3rd i.e. 33.3%of the judges are picked up from the state judicial services while 2/3rd i.e. 66.6% are from the bar of the high court. This provision is not there in the constitution, it is an adaptation of the practises that were followed under the British colonial rule. Now, you maybe wondering why am I mentioning these statistics. Well the solution lies in these stats. If we take the 33% representing the judicial services to 70% or 80% in the high courts, it solves most part of our problem.

1)  The judges from the state services are appointed on basis of merit achieved after taking a competition exam almost similar to the pattern of  civil services examination. Thus, ensuring that a qualified person of high intellect is appointed

2) Their promotions weighs more on their seniority therefore nepotism or any other kind of bias can be ruled out.

3) Independence of judiciary will be preserved as seniority cannot be changed without a substantial reason and political influence can be completely ruled out.

4) Transparency and accountability is also achieved as seniority list of judges is available at all times. But there must exist a collegium comprising of the chief justice and the senior most judges in order to confirm the that candidate, who according to the seniority is to be elevated as high court judge, has maintained impeccable reputation, high standards of integrity and unbiased towards all, throughout his career as judge in the lower court. Also, a magistrate has to take another test before he is promoted to become an Additional sessions judge.

This provision would sift the best and those who are actually capable would come to the fore. Adopting this kind of a model also brings us a few steps close establishing an all India Judicial services. We would also make a departure from the ages old of the british practise that the higher judiciary must only be from the bar.