A centralised test for India’s lower judiciary has inherent weaknesses: It promotes elitism and adversely affects diversity. Even in the US, it has been found that mostly rich, white and children of politically powerful families make to the common tests.
The Centre recently suggested to the Supreme Court an examination on the lines of the National-Eligibility-cum-Entrance Test (NEET) for medical courses to select judicial officers at lower courts, a plan supported by Chief Justice JS Khehar who had said the new system would ensure quick appointment of competent judges necessary for an effective judiciary. But nine high courts have objected to a plan for such a country-wide exam for recruitment to lower judiciary.
India has over 620 district courts and the appointments to the state judicial services below the rank of district judge are made by the governor in consultation with the State Public Service Commission and the high court. Not many would know but HCs are independent of administrative control of the SC.
Of the three crore million pending court cases (more than the population of Australia), over 80% of these cases are in the district and subordinate courts. On an average, 1,350 cases are pending with each judge, who clears 43 cases per month. The highest workload with 2,500 cases per judge is in Uttar Pradesh. Based on the 2011 census, the judge to population ratio is about 17.72 judges per 10 lakh people. This is seven times worse than the US. Both the SC and law commission (120th Report) have recommended that the strength of judges per million should be 50. The three-fold increase in the sanctioned strength looks like a distant dream when one looks at the vacancies and infrastructure. There are approximately 5,000 vacancies in the subordinate judiciary, which has a sanctioned strength of 21,000 positions.
Besides the NEET model, the Centre also suggested few other options: Holding a “centralised examination” by a “recruitment body” under the supervision of the SC or handing over of selection process to the UPSC, which will conduct the examination in consultation with the HCs or adoption of banking services recruitment model.
The SC bench had dispelled apprehensions of the states and HCs that such a test would impinge on the federal structure as their role in appointments of lower judiciary would be taken away by a central agency. The court assured them that they are not introducing all-India judicial services. It said the national test would prepare a merit list of successful candidates and the state would be allowed to appoint judges as per their rules and reservation policies.
Strangely the SC justified a centralised test in the name of foreign investment and observed that “we are trying to do a service to the nation. No progress can be made in the country if the judiciary is not efficient. No foreign investor would invest in the country if the judiciary is not efficient.” New selection process was also justified by the court in the name of uniformity and to curb the instances of nepotism and favoritism. Everyone knows that allegations of ‘uncle syndrome’ are more common about the appointments in the HCs and elevations to the Supreme Court under the collegiums system.
But a centralised test has inherent weaknesses: It promotes elitism and adversely affects diversity. Even in the US, it has been found that mostly rich, white and children of politically powerful families make to the common tests. Our judiciary already has poor representation of women, Dalits, minorities and candidates coming from rural background.
To say that NEET has been fully successful is premature. There have been allegations of paper leaks. Getting the test translated into various languages has been problematic. Testing proficiency in the local languages and knowledge of diverse local laws in one test will also be a Herculean task. Moreover unlike 100% multiple choice type questions in NEET, a national test for judicial services need to include descriptive-type questions.
If at all such a central test is to be introduced, national law universities are better equipped to conduct it.